Browse Tag

RDO

Start the Week: Two of our old Friends are Back in the News

Welcome to the start of another week with Inside Timeshare, we ended last week with the latest news from the courts, today we begin with news of another appeal by Anfi being rejected. MacDonald Resorts will also be making a reappearance on our pages in the near future, today however we will give you a brief outline of our readers problems, for many, it will be a very familiar story.

The once respected Anfi

So, yet another frivolous appeal by Anfi Sales SL and Anfi Resorts SL has been roundly rejected by High Court Number 3 of Las Palmas, Gran Canaria. The news of this particular case arrived just after the publication of our Friday article.

The case which involves English clients was originally heard at the Court of First Instance Number 4 of San Bartolomè de Tirajana. At this hearing, the judge ruled that Anfi must repay the client full repayment of 30,883€ plus legal interest and return of their legal costs.

The contract which was also declared illegal and therefore null & void consisted of “floating weeks” that have been deemed illegal as they hold no value or substance. There was also no end date on the contract, so it was what is known as perpetuity. The law clearly states that contracts should be no longer than 50 years in duration and the termination date must be clearly shown.

The court also included in the repayment, double the amount taken as a deposit within the statutory cooling-off period. The point of the “cooling-off period” is to give the consumer the chance to cancel the contract without loss. As most of you will know, the sales process is lengthy and high pressure, the taking of the deposit tends to secure the “deal”, as most will not cancel in fear of losing the substantial deposits paid. This is something the sales teams of all timeshare have used to negate the “buyers remorse”, a term used in timeshare for those who want to cancel.

The High Court unanimously endorsed the original sentence and ordered Anfi to comply with these orders.

This client’s case will now be filed with the Mercantile Court to ensure they are accepted as “creditors” by the court-appointed administrator. This is due to the fact that Anfi Sales and Anfi Resorts have been placed into “necessary bankruptcy” by the Lopesan subsidiary Isla Marina SL. See the link below for the full story.

Once again this case was prepared and presented on behalf of the client by the lawyers of Canarian Legal Alliance.

https://insidetimeshare.com/mercantile-court-orders-liquidation-of-two-anfi-subsidiaries/

The Plas Talgarth Resort, located on the southern tip of Snowdonia National Park

We now move to the upcoming article on MacDonald Resorts, as our regular readers will know, Inside Timeshare has over the years published many articles on the disgusting “business” practices of this Scottish Timeshare Developer. One thing is very clear, they are probably one of the worst operators in the timeshare industry, even the RDO had to remove them from membership!

Our reader first contacted Inside Timeshare back in March, with pleas for help as MacDonalds had already begun to initiate court proceedings using their “legal bloodhounds”, Shepherd and Wedderburn, for so-called arrears in maintenance fees. Something we know that MacDonalds actively pursues even against the elderly and those in distinct financial difficulties. This history of “legal extortion”, as that is what it really is, has been going on for many years as all MacDonald “members” will have seen.

We did highlight this case back in March and it was passed to the BBC Radio 4 program You and Yours, unfortunately, because of the upcoming court case, they were unable to proceed with the program.

The case has now gone to court and we will be bringing you the full story from our reader, who had to give up his employment to become the sole carer for a very ill Father. Below is the initial message our reader sent in.

“In 2013, I signed what I thought was a document allowing me to use a timeshare unit at Plas Talgarth later that year.  As it happens, I wasn’t able to use that holiday, so it was all a waste of time and money anyway.  From then onwards, I have received an annual bill for hundreds of pounds from MacDonalds for a service fee.  I have told them repeatedly that I have never holidayed with them and never will.  I have never paid this fee and now they have taken me to court – even though I’ve never had a single night’s holiday with them!”

Once again we are seeing signs of deception on the part of the sales staff, our reader had no idea he was signing and purchasing a timeshare membership with MacDonalds. Inside Timeshare is working with our reader to ensure the correct information is published.

All that Inside Timeshare can say at this point is you will be horrified at this Nightmare on Timeshare Street.

Link to the last article on MacDonald Resorts.

https://insidetimeshare.com/macdonald-resorts-still-praying-on-the-elderly-and-vulnerable/

If you have any questions on your own timeshare purchase and contract, whether it is illegal and what your options are, either for a claim of relinquishment, then please use our contact page and Inside Timeshare will get back to you.

Start the Week: The Layman’s Simple Guide Supreme Court Rulings

Welcome to the start of another week with Inside Timeshare, over the past few weeks the rulings of the Supreme Court have been mentioned in many of the articles. These rulings have been simply explained in several articles over the years, but it is worth going over them again and explaining the main points of the law, which is the basis for all the contracts being declared null and void. We are seeing the results of this play out in various courts around Spain.

When Spain passed the Timeshare Law 42/98 in 1998 (updated with Law 4/12) which then came into effect on 5 January 1999, it should have come as no surprise to the timeshare industry, after all, it was totally unregulated and a free-for-all. The EU issued directives on the use, sale of timeshare and the protection of consumers, with the purpose that the directives were to be placed in each member state’s own domestic laws. The idea was to unify the rules for the industry Europe wide, so no matter where a consumer purchases they are all protected equally.

As is always the case with any new law, there is always debate on the interpretation of those laws, the timeshare laws were no exception. The industry employed teams of lawyers, with the Industry Trade Body the RDO at the head, all looking at how they will be affected and more importantly how they can manipulate the interpretation of those laws to their own advantage.

In a way, they were very successful at the start, the law did allow for timeshares sold before it came into force for those contracts issued before that date to be legal under the “Deed of Adaptation”. With any law, it cannot be enforced retrospectively, so this “Deed” allowed the timeshare resorts to continue those contracts under the old regime.

However, all new contracts sold and issued after 5 January 1999 would most definitely come under the new laws, a point the timeshare resorts decided to ignore, probably on advice (we say this tongue in cheek) from their own (expensive) lawyers. They interpreted the “Deed of Adaptation” in a different light to what the lawmakers had intended.

According to their way of thinking, as the “resort” was up and running before the law came into effect, then the “Deed of Adaptation” would cover all new contracts sold. They believed that it only affected new resorts and not existing ones, Anfi is a very good case in point, this has been the main basis for all their early appeals.

Consumers Beware!

It should also be said that the industry trade body, the RDO, (Resorts Development Organisation) appeared to back up this belief, even today the RDO still believe that the interpretation of the law is wrong!

At first, the timeshare companies were successful in arguing their point before the courts, after all, it was a new law, there was no real direction for the courts and judges to follow. It was basically down to them to decide on the evidence and interpretations presented to them.

Consumers who tried to bring cases lost, the lawyers who they employed were not experienced in this field of law and had rings run around them by the experienced lawyers of the timeshare companies. What was put into place to protect consumers, was not working, everything was in favour of the industry.

The length of the contract, which was limited to a minimum of three years and a maximum of 50 years, was being defeated in the courts, the timeshare companies lawyers successfully arguing that the “Deed of Adaptation” covered this point.

Deposits being taken within the “statutory cooling-off” period were illegal but still being taken, this was hidden by various means, such as an “invoice” showing payment for accommodation, not linked to the timeshare sale. This was very common when the purchaser was moved into the resort to complete their vacation after purchase, usually as a way of consolidating the deal.

Tribunal Supremo Madrid

The very first case to make it to the Supreme Court was the Norwegian lady Mrs Tove Grimsbo, this was against Anfi. Her case began in the Courts of First Instance, and after many appeals to the High Court, it came before the Supreme Court which eventually made a ruling. Legal History had been made, the judges ruled her contract was illegal on this and other points, the “Deed of Adaptation” did not apply. Contracts over 50 years in duration were most definitely illegal.

The second important case to come before Spain’s Highest Court was Mrs Shirley Wilson and her case against Silverpoint /Resort Properties.

This particular case was one of the most difficult for the courts, there were many aspects that were unclear as to the interpretation of the law.

In the case of Mrs Wilson, she was sold “timeshare” as an investment, it was portrayed as not being timeshare but property or real estate. This would generate a rental income and a profit for her when finally sold, well, we all know the story of this particular scheme.

At first Silverpoint lawyers argued that she was not a consumer of timeshare but an investor in property, therefore the timeshare laws did not apply. Eventually, the Supreme Court ruled that what she purchased was indeed timeshare and not property. A very significant win for all consumers who purchased from Silverpoint.

Another very important ruling, in this case, involved the use of the timeshare, there was no week number or apartment number attached and the consumer had no right of use of these timeshares. Basically, there were points attached for any use within the resort system.

The Supreme Court ruled on this, citing Article 1.7 of Law 42/98, this reads as follows (Translated from Spanish):

“The contract under which constitutes or transmit any right, real or personal, for more than three years and on the use of one or more real time during a specified or ascertainable period a year on the sidelines of this law shall be null and void, owing be returned to the purchaser or transferee or paid any income considerations, as well as compensation for damages suffered.”

All we can say is no wonder there was confusion.

Basically what it states is that a timeshare must consist of a fixed week with a week number and an apartment attached which is available each and every year to the “owner”. With points or floating week, this right is removed and is a “right to use subject to availability”. Not really what you have paid for.

This was the first ruling on points and floating weeks, it established the precedent that unless the timeshare was a fixed week, with number and apartment, then it was illegal under the law.

So these two cases set the scene for the situation we have today, 130 rulings from the Supreme Court, squarely placing the law into jurisprudence. This is being followed closely by the Courts of First Instance and the High Court as we have been seeing with all the cases we highlight.

There are many other laws that a competent timeshare lawyer may use as well as the timeshare laws, these may be covered by Consumer Laws and Mercantile Laws, but these are on a case by case basis, so may not apply to all timeshare contracts. It is certainly a legal minefield.

Despite all the rulings and rejections of appeals made by the Supreme Court and the dismissal of appeals by the High Court, in accordance with the Supreme Court Doctrine, we still see timeshare companies making appeals. This is something that baffles all lawyers, consumers and forums such as Inside Timeshare, leaving us with the same old question “WHY?”

The only logical reason we can think of is “greed”, they have your money and don’t want to give it back and any method to avoid payment will be used. A very costly strategy indeed.

Greed or Stupidity?

Did you purchase a timeshare in Spain after 5 January 1999, is the duration longer than 50 years, is it points or floating week based, this includes fractional, did you pay any deposit within the statutory cooling-off period?

If you can answer yes to any of these, then you may have a valid case. For further information on this or any other subject on Inside Timeshare, please use our contact page and Inside Timeshare will get back to you.

Links to past articles

2016

https://insidetimeshare.com/supreme-court-rulings-simply-explained/

2018

https://insidetimeshare.com/spanish-timeshare-laws-simply-explained/

2020

https://insidetimeshare.com/spanish-legal-history-the-story-of-the-supreme-court-rulings/

Links to early CLA Supreme Court cases

https://canarianlegalalliance.com/?s=supreme+court+2016

https://www.eldiario.es/canariasahora/tribunales/supremo-condena-empresa-variante-timesharing_1_1160134.html

https://insidetimeshare.com/supreme-court-rules-silverpoint-twice-one-week/

Anfi: The Story Behind the News Part Three

Welcome to Part Three of Anfi: The Story Behind the News. So far, we have given the early story of Anfi and the dream that was to turn sour. Events and decisions made in the boardroom would in the future have serious repercussions not just for Anfi, but the entire timeshare industry. Today we look at one event which has changed things forever and made Spanish Legal History, the first Supreme Court Rulings that changed the timeshare laws. It was a long-running battle as when the Timeshare Law 42/98 was enacted on 5 January 1999, the timeshare industry did not change its practices in accordance with the new laws. These were put into place as a result of various EU Timeshare Directives which sought to protect consumers of malpractice and lay down regulations on the sale of timeshare, which previously had been totally unregulated. The timeshare industry believed they were “untouchable”, that they were too big and strong and the law was wrong. As you will see this was not to be the case.

When the Timeshare Laws were enacted in 1999, the timeshare industry was given the opportunity to get their act together and adapt their contracts to comply with the law. They were also allowed what was known as a “deed of adaptation”, this allowed those contracts sold before the enactment of Law 42/98 to remain legal as they were sold before the law was put into place, but new contracts must comply.

Many timeshare companies saw this in a different light, they interpreted the law differently, they believed that the “deed of adaptation” meant that if the resort was running before the law came into force then that meant all contracts remain the same.

As with any new laws, these must be tested in the courts and placed into jurisprudence, which means they are now “set in stone”. In the beginning, very few cases ever got to court and those which did tend to be found in favour of the timeshare companies. Many lawyers would not take these cases on, it was a new law and they did not understand it. Also, they believed the timeshare companies were too big, powerful and had plenty of money, they actually believed that they would never stand a chance of winning.

All this changed on 1st April 2015 when the Supreme Court ruled on the very first timeshare case to be brought before Spain’s Highest Court.

The story begins in 2001 When a Norwegian lady, Mrs Tove Grimsbo and her husband attended a presentation at the Anfi Resort in Gran Canaria. At the time this was a relatively new resort which was the dream of the Norwegian entrepreneur Bjorn Lyng (here was the element of trust & validity) and it was also still under development. It eventually turned into one of the flagship resorts in the timeshare world.

At the time, anyone who attended a presentation was impressed with the quality of the resort and the plans that were also in place for expansion, Mr & Mrs Grimsbo were themselves impressed and they were persuaded to purchase. They duly signed the contract and paid a deposit of 700€ by credit card, this, along with the fact the contract was “in perpetuity” and not limited to the maximum of 50 years allowed by the new law made this contract illegal.

But at the time this did not seem to bother them, after all, they would have been totally unaware of the law and the fact that Anfi had disregarded it. It was not until Mr Grimsbo passed away and Mrs Grimsbo was left with ever-increasing maintenance fees and no foreseeable way out of the contract, that things changed. As they had been told during the presentation that Anfi would “buy back” their “weeks” for the same price they paid, Mrs Grimsbo approached Anfi. It is no surprise that Anfi told her that they did not “buy back weeks”, but they could place it on the resale market. Until then she was stuck with a timeshare she did not want or wanted to use. This is not surprising considering she did not want to return to Anfi because of the memories of her late husband.

She eventually decided to speak with a local lawyer, Miguel Rodriguez Cabello, a native of Arguineguin and one of the founding lawyers of Canarian Legal Alliance. He and other lawyers worked tirelessly to research the law and eventually found that Mrs Grimsbo did indeed have a very good case. This would now make legal history.

After some time, the case went in front of the Court of First Instance of San Bartelomé de Tirajana, this court found in favour of Mrs Grimsbo and declared the contract null and void plus the return of the full purchase price. Anfi immediately appealed to the High Court of Las Palmas Gran Canaria. This court confirmed the ruling and sentence of the Court of First Instance, another win for the lawyers.

Anfi did not accept this decision, they still believed that the law was wrong, that their contract was legal because they had the “deed of adaptation”, so they took the case to the Supreme Court. This belief is the basis for Anfi and the Industry Trade Body, the RDO (Resorts Development Organisation), in their appeals and statements that the “Courts have misinterpreted the law”.

The Supreme Court Madrid

After much debate between the panel of Judges they unanimously ruled that the case of Mrs Grimsbo v Anfi was in favour of Mrs Grimsbo and that the rulings and sentences of the previous courts were confirmed. Legal history had been made, the very first timeshare case had its first major test.

The court’s ruling would have a profound effect on timeshare and would open the gates for many more claims and cases to be taken to court. In their ruling, the Judges declared that the taking of any payment even by a third party within the Statutory 14 days cooling-off period was illegal. Taking payments within this period they believed had the effect of cancelling out the cooling-off period which was designed to give consumers the chance to read the contract, terms and conditions and also reflect on whether they made the right decision.

In their ruling on the “perpetuity” side of the contract, the Judges ruled that Law 42/98 clearly stated that all contracts be limited to a minimum of 3 years and a maximum of 50 years. The Supreme Court upheld the rulings from the lower courts and confirmed the contract was illegal.

Since that momentous decision by the Supreme Court, the floodgates have opened, not just against Anfi but the whole of the timeshare industry that operated in Spain. Today we see the repercussions of just one decision made in a boardroom, to ignore the advice to change the contracts to comply with the law but continue to sell the original contracts in blatant contravention of that law.

Just this week alone there has been a steady stream of news from the High Court of Las Palmas, every appeal they have heard recently have been rejected, dismissed and the original sentence confirmed.

But this is not the only legal battle that Anfi is engaged in, another very serious controversy has been raging in Gran Canaria and finding its way to the courts, it is the debacle that is the Tauro Beach Project.

Not quite what was planned!

Tomorrow we revisit our previous articles on Tauro Beach, as it is a story that is still unfolding and has had and will undoubtedly have some very heavy repercussions, we have already seen one conviction and we believe there will be many more before this story is put to bed.

Translations

Danish

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Dutch

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Finnish

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German

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Norwegian

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Swedish

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