Over the past few months Inside Timeshare has received many enquiries regarding timeshare claims, in this article we look at the law in Spain and what constitutes a valid claim.
In December 1998 Spain passed Law 42/98 which came into effect on 5 January 1999, this was a result of the European Timeshare Directives which were put into place to protect consumers. Under these directives each member state had to put into their own domestic laws regulations governing the sale of timeshare.
Spain was one of the first to do this, as a result they have some of the strongest regulations in Europe.
For a long time many resorts / developers failed to abide by them, continuing to sell the same way as before. This has now resulted in many cases going to court with resorts / developers being penalised for their failure to comply.
At first, many cases taken to court by consumers were being lost as the resorts successfully argued that they were in compliance of the laws. This all changed in March 2015, when the Supreme Court in Madrid ruled on the very first timeshare case.
This case involved a Norwegian lady who had a case against Anfi in Gran Canaria, the case took around 5 years to complete, but it had a profound effect on cases to follow.
The timeshare laws which have been the subject of consistent breaches have been the taking of deposits or any payment within the cooling off period, this also includes by a third party. Many resorts tried to get around this by using Trust Companies, but the court has also ruled that this is indeed a third party.
The other main area of contention was the perpetuity contract, the law states that contracts should be for a minimum of 3 years and a maximum duration of 50 years.
Both of these have been ratified by the Supreme Court on many occasions, which now puts them into jurisprudence. What this means is that they are no longer up for discussion and all courts must abide by them.
There have also been some other significant rulings made by Spain’s Highest Court which have strengthened the law and benefited consumers.
The points and floating week systems is another which the Supreme Court has also ruled on and is now enforceable by all courts in Spain. The reasoning behind this ruling is that these systems have no actual substance, unlike the fixed week fixed apartment system which was the original timeshare model, there is no week number or apartment number attached.
With the old fixed week system you were guaranteed the week and apartment assigned, this could be changed using either the internal exchange system or one of the major exchange companies. So it was actually flexible. It also made it impossible for the resort to oversell membership, as they could only sell 51 weeks of each apartment.
With the points and floating systems you actually own nothing, you are a member of a vacation club with the right to use subject to availability. This also allowed the resorts to oversell the membership as they were not governed by the 51 weeks in each apartment. This has obviously led to many complaints of not being able to book the weeks that members actually wanted.
Another major breakthrough came in January 2017, when the Supreme Court ruled against Silverpoint. This came about due to many cases against Silverpoint for selling packs of weeks as an investment.
The theory behind these sales was purchasers would buy a series of weeks, which the company promised to sell within 2 years, with the purchaser making a profit. Very few if any ever achieved this, usually the story was that what they had purchased was not selling well and they would need to upgrade to a better resort in order to sell. This has left many with huge loans as these were financed mainly by Barclays Partner Finance, with the loan agreements being completed by the sales staff.
There were many cases taken through the courts but Silverpoint successfully argued that the purchasers were investors not consumers.
The first case involving a UK purchaser ended up at the Supreme Court, the total time from start to finish was around 5 years. This court ruled that these purchasers were indeed consumers of a timeshare product and not investors. The thinking behind this ruling was that maintenance fees were also part of the purchase, also the court believed that to be classified as investors, this must be a primary source of income. This resulted in these consumers having full protection of the timeshare law, which also maintains that timeshare should not be sold as an investment.
Since the first ruling in March 2015, there have been 84 rulings made by the Supreme Court, each and everyone backing up the previous one. At present there are still around 100 cases pending and waiting to be heard by this court, some of these will also bring new changes and clarification to the laws.
So unless you purchased or upgraded in Spain after January 1999, have at least one of the major points ruled by the Supreme Court you may not have a valid claim. You will also need to employ the services of a Spanish Registered lawyer, preferably one with the experience of timeshare claims.
At Inside Timeshare we have heard from one consumer who decided they wanted to employ the services of a lawyer registered to practice in Spain but of their own nationality. His claim failed. The lawyer did not have the knowledge or experience of this complex area of law, believing that because of the Supreme Court rulings it would be an easy case to win. This client has now taken on the services of another lawyer with the experience in this field to lodge an appeal as he was not given the correct legal advice. This has obviously cost him more, hopefully he will win the appeal.
This does go to show that just because the Supreme Court has made these rulings, it is in the end down to the lawyer or law firm that you engage, if they do not have the knowledge or experience in this field then you may end up losing a lot more.
If you have any question on this subject or wish to check if you have a valid claim contact Inside Timeshare and we will give you the facts.