(A) Before engaging in any vacation time sharing resale services, a resale service provider must provide a written contract to the consumer vacation time sharing reseller that includes:
(1) The name, physical address, telephone number, and website address, if any, of the resale service provider and any other agent or third party who will provide any of the vacation time sharing resale services on behalf of the resale service provider.
(2) The name, physical address, telephone number, and email address of the escrow agent, if applicable, that will be used to hold funds or other property pursuant to this section.
(3) A complete description of the vacation time sharing resale services.
(4) The duration of the contract for vacation time sharing resale services expressed in days, weeks, months or years.
(5) A description of any fees, costs, or other consideration to be paid to the resale service provider or any agent or third party of it. These fees must include marketing and advertising fees or commissions that are paid upon the sale of a resale vacation time sharing interest.
(6) A statement, if applicable, that the resale service provider will deliver to the consumer vacation time sharing reseller all documentation evidencing the transfer of legal ownership of the resale vacation time sharing interest as provided in subsection (B).
(7) A statement, if applicable, that the consumer time sharing reseller shall have five business days from the date they receive the notice of right to dispute the release funds from the escrow agent as referenced in subsection (B).
(8) The Internet addresses and telephone numbers for both the Department of Consumer Affairs and the commission.
(9) A statement printed in at least twelve-point boldfaced type immediately preceding the space in the contract provided for the consumer time sharing reseller's signature in substantially the following form:
"You have an unwaivable right to cancel this contract for any reason within five business days after the date you sign this contract. If you decide to cancel this contract, you must notify (name of resale service provider) in writing of your intent to cancel. Your notice of cancellation must be effective upon the date sent and must be sent to (resale service provider's mailing address) or to (resale service provider's e-mail address). Your refund will be made within twenty days after receipt of notice of cancellation or within five days after receipt of funds from your cleared check, whichever is later. You are not obligated to pay (name of resale service provider) any money unless you sign this contract and return it to (name of resale service provider).
Before signing this contract, you should carefully review your original vacation time sharing purchase contract and other project documents to determine whether there are any restrictions or special conditions applicable to the resale or rental of your vacation time sharing interest. You also may wish to contact your resort management company or your vacation time sharing association to learn about resale or rental options that may be available to you."
(B) With respect to all fees, costs and compensation paid to a resale service provider, the following shall apply:
(1) A consumer vacation time sharing reseller may not be charged an appraisal fee in connection with the sale or rental of a resale vacation time sharing interest.
(2) A consumer vacation time sharing reseller may be charged marketing or advertising fees prior to the sale or rental of a resale vacation time sharing interest.
(3) A consumer vacation time sharing reseller shall not pay any advance fee, cost or compensation for vacation time sharing resale services, except as provided in item (2), unless one hundred percent of all funds are deposited into an escrow account until the vacation time sharing resale service is completed and all other requirements of this section have been met.
(a) The funds or other property required to be escrowed hereunder only may be released from escrow to or on the order of the person providing the vacation time sharing resale services upon completion of all of the following:
(i) Presentation by the vacation time sharing resale services provider of an affidavit by such person to the escrow agent that all promised vacation time sharing resale services have been performed, including delivery to both the consumer vacation time sharing reseller and the vacation time sharing plan association or managing entity of a copy of the recorded instrument or other legal document evidencing the transfer of ownership or of legal title to the resale vacation time sharing interest completed in accordance with Section 27-32-40, to the transferee.
(ii) The escrow agent's submission of the affidavit and a notice of right to dispute the release of funds or property in escrow to the consumer vacation time sharing reseller. The notice shall state the consumer vacation time sharing reseller shall have five business days after receipt of such affidavit to submit a written dispute to the escrow agent that all promised vacation time sharing resale services have in fact not been fully performed by the resale service provider. The consumer vacation time sharing reseller may submit the dispute by electronic mail or regular mail. The dispute is effective upon the date sent.
(iii) Failure of the consumer vacation time sharing reseller to submit a dispute pursuant to subsubitem (ii).
(iv) Should the escrow agent receive conflicting demands for funds or other property held in escrow, the escrow agent immediately must notify the commission of the dispute and either promptly submit the matter to arbitration or, by interpleader or otherwise, seek an adjudication of the matter by court.
(b) The commission may audit or examine the escrow account. The resale service provider must make available documents relating to the escrow account or escrow obligation to the commission upon the commission's request.
(c) The escrow agent must retain all resale transfer agreements, escrow account records, affidavits and notices of dispute received pursuant to this subsection for a period of three years.
(C)(1) No person shall knowingly participate, for consideration or with the expectation of consideration, in any plan or scheme, a purpose of which is to transfer a resale vacation time sharing interest to a person or entity that the person knows or reasonably should know does not have the ability, means, or intent to pay all assessments and taxes associated with ownership of the resale vacation time sharing interest that are due or that come due during the transferee's ownership.
(2) Failure to pay assessments or taxes that are due or that come due within four years after acquisition of a resale vacation time sharing interest by a transferee who acquires the resale vacation time sharing interest for commercial purposes and not for personal use and enjoyment creates a rebuttable presumption of a violation of this section.
(3) Payment of all assessments and taxes for four years by or on behalf of a transferee shall satisfy item (2).
(4) It is considered a violation of this section if there is any transfer, series of transfers, or other action made or taken by any person for the purpose of circumventing this section.
(D) No individual consumer vacation time sharing reseller who sells or transfers five or fewer resale vacation time sharing interests owned by that consumer vacation time sharing reseller in a given calendar year shall be subject to liability under subsection (C) above.
(E) Engagement in any vacation time sharing resale service, or receipt of consideration in connection with, any vacation time sharing resale service without an executed written contract as provided in this section or the transfer of a resale vacation time sharing interest to a person who the resale service provider knows or should have known has demonstrated a pattern of nonpayment of assessments, taxes, or fees associated with the obligations of ownership, creates a rebuttable presumption of this as a violation of this section.
(F) Providing vacation time sharing resale services with respect to a consumer resale vacation time sharing interest in a vacation time sharing property located or offered within this State or required to be registered in this State, including acting as an agent or third-party service provider for a resale service provider, constitutes operating, conducting, engaging in, or carrying on a business or business venture in this State.
(G) A contract for vacation time sharing resale services resulting from conduct in violation of this section is voidable by the consumer vacation time sharing reseller and the resale service provider shall return all consideration received pursuant to the contract to the consumer vacation time sharing reseller.
(H)(1) A person violating the provisions of this section has committed an unfair trade practice pursuant to Chapter 5, Title 39 of the Unfair Trade Practices Act and is subject to all civil penalties and remedies provided by law for this violation. The criminal penalty provisions of Chapter 5, Title 39 do not apply to this section.
(2) If a court, in its discretion, based upon the evidence presented by the parties, determines that a person's actions pursuant to this section were inadvertent, unintentional, and not an effort to violate the provisions of this section, the court may hold that the person's actions were nonmaterial, technical violations not subject to Chapter 5, Title 39 of the Unfair Trade Practices Act, and in lieu of all other penalties, the court may assess a technical violation penalty not exceeding two hundred dollars. The court's determination that a violation is a nonmaterial, technical violation in no way prevents the court from assessing full penalties under this section or Chapter 5, Title 39 of the Unfair Trade Practices Act for any other violations determined to be a plan or scheme.
(I) The Department of Consumer Affairs may enforce this section, and impose penalties, including those provided in Section 27-32-120(A), a warning notice of deficiency, a cease and desist order and a refund of fees, costs or compensation assessed and/or received in violation of the section. A person aggrieved by the department's final administrative order may request a contested case hearing before the Administrative Law Court pursuant to the court's rules of procedure. If the person fails to timely request a contested case hearing, the department may bring an action to enforce its order pursuant to Chapter 23, Title 1. The criminal penalty provisions of Section 27-32-120(B) do not apply to this section.
(J) Vacation time sharing interests are subject to the protections of the Service Members Civil Relief Act.
HISTORY: 2001 Act No. 35, Section 1; 2003 Act No. 84, Section 1; 2017 Act No. 90 (H.3647), Section 2, eff May 19, 2017.
Effect of Amendment
2017 Act No. 90, Section 2, rewrote the section, providing requirements of resale vacation timeshare services and providers of those services and including consumer protection provisions.