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Thursday, December 05, 2013
Mountain Law: Legal remedies available to timeshare buyers
Timesharing is said to have originated in the French Alps in the 1960s based on the need of consumers for assured accommodations in a prime tourist location. As such, it was logical the concept would find its way to Colorado. Unfortunately, despite increased regulation of the timeshare industry, many timeshare buyers succumb to high-pressure sales tactics and wind up dissatisfied with their timeshare purchases. When that happens, what legal remedies are available?
Right to Rescind: Colorado law provides a limited “cooling off” period during which a timeshare buyer may rescind (cancel) the sale. The rescission must be exercised within five calendar days after the sale and applies to any sale of a timeshare regardless of whether the seller is the timeshare developer itself or a private owner. The rescission must be exercised in writing by electronic means, mail or hand delivery and is effective when given by the buyer (not when received by the seller). Once the right to rescind is exercised, the timeshare seller must refund any down payment or deposit made under the timeshare contract within seven calendar days (or, if the check has not cleared, within seven calendar days after it clears).
Timeshare sellers must give “conspicuous notice” of the right to rescind in the sales contract. While the statute itself does not indicate what constitutes conspicuous notice, a separate regulation requires “a statement in bold print immediately prior to the purchaser’s signature line on the sales contract disclosing the rescission right available to purchasers and that the rescission right cannot be waived.”
Remedy for Misrepresentation: Colorado law specifically protects timeshare buyers when the seller misrepresents:
• The investment, resale or rental value of any timeshare;
• The conditions under which the purchaser may exchange the right to use accommodations or facilities in one location for the right to use accommodations or facilities in another location; or
• The period of time during which the accommodations or facilities contracted for will be available to the purchaser.
While the law applies to any representation, including those made orally, it would be easiest to prove a case where the seller’s misrepresentations appear in writing, such as in advertising materials. It would be difficult, though apparently not impossible, for a buyer to prove oral misrepresentation in the face of correct representations in the contract itself.
Regulation: Some Colorado towns and counties have adopted comprehensive timeshare regulations, which timeshare buyers should consult to determine if they will help. In addition, timeshare companies are generally regulated by the Colorado Real Estate Commission (CREC). The CREC requires timeshare companies to disclose detailed information about themselves and their projects. A timeshare buyer should consider obtaining a copy of applicable disclosures from the CREC to determine if they are accurate and being followed.
Enforcement Options: The CREC has the ability to investigate and punish timeshare companies for many timeshare law violations. Thus, where a timeshare buyer believes a law has been violated, the buyer should consider filing a complaint with the CREC. In addition, violations of consumer protection laws, including those related to the right to rescind and seller misrepresentations as discussed above, may be criminal and could be reported to appropriate law enforcement authorities. Finally, a timeshare buyer may bring a civil enforcement action against a timeshare seller for any violation of Colorado law and potentially recover significant penalties and attorney fees.
This article does not discuss every law applying to timeshares, including significant laws applying to timeshare resales. Timeshare buyers should consult an attorney about their specific situations.
Many timeshare sales are legitimate transactions leaving aggrieved buyers with few remedies against the timeshare seller, but, under the right circumstances, legal relief may be available.
Noah Klug is the owner of The Klug Law Firm, LLC, in Summit County, Colorado. His practice focuses on business, real estate, and litigation. He may be reached at Noah@TheKlugLawFirm.com or 970-468-4953.