Optimising Your Holiday: A Proposal for the Optimal System for Timesharing from a Comparative Perspective

by Dhurgham Fadhil Hussein Al-Ali,* John Gwilym Owen** and Marie Parker***

(2019) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

Timesharing causes profound issues for consumers, yet there is a dearth of academic commentary about this topic, and little is known about how other jurisdictions regulate this area. This article will assess the issues faced by consumers when purchasing, owning and terminating timeshare. As a result of this assessment, the optimal features required to tackle these difficult issues are suggested. These optimal features are applied to selected jurisdictions in order to undertake a functional analysis. The article identifies the strengths and weaknesses in each system under consideration, and makes specific proposals for England and Wales.[1]

Introduction

Timesharing is notoriously problematic and there is a dearth of academic literature concerning this important topic. This article will examine these profound issues and propose the optimal system for timesharing by adopting a comparative approach. Little is known in the UK about how timesharing is practised in other jurisdictions. The significance of this article is the multi-layered analysis undertaken. Not only does it carry out a comparative analysis, but it also proposes features which should be inherent in an optimal timesharing regime. This novel and original methodology means that various jurisdictions will be able to consult these optimal features in order to evaluate their own regimes and make changes where desirable. The legal regulation of timeshare in England and Wales derives from the European Union and so its future is increasingly uncertain. However, Brexit also presents an opportunity for legislative change in England and Wales and therefore this article will conclude by making proposals specifically for this jurisdiction.

The notion of timesharing can be applied outside the tourist market, for example in commercial projects.[2] This article will concentrate on timesharing insofar as it relates to holiday accommodation. It is notable that the protection of holidaymakers has been the focus of the European Union regulation. The Timeshare, Long-Term Holiday Product, Resale and Exchange Contracts Directive 2008/122/EC was adopted by the EU in January 2009, and replaced the previous 1994 Directive.[3] It defines timeshare as ‘a contract of duration of more than one year under which a consumer, for consideration, acquires the right to use one or more overnight accommodation for more than one period of occupation.’[4] It provides a means of distinguishing between timeshare, multiple reservations within a hotel[5] and an ordinary lease contact.[6] The 2009 Directive was passed as a response to new holiday products and transactions, and aimed to enhance legal certainty by requiring full harmonisation in some areas.[7] The current and the repealed Directives will be examined as key sources in order to establish the problems associated with timeshare, and how European policy makers have attempted to respond to these problems.

The article will be in two parts. Part I will provide an overview of the legal timesharing models in England and Wales, France, and some American states. These particular models have been selected given the prevalence of timeshares within these jurisdictions. Part II of the article will then move on to examine purchase, ownership, sale and termination problems. It should be noted that this is not an exhaustive list of problems, but it does include the most pressing issues faced by timeshare holders. The optimal features which will be derived from this analysis will constitute an evaluative framework. When assessing purchase problems, the article proposes that optimal features in any system would: ensure that crucial information is delivered to the consumer; provide a suitable cooling off and withdrawal period; prohibit the advertisement of timeshare as an investment; and ensure that verbal promises become part of the contract. When dealing with ownership problems it is apparent that optimal features would: ensure that the availability of timeshare is made very clear to consumers; and tackle the issues with service charges and resort closure. The optimal features needed to tackle termination issues would ensure that consumers can resell without limitations, including through a prohibition on lock-in clauses. Taken together, these features constitute a benchmark which will then be applied to the selected jurisdictions in order to undertake a functional analysis to identify strengths and weaknesses in each system under consideration. The article will conclude by suggesting specific proposals for change in England and Wales.

I. An Overview over Legal Models

The legal structure of timeshare varies from jurisdiction to jurisdiction. Therefore, stakeholders will vary. For example there could be a consumer, a developer, a professional trustee, an owners’ association or management company, or any combination of these. This article has concentrated on the problems facing consumers. The aim of the work is to develop an optimal system so that the law can protect this group more effectively.

It should be noted that other jurisdictions have reacted to the issues presented by timeshare. One particularly interesting reform was undertaken in one jurisdiction, in reaction to the introduction of tighter regulations in a geographically nearby jurisdiction. In the early 1990s, the Government of the Isle of Man became concerned that unscrupulous timeshare companies might decide to move out of the UK to the Isle of Man due to the tightening of regulations in the UK during this period. As a result of this concern, legislation was proposed to provide safeguards to anyone purchasing timeshare from a company operating within the jurisdiction of the Isle of Man, even where the timeshare property in question was in another jurisdiction. The Isle of Man enacted the Timeshare Act 1996, which is enforced by the Office of Fair Trading. The Act deals with problems associated with the purchase of timeshare by setting out that consumers should be provided with information about their purchase, and an opportunity to review this information.[8] It has been reported that: ‘The Office of Fair Trading is pleased to say that not one single prosecution has taken place which indicates the very highest level of compliance by local timeshare companies.’[9] This example demonstrates that understanding how other jurisdictions operate can lead to beneficial changes for consumers, which is one of the main aims of this article.

As discussed above, the legal timesharing models in England and Wales, France, and some American states have been selected for this assessment given the prevalence of timeshares within these jurisdictions. The overview set out below demonstrates that various legal arrangements can be used within one jurisdiction. The functional analysis will draw out the strengths and weaknesses of these models and their legal arrangements.

England and Wales: Club/Trustee, Timeshare Lease, and Timeshare Licence Arrangements

All timeshare projects in England and Wales are governed by the Timeshare, Holiday Products, Re-sale and Exchange Contracts Regulations 2010 (Hereafter ‘Timeshare Regulations 2010’).[10] These Regulations came into force on 23 February 2011, and transposed into UK law the 2009 EU Directive. The three most common legal arrangements are the Club/Trustee Arrangement, the Timeshare Lease Arrangement and the Timeshare Licence Arrangement. Of these three, the Club/Trustee Arrangement is the most common legal arrangement practised in England and Wales.[11]

The ‘Club/Trustee Arrangement’ typically takes the form of an unincorporated members’ club. A committee is usually elected by the club’s members to represent their interests. The developer, as a settlor, transfers the ownership of the timeshare property[12] to independent trustees who hold the property upon trust for the benefit of the timeshare holders, the club members.[13] The timeshare holders, in return for financial consideration, acquire a certificate of membership which entitles them to occupy accommodation for a designated period of time each year, for a specified number of years.[14]

The ‘Timeshare Lease Arrangement’ is a pre-paid lease agreement similar to traditional rental agreements. The timeshare holder is granted the exclusive right to occupy accommodation for a fixed period of time each year and for a specified number of years, usually calculated on the basis of the estimated useful lifetime of the timeshare structure. In England and Wales, a timeshare lease takes the form of a discontinuous lease under which each timeshare holder is granted a divided (i.e. not held in common) leasehold estate over a defined unit of the timeshare project.[15] The Timeshare Lease Arrangement may have lost some of its appeal when it was held in Cottage Holiday Association v Commissioners for Customs and Excise[16] that a timeshare lease for eighty years was not a ‘major interest in land’ and therefore subject to Value Added Tax.[17] Leasehold timesharing, as a general rule, places an obligation on each timeshare holder to pay a fee in advance for the right of a long-term occupancy, and to pay their pro rata share of the common expenses to a management company. The developer retains the reversion in the timeshare property. Therefore, when the lease expires, the right to possession reverts to the developer. Timeshare holders are permitted to transfer, sublet, and exchange their rights in general, and the right of occupancy, without the consent of the developer, unless the lease provides otherwise. The timeshare holder is given all the privileges and burdens of a tenant, subject to the conditions that he does not default on the lease or violate the terms of the timeshare agreement. [18]

The ‘Timeshare Licence Arrangement’ is a prepaid written agreement under which the timeshare holder is given permission to occupy an accommodation in a timeshare resort and enjoy its common facilities for a designated period of time and for a specified number of years. However, it does not provide the timeshare holder with a proprietary right in the timeshare structure. Timeshare licences place an obligation on the developer and/or management company to maintain the project and its facilities. Each timeshare holder in the project is under an obligation to pay an advance lump sum to the developer in return for a long-term right of occupancy and to pay an annual fee to the management company to cover their share of the common expenses.[19]

France: Company Share Arrangement

There are two main pieces of legislation which regulate timeshare projects in France. The first is Law No. 86 – 18, of 6 January 1986 (hereafter the ‘1986 Timeshare Law’). This relates to companies whose purpose is to allocate the use of buildings to be enjoyed on a timeshare basis.[20] Pursuant to Article 1, all timeshare projects in France must take the form of a company in which the timeshare purchasers are the shareholders. Timeshare projects set up prior to 1986 were under an obligation to modify their legal documentation within two years of the Law.[21] Developers are free to choose any form of company provided for by French law.[22] The main aim of the 1986 Timeshare Law was to strengthen timeshare holders’ rights by adapting French company law for timesharing purposes.[23] The second main piece of legislation is section 9 of Chapter I of Title II of Book I of the Consumer Code as amended by Law 2009-888, of 22 July 2009, which is concerned with the development and modernisation of the tourist services. This law was enacted pursuant to the 2009 EU Directive.

The ‘Company Share Arrangement’ vests the ownership of the timeshare project in a company,[24] and the timeshare consumers become shareholders.[25] The timeshare company gives each shareholder the right of occupancy in one of its units of accommodation for a specified period of time each year for the shareholder’s life, or for a given number of years as stipulated in the memorandum and articles of association.[26] Timesharing companies are primarily incorporated for the purposes of building or purchasing housing units and distributing the right of occupancy in these units among the shareholders, according to each one’s share in the company’s capital.[27] This is achieved by dividing the timesharing project into two parts. The first part includes the housing units which are allocated for private use. The second includes the common areas intended for shared use among all the timeshare holders.[28] A timetable is prepared setting out the specified period for each shareholder to exercise their right.[29] The company is responsible for setting the rules on renting, exchanging and selling timeshares, maintaining and repairing the complex, preparing accounts and determining annual fees.[30]

Some American States: Time-Span and Interval Ownership Arrangements

Although there is no enacted uniform timeshare legislation in the US, two model Acts have been proposed for regulating timeshare ownership. The first, the Uniform Real Estate Timeshare Act (URETSA), was proposed by the National Conference of Commissioners of Uniform State Law.[31] The second, the Model Timeshare Ownership Act, was adopted by the Resort Time-Sharing Council of the American Land Development Association and the National Association of Real Estate License Law Officials (NTC/NARELLO Act).[32] This article focusses on the NTC/NARELLO Act as it has formed the backbone of many states’ timeshare legislation.[33] For example, Nebraska, Nevada and Tennessee, have adopted the Act in its entirety,[34] and Florida, Hawaii and Virginia have substantially adopted the Act.[35]

The following applies regardless of the legal arrangement used. In all timeshare projects containing more than twelve timeshares, an association of owners must be formed for exercising general control over the resort.[36] The NTC/NARELLO Act also places an obligation on the members of the association to elect a board of directors from among themselves, for the purposes of exercising the powers of the owners’ association and conducting the business and affairs of the association.[37] Responsibility for the day-to-day management of the project must be entrusted to a professional management company, selected by the board of directors and employed by the owners’ association.[38] The timeshare project must terminate at the end of its term, or before the end of its term, as prescribed in the timeshare instruments.[39] However, if the timeshare instruments do not regulate the termination, the project shall terminate ‘upon entry of a final judgment by a court of competent jurisdiction in an action brought by the association declaring that the useful life of the improvements has ended.’[40] Upon the termination of the timeshare project, the owners’ association must sell, transfer or otherwise dispose of the interests of the timeshare holders in the timeshare property. The proceeds received by the association of owners shall be distributed to the timeshare holders in accordance with each timeshare holder’s share in the timeshare property.[41]

The discussion now moves on to analyse the two different legal arrangements.

The ‘Time-Span Ownership Arrangement’ is comprised of a tenancy in common coupled with a right to occupy the unit exclusively during a designated period each year.[42] In effect, the developer transfers an undivided share, a percentage interest, in the timeshare real estate. The developer divides the possessory and occupancy rights of the commonly owned timeshare property through a legal document called the ‘Declaration’.[43] This Declaration identifies the period which is allocated to each timeshare holder to exercise their exclusive right of occupancy, and periods for maintenance and cleaning.[44] In addition, it determines the method of calculation, allocation and collection of the common expenses from timeshare holders. It also specifies voting rights. The Declaration contains an irrevocable and enforceable waiver of the right of each timeshare holder to demand a judicial partition of the timeshare property during the life of the project.[45] In addition, it defines the term of the timeshare project,[46] which usually coincides with the useful lifetime of the development.[47]

When using the ‘Interval Ownership Arrangement’, all the timeshare holders are granted two distinct and separate vested interests in a unit of accommodation.[48] The first interest is a defeasible fee simple ownership for the period of time during which they are entitled to occupy the accommodation each year. This defeasible fee simple ownership will continue to vest in the timeshare holder for a fixed term of years, usually calculated according to the estimated useful lifetime of the timeshare property. It is granted to each timeshare holder subject to a shifting executory interest. This means that ownership of the accommodation passes to the next timeshare holder at the start of that next person’s occupancy period.[49] The second interest is termed a “vested remainder”.[50] The owner of such is a co-tenant with the other timeshare holders in the accommodation. At the termination of the useful lifetime of the timeshare property, all timeshare holders who occupy the same accommodation in the timeshare project will own that accommodation as co-tenants with each other, and at the same time own the common areas of the timeshare project as co-tenants with co-tenants of the other accommodations.[51] One of the aims behind the establishment of a vested and collective remainder, and adding it to the defeasible fee simple ownership, is to keep clear of the problems linked to the rule against perpetuities.[52]

II. Extracting the optimal Features

A number of relevant bodies have shown awareness of the issues timeshare is causing consumers. For example, in the UK, the Competition Markets Authority published Disposal of Timeshares and Other Long-term Holiday Products – A Report for BIS and the European Commission, in 2014.[53] As its name suggests, the Report is on the disposal of timeshare and the problems that face consumers, which fall outside the scope of the 2009 Directive. The Report’s findings will be discussed in more detail when analysing termination problems. The following year, the European Commission reported on the operation of the Timeshare Directive (2008/122/EC).[54] Its report concluded that the ‘Timeshare Directive appears overall to be a useful tool in protecting consumers in this specific holiday sector.’[55] Furthermore, a 2017 briefing paper by the House of Commons Library[56] advises timeshare consumers to contact Citizens Advice for free legal advice. In addition, it advises that help can also be sought from the Resort Development Organisation (RDO), the timeshare trade body, and The Association of Timeshare Owners (TATOC), a non-profit organisation with the purpose of offering independent advice and information to consumers. Awareness is growing, but more action and research is needed in order to offer effective protection to consumers.

It is important at this point to distinguish long-term holiday products from timesharing. As discussed in the introduction, the Timeshare, Long-Term Holiday Product, Resale and Exchange Contracts Directive 2008/122/EC was adopted by the EU in January 2009, and replaced the previous 1994 Directive, the Protection of Purchasers in Respect of Certain Aspects of Contracts relating to the Purchase of the Right to use Immovable Properties on a Timeshare Basis.[57] The term ‘long-term holiday products’ describes the many different types of contracts which were offered by rogue traders following the implementation of the repealed 1994 Directive in order to circumvent its rules. These require consumers to pay a substantial initial fee to become a member of a holiday discount club.[58] This membership provides a consumer with access to a reservation service where they can reserve discounted holiday accommodation over a long period of time.[59] This can be done in conjunction with travel services such as flights and rental cars. In the marketing of these products, consumers are often promised discounts of 60% or more in luxury hotels and first-rate airways.[60] However, many consumers end up being disappointed for two main reasons: the discounts are not as promised,[61] and many destinations are heavily oversubscribed.[62]

There are three features which make long-term holiday products appear similar to timeshare, despite the fact that they are not timeshare. Firstly, the consumer enters a contract for the repeated usage of holiday accommodation; secondly, an upfront payment is requested; and finally, aggressive marketing methods have been used to sell these products, as was the case in the timeshare market before the enactment of the 1994 Directive.[63] According to Article 2/1/b of the current 2009 Directive, the main distinguishing feature is that the main goal of long-term holiday products is to provide consumers with discounts or other benefits in respect of accommodation, be-it in isolation or together with travel services, whereas the main aim of timeshare is giving timeshare holders the right to use one or more overnight accommodation for more than one period of occupation during the period of contract. Long-term holiday products such as holiday discount clubs, vacation exchange clubs, international travel clubs and so on are beyond the scope of this article, although many of the issues will be similar.

The optimal features of timeshare will be extracted by analysing the problems associated with timeshare. The problems have been extracted from the European Directives on timeshares, European timeshare policy documents, key cases and relevant literature. The concept of a timeshare cycle has been used to provide the structure of this analysis: i.e. purchase, ownership and termination. It should be noted that these problems are not stand-alone issues, but they are interrelated and have a knock-on effect on each other.

In undertaking this analysis in respect of purchase problems, the analysis can get a little repetitive. The reason for this is because the evaluative framework has largely been derived from the EU Directives, which have successfully tackled this issue. Consequently, the functional analysis by reference to France and England and Wales demonstrate the positive impact of adopting the 2009 Directive. However, as we shall see, the same is not true when applied to the American model or when considering further problems in the timeshare cycle.

A. Purchase Problems

The use of aggressive marketing techniques damaged the image of timesharing. This problem was recognised by the 2009 Directive as it lengthened the cooling-off period to 14 days from the day of the conclusion of the contract or any binding preliminary contract,[64] rather than the 10 days stipulated by the 1994 Directive. The 2009 Directive also prohibits the collection of administrative costs from the purchaser when they exercise their right of withdrawal. This protection was extended to all ancillary contracts.[65] The implementation of these protective measures has led to a reduction of aggressive selling techniques in the European timeshare market.[66]

The European legislature retained the obligation whereby developers and marketing companies had to provide consumers with accurate and comprehensive contractual information in understandable language in the 2009 Directive. However, the Directive also updates the information which must be given to consumers. In addition, it expands the scope of this obligation to cover exchange[67] and resale contracts, because a large proportion of the complaints reported to the European Consumer Centres related to these contracts.

The 2009 Directive places an obligation on timeshare sellers to inform consumers about the commercial purpose of invitations to timeshare events. Consumers must be provided with the pre-contractual information by means of a standard information form.[68] Moreover, the Directive places an obligation on developers to draw the attention of consumers, in an explicit way, to the existence of the right of withdrawal, the length of the withdrawal period, and it prohibits advance payments during the withdrawal period.[69] A timeshare contract must contain a separate standard withdrawal form.[70] The consumer must be provided with a copy of the contract at the time of its conclusion in order to enable them to reconsider the terms and conditions of the timeshare contract and to seek advice during the cooling-off period.[71]

Salespersons have been known to make verbal misrepresentations, such as by assuring purchasers that they will be able to take a holiday during the peak season, by stating that all costs will be controlled by the owners, and by affirming that a timeshare is a good investment.[72] To address this problem, the repealed Directive required vendors to provide prospective purchasers with written particulars[73] with the aim of preventing verbal misrepresentations about the enjoyment of the peak season[74] and future costs.[75] Moreover, it stipulated that all the information provided to the prospective purchasers by means of the aforesaid information document had to form an integral part of the timeshare agreement.[76] The current 2009 Directive upholds these measures,[77] and makes one addition concerning the prohibition of marketing timeshare products as investments,[78] as in reality the secondary market is problematic.[79]

Optimal Features to Tackle Purchase Problems: An Evaluative Framework

Optimal timeshare legislation must place an obligation on developers to provide timeshare holders with free written information, which is accurate and comprehensive, written on paper or other durable medium, is easily accessible, and written in understandable language. This should be presented both at pre-contractual and contractual stages.

A reasonable period must be set out between the delivery of the pre-contractual information document and the conclusion of the timeshare contract. It must be clearly stipulated that the pre-contractual information is an integral part of the timeshare contract. Each timeshare holder must be provided with a copy or copies of the timeshare contract at the time of its conclusion in order to enable them to reconsider the terms and conditions and to seek advice during the cooling-off period.

The optimal timeshare legislation must provide a reasonable cooling-off period, during which a consumer can change their mind and withdraw from the timeshare contract without having to give a justification and without any charges. At the time of contracting, each timeshare holder must be supplied with a withdrawal form. The collection of advance payments must be prohibited before the expiry of the cooling-off period. These protective measures must be set out in pre-contractual and contractual documents in an obvious manner. All ancillary contracts must be terminated automatically. The optimal timeshare legislation must also stipulate that all promises provided by developers and salespeople are made in writing and form an integral part of the contract. Legislation should also prohibit the marketing of timeshare as an investment for return.

It is also important to understand the behaviour of consumers when proposing optimal features. Luzak identifies that, ‘Consumer psychology studies suggest that if people make purchase decisions under an influence of fleeting emotions, they are more likely to pay too much and later regret their purchase.’[80] The inclusion of a cooling off period as part of the optimal features would allow a consumer to reflect on their purchase before going ahead. Furthermore, Smits concludes that, ‘withdrawal rights are particularly well founded where a party cannot exercise its autonomy as a result of pressure put on that party.’[81] These two statements are applicable to the purchase of timesharing as people are often influenced by the emotions of being in a desirable holiday location, and under pressure from a salesperson. However, Tscherner comments that, ‘Behavioural studies show that people tend to stick to a decision previously taken, which supports the hypothesis that people make use of their withdrawal rights less often than would be beneficial for them.’[82] This shows the limits of cooling off periods and the right to withdrawal. Furthermore, according to Tscherner:

‘Behavioural insights show that too much information is useless for consumers. Due to limited cognitive capacities (as well as time) people are not able to absorb all the information provided (information or cognitive overload).’[83]

Therefore, these features can still be put forward as optimal features, but their limitations are recognised.

Current Legal Models: A Functional Analysis

The England and Wales model provides consumers with an advanced level of protection. The Timeshare Regulations 2010 provide the consumer with a fourteen-day cooling-off period for reconsideration.[84] They require developers to provide timeshare holders with written accurate and comprehensive information at each stage of pre-contractual and contractual transactions.[85] They entitle the consumer to withdraw from the contract during the cooling-off period by way of a written notice of withdrawal, without requiring justification[86] and without incurring any charges.[87] Moreover, the model prohibits the collection of advance payments from the timeshare holders before the expiry of the withdrawal period.[88] It also provides for the automatic termination of all ancillary contracts in the case of the exercise of the right of withdrawal.[89] In addition, it prevents the marketing of timeshares as an investment.[90] These features are worthy of taking forward as optimal features. However, the model does not require verbal promises to be made in writing and to be part of the timeshare contract. Such a measure is important to curb the verbal misrepresentations systematically used by unscrupulous salespeople, and its omission must be avoided when considering the optimal timeshare legal regime.

The French model requires developers to supply consumers with accurate and comprehensive information.[91] The Consumer Code provides the timeshare holder with a fourteen-day cooling-off period for reflection.[92] It entitles them to withdraw from the contract during the cooling-off period[93] without incurring any costs[94] or having to give a reason,[95] by way of a written notice of withdrawal. Where the consumer exercises the right to withdraw from the timeshare contract, the obligations of the parties under the timeshare contract are automatically terminated at no cost to the consumer with effect from the date the consumer sends the notice of withdrawal.[96] The same applies to any exchange contract ancillary to it, or any other ancillary contract.[97] The marketing of the timeshare as an investment is also prohibited.[98] However, the legislation does not require promises to be made in writing and to form part of the contract, as identified as a weakness in English and Welsh model.

The American model provides consumers with a low level of protection. For example, it does not prohibit the collection of payments during the cooling-off period.[99] It does not provide for the automatic termination of all the ancillary contracts, and it does not require promises to be made in writing and to be part of the timeshare contract. These defects must be avoided when enacting the optimal timeshare legal regime. However, the model provides for some protective measures which are worthy of being taken forward as optimal features. Specifically, it provides consumers with a cooling-off period for reconsideration, albeit one that only lasts five-days.[100] The timeshare holder is entitled to cancel the timeshare contract during the cooling-off period without incurring any costs or giving any reason.[101] Developers are under an obligation to supply consumers with comprehensive and accurate information.[102] Furthermore, the NTC/NARELLO Act places an obligation on developers to provide timeshare holders with accurate information regarding the exchange programme in case a developer offers an exchange programme in conjunction with the offer of timeshares. [103] The NTC/NARELLO Act does not require that promises be part of the contract. While it prohibits all types of false misrepresentations and promises, it is suggested that this does not go far enough. The advertising of timeshare is regulated[104] and the Act prohibits the selling of timeshare as an investment.[105]

The above analysis demonstrates that the 2009 Directive has had a positive influence on timeshare systems in place in France and England and Wales in relation to purchasing issues. For example, both jurisdictions require a cooling off period, both require the delivery of crucial information to the consumer, both deal with the withdrawal period effectively and both prohibit the advertising of timeshare as an investment. However, the functional analysis has demonstrated that neither model requires verbal promises to be made in writing and to form part of the contract. Therefore, this weakness remains to be dealt with when creating the optimal regime. The American model considered provides far weaker protection for consumers in terms of the purchasing of timeshare. For example, even the cooling off period is much shorter than in France and England and Wales. The 2009 Directive can be commended for tackling purchase issues effectively, yet the same observation cannot be made with regard to sale and termination issues, as will be demonstrated below.

B. Ownership Problems

The Timeshare Consumer Association has identified a modest decrease in the level of complaints with regard to purchasing.[106] However there has been a noticeable increase in complaints about ownership.[107] There are issues with flexibility in terms of the options available with the floating-weeks pattern and points pattern, and due to the overselling of the benefits of the exchange system. The floating-weeks pattern is where the date and / or location will be selected by means of reservation. When using a points pattern, the timeshare holder purchases membership in a club, the membership is then converted to a number of points each year which can be used to reserve a period of time at one of the resorts owned by the club. The exchange system allows timeshare holders to exchange their weeks with each other, for a different period of time and / or location.[108] The floating weeks pattern places timeshare holders at a disadvantage if they are unable to plan ahead and reserve their desired period. The points system is also problematic as timeshare holders have reported issues with the information they receive about the value of their points,[109] which are often vulnerable to devaluation by the company.[110] Timeshare holders have also reported problems with the overselling of the advantages and the possibilities of timeshare exchange systems:[111] specifically the ease with which timeshare holders can change the place and time of their vacation every year.

The 1994 Directive placed an obligation on salespeople and developers to provide the prospective timeshare purchasers with accurate pre-contractual information on the precise period within which the right of occupancy may be exercised, its duration, and the date on which the purchaser may start to exercise the right of occupancy.[112] Moreover, it placed an obligation on developers to include this information in the timeshare agreement.[113] The 2009 Directive has updated the information to be provided to consumers, and it expands the scope of the obligation to also cover exchange contracts. It places an obligation on developers and marketers to provide prospective timeshare holders with clear and accurate information ‘on restrictions on the consumer’s ability to use any accommodation in the pool at any time.’[114] It also places an obligation on sales personnel and exchange companies to provide potential timeshare holders who are interested in joining an exchange company with precise information about possibilities and restrictions.[115]

There is concern about excessive increases in annual fees and the lack of transparency about how these fees are spent.[116] There is evidence to suggest that prior to the implementation of the 2009 Directive, the annual costs of timeshare ownership were increasing faster than all other general living costs.[117] The 2009 Directive places an obligation on salespeople and developers to provide timeshare holders with precise information about the method for the calculation of annual fees and when such fees may be increased.[118] The implementation of these measures has had positive consequences for timeshare holders, and the timeshare industry in general. [119]

Some developers fail to maintain quality standards in their resorts.[120] The European legislature has not taken any steps to redress this problem. According to the European Commission/Directorate General for Health and Consumer Protection, this has had ‘detrimental effects for the competitiveness of the timeshare industry at EU level, as well as for the image of the industry within EU borders.’[121] An increasing number of resorts are actively driving timeshare holders out of the resort in order to use the development for other purposes and make more profit.[122] Their real estate value is considerably greater than their timeshare value.[123] Developers are adopting two main techniques to drive out timeshare holders. This can be done legally, as some timeshare legal arrangements, specifically the Timeshare Licence, entitle developers to revoke the agreement at will.[124] Where this is not possible, it can be achieved through mismanagement. Common examples of mismanagement include increasing annual fees until they are too high for timeshare holders to accept, not sending management fee invoices and then terminating membership by way of foreclosure for non-payment or failing to keep the resort in good condition.[125] Although this problem has not been tackled by the timeshare Directives, the problem is apparent in the courts.

A legal case involving the Lanzarote Beach Club provides an example of this issue.[126] The Lanzarote Beach Club (LBC) was opened in 1985. Timeshare holders were persuaded to purchase into the International Vacation Club (also known as Lanzarote Beach Club 2), an adjacent plot of land due to be constructed to even higher standards than the already five-star LBC. In 2000, the management entity of LBC started a campaign to drive out all the timeshare holders by escalating annual fees. Then, in 2003, LBC demanded huge extra levies, with little or no explanation, whilst refusing to provide copies of accounts. Many timeshare holders refused to pay. In March 2003, 12 French timeshare holders commenced a lawsuit against the management of LBC seeking compensation in respect of the loss of their Club’s membership. In November 2015, the Lanzarote court ordered the payment of €215,010 to the plaintiffs. The publicity surrounding such court cases can reflect negatively on the image of timesharing and thus causes more difficulties with its marketability.[127]

Optimal Features to Tackle Ownership Problems: An Evaluative Framework

Optimal timeshare legislation must place an obligation on developers to supply timeshare holders with accurate and comprehensive information on when, where and how the right of occupancy can be exercised. The legislation must place an obligation on developers to supply timeshare holders with accurate information on all charges associated with the timeshare contract. Developers should set out the mechanism used to calculate service charges and provide details on how the charges will be allocated, as well as how and when such charges may be increased. The cost of any annual service charges associated with unsold timeshares must be met by developers, and not timeshare holders. Besides that, a written summary of the incurred charges must be provided to timeshare holders by developers. The summary must be certified by a qualified accountant as a fair summary and sufficiently supported by accounts, receipts and other relevant documents provided to the accountant. Each timeshare holder in the project must be entitled to access and inspect the accounts and any other documents, make copies of these documents and be able to challenge the service charges before the appropriate court.

It is also suggested that optimal timeshare legislation must provide for the establishment of a Government agency for rating and inspecting timeshare resorts. This agency must be empowered to impose penalties on the management entity in the case of deterioration in resort standards because of mismanagement. This problem could also be tackled through the creation of a mechanism where the timeshare holders can ensure an acceptable level of control over the timeshare development.[128] For example, some arrangements establish a body which represents all the timeshare holders in the project.

Current Legal Models: A Functional Analysis

The England and Wales model provides consumers with a high level of protection with regard to the availability of timeshare products and the increase of service charges. It places an obligation on developers to supply timeshare holders with accurate and complete information on when, where and how the right of occupancy can be exercised.[129] It also places an obligation on developers to provide timeshare holders with accurate and comprehensive information regarding the method of the calculation, distribution and collection of the service charges to prevent developers from increasing the annual charges excessively.[130] Such features are worthy of taking forward as optimal features.

The model provides consumers with varying levels of protection against the problems associated with declining resort standards and resort closure, as the level of protection relies on the legal arrangements which are used to regulate each timeshare project. Each of the Club/Trustee and Timeshare Lease Arrangements provide timeshare holders with exclusive possession during their periods of occupancy, which is a feature worthy of taking forward as an optimal feature. However, the Timeshare Licence Arrangement does not provide timeshare holders with such exclusive possession during their periods of occupancy, which is a defect that must be avoided when considering the optimal timeshare legal regime.

Both the Club/Trustee and the Timeshare Lease Arrangements entitle timeshare holders to establish an association which includes all the timeshare holders in the project, and to appoint, supervise and oust the management company. This feature is worthy of taking forward as an optimal feature. Nevertheless, the Timeshare Licence Arrangement does not provide such a mechanism, and this is a defect which must be avoided. Furthermore, each of the Club/Trustee and Timeshare Lease Arrangements protect the timeshare holders against revocation, forfeiture and repossession. Again, this feature is worthy of taking forward as an optimal feature. However, the Timeshare Licence Arrangement does not provide timeshare holders with such protection which is a gap that must be addressed when contemplating the optimal timeshare legal regime.

The French model places an obligation on developers to supply consumers with accurate information on when, where and how the right of occupancy can be exercised, and the mechanism used to calculate and allocate service charges.[131] The Consumer Code places an obligation on salespeople and traders to provide prospective consumers with written information about the calculation and allocation of annual charges. [132] With regard to declining resort standards, a company is typically formed to own and operate the timeshare resort. The General Assembly of the company,[133] which includes all the timeshare holders in the company, appoints managers to deal with the daily operation of the timeshare resort.[134] The Assembly can respond quickly in the case of the deterioration of the standard of services of the timeshare resort by dismissing management on the basis of mismanagement. Furthermore, in order to protect consumers, the French model prohibits developers from unilaterally revoking a timeshare contract or repossessing timeshares arbitrarily.[135]

The American model provides consumers with an advanced level of protection, mainly by providing them with an exclusive right of occupancy and by placing an obligation on developers to supply them with accurate information on when, where and how the right of occupancy can be exercised.[136] In addition, developers must supply details of the mechanism for calculating and allocating service charges.[137] The interests of consumers cannot be forfeited or revoked by a developer, or any other person, because they acquire proprietary estates which are valid against the world at large. Therefore, these features are worthy of taking forward as optimal features.

The NTC/NARELLO Act provides for the establishment of a Government agency for providing the required permissions to developers who wish to engage in the timeshare business. Nonetheless, the Act does not empower the agency to take legal action against a management company in the case of deterioration of resort standards. The NTC/NARELLO Act necessitated the formation of an owners’ association for exercising general control over the timeshare resort.[138] The Act also places an obligation on the members of the association to elect a board of directors from among themselves.[139] The owners’ association must employ the management company which is elected by the board of directors. The management company must work under the supervision of the board of directors.[140] The board of directors is entitled to terminate the management agreement at any time.[141] Moreover, the NTC/NARELLO Act allows each timeshare holder in the project to ask for the discharge of the management company by way of recall, especially when there is proof that the management company is unresponsive or irresponsible.[142]

The functional analysis of ownership problems has demonstrated that the three jurisdictions all deal with the provision of information about the availability of timeshare accommodation and the calculation of service charges in an effective way. However, the issue of resort closure still requires further consideration in order to create the optimal timeshare regime. For example, in England and Wales, the Timeshare Licence does not provide for exclusive possession or the creation of an association of timeshare holders, and it does not protect consumers against revocation, forfeiture or repossession. Yet, the Club/Trustee and Timeshare Lease Arrangements deal with these issues more effectively. In France, the formation of a company means that declining resort standards are tackled by the General Assembly, as they have oversight and control of the management of the resort. In the American legislation considered in this article, a Government agency is formed, but this does not deal with declining resort standards. This model can be expanded upon when proposing the optimal timeshare regime.

C. Sale and Termination Problems

The European Commission, national bodies responsible for consumer protection and timeshare organisations have received a large number of complaints in the last few years from dissatisfied timeshare holders regarding the difficulty of reselling or terminating their timeshares because of the obstacles created by developers and the fraudulent behaviour of some resale agents.[143] In its 2014 report, the Competition and Markets Authority concluded that, ‘we have formed the provisional view that the introduction of some form of legal right to exit has the potential to address harms in this sector caused by the various exit issues.’[144] Although termination issues fall outside of the scope of the EU Directive, the European Commission commented on the issue in 2015, concluding that, ‘these aspects can be successfully addressed through targeted interventions at national level, efficient self regulatory measures and a better enforcement of other relevant EU consumer law instruments.’[145] The purpose of this work is to consider how other jurisdictions regulate this issue in order to propose an optimal system.

The secondary market has been saturated over the past few years[146] and the image of the timeshare industry has been tainted by rogue developers. Furthermore, there may not be demand for a timeshare property located in an unpopular destination, which is poorly maintained, or only available during an out-of-season week.[147] These problems have led to a rapid increase in the number of resale companies. However, rather than helping sellers and prospective buyers to get in touch with each other, many have chosen to exploit the timeshare holders who are seeking to sell their timeshare.[148] The lack of demand has had a negative impact on the resale value, its marketability and the time it takes to sell the timeshare in the resale market. There are also marketing and administrative expenses to consider.

Another factor that tends to depress resale prices is competition from the original developer, who may be trying to resell weeks he acquired through foreclosure for non-payment of management and maintenance fees. Timeshare holders are unlikely to recover the original value of their timeshare unless these are based in top quality resorts where the price of timeshare has increased,[149] or when the Government has imposed a moratorium on additional timeshare development, thereby giving rise to fewer properties available on the market, as is the case in high-demand destinations such as Sanibel Island, Florida. Accordingly, the vast majority of resold timeshares change hands for 50% or less of their original selling price, not including a commission of 10% to 25% of the selling price for transactions arranged through a resale agent.[150]

The majority of consumers who were sold timeshare products as an investment during 1980s and 1990s were told that they would have the possibility of reselling it one day for a profit.[151] However, they subsequently found it very difficult to terminate their contract or resell their timeshare.[152] Some timeshare companies set obstacles to block re-sales, such as by applying very high transfer fees.[153] Other companies may allow timeshare holders to exit either in very limited circumstances, such as where illness makes travelling to the resort impossible,[154] or ‘if specific conditions are met’, such as selling the timeshare through a certain resale agent of the company’s choice.[155]

Some timeshare contracts have an in-perpetuity clause whereby the contract ‘does not have a specified end-date and is therefore capable of continuing indefinitely, or alternatively contains a term that expressly provides for this effect.’[156] Partington comments on this issue, ‘The lure of sunshine is pulling people into complicated timeshare contracts with no way to leave’ and that, ‘Timeshare purchasers display a classic pattern of only realising what they have signed up to, or of growing dissatisfaction with the service, over time.’[157] Other contracts included long-term clauses under which the timeshare contract will last far into the future; for example, 80 years.[158]

On 15 January 2015, the Spanish Supreme Court heard the case brought by Tove Grimsbo, a Norwegian Citizen, against Gran Canaria-based Anfi Group, X v Anfi Sales SL.[159] The Court ruled that the timeshare contract was invalid because it was for an undefined period (i.e., in-perpetuity). The decision was based on the Spanish law 42/1998. This requires that the maximum duration of a contract is 50 years,[160] and contracts of longer duration are null and void.[161]

The Spanish way of tackling in-perpetuity and long-term contracts encouraged the former MP, Fiona O’Donnell, to ask the UK Government to enact a law to protect the rights of timeshare holders along the lines of Spanish law. O’Donnell stated:

I have been informed by an official at the UK ECC that in Spain contracts for longer than 50 years, including contracts in perpetuity, are unenforceable as they are deemed unfair. Although this ruling is beneficial to UK consumers who have agreements with Spanish companies, could the UK Government not look at adopting such a rule in the UK? I look forward to hearing the Minister’s response on that.[162]

Some timeshare contracts have included an estate-binding clause whereby the estate of the timeshare holders continue to be liable for payment of the management and maintenance fees after their death, which have had serious consequences for settling the estate and dividing its assets amongst heirs.[163] Some timeshare holders have refused to pay the management and maintenance fees in order to put pressure on developers to absolve them from liability. Some developers have repossessed ownership, which is often exactly what the timeshare holder wants,[164] whereas others have taken legal action against the defaulting timeshare holders for non-payment.

The harmful effects of such contracts on timeshare holders should not be ignored. The difficulty of termination has knock-on consequences for the timeshare industry. The provisions to protect consumers from aggressive marketing techniques may provide protection for the future, but the current EU Directive is devoid of any legislative solution to the problems related to in-perpetuity, very long-term or estate-binding clauses attached to timeshare contracts.

It is noteworthy that 45% of timeshare-related complaints reported to European Consumer Centres were linked to contract clauses.[165] Such clauses could be challenged under Directive 93/13/EEC on Unfair Contract Terms.[166] This Directive protects consumers in the European Union from unfair terms and conditions which might be included in a standard contract for goods and services.[167] It came into force on 31 December 1994.[168] It applies to business-to-consumer contracts in general and therefore covers timeshare and other holiday contracts.[169] It introduces the notion of ‘good faith’ to prevent any significant imbalance in the rights and obligations of the parties to the detriment of the consumer.[170] For example, it requires contract terms, which have not been individually negotiated, to be drafted in plain and intelligible language;[171] ambiguities to be interpreted in favour of consumers;[172] and unfair standard contract terms to be declared non-binding on the consumer.[173] Therefore, the Unfair Contract Terms Directive complements the 2009 Timeshare Directive by protecting consumers once the contract has been concluded.[174]

However, most timeshare holders are seemingly unaware of this legal protection. This situation could be improved by a more proactive attitude from national enforcement authorities as well as increasing awareness activities at the national level. Furthermore, timeshare consumer associations could play a more active role in helping timeshare holders defend their rights, including through court proceedings, as individual timeshare holders can have difficulties launching court actions to challenge their contracts under the Unfair Contracts Terms Directive.[175] The Unfair Contract Terms Directive is principle-based. That is to say, it is not always clear how a court would decide a particular case. Every timeshare contract is likely to be construed in light of all the circumstances following the conclusion of the particular contract.[176] This discretion may be a positive attribute of the Directive, as it enables the court to apply the rules of the Directive to a wide range of circumstances. However, this does not seem to be a very satisfactory way to exit timeshare and adds further uncertainty.[177]

Optimal Features to Sale and Termination Problems: An Evaluative Framework

The optimal timeshare legislation must empower timeshare holders to resell their occupancy rights without limitations. It must prohibit the inclusion of clauses in timeshare contracts which lock in consumers. It must include terms to empower timeshare holders and their heirs to exit long-term timeshare contracts when they can no longer use their occupancy rights.

Finding remedies to address each exit issue is likely to be difficult. Industry initiatives may help. However, the legal complications and the need to take court action means that there is little scope for timeshare holders to help themselves, in addition to creating a significant degree of uncertainty as to the protection held by consumers when trying to exit a timeshare arrangement. However, there is a potential remedy to this complexity and uncertainty: the introduction of some form of obligatory legal right to exit.[178] To be effective, a legal right to exit would need to have retrospective effect, applying to all existing timeshare contracts, not just new ones. Moreover, the right to exit should apply EU-wide because of the cross-border and multi-jurisdictional nature of timeshare products.[179] Furthermore, the right to exit should deal with the most serious exit issues such as in-perpetuity and estate-binding clauses, and it should provide objective criteria for the exercise of the right, thus reducing the likelihood of disputes going to court.[180] The industry has taken self-regulatory steps to tackle this problem. For example, the Resort Development Organisation and Timeshare Association for Timeshare Owners and Committees require the affiliated timeshare companies to put in place exit strategies for timeshare holders who want to terminate their contracts.[181]

Current Legal Models: A Functional Analysis

The England and Wales model provides consumers with varying levels of flexibility depending on which legal arrangement is used. None of the arrangements prevent a developer from putting restrictions on the resale of their timeshares. This defect must be addressed when considering the optimal timeshare regime. The Timeshare Lease Arrangement however, unlike the Club/Trustee and Timeshare Licence Arrangements, prohibits in-perpetuity and estate-binding contracts. This feature is worthy of taking forward as an optimal feature.

In England and Wales, courts are using the dual techniques of ‘construction and implication’ to cut down in-perpetuity contracts. The court can imply a term allowing termination on notice where the timeshare contract is silent on duration, unless there is clearly no basis for such an implication because of the circumstances and other express contractual clauses.[182] Alternatively, where the parties have expressly and intentionally agreed on such clauses in the timeshare contract, the court could rule that the in-perpetuity clause or long-term clause is unfair either pursuant to the Unfair Terms in Consumer Contracts Regulations 1999, if the contract was concluded before 01 October 2015, or the Consumer Rights Act 2015, if the contract was concluded after 01 October 2015.

Within the French model, the timeshare holder is entitled to let the unit which has been allocated for the period during which he is entitled to occupy the unit,[183] regardless of any contrary provision laid down in the articles of association.[184] The position on in-perpetuity clauses varies from one timeshare company to another according to the wording used in the articles of association regarding the life of the timeshare project. Nevertheless, a timeshare holder may withdraw from the timeshare project regardless of any contrary provision laid down in the articles of association, if he is able to obtain permission to withdraw from the General Assembly. In this case, the timeshare holder needs to write to the management company to add the request for withdrawal to the agenda of the Assembly. Then, this request will be put to a vote during the meeting of the Assembly. With regard to estate-binding clauses, the shares in a timeshare company are considered an asset and therefore they are automatically transferred to the heirs of the deceased timeshare holder.[185] The heirs are entitled to leave the company within two years of the date of becoming shareholders. The withdrawal should be recorded on a deed drawn up by a Notary and signed by the timeshare holder and the representative of the timeshare company.[186] The cost of the withdrawal shall be borne by the timeshare holder.[187] However, they are entitled to a refund of the value of their share in the company’s capital.[188] Timeshare holders may also withdraw from the company by obtaining a judicial decision if they can no longer enjoy their occupancy rights due to financial or personal reasons, or when the resort becomes inaccessible or unfit for use. This is subject to the discretion of the court.[189]

Within the American model, under both the Time-Span Ownership Arrangement and the Interval Ownership Arrangement, each timeshare holder is entitled to resell their timeshare without restriction. This is due to the fact that the timeshare holder obtains a document of title to the timeshare property which enables them to rent, sell, gift, devise, or otherwise dispose of their estate in the timeshare property to another person.[190] Timeshares in both the Time-Span Ownership Arrangement and Interval Ownership Arrangement are considered to be an asset. Therefore, they automatically transfer to the heirs of deceased timeshare holders. However, the heirs are entitled to divest themselves of inherited timeshares by selling or gifting them to another person.

The functional analysis of sale and termination issues has demonstrated that the French and American models provide consumers with a higher level of protection than the system in place in England and Wales. In France, consumers can let their property, and they have the possibility to withdraw with the permission of the General Assembly. Heirs also have the option to leave. The protection within the American model is even stronger, as there are no restrictions on resale, and heirs can divest in a straightforward manner. By contrast, there is a low level of protection in England and Wales as none of the legal arrangements prevent restrictions on the resale of timeshare. However, the Timeshare Lease Arrangement emerges as the most robust of the arrangements within this jurisdiction with regard to termination issues on the basis that a lease does prohibit in-perpetuity and estate binding clauses.

Conclusion

The overall aim of this article is to set out the optimal system for timesharing. By adopting a novel approach to the problems surrounding timeshare, it has been possible to identify the optimal features required to tackle these issues effectively. Moreover, by carrying out a functional analysis, strengths and weaknesses in the selected jurisdictions have been identified. This multi-layered analysis enables any jurisdiction to consult this methodology and assess their own timesharing regime, thus creating scope for further academic research in this field and the opportunity for significant legal change.

The use of these optimal features as a benchmark has revealed a number of features that should be retained, and a number of areas which must be developed further in England and Wales. The 2009 Directive has responded to many of the purchase problems and has therefore had a very beneficial influence on the system in place in this jurisdiction. This has resulted in many features which meet the requirements of an optimal system including, for example: a cooling off period where consumers can withdraw without justification or incurring charges; the provision of important information; the prohibition of advanced payments; and the automatic termination of ancillary contracts. These features should be retained.

The functional analysis shows that the English and Welsh model does not, however, require verbal promises to be made in writing and to form part of the contract. There is a body of case law in England and Wales dealing with whether pre-contractual statements should be regarded as terms or mere representations, and the courts have developed guidelines to ascertain the intentions of the parties in order to distinguish between terms and representations.[191] The test is an objective one. The benefit of ensuring that pre-contractual statements are part of the contract means that a consumer can claim a breach of contract where there is an automatic right to claim damages. All is not lost however if a consumer needs to challenge a mere representation as there are, of course, remedies available for misrepresentation. However, these need to be based on proof of fault. It is important to note that the remoteness test for losses is less restrictive when dealing with fraudulent or negligent misrepresentation. However, pursuing a case via this route would prove more problematic, and therefore more costly, for a consumer. Therefore, in order to provide optimal protection for consumers, legislation in England and Wales should require all verbal promises to be made in writing and to form part of the contract.

When assessing the optimal features required to tackle ownership problems, the model in England and Wales deals with the availability of timeshare and increased service charges in an effective way. These features should be retained. However, when considering resort standards and closure it was possible to distinguish between the level of protection offered by the particular arrangement used. The Timeshare Licence Arrangement does not provide exclusive possession, there is no association of timeshare holders to control the management company, and it does not protect timeshare holders against revocation, forfeiture or repossession. Yet, the Club/Trustee and the Timeshare Lease Arrangements do provide suitable protection.

It is evident that the current laws of England and Wales offer consumers low protection against sale and termination issues. The Timeshare Lease Arrangement, however, does prohibit in-perpetuity and estate binding clauses. Based on the foregoing analysis, it is therefore suggested that legislation should stipulate that all timeshares in England and Wales should have to adopt the Timeshare Lease Arrangement in order to provide consumers with the strongest protection against declining resort standards, resort closure, sale and termination issues. Legislation would also need to prohibit restrictions on sale, and to empower a Government agency to monitor the standards of resorts within this jurisdiction.

If implemented, these proposals would significantly increase the level of protection our legal system provides to timeshare consumers in England and Wales. However, there are two main issues which would remain unresolved. Firstly, it is very regrettable that these proposed changes would not offer a remedy to those who are already tied into unfavourable contracts. Nevertheless, more could be done to raise awareness of the current legal possibilities available to these consumers so that they can make legal challenges more easily: for example, under Directive 93/13/EEC on Unfair Contract Terms, as discussed above. Secondly, these proposed changes in England and Wales may make little difference if a contract is concluded in another jurisdiction. More research needs to be undertaken in respect of the private international aspects of the problem. This article provides the first step towards these proposed changes.

Endnotes

* Lecturer, College of Law, Basrah University↑

** Senior Lecturer, School of Law, Bangor University↑

*** Lecturer, School of Law, Bangor University.↑

The authors thank Professor Gerhard Dannemann, Dr Sam McIntosh and the anonymous reviewers for their comments and suggestions.

  1. This article draws partially on the doctoral thesis Modernising Iraq: A Legislative Proposal to Regulate Timesharing Agreements in Iraq written by the first and supervised by the second author, which was accepted by the School of Law of Bangor University in 2017. ↑
  2. D W Butler, ‘Time-Shares Conferring Ownership’ [1985] Acta Juridica 315 and T Eastman, ‘Time Share: A Primer’ (1981) 57 N.D. L. Rev. 152. ↑
  3. Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis. ↑
  4. Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts. Article 2 (1) (a). ↑
  5. Clause (6) of the preamble of the current Directive. ↑
  6. This may be seen from the second part of Clause 6 of the preamble of the Directive. ↑
  7. Certain aspects of the marketing, sale and resale of timeshares and long-term holiday products as well as the exchange of rights deriving from timeshare contracts are fully harmonised. ↑
  8. The Official Isle of Man Government Website: https://www.gov.im/about-the-government/statutory-boards/isle-of-man-office-of-fair-trading/trading-standards/legislation/ last accessed 26 June 2019.The Official Isle of Man Government Website, Your Rights when Buying Goods, Timeshares: https://www.gov.im/categories/tax-vat-and-your-money/consumer-advice/your-rights-when-buying-goods/#accordion last accessed 26 June 2019.Maria Scott, ‘Isle of Man tightens laws on Timeshare’ The Independent 31 January 1993: https://www.independent.co.uk/news/business/isle-of-man-tightens-laws-on-timeshare-1481997.html last accessed 26 June 2019. ↑
  9. The Official Isle of Man Government Website, Your Rights when Buying Goods, Timeshares: https://www.gov.im/categories/tax-vat-and-your-money/consumer-advice/your-rights-when-buying-goods/#accordion last accessed 26 June 2019. ↑
  10. Article 1(1) Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010. ↑
  11. James Edmonds, International Timesharing (3rd edn, Longman Group 1991) 50. ↑
  12. See Keith Baker, ‘Timeshare ‘88 The English Viewpoint’ [1989] International Legal Practitioner 14. ↑
  13. Tim Bourne, ‘Is Timeshare Coming of Age?’ [1998] International Travel Law Journal 67. ↑
  14. See James Edmonds, ‘The Club/Trustee System’ (1987) 19 Law Society Gazette 2. ↑
  15. A discontinuous lease, in general, is a special category of lease in England and Wales whereby the lessee is entitled to possess and occupy the demised property exclusively for a series of discontinuous periods. Thus, under the discontinuous lease, the lessee is not entitled to possess and use the demised property for a single continuous period but rather he is entitled to possess and use the demised property on certain dates every month or year and for a given number of years such as two weeks per year for ten years. See Roger J. Smith, Property Law (6th edn, Pearson Education 2009) 226. For further information on the genesis of the discontinuous lease and its conceptual dilemma under the laws of England and Wales, please refer to Chris Willmore ‘Leases, Licences and Joint Venture Agreements: Durable Shared Possession’ a paper presented at the MSPL conference in Liverpool in April 2014, 13. ↑
  16. [1983] Q.B. 735. ↑
  17. Cottage Holiday Association v Commissioners for Customs and Excise [1983] Q.B. 735. The case also reported by Keith Baker, ‘Timeshare ‘88 The English Viewpoint’ [1989] International Legal Practitioner 14. See also, Peter Sparkes, European Land Law (Hart Publishing 2007) 272. ↑
  18. See generally, James Edmonds, International Timesharing (3rd edn, Longman Group 1991). ↑
  19. See James Edmonds, International Timesharing (3rd edn, Longman Group 1991). ↑
  20. Henceforth to be called the 1986 Timeshare Law. ↑
  21. Article 1986 Timeshare Law. ↑
  22. Paragraph 1 of Article 1, 1986 Timeshare Law. ↑
  23. Paragraph 1 of Article 1, 1986 Timeshare Law. ↑
  24. Paragraph 1 of Article 1, 1986 Timeshare Law. ↑
  25. World Tourism Organization, Timeshare: The New Force in Tourism (1st ed World Tourism Organization 1996) 48. ↑
  26. Article 1, 1986 Timeshare Law. ↑
  27. Paragraphs 2 and 3 of Article 1, 1986 Timeshare Law. ↑
  28. Paragraph 1 of Article 8, 1986 Timeshare Law. ↑
  29. Paragraphs 2 and 4 of Article 8, 1986 Timeshare Law. As if each shareholder is allocated a week or fifteen days to be taken in a particular month of the year. Or, allocating a month in the year for each shareholder to be taken in a particular season, or throughout the year as stipulated in the company articles. ↑
  30. Abdul Baset H, Dealing on Real Estate Units by Timeshare System (Gold Eagle Press 2005) 17. ↑
  31. The Uniform Real Estate Timeshare Act (URETSA) was developed by the National Conference of Commissioners on Uniform State Law in 1980 as a model act. ↑
  32. This is referred to as the NTC/NARELLO Model timeshare Act, after the acronyms of its sponsoring organisations’ title: The National Time-Sharing Council (NTC) and The National Association of Real Estate License Law Officials (NARELLO). ↑
  33. Ellen R. Peirce and Richard A. Mann, ‘Time-Share Interests in Real Estate: A Critical Evaluation of the Regulatory Environment’ (1983-1984) 59 Notre Dame Law Review 39. Mark E. Henze, The Law and Business of Timeshare Resorts (Clark Boardman Company, Ltd. New York 1984) 5-2. James Edmonds, International Timesharing (3rd edn Longman Group 1991) 179. ↑
  34. Nori Gerardo, ‘Regulating Vacation Timesharing: A More Effective Approach’ (1981-1982) 29 UCLA Law Review 935; Ellen R. Peirce and Richard A. Mann, ‘Time-Share Interests in Real Estate: A Critical Evaluation of the Regulatory Environment’ (1983-1984) 59 Notre Dame Law Review 40; Karen K. Duke, ‘Timesharing: A Unique Property Concept Creates the Need for Comprehensive Legislation’ (1981-1982) 25 Saint Louis University Law Journal 653. ↑
  35. Patrick J. Rohan and Daniel A. Furlong, ‘Timesharing and Consumer Protection: A Precise for Attorneys’ (1984) 10 William Mitchell Law Review 32. ↑
  36. Sections 11-101 (A) and 11-102 of the NTC/NARELLO Act. ↑
  37. Section 11-103, NTC/NARELLO Act. ↑
  38. Section 11-109, NTC/NARELLO Act. ↑
  39. Section 10-110 (A) (1), NTC/NARELLO Act. ↑
  40. Section 10-110 (A) (2), NTC/NARELLO Act. ↑
  41. Section 10-110 (D), NTC/NARELLO Act. ↑
  42. Stephen G Johnakin, ‘Legislation for Time Share Ownership Projects’ (1975) 10 Real Property, Probate and Trust Journal 606. ↑
  43. Section 10-101, NTC/NARELLO Act. ↑
  44. Thomas J. Davis, ‘Time-Sharing Ownership: Possibilities and Pitfalls’ (1976) 5 Real Estate Review 50. ↑
  45. Section 10-104, NTC/NARELLO Act. ↑
  46. Section 10-102, NTC/NARELLO Act. ↑
  47. Peter M. Gunnar, ‘Regulation of Resort Time-Sharing’ (1977) 57 Oregon Law Review 33. ↑
  48. Daniel T. Engle, ‘Legal Challenges to Time sharing Ownership’ (1980) 45 Missouri Law Review 427; Stephen G Johnakin, ‘Legislation for Time Share Ownership Projects’ (1975) 10 Real Property, Probate and Trust Journal 607. ↑
  49. Lisa A. Weixelman, ‘Time-Sharing: The Need for Legislation’ (1982) 50 UMKC Law Review 305. ↑
  50. Charles Harpum, Stuart Birdge, and Martin Dixon, The Law of Real Property (8th edn, Sweet and Maxwell 2012) 43 and 44. ↑
  51. Mary Ann Flynn, ‘North Carolina’s Time-Share Act: Guidelines for Those Who Buy and Sell’ 20 Wake Forest Law Review 935. ↑
  52. Thomas J. Davis, ‘Time-Sharing Ownership: Possibilities and Pitfalls’ (1976) 5 Real Estate Review 51. ↑
  53. Report available online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/467730/foi-2015-06458-cma-report-disposal-of-timeshares-and-other-long-term-holiday-products.pdf last accessed 26 June 2019. ↑
  54. Report on the evaluation of Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts COM/2015/0644 final. Available online: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52015DC0644&from=EN last accessed 26 June 2019. ↑
  55. Report on the evaluation of Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts COM/2015/0644 page 16. ↑
  56. House of Commons Briefing Paper, Timeshares Number CBP5925, 16 May 2017. ↑
  57. Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis. ↑
  58. European Commission, ‘Consumers: EU steps up protection for holidaymakers for Timeshare Holidays and holiday discount clubs’, IP/07/775, Brussels 2007, 2. ↑
  59. European Commission, ‘Consumers: EU steps up protection for holidaymakers for Timeshare Holidays and holiday discount clubs’, IP/07/775, Brussels 2007, 2. ↑
  60. European Commission/Health and Consumer Protection Directorate- General ‘Consultation Paper: Review of the Timeshare Directive (94/47/EC)’, Brussels 2006, 10. ↑
  61. European Commission/Health and Consumer Protection Directorate- General ‘Questions and Answers on Timeshare and Long-term Holiday Products’ MEMO/07/231, 2. ↑
  62. European Commission/Health and Consumer Protection Directorate- General ‘Questions and Answers on Timeshare and Long-term Holiday Products’ MEMO/07/231, 2. ↑
  63. Commission Of the European Communities ‘Commission Staff Working Document: Accompanying document to the Proposal for a Proposal for a Directive of the European Parliament and of the Council on the protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange’ (IMPACT ASSESSMENT/SUMMARY ) COM(2006) 303 final SEC(2006) 743, 17. ↑
  64. Article 6/1. ↑
  65. Article 11. ↑
  66. Peter Sparkes, European Land Law (Hart Publishing 2007) 252. ↑
  67. Pursuant to Article 10(1) of the Timeshare Regulations 2010, an exchange contract is ‘a contract between a consumer who is also party to a timeshare contract, and a trader, under which the consumer, for consideration, joins a timeshare exchange system.’ ↑
  68. Annex I of the Directive. ↑
  69. Article 5/4 of the Directive. ↑
  70. Annex V of the Directive. ↑
  71. Article 5/4 of the current Directive. ↑
  72. Sandy Grey ‘A Paper Presented to the Workshop of Reviewing the Timeshare Directive (94/47/EC).’ Organised by the European Commission – DG Sanco – 19 July 2006. ↑
  73. Article 3/1 of the repealed Directive. ↑
  74. Point h of the Annex of the repealed Directive ↑
  75. Point i of the Annex of the repealed Directive. ↑
  76. Article 3/2 of the repealed Directive. ↑
  77. Articles 3, 4 and 5 of the current Directive. ↑
  78. Article 3/4 of the current Directive. ↑
  79. European Commission/Health and Consumer Protection Directorate- General, Consultation Paper: Review of the Timeshare Directive (94/47/EC)’, Brussels 2006, 6. ↑
  80. J A Luzak, ‘To Withdraw or Not To Withdraw? Evaluation of the Mandatory Right of Withdrawal in Consumer Distance Selling Contracts Taking into Account Its Behavioural Effects on Consumers’ Journal of Consumer Policy (2014) 37:91–111, 96. ↑
  81. Jan M Smits, ‘Rethinking the Usefulness of Mandatory Rights of Withdrawal in Consumer Contract Law: The Right to Change Your Mind’, 29 Penn St. Int’l L. Rev. 671 (2011), 684. ↑
  82. E Tscherner, ‘Can Behavioural Research Advance Mandatory Law, Information Duties, Standard Terms and Withdrawal Rights?’ Austrian Law Journal 1/2014, 144-155, 154. ↑
  83. E Tscherner, ‘Can Behavioural Research Advance Mandatory Law, Information Duties, Standard Terms and Withdrawal Rights?’ Austrian Law Journal 1/2014, 144-155, 148 – 149. ↑
  84. Article 21(1)(b), Timeshare Regulations 2010. ↑
  85. Article 12 (1), (2) and (4), Timeshare Regulations 2010. ↑
  86. Article 20 (1), Timeshare Regulations 2010. ↑
  87. Article 22 (4) and Article 20 (3), Timeshare Regulations 2010. ↑
  88. Article 25(3), Timeshare Regulations 2010. ↑
  89. Article 22, Timeshare Regulations 2010. ↑
  90. Article 14 (3), Timeshare Regulations 2010. ↑
  91. Paragraph 1 of Article L. 121-63, Consumer Code. ↑
  92. Paragraph 1 of Article L. 121-69 of Section 9 of Chapter I of Title II of Book I, Consumer Code. ↑
  93. Paragraph 1 of Article L. 121 – 69 of Section 9 of Chapter I of Title II of Book I, Consumer Code. ↑
  94. Articles L.121 – 69/ paragraph 2 and L.121-74 – Le of Section 9 of Chapter I of Title II of Book I, Consumer Code. ↑
  95. Paragraph 1 of Article L.121- 69 of Section 9 of Chapter I of Title II of Book I, Consumer Code. ↑
  96. Paragraph 3 of Article L.121-73 of Section 9 of Chapter I of Title II of Book I, Consumer Code. ↑
  97. Paragraph 1 of Article L.121-77 of Section 9 of Chapter I of Title II of Book I, Consumer Code. Pursuant to Paragraph 2 of Article L.121-77 Section 9 of Chapter I of Title II of Book I, Consumer Code. ↑
  98. Article L.121-68 ↑
  99. Section 3-103, NTC/NARELLO Act. Nonetheless, it requires the delivery of such payments to an escrow agent. ↑
  100. Section 3-101, NTC/NARELLO Act. ↑
  101. Section 3-101, NTC/NARELLO Act. ↑
  102. Section 10-102, NTC/NARELLO Act. ↑
  103. Section 8-101 (A), NTC/NARELLO Act. ↑
  104. Section 4-104 NTC/NARELLO Act. ↑
  105. Section 1-106 NTC/NARELLO Act. ↑
  106. Timeshare Consumer Association, Timeshare in Europe 2004: An Industry at the Cross Roads (England, Timeshare Consumers Association, 2004) 16. ↑
  107. Timeshare Consumer Association, Timeshare in Europe 2004: An Industry at the Cross Roads (England, Timeshare Consumers Association, 2004) 16. ↑
  108. There has been litigation concerning the location of a timeshare property for the purposes of VAT. This is not relevant to the consumer issues under discussion in this article, but see generally, ‘Timeshare exchange services supplied where property located’ EU Focus 2009, 261, 16-17. ↑
  109. Nuria Rodriguez Murillo ‘The Reversion of the Timeshare Directive’ (2007) International Travel Law Journal 84. ↑
  110. Timeshare Consumer Association, ‘The Hidden Problems in Timeshare’ March 2017, available electronically: <https://www.timeshareconsumerassociation.org.uk/2017/03/14/the-hidden-problems-in-timeshare/> last accessed 26 June 2019.See also, Susan Marks, Paradise Lost (Citizen Advice Bureau, UK 2003) 44; ↑
  111. Commission of the European Communities, Questions and Answers on Timeshare and Long-term holiday Products (2007) MEMO/07/231, 3. ↑
  112. Article 3/1 of the repealed Directive. ↑
  113. Article 4/1 of the repealed Directive. ↑
  114. Part 3 of Annex I of the current Directive. ↑
  115. This is stipulated in Part 3/1, Annex IV. ↑
  116. European Commission/Directorate General for Justice and Consumers, Evaluation Study on the Application of the Timeshare Directive 2008/122/EC – Final Report March 2015, 36. ↑
  117. For example, in 2006 Grey commented, ‘timeshare fees have doubled whilst living costs have only increased by one third’. Sandy Grey ‘A Paper Presented to the Workshop of Reviewing the Timeshare Directive (94/47/EC) Organised by the European Commission – DG Sanco – 19 July 2006’ 3. In addition, in 2007 the Commission of the European Communities reported that, 53% of the timeshare holders expressed their concerns about future annual fee increases. Commission Of the European Communities ‘Commission Staff Working Document: Accompanying document to the Proposal for a Directive of the European Parliament and of the Council on the protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange’ (Impact Assessment/ Detailed) Sec (2007) 744, 22. ↑
  118. Part 3/4 of Annex I ↑
  119. Only 15.4% of the timeshare holders have faced this problem after the implementation of the current Directive in comparison to 71.7% before its implementation. European Commission, ‘Report from the Commission to the European Parliament and the Council on the Evaluation of the Timeshare Directive 2008/122/EC’ COM (2015) 644 Final, 7. ↑
  120. Sandy Grey ‘A Paper Presented to the Workshop of Reviewing the Timeshare Directive (94/47/EC) Organised by the European Commission – DG Sanco – 19 July 2006’ 3. ↑
  121. European Commission/Health and Consumer Protection Directorate- General, Consultation Paper: Review of the Timeshare Directive (94/47/EC), Brussels 2006, 6. ↑
  122. Timeshare Consumer Association, Timeshare in Europe-2007 (England, Timeshare Consumers Association, 2007) 16. ↑
  123. Timeshare Consumer Association, Timeshare in Europe-2005 (England, Timeshare Consumers Association, 2005) 21. ↑
  124. David A Bowen, ‘Timeshare Ownership: Regulation and Common Sense’ (2006) 18 Loyola Consumer Law Review 466. ↑
  125. Timeshare Consumer Association, Timeshare in Europe-2005 (England, Timeshare Consumers Association, 2005) 21. ↑
  126. This case is described by the Timeshare Consumer Association on its website: ‘Lanzarote Beach Club’ < http://www.timeshareconsumerassociation.org.uk/2014/11/07/lanzarote-beach-club-lbc1-lbc2/> last accessed 26 June 2019. ↑
  127. Sandy Grey ‘A Paper Presented to the Workshop of Reviewing the Timeshare Directive (94/47/EC) Organised by the European Commission – DG Sanco – 19 July 2006’ 3. ↑
  128. Ron Haylock, ‘Developments in Worldwide Timeshare’ (1988) 2 Travel and Tourism Analyst 61. ↑
  129. Article 12, Timeshare Regulations 2010; Part 1 of Schedule 1 (Standard Information Form for Timeshare Contracts) of the Timeshare Regulations 2010. ↑
  130. Article 12, Timeshare Regulations 2010. ↑
  131. Paragraph (2) of Article (L.121-63) of Section (9) of Chapter (I) of Title (II) of Book (I) of the Consumer Code and Part 1 and 3 of Annex 1 (Standard Information Form for Timeshare Contracts) of the 2010 Decree. ↑
  132. Paragraph 2 of Article L.121-63 of Section 9 of chapter I of title II of book I of the Consumer Code. ↑
  133. The General Assembly is a general meeting of all the shareholders of the timeshare company. ↑
  134. Article 5 of the 1986 Timeshare Law. ↑
  135. According to Article 3 of 1986 Timeshare Law, if a timeshare holder does not contribute to the management and maintenance costs, the provisions of Article L 212-4 of the Code of Construction and Dwelling apply. Pursuant to this Article, the company is entitled to deprive the defaulting timeshare holder of the exercise of their occupancy right. ↑
  136. Section 10-102 (A) (7) and (8), NTC/NARELLO Act. ↑
  137. Section 10-102 (A) (14), NTC/NARELLO Act. ↑
  138. Sections 11-101 (A) and 11-102 NTC/NARELLO Act. ↑
  139. Section 11-103 NTC/NARELLO Act. ↑
  140. Section 11-109 NTC/NARELLO Act. ↑
  141. Section 11-110 NTC/NARELLO Act ↑
  142. Section 11-108 NTC/NARELLO Act. ↑
  143. European Commission, Report from the Commission to the European Parliament and the Council on the Evaluation of the Timeshare Directive 2008/122/EC COM (2015) 644 Final, 7. ↑
  144. Competition and Markets Authority, Disposal of Timeshares and Other Long-term Holiday Products – A Report for BIS and the European Commission 2014, 57. ↑
  145. Report from the Commission to the European Parliament and the Council, Report on the evaluation of Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts COM/2015/0644 16. ↑
  146. Ron Haylock, ‘Developments in Worldwide Timeshare’ (1988) 2 Travel and Tourism Analyst 62. ↑
  147. Martin Hovey, ‘Is Timeshare Ownership an Investment Product?’ (2002) 7 Journal for Financial Services Marketing 152. ↑
  148. See the House of Commons Briefing Paper, Timeshares Number CBP5925, 16 May 2017: ‘The Department for Business Innovation and Skills (BIS) (now the Department for Business, Energy and Industrial Strategy (BEIS)) has warned against using these schemes. Specifically, BIS has stated that UK consumers experiencing problems with their timeshare should be extremely cautious before committing to selling their property to, or with the help of, any company without first seeking legal advice.’ Page 21. Available online: https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN05925#fullreport ↑
  149. Ron Haylock, ‘Developments in Worldwide Timeshare’ (1988) 2 Travel and Tourism Analyst 62. ↑
  150. Timeshare Consumer Association, Timeshare in Europe 2004: An Industry at the Cross Roads (England, Timeshare Consumers Association, 2004) 19. ↑
  151. European Commission/Directorate General for Justice and Consumers, Evaluation Study on the Application of the Timeshare Directive 2008/122/EC – Final Report March 2015, 16. ↑
  152. European Commission, Report from the Commission to the European Parliament and the Council on the Evaluation of the Timeshare Directive 2008/122/EC COM (2015) 644 Final, 7. ↑
  153. Peter Sparkes, European Land Law (Hart Publishing 2007) 275. ↑
  154. Competition and Marketing Authority, Disposal of timeshares and other long-term holiday products – a report for Business, Innovation & Skills and the European Commission (Competition and Marketing Authority July 2014) 29. ↑
  155. Competition and Marketing Authority, Disposal of timeshares and other long-term holiday products – a report for Business, Innovation & Skills and the European Commission (Competition and Marketing Authority July 2014) 31. ↑
  156. Competition and Marketing Authority Disposal of timeshares and other long-term holiday products – a report for Business, Innovation & Skills and the European Commission (Competition and Marketing Authority July 2014) 27. ↑
  157. See, ‘Timeshare nightmares’ and ’When timeshares turn to nightmares’ February 2018, 168 NLJ 7779, 5 and 17.↑
  158. Competition and Marketing Authority Disposal of timeshares and other long-term holiday products – a report for Business, Innovation & Skills and the European Commission (Competition and Marketing Authority July 2014) 27. ↑
  159. Unreported 15 January 2015 (Trib Sup (Sp)). See generally Quim Forner Delaygua, ‘Case Comment, Spain: Contract – Timeshare Property’ International Company and Commercial Law review 2016, 27(3), N2-N23. ↑
  160. Articles 1.6 and 3.1. ↑
  161. Article 1.7. ↑
  162. Fiona O’Donnell, ‘Timeshare Contracts – House of Commons Debates’ Monday, 3 June 2013. See also Kate Palmer, ‘Timeshare Horrors: Fresh Hope for 100,000 People Locked in Costly Contracts’ Telegraph, 30 May 2015 <http://www.telegraph.co.uk/finance/personalfinance/money-saving-tips/11616223/Timeshare-horrors-fresh-hope-for-100000-people-locked-in-costly-contracts.html> last accessed 26 June 2019. ↑
  163. Lorraine Conway, Timeshares (House of Commons Library, 22 June 2016) 14; European Commission, ‘Report from the Commission to the European Parliament and the Council on the Evaluation of the Timeshare Directive 2008/122/EC’ COM (2015) 644 Final, 7. ↑
  164. Timeshare Consumer Association, Timeshare in Europe 2004: An Industry at the Cross Roads (England, Timeshare Consumers Association, 2004) 19. ↑
  165. European Commission/Directorate General for Justice and Consumers, Evaluation Study on the Application of the Timeshare Directive 2008/122/EC – Final Report March 2015, 33. ↑
  166. Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts, OJ L 95, 21.4.1993, p.29. ↑
  167. The preamble of the Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. ↑
  168. Article 10 Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. ↑
  169. Article 1 Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. ↑
  170. Article 3/1 Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. ↑
  171. Article 5 Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. ↑
  172. Article 5 Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. ↑
  173. Article 6 Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. ↑
  174. Noemi Downes, ‘More about Timeshare: A Revised Directive or a Regulation? Incidence of Other Instruments of Consumer Protection’ (2008) 4 European Review of Private Law 622. ↑
  175. European Commission, Report from the Commission to the European Parliament and the Council on the Evaluation of the Timeshare Directive 2008/122/EC COM (2015) 644 Final, 7. ↑
  176. Article 4/1 Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. ↑
  177. Competition and Marketing Authority, Disposal of timeshares and other long-term holiday products – a report for Business, Innovation & Skills and the European Commission (Competition and Marketing Authority July 2014) 10. ↑
  178. Competition and Marketing Authority, Disposal of timeshares and other long-term holiday products – a report for Business, Innovation & Skills and the European Commission (Competition and Marketing Authority July 2014) 9. ↑
  179. Competition and Marketing Authority, Disposal of timeshares and other long-term holiday products – a report for Business, Innovation & Skills and the European Commission (Competition and Marketing Authority July 2014) 10. ↑
  180. Competition and Marketing Authority, Disposal of timeshares and other long-term holiday products – a report for Business, Innovation & Skills and the European Commission (Competition and Marketing Authority July 2014) 11. ↑
  181. European Commission/Directorate General for Justice and Consumers ‘Evaluation Study on the Application of the Timeshare Directive 2008/122/EC – Final Report’ March 2015, 69. TATOC, ‘TATOC – Timeshare Association’ <http://www.tatoc.co.uk/> last accessed 26 June 2019. ↑
  182. Competition and Marketing Authority, Disposal of timeshares and other long-term holiday products – a report for Business, Innovation & Skills and the European Commission (Competition and Marketing Authority July 2014) 28. ↑
  183. Paragraph 1 of Article 1986 Timeshare Law. ↑
  184. Paragraph 2 of Article 23 1986 Timeshare Law. ↑
  185. Timeshare Consumer Association, Exiting French Timeshare, <http://www.timeshareconsumerassociation.org.uk/2015/11/27/exiting-french-timeshares/> last accessed 26 June 2019. ↑
  186. Paragraph 2 of Article 19-11986 Timeshare Law. ↑
  187. Paragraph 3 of Article 19-11986 Timeshare Law. ↑
  188. Paragraph 4 of Article 19-1 1986 Timeshare Law. ↑
  189. Paragraph 1 of Article 19-1 1986 Timeshare Law. ↑
  190. David A Bowen, ‘Timeshare ownership: Regulation and Common Sense’ (2006) 18 Loyola Consumer Law Review 465. ↑
  191. The courts will look at whether a party is accepting responsibility, or providing advice on verification, see Schawel v Reade [1913] 2 IR 81 (HL); or the importance of the statement: see Bannerman v White (1861) 10 CB NS 844; 142 ER 685 (Court of Common Pleas); or the specialist knowledge of the statement maker: see Oscar Chess Ltd v Williams [1957] 1 WLR 370 (CA). ↑