POINTS: Are they affected by the recent rulings of the Spanish Supreme Court?

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Offline jcorrea-lawyer

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The answer has to be YES.

I do understand (and there are jurisprudence enough to back this statement) that any Club based in a point system falls into the scope of the Supreme Court rulings. A point system is a similar product to timeshare. Each apartment worth "x" amount of points, points are worthless if there is not an apartment behind to support those points. The Supreme Court has declared that the Law 42/98, as included in its Preamble, is quite restrictive, establishing a standard for ALL Timeshare regimens and to those that are  similar to them, and it emphasizes, SIMILAR to them. If the system is similar and has not been constituted according to the Law then is null and void.

Again, should you have any query about this matter please please ask it now. I will try to give the best of my advice. You can also contact me filling the form in my website. The preliminary advice is free.
Bringing legal advice on Timeshare matters throughout Spain.
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Mavo

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The answer has to be YES.

I do understand (and there are jurisprudence enough to back this statement) that any Club based in a point system falls into the scope of the Supreme Court rulings. A point system is a similar product to timeshare. Each apartment worth "x" amount of points, points are worthless if there is not an apartment behind to support those points. The Supreme Court has declared that the Law 42/98, as included in its Preamble, is quite restrictive, establishing a standard for ALL Timeshare regimens and to those that are  similar to them, and it emphasizes, SIMILAR to them. If the system is similar and has not been constituted according to the Law then is null and void.

Again, should you have any query about this matter please please ask it now. I will try to give the best of my advice. You can also contact me filling the form in my website. The preliminary advice is free.

A further question on this is how do you believe the rulings will look upon past use of timeshare. By this I mean, if a user has made use of his full allocation of timeshare product for a number of years and not lodged any reservations or complaints about the product does or would the courts put a value on this past quiet enjoyment of the product? 

Offline jcorrea-lawyer

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No, not really. If a contract is null and void it doesn't really matters if you are happy or not with what you have bought. Anyway, if you have been using your week what I never claim back is the maintenance paid.

The Supreme Court rulings have to do with breaches of imperative rules, that's also why there is no prescription time.
« Last Edit: August 27, 2015, 22:00:19 by jcorrea-lawyer »
Bringing legal advice on Timeshare matters throughout Spain.
Lawyer nº 1071 of the Las Palmas Bar Association. Canary Islands.
http://www.correaguimera.com [nofollow]

Mavo

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No, not really. If a contract is null and void it doesn't really matters if you are happy or not with what you have bought. Anyway, if you have been using your week what I never claim back is the maintenance paid.

The Supreme Court rulings have to do with breaches of imperative rules, that's also why there is no prescription time.

Could there be an argument put forward by a consumer that having found themselves believing they were locked into a contract which compelled them to continue to pay annual maintenance fees it then became a case of "use it or lose it" thus creating an opening to claim past paid fees?

*I am trying to establish if there is a case for the law to apply common sense in situations where the less than scrupulous consumer or their advisers could attempt to take advantage of the legal situation purely for monetary gain.
In the interests of a fair balance, thought has to be given to the fact that having enjoyed usage there seems to be the need for consideration to be then given to the moral or ethical position in cases such as this. After all it is the contract which is possibly null and void not the holiday experiences.
 
 

Offline rusvilla

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I own Diversified Next Generation Points which are not directly linked to any specific resort. I have been advised by a company called Canarian Legal Alliance that I have a claim against the seller of these points.
I would appreciate any advice on whether to continue with this or not. :-\

Offline jcorrea-lawyer

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No, not really. If a contract is null and void it doesn't really matters if you are happy or not with what you have bought. Anyway, if you have been using your week what I never claim back is the maintenance paid.

The Supreme Court rulings have to do with breaches of imperative rules, that's also why there is no prescription time.

Could there be an argument put forward by a consumer that having found themselves believing they were locked into a contract which compelled them to continue to pay annual maintenance fees it then became a case of "use it or lose it" thus creating an opening to claim past paid fees?

*I am trying to establish if there is a case for the law to apply common sense in situations where the less than scrupulous consumer or their advisers could attempt to take advantage of the legal situation purely for monetary gain.
In the interests of a fair balance, thought has to be given to the fact that having enjoyed usage there seems to be the need for consideration to be then given to the moral or ethical position in cases such as this. After all it is the contract which is possibly null and void not the holiday experiences.

I see your point Mavo, in fact this is more or less what Anfi is doing with those cases that they are losing now: they are claiming the real cost of the stay, arguing that the member has benefited over the years of a better price and that they should pay the real cost they would have paid if they've gone to an Hotel. But this is wrong because they are not an Hotel and the quotas are already calculated to render benefits to the managing company.

In any case, if you have been using the weeks and you claim the quotas back the other party may very well argue an "unjust enrichment" based on this use/enjoyment not paid. At this point, you have to take this into consideration because if the Court rejects part of your pleads then you will not be awarded the legal costs. Sometimes trying to claim something may finish you losing more.
Bringing legal advice on Timeshare matters throughout Spain.
Lawyer nº 1071 of the Las Palmas Bar Association. Canary Islands.
http://www.correaguimera.com [nofollow]

Offline jcorrea-lawyer

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I own Diversified Next Generation Points which are not directly linked to any specific resort. I have been advised by a company called Canarian Legal Alliance that I have a claim against the seller of these points.
I would appreciate any advice on whether to continue with this or not. :-\

Without having a look to your contract it is difficult to give you a proper advice. It may be that you have a case, possibly yes. Send me a copy of your contract and I will tell you. You can find my details in my website.
Bringing legal advice on Timeshare matters throughout Spain.
Lawyer nº 1071 of the Las Palmas Bar Association. Canary Islands.
http://www.correaguimera.com [nofollow]

Mavo

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No, not really. If a contract is null and void it doesn't really matters if you are happy or not with what you have bought. Anyway, if you have been using your week what I never claim back is the maintenance paid.

The Supreme Court rulings have to do with breaches of imperative rules, that's also why there is no prescription time.

Could there be an argument put forward by a consumer that having found themselves believing they were locked into a contract which compelled them to continue to pay annual maintenance fees it then became a case of "use it or lose it" thus creating an opening to claim past paid fees?

*I am trying to establish if there is a case for the law to apply common sense in situations where the less than scrupulous consumer or their advisers could attempt to take advantage of the legal situation purely for monetary gain.
In the interests of a fair balance, thought has to be given to the fact that having enjoyed usage there seems to be the need for consideration to be then given to the moral or ethical position in cases such as this. After all it is the contract which is possibly null and void not the holiday experiences.

I see your point Mavo, in fact this is more or less what Anfi is doing with those cases that they are losing now: they are claiming the real cost of the stay, arguing that the member has benefited over the years of a better price and that they should pay the real cost they would have paid if they've gone to an Hotel. But this is wrong because they are not an Hotel and the quotas are already calculated to render benefits to the managing company.

In any case, if you have been using the weeks and you claim the quotas back the other party may very well argue an "unjust enrichment" based on this use/enjoyment not paid. At this point, you have to take this into consideration because if the Court rejects part of your pleads then you will not be awarded the legal costs. Sometimes trying to claim something may finish you losing more.

Thank you for your response to this particular question Javier because it covers the situation that has been causing me the greatest concern.
I have a fear that certain elements such as Paralegals and numbers of individuals would be prepared to make claims for all monies paid over the years including initial purchase costs and all annual maintenance fees even though they had made use of all the facilities, for many years, that the payment of those monies had created.
 My understanding from your answer to the above question is that such efforts by these entities and individuals could be fraught with danger as if elements of the claim were to be rejected by the courts then costs which may far outweigh the value of the claim awarded may not be recoverable.

This is my interpretation of the possibilities and with that in mind it seems to suggest that agreed compromise claims would be the best way forward in order to prevent huge swathes of the industry from imploding into bankruptcy.     

Offline jcorrea-lawyer

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Mavo, your interpretation is correct. We all must act responsibly. We must assume that most consumers are happy with their vacationing system and they have to be protected as well. It is not a matter of destroying the business but help to adapt it to the new era. Common sense must prevail.
Bringing legal advice on Timeshare matters throughout Spain.
Lawyer nº 1071 of the Las Palmas Bar Association. Canary Islands.
http://www.correaguimera.com [nofollow]