Which JURISDICTION is applicable to my timeshare contract?

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Offline jcorrea-lawyer

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Following the thread started by Charlie1 about the Law 42/98 I would like to contribute to this initiative trying to clarify some of the legal points I see that bring controversy. One of them is the Jurisdiction applicable to Timeshare Contracts. I have received lately many questions about which Courts should know about which contracts.

The first thing we should leave crystal clear is that any Timeshare company operating in Spain, with a Club in Spain, has to operate according to the Spanish Law. Law 42/98 reflects this in its Second Additional Provision. The title of this Provision is "Imperative nature of the Law". Its content says, "Any contracts relating to the use of one or more properties situated in Spain for a determined or determinable period of the year shall be subject to this Law, whatever the place and date of signature thereof". The legal issue is that if a “trader” markets weeks of a Club/Resort based in Spain, the applicable Law is the one of Spain, it doesn’t matter if they submit the jurisdiction to other places and it doesn't matter if the contract was signed in Spain or not.

Anyway, if you signed the contract in Spain, with a Spanish company, your case will be easier to defend before a Spanish Court than if you signed it outside Spain with a foreign company. In the second case, the defendant will surely propose a refusal of jurisdiction trying to avoid the applicability of the Spanish legislation.

Should any of you have any questions about this matter please, go ahead, and ask them here. I will try to bring more light on this topic. You can also contact me by filling the form provided in my website. The preliminary advice is always for free.
Bringing legal advice on Timeshare matters throughout Spain.
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Mavo

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #1 on: August 26, 2015, 14:06:33 »
How do you see this possibly applying to points contracts which do not have a determined or determinable period of the year?
 
How do you see the situation where it is being said that there is limited window of opportunity (6 years has been mentioned) in which to contest a contract?

Can judgments in the UK on contested contracts oppose the Spanish rulings and in this event which ruling would hold sway?

 

Offline Athena Law Solicitors

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #2 on: August 26, 2015, 14:33:20 »
Javier

I can see why these jurisdiction clauses could well be ineffective - (a) unfair contractual terms in consumer contract regulations and (b) rights in rem should be dealt with by the country where the properties are situated.

Your comment infers that timeshare companies are running the jurisdiction argument. Is that correct? Have there been any decisions on the point?

Thanks
Stephen Boyd
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Offline pathfinder

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #3 on: August 26, 2015, 16:45:14 »
With all due respect Stephen.
Perhaps Javier as a Spanish language speaker would find it easier if you could  phrase your questions in simpler English as opposed to "lawyer speak".

This would also be easier for us consumers too as this Q and A session was I believe arranged with Javier in order to create a better understanding for consumers of how the law is being interpreted around the many issues that a variety of rulings and case inquests have thrown up.  So it would be beneficial if your questions were posed in lay mans language that we can all more easily get our heads around.
 This is not meant to be confrontational in any way but is a suggestion as to how best to utilise this valuable initiative.

Offline Athena Law Solicitors

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #4 on: August 26, 2015, 17:17:37 »
Agreed. Force of habit.

I can see why the Spanish Courts could deal with contracting parties that are not Spanish, if the agreement relates to property in Spain. it is common ground that the contracts specify alternative jurisdictions/choice of law. Where there is an argument there is scope for litigation. It may the case that the issue is settled in Spain, and I am merely asking whether the point is being taken by Defendants and if so how the courts over there are dealing with the issue.

Stephen Boyd
Athena Law
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Offline Boss Man

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #5 on: August 27, 2015, 07:48:35 »
At the end of the day, it is impossible to generalise, it depends on the facts of the individual case.

Offline lawnmower60

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #6 on: August 27, 2015, 07:58:42 »
Can you tell me what places does Spanish jurisdiction cover I know it covers Spains Mainland plus Canaries and Balearic islands are there any other places covered by Spanish law
Brian

Offline Boss Man

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #7 on: August 27, 2015, 08:04:16 »
The Spanish enclaves of Melilla and Ceuta in North Africa.

Offline charlie1

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #8 on: August 27, 2015, 12:29:11 »
I welcome Javiers support to try to clarify this new ruling and even though there may be some gray areas and we understand that some areas can not be explained 100%, as cases get approved and more rulings come out than Javier is best placed upon this forum to update us. The consumer needs as much clarity as there is available at this moment in time. If they want personal specifics I note that Javier has mentioned that he has a form available on his website to complete and there is no charge.

At the moment we have to do all we can to ensure that the scammers are not playing on this ruling to consumers to think that they might have a claim for a fee if this is not the case. I had heard of someone being told he could make a claim on there timeshare in Florida!! Under this ruling  :o
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Offline jcorrea-lawyer

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #9 on: August 27, 2015, 18:02:31 »
I am going to try to answer all the questions one by one

Mavo:

1) Regarding Points, I think it is better to open a new thread because this is one of the more controversial matters and I'd rather not to mix legal issues. Anyway, my answer is YES, it applies. I will give more details in the new thread.

2) Six years? No, there is no such a limit, in fact for those breaches contained in the Supreme Court rulings (perpetuity and floating) THERE IS NO TIME LIMIT! You only have to have a contract signed after the 5th of January 1999.

3) What you mention is an interesting issue, I don’t really know right now what could happen if you start a proceeding after you have obtained a judgment before the UK Courts. Can be that considered "res iudicata" -when something has been already decided by a Court, it cannot be reviewed by other-? Probably this is a matter to decide applying Private International Law.

Stephen:

So far what I have seen are decisions confirming the applicability of the Spanish legislation. I have seen it in cases against Club La Costa and Diamond Resorts where the Spanish Courts have considered themselves competent to rule on the case.

Anyway, as Boss Man (Norm) says, each case has to be considered in its individuality. This post purports to give a general guidance and not give a full and exhaustive answer, which is impossible, as Charlie1 has also pointed out.

Law 42/98 is only applicable to those Clubs that have presence in Spain. If you have resort (concrete and cement) in Spain and you want to trade it as Timeshare you have to do it according to the Spanish legislation. Your resort is not an Embassy, your resort is in Spain and has to follow our Laws. It is common sense.

Although in Florida there are many Spanish speakers, Law 42/98 is not intended to be applicable out of our borders! ;-)
Bringing legal advice on Timeshare matters throughout Spain.
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Offline charlie1

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #10 on: August 29, 2015, 10:08:15 »
If this law is applied to the letter it may well be that some resorts will bankrupt. Their pockets I suspect for most timeshare companies is only so deep and so only so many members will be able to make a claim before its doors close and maybe liquidation will follow. This will effect the happy members that were pleased with their timeshare now and they will have nothing to use or trade if no one is managing the resort. This impacts upon the resorts employees and local businesses that service the resort and of course local restaurants and shops close by may see a down trade in business.

Human nature what it is with some legal companies that are less than honest will try to turn the head of even happy timeshare owners that have never complained and have taken there holidays with out complaint. Some of those happy members I suspect will be turned and get on the compensation band wagon.

Is there any defence from their timeshare company if they state that Mr & Mrs Jones have enjoyed their holiday time since purchase in year 2000 without complaint. Would a timeshare couple have to prove that they were unhappy with their ownership? If that is the case then every claim will be individual.

I believe that the letter of the law will be applied but I have to ask the question.
« Last Edit: August 29, 2015, 10:09:48 by charlie1 »
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Offline Boss Man

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #11 on: August 29, 2015, 10:30:39 »
It is a matter of the niceties of the law, not unhappiness!

Offline jcorrea-lawyer

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #12 on: August 29, 2015, 10:49:55 »
If this law is applied to the letter it may well be that some resorts will bankrupt. Their pockets I suspect for most timeshare companies is only so deep and so only so many members will be able to make a claim before its doors close and maybe liquidation will follow. This will effect the happy members that were pleased with their timeshare now and they will have nothing to use or trade if no one is managing the resort. This impacts upon the resorts employees and local businesses that service the resort and of course local restaurants and shops close by may see a down trade in business.

Human nature what it is with some legal companies that are less than honest will try to turn the head of even happy timeshare owners that have never complained and have taken there holidays with out complaint. Some of those happy members I suspect will be turned and get on the compensation band wagon.

Is there any defence from their timeshare company if they state that Mr & Mrs Jones have enjoyed their holiday time since purchase in year 2000 without complaint. Would a timeshare couple have to prove that they were unhappy with their ownership? If that is the case then every claim will be individual.

I believe that the letter of the law will be applied but I have to ask the question.

If the breaches are of the kind contained in the Supreme Court's rulings the answer is NO. It doesn't really matter if they enjoyed or not because the unfulfillment is against an imperative law. These dispositions cannot be changed because you were happy, they are null and void from the very beginning.

A different thing may occur with cases of misrepresentation. It is very difficult to sustain that you were mis-sold 15 years ago when you have been using the product over the years with no complaints. Apart from this, to claim a case of misrepresentation you only have 4 years since you signed the contract or the misrepresentation took place.
Bringing legal advice on Timeshare matters throughout Spain.
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Offline charlie1

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #13 on: August 29, 2015, 13:29:54 »

A different thing may occur with cases of misrepresentation. It is very difficult to sustain that you were mis-sold 15 years ago when you have been using the product over the years with no complaints. Apart from this, to claim a case of misrepresentation you only have 4 years since you signed the contract or the misrepresentation took place.

We know its different if fraud took place there is no limitation on time that you can claim. If misrepresentation took place and we cannot prove that we made a complaint than we only have 4 years to make a claim. This could be for example by a salesperson giving a verbal statement that could be in conflict with the contract and the club rules. Is this a ruling for Europe?
Timeshare Weekly is an Independent website working with those who share similar ideals. We are here to guide the consumer make the very best of timeshare. We encourage positive change and solutions. Your either living in the problem or your living in the solution. Contact graham@timeshareweekly.com

Offline jcorrea-lawyer

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Which JURISDICTION is applicable to my timeshare contract?
« Reply #14 on: August 29, 2015, 16:18:59 »
At least in Spain. If your consent has been affected by false promises or any kind of misleading practices then you have 4 years to claim. If it is a pure fraud then there is no time limit. This is the way it works in Spain.
Bringing legal advice on Timeshare matters throughout Spain.
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Offline Chris

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #15 on: April 13, 2016, 10:52:23 »
After several months absence just came across this thread.

I have posted a number of times over the years about my timeshare in Tenerife with Clubhotel (search on my user name for more info).

Basically I own 2 weeks at Clubhotel Marazul Del Sur Tenerife 1. Clubhotel is a French company and is I believe part of the Pierre & Vacance Group.

I bought my timeshare in 1985 and was told that the contract was subject to French law. At the time of purchase as far as I recall the usual sales pitch was that timeshare was an asset and as it was "in perpetuity" it could be passed on to my heirs.

It was not for some several years later when I tried to dispose of my title that I was told that under French law timeshare is treated as property and can only be disposed of by selling or gifting to someone, it cannot be handed back.

I suspect that as I bought my title so many years ago the recent Spanish Supreme Court ruling will not affect me but would be interested in knowing if it changes anything as I am desperate to protect my heirs from any liability following my death (I am in my mid 70s) by disposing of my title and I am looking for any ammunition I can to argue my case with Clubhotel
 

Offline Marvin

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #16 on: April 13, 2016, 11:20:39 »
Hi I looked up the laws on French timeshare last year to find the same. I wondered then if there was any market for French timeshares as I had not seen any for sale.

Several things have come up recently which may have some bearing:

The Spanish rulings give us all hope
Not sure in this country that you can bequeath a debt - if so a lot of my enemies will wish they had died before me.
Give all your assets away at least 7 years before death.
Leave your money to a big charity - they will fight your case for their benefit
Die owing money and bequeath those debts to the timeshare company.




I'd rather be in the minority and right, than in the majority and wrong. After all I only have to live with myself!

Offline Marvin

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #17 on: April 13, 2016, 11:27:29 »
After several months absence just came across this thread.

I have posted a number of times over the years about my timeshare in Tenerife with Clubhotel (search on my user name for more info).

Basically I own 2 weeks at Clubhotel Marazul Del Sur Tenerife 1. Clubhotel is a French company and is I believe part of the Pierre & Vacance Group.

I bought my timeshare in 1985 and was told that the contract was subject to French law. At the time of purchase as far as I recall the usual sales pitch was that timeshare was an asset and as it was "in perpetuity" it could be passed on to my heirs.

It was not for some several years later when I tried to dispose of my title that I was told that under French law timeshare is treated as property and can only be disposed of by selling or gifting to someone, it cannot be handed back.

I suspect that as I bought my title so many years ago the recent Spanish Supreme Court ruling will not affect me but would be interested in knowing if it changes anything as I am desperate to protect my heirs from any liability following my death (I am in my mid 70s) by disposing of my title and I am looking for any ammunition I can to argue my case with Clubhotel

More seriously, Just to be clear please would you clarify the following points:
You purchased a timeshare:
Physically what country were you in when you signed it.
Which year was it signed

This will help people...

I'd rather be in the minority and right, than in the majority and wrong. After all I only have to live with myself!

Offline Chris

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #18 on: April 13, 2016, 17:04:14 »
Hi, thanks.....I wish I could give it away to anyone!!!!

To clarify, yes I bought the timeshare. The original agreement to purchase was signed on site in Marazul Del Sur, Tenerife although subsequent documents were sent from France. It was purchased in 1985. Full information can be seen by looking at my historical posts.

I have been a member of Association of Francophone members own timeshare (APAF-VTP) for some years and they have been guiding my actions. Unfortunately my French is non existent and Google Translate doesn't always make sense and no doubt they have a similar problem when I write to them.

I recently had email from them giving me an extract of ALUR Law 2014 Article 19-1, paragraph 2 which according to the translation   allows my heirs to refuse the inheritance (the Act) and pay the last unpaid expenses.

The full French wording is as follows:

Extrait de la loi ALUR de 2014 article 19-1 alinéa 2 concernant le retrait des héritiers.
Le retrait est de droit lorsque les parts ou actions que l’associé détient dans le Capital Social lui ont été transmises par succession depuis moins de 2 ans  à compter de la demande de retrait formée par l’héritier ou les héritiers devenus associés auprès de la Sté. Le retrait est constaté par acte notarié signé par le ou les héritiers devenus associés qui se retirent et le représentant de la Sté. Le coût du ou des actes notariés et les droits y afférents liés au retrait sont supportés par le ou les héritiers devenus associés qui se retirent. En cas de pluralité d’héritiers, il est fait application de l’article 815-3 du code civil. Le ou les héritiers devenus associés qui se retirent ont droit au remboursement de la valeur de leurs droits sociaux fixés, à défaut d’accord amiable, conformément à l’article 1843-4 du même code.

If this is correct then it does seem to provide protection for my heirs from having to continue paying any charges after my death which might be the best I can hope for. The following is the full email attaching the extract of the Law.

En attaché vous trouverez l’extrait de la loi ALUR de 2014 article 19-1 alinéa 2 concernant le retrait des héritiers. Cette loi s’applique à tous les associés temps partagé d’une  Société de droit français, peu importe la nationalité de l’associé.
Le référendum fait parti des éventualités possibles il faut donc l’envisager à partir du moment où l’on analyse la situation future.
Des associés, temps partagé, ont voté la dissolution anticipée de leur résidence. Il se peut que cela se fasse aussi à Marazul.   

The Google translation is a bit confusing when it mentions Marazul and if anyone can give a better translation I would be grateful.

Thanks

Chris


 

Offline Marvin

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Re: Which JURISDICTION is applicable to my timeshare contract?
« Reply #19 on: April 13, 2016, 18:18:44 »
I think that if your timeshare was sold to you in Spain then Spanish law governs the selling of the product, and if it was in perpetuity then it is an unenforceable contract.

The Spanish solicitor may be able to give advice better than me Jcorrea-lawyer try personal messaging him. But before you do was the contract you signed written in English?
Did you pay anything immediately?

M.
I'd rather be in the minority and right, than in the majority and wrong. After all I only have to live with myself!