Anfi Del Mar, Gran Canaria

I saw the following on another Timeshare Companies website yesterday Wednesday 9th November 2016 (which I have taken a photo shoot of) which has the following included in their article

“The Law today, Law 42/1998 clearly states that contracts must last between a period of 3 & 50 years. In 2015 the Spanish Supreme Court announced the new ruling, stating that life timeshare contracts are declared illegal under perpetuity, this been a common practice at the Anfi Resort. The Majority of timeshare owners at the resort are owners from Germany, the UK and Scandinavia.”

The Law covering the 2 Court Cases versus Anfi relate to purchases made in 2004 and 2009 and the website correctly points out that Law 42/1998 was in force at the time of the purchases. HOWEVER, the quote above is INCORRECT in that Law 42/1998 does not cover Timeshare being sold in Spain today, BUT the Law ‘Real Decreto-ley 8/2012’ does.

The quote of “that contracts must last between a period of 3 & 50 years” is also incorrect.

Look and check for your selves.

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eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52015DC0644&from=en

1.INTRODUCTION
This report provides an assessment of the application of Directive 2008/122/EC (the Timeshare Directive) in Member States and evaluates its effects.
The 2008 Timeshare Directive repealed former Directive 94/47/EC 1 and modernised its provisions in order to deal with the emergence of new products in the travel market. It covers a broader range of holiday-related services characterised by long-term commitments or significant financial risks for consumers, namely:
- timeshare contracts, of more than one year under which a consumer, for consideration, acquires the right to use overnight accommodation for more than one period of occupation;
- contracts for long-term holiday products by which a consumer, for consideration, acquires the right to obtain benefits in respect of accommodation, either in isolation or together with travel or other services (such as membership in ‘discount holiday clubs’, which offer discounts on travel and accommodation in different resorts for a fixed period of time);
- exchange contracts under which a consumer, for consideration, joins a system that allows him to enjoy overnight accommodation or other services in exchange for granting others, on a temporary basis, access to the benefits of the rights arising from his own timeshare contract;
- resale contracts under which a trader, for consideration, assists a timeshare owner to resell his timeshare rights or long-term holiday product.

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Scroll down to Articulo 3.

Artículo 3. Contrato de producto vacacional de larga duración.
Se entiende por contrato de producto vacacional de larga duración aquel de duración superior a un año en virtud del cual un consumidor adquiere, a título oneroso, esencialmente el derecho a obtener descuentos u otras ventajas respecto de su alojamiento, de forma aislada o en combinación con viajes u otros servicios.

Article 3. Contract of product holiday of long duration.

It means holiday product contract long one lasting more than one year by which a consumer acquires, for pecuniary, essentially the right to obtain discounts or other benefits on accommodation, in isolation or in combination with travel or other services.

I have been posting as Ex Anfi (35351) C.D.N. so as not to cause any confusion as to who I am. I purchased 2 weeks of Timeshare in 1985 and had many wonderful holidays during my ownership. I do not NOW own any Timeshare, Holiday clubs or similar product what so ever.
I did work in the Timeshare industry until 7th September 2015. I do not NOW work in the Timeshare Industry, Holiday Clubs or any product to do with holidays what so ever. I also DO NOT work in any profession or for any company which has any connections to do with Timeshare, holidays or any product similar.
My postings are only in relation to my own personal experiences and knowledge of the Timeshare industry.

The Anfi Way, maybe not? (Part 6 of 7)

EU Directive 122, (16/03/2012) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION (Continued)

EUROPEAN COMMISSION Brussels, 16.12.2015 COM (2015) 644 final

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.

CONCLUSIONS
Based on the above findings, the Commission draws the following conclusions concerning the application of the Directive:

•Regarding aspects of the timeshare, long-term holiday product, resale and exchange contracts falling within its scope, the Timeshare Directive appears overall to be a useful tool in protecting consumers in this specific holiday sector.

•Regarding aspects falling outside its scope (such as termination of contracts) problems still occur. However, the analysis shows 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.

•Specific attention must nonetheless be given to legal constructions and practices aimed at circumventing the Directive. The Consumer Rights Directive, the Unfair Contract Terms Directive and the Unfair Commercial Practices Directive can all help to address such circumventions. The revised guidance for the Unfair Commercial Practices Directive will, amongst other things, address the interaction between it and the Timeshare Directive.

•At this stage, there seems to be no need to modify either the scope or the provisions of the Directive.

•In order to render the Directive more effective, there is a need to encourage national enforcement authorities to focus on certain business practices and traders. This is particularly the case for Spain, which is involved in half of all complaints reported to European Consumer Centres across the EU, Iceland and Norway.

•Where a conduct points towards criminal law, law enforcement authorities should be quickly informed with a view to launching criminal investigations. The cross-border dimension of fraudulent practices could be addressed more effectively by better use of the measures on criminal law cooperation, established between the law enforcement authorities of the Member States. Existing EU instruments for cooperation in criminal matters already provide a comprehensive legal framework for this purpose.

•Possible alternative ways of addressing existing problems, e.g. awareness-raising campaigns, self-regulation and alternative dispute resolution mechanisms, all of which could also have a positive impact. In this respect, the European Consumer Centres have prepared a dedicated section on their websites with tips for consumers that will be launched soon.

•More comprehensive strategies of national consumer protection authorities could raise consumer awareness so as to ensure that their own citizens are more informed about potential scams. Prevention is the most effective way of protecting consumers. Research shows that legitimate businesses actively work on their reputation and want to be seen as being compliant with the EU regulatory regime. Associations representing these businesses and their clients draft codes of conduct, set up alternative dispute resolution mechanisms and cooperate with enforcement authorities when detecting fraudulent traders in this holiday sector.

•The Commission has taken the necessary actions under Article 258 of the Treaty on the Functioning of the European Union in cases where a Member State failed to comply with its transposition obligations. The Commission will also exercise its powers under this article whenever a Member State fails to comply with its enforcement obligations. For this reason, the Commission services have begun a dialogue with Spain regarding the correct enforcement of the Directive.

•The Commission will further encourage Member States, where appropriate, to step up their enforcement actions, including via the Consumer Protection Cooperation network, and ensure the Directive’s provisions are complied with in all Member States. Consideration will be given to further steps, such as targeted workshops with key stakeholders. If deemed appropriate in light of the amount and impact of activities that are undertaken at national level in response to this report, an additional evaluation on the overall state of application of the Directive could be issued in three years’ time.

Real Decreto-ley 8/2012, de 16 de Marzo. (Continued)

Article 29. General scheme.

1). subject to the provisions of article 23.4, the transfer of rights of use per shift with denomination of timeshare or anything containing the word property is prohibited.

Article 30. Form and content of the contract.

3) identification of the property through its cadastral reference, accurate description of the building, its location and accommodation on which rests the right, with express reference to their registration details and the turn that is the subject of the contract, indicating the days and hours that starts and ends.
*fixed week in a fixed apartment*

4) expression that the work is completed or is under construction. In the lattercase, it shall indicate:

g) detailed list of furniture and furnishings that will include housing, as well as the value that has been attributed for the purpose of the guarantee or insurance refers to article 25.2.
*how many units do not have inventories in rooms?*

5) the price that will have to pay the purchaser and the amount that in conformity with the regulatory writing should meet annually, once acquired the right, service company, or the owner that had taken over in regulatory writing, with expression that will be updated according to the consumer price index published by the National Institute of statistics unless the parties have established another form of upgrade, which may not be at the mercy of one of them, indicating, by way of indication, what has been the average of the index in the past five years.

*Service charges (Maintenance fee’s) YUP should have average of last 5 years in writing for prospective purchasers**

The Anfi Way, maybe not? (Part 7 of 7)

EU Directive 122, (16/03/2012) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION (Continued)
You will clearly see the following words in the EU Directive 122;

“Member States should not be allowed to maintain or introduce in their national legislation provisions diverging from those laid down in this Directive”.

Real Decreto-ley 8/2012, de 16 de Marzo.
Article 37.

3). all pre-existing schemes will have a maximum duration of 50 years, that in the case of the concluded before the entry into force of the law 42/1998 of 15 December,will it be calculated since this date, unless they are of less or that they had made in adaptation, express declaration script continuity indefinitely or for certain period.

4). the regimes of timeshare contract or associative nature relating to real estate sites in Spain referred to in paragraph 8 of article 23, made before the entry into force of the present Royal Decree-Law shall advertise the regime in the registry of property where is located the property as provided in paragraph 8 referred.

Sole repeal provision. Repeal legislation.

The law 42/1998 of 15 December, on rights of timeshare real estate for tourist use and tax rules be repealed.

By this Royal Decree-Law was incorporated into the Spanish legal system Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2008, concerning the protection of consumers in respect of certain aspects of timeshare timeshare, acquisition of holiday products long-lasting, resale and Exchange.

ANNEX I Information form standardized to utilization contracts by turn of timeshare

Part 1:

Brief description of the product (for example, description of the property):

Exact of the right or rights nature and content:

Exact period during which it may exercise the right to object of the contract and, if necessary, its duration:

Date from which the consumer may exercise the right of the contract:

Summary of the main services that can enjoy the consumer (e.g., electricity, water, maintenance, refuse collection) and indication of the amounts to be paid for such services:

*There are many Spanish Timeshare contracts signed before Real Decree 4/2012 (16th March 2012). If your contract states “summary of the main services that can be enjoyed by the consumer” includes WATER & ELECTRICITY ect, then those resorts CAN NOT CHARGE for ELECTRICITY & WATER ect. If your Spanish resort requests you to pay, you are not legally obligated to pay*

Summary of facilities you can enjoy the consumer (e.g. swimming pool or sauna): Are they included in the costs listed above?

Part 2: General information:

During this period of withdrawal, any payment of advances by the consumer is prohibited. Affects ban to any consideration, including payment, the Constitution of guarantees, reservation of money on accounts, explicit acknowledgement of debt, etc. It includes not only payment to the trader, but also to third parties.

6) ADDITIONAL INFORMATION
information about the way in which are organized the maintenance and repairs of the property, as well as its administration and management, including the possibility that consumer to influence and participate in decisions relating to these issues and modalities for this participation,

information about whether it is possible or not to join a system of resale of the contractual rights, information about the relevant system and indication of costs related to resale through this system,

where appropriate, the possibility of resorting to a medium of out-of-court dispute resolution.

Acknowledgement of receipt of the information:

Signature of the consumer:

BE REPEALED, by law 4/2012 on July 6 (Ref. BOE-A-2012-9111).
IT PUBLISHES agreement of recognition, by resolution of March 29, 2012 (Ref. BOE-A-2012-4915).

You are walking along enjoying your holiday when a VPR/OPC/Kid on the street approaches you with his scratch cards. Law 4/2012 Article 7 Advertising (2). & E.U. DIRECTIVE 2008/122 Article 3 Advertising (2) state the VPR/OPC must inform you if you are going to a Timeshare/Holiday Club presentation. Failure to do so is a breach of the 2 laws and will make any contracts NULL & VOID.

On arrival at the resort where the presentation is to take place, if the reception staff fail to clarify you are attending a Timeshare/Holiday Club presentation, then they too have failed to comply with Law 4/2012 Article 7 Advertising (2). & E.U. DIRECTIVE 2008/122 Article 3 Advertising (2), again, any contracts will be NULL & VOID.

Once the presentation begins, you will be shown brochures and literature to support the presenter’s sales presentation. You can ask the presenter for a copy of the material being shown (simply because the presenter has used the same to present their product) and if they fail to provide you with a copy, not only should alarm bells ring, BUT they have failed to comply with Law 4/2012 Article 8 ‘The Information requirements’, and E.U. DIRECTIVE 2008/122 Article 4 ‘Pre-contractual Information’ (Acting in accordance with the procedure laid down in Article 251 of the treaty (2) Numbers (9) & (10). Contracts are NULL & VOID.

If the word ‘INVESTEMENT’ is used during the Timeshare/Holiday Club presentation, then a breach of the 2 laws have occurred making the contracts NULL & VOID.

If the word ‘property’ appears during the Timeshare/Holiday Club presentation or in the contracts, then a breach of the 2 laws have occurred making the contracts NULL & VOID.

If you are told “you can take as many Extra Weeks (Bonus Weeks) as you want”, ask the presenter/sales person for an audited copy showing how many were available in recent years. Keep this copy presented to you.

During the presentation of Timeshare/Holiday Club, the presenter must provide the guest with a written copy of the last 5 years of what any ‘Service Charges’ (Maintenance Fees) were.

If you are at Anfi Del Mar on a presentation, and sitting with a presenter who has a blue identity badge, then they have worked there for a good number of years and even have ‘some’ protection from the union representing ‘some’ workers at Anfi. The orange badge holder would appear to have ‘no rights’. I say this because of my early post relating to ‘Abuse of Authority by the British Cold Line Sales manager’, ‘Threats of violence’, ‘Health & Safety violations’, Employment Laws breached’, ‘training given to new representatives which circumvented the Spanish Timeshare Act Law 4/2012 and the E.U. Directive 122 of 2008’, and ‘Thomas Cook Representatives also circumventing these 2 laws’. Thomas Cook also provides other TATOC/RDO resorts/companies with guests to attend presentations.

Any Holiday product you are presented with for purchase and if IN ANY WAY SHAPE OR FORM, EXCEEDS 12 MONTHS, then it is covered by the 2 laws, Timeshare Act, Spain 4/2012 & E.U. DIRECTIVE 2008/122. (I wonder if Anfi are still using 11 months for their 2/3/4/5 week ‘trial membership’. If the purchaser had not ‘upgraded’ to a full membership within the 11 months period, they then had 18 months of using RCI Extra Weeks’. This ‘pitch’ was used to circumvent the 2 laws, however. 11 months and 18 months equals 29 months. 29 months is more than 12 months, so therefore the product is failing to comply with the 2 laws).
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION
(9) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive) (5) prohibits misleading, aggressive and other unfair commercial business-to-consumer practices

Under NO circumstances can any money be taken what so ever, regardless of any reason given and this also includes no monies to be taken for a third party.
(E.U Directive 122/2008, (16) The same should apply to contracts for other related services provided by the trader or by a third party on the basis of an arrangement between that third party and the trader. Real Decreto-ley 8/2012, de 16 de Marzo. Part 2: General information: During this period of withdrawal, any payment of advances by the consumer is prohibited. Affects ban to any consideration, including payment, the Constitution of guarantees, reservation of money on accounts, explicit acknowledgement of debt, etc. It includes not only payment to the trader, but also to third parties.)

If your purchase a Timeshare, the contracts should specifically state what week number and which apartment number. Failure to state these in the contract makes the contract NULL & VOID.

Any existing Timeshare/Holiday Contracts which was signed before Law 4/2012 came into force (16th March 2012) and has ‘not adapted’ (been changed to comply with law 4/2012) are NULL & VOID. (Why would someone pay to get out of a contract which is NOT NOW, a legal binding contract).

Many Timeshare/Holiday Club contract were signed before Law 4/2012 (16th March 2012) and included “summary of the main services that can be enjoyed by the consumer”, in other words, Maintenance Dees. If the original contract stated the ‘Service Charges’ (Maintenance Fees) included ‘Water & Electricity’ in the Service Charges (Maintenance Fees), then you have already paid for water and electricity in those charges. If you have not signed an amended contract, or received a Resort ‘Committee’s’ amendment to these charges being itemised as being paid separately from the ‘service Charges’ (Maintenance Fees), then why are you being asked to pay for the water and electricity again when you arrive for your holiday? Some resorts are charging for water and electricity when you are on holiday.

Real Decreto-ley 8/2012, de 16 de Marzo.

CHAPTER V

Legal regime

Article 16. Mandatory.

1). consumers may not waive the rights that are recognized in this Royal Decree-law.

2). the waiver of the rights recognized by this Royal Decree-law to consumers is zero, being likewise null the acts performed on fraud law, in accordance with provisions of article 6 of the Civil Code.

Any existing Spanish Timeshare/Holiday Contracts which were signed before Law 4/2012 came into force (16th March 2012) and has ‘not adapted’ (been changed to comply with law 4/2012) are NULL & VOID.
Why would someone pay to get out of a contract which is NOT NOW legal and binding contract?

I am aware people may have purchased Timeshare in recent years and have in fact been ‘miss-sold’ or have signed contracts which are NOT LEGALLY binding, and wish to seek recompense for this.

My comments “why would someone pay to get out of a contract which is NOT NOW, a legal binding contract” is due to the following.

We have all read articles on the website which refer to elderly people who bought Timeshare in the 1980’s and 1990’s, who after many years of happily using their Timeshare, are now too ill or frail to use the Timeshare.

A report I read specifically quoted an elderly couple who owned their Timeshare with Macdonald resorts in Spain. For more than 10 years the elderly couple had been unable to use their Timeshare due to ill health. Although they were unable to use their Timeshare, Mcdonald Resorts were still charging them Maintenance Fees and had in fact sent in ‘the debt collectors’.

If you signed a Timeshare contract before 16th March 2012 (Law 4/2012) came into force, it is highly likely that your contract does not comply with the SPANISH Timeshare Acts in force TODAY.

An example is, you bought your Timeshare in 1990. The SPANISH contract states you own your entitlement ‘in perpetuity’ (or more than 50 Years). As soon as Law 4/2012 came into force (16th March 2012), then the company were LEGALLY OBLIGATED ‘TO ADAPT’ (change your contracts) to comply with Law 4/2012. If your ‘old’ contract contains the word ‘property’, then this “little” word will also make your old contract NOT NOW a legal binding contract.

By failing to change your contracts WITH YOUR AGREEMENT and SIGNATURES, then the company have failed to comply with LAW 4/2012.

If this is the case with your old ownership, you can freely walk away as you are NOT NOW legally bound to pay your Maintenance Fees.

‘Pure’ Points are not legal in Spanish Timeshare contracts.

‘Floating’ Weeks are not legal in Spanish Timeshare contracts.

The Official Journal of the European Union dated 14th January 2009, with regards to the Directive 2008/122/EC of the European Parliament and of the Council article 12;

Article 12
Imperative nature of the Directive and application in international cases

1. Member States shall ensure that, where the law applicable to the contract is the law of a Member State, consumers may not waive the rights conferred on them by this Directive.

2. Where the applicable law is that of a third country, consumers shall not be deprived of the protection granted by this Directive, as implemented in the Member State of the forum if:
— any of the immovable properties concerned is situated within the territory of a Member State, or,
— in the case of a contract not directly related to immovable property, the trader pursues commercial or professional activities in a Member State or, by any means, directs such activities to a Member State and the contract falls within the scope of such activities.

A ‘third country’ is a NON MEMBER STATE such as Russia, Ukraine ect.

TATOC are the ‘Consumer Association’ allegedly acting on behalf of CONSUMERS who own Timeshare.

Have TATOC ever advised a consumer of a pre Law 4/2012 contract which was not ‘adapted’ (Changed to conform with both Spanish Law 4/2012 and EU Directive 122/2008) that their old contract was NOW NULL and VOID and they could walk away from any Service Charges (Maintenance Fees)?

If TATOC have not advised the consumer of this, will they be advising the consumers in the future?