TIMESHARE CLAIMS

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Once again, this law firm has obtained a favourable judgement for Dutch clients, who in 2004 entered into two contracts for timeshare rights on real estate for tourist use in a well-known real estate complex in Marbella, owned by a multinational hotel company from the USA.

“Rights of use by turns of real estate for tourist use and tax rules”.

It is about the judgement handed down by the Court of First Instance no. 5 of Marbella, dated 27 February 2024 in the case number 19/2022.

As we will explain below, the Court was asked to declare the nullity of these contracts as they violated the regime established, at the time, in Law 42/1998 of 15 December, on rights of use of real estate for tourist use and tax regulations.

We should start by saying that issues of timeshare claims in the Spanish courts on this subject have arisen as a result of the aforementioned regulation, which was replaced by Law 4/2012 of 6 July, which came to eliminate the conflict generated by the aforementioned regulation.

The new regulations expressly included the obligations of companies, and this was in response to the gaps and loopholes in the previous regulations, which allowed companies to comply with them and then the courts and tribunals in Spain to correct their conduct in relation to the disputed issues of timeshare claims.

The new law would regulate new contracts as of the publication of this law, and the previous ones would continue to be regulated by the previous law, unless they expressly accepted the new one.

As they are long-term contracts, these old contracts have survived for many years under the new law, which has not prevented the previous regulations from being applied when they are finished by the buyer.

WHO CAN AVAIL THEMSELVES OF THE RIGHTS RECOGNISED BY THE COURTS?

The answer to this question is simple, because only those who have signed timeshare contracts since the entry into force of Law 42/1998 of 15 December 1998 and until the entry into force of Law 4/2012 of 6 July, and provided that they have not requested in the renewals to take advantage of this law and have, of course, ceased to use this type of housing use.

It goes without saying that the benefits the Courts are granting apply to each contract that has been signed, so that if several contracts have been signed for several flats or dwellings, all of them will be covered by these benefits.

This is what has happened to our clients who have signed two contracts for two different flats and the benefits apply to both contracts.

As we will see below, even if the contracts date from 1988 onwards and a long period of time has elapsed, obtaining a declaration of nullity, which is what is being requested, attributes the the imprescriptible nature of these claims for contracts that entered into so many years ago.

Another thing to bear in mind is that if the contract has continued to be extended for many years under the protection of the aforementioned, when this relationship ends, as long as it has not been exhausted the term of 50 years, claim is also possible, because as you will see, you will have to return a good part of what you paid.

The contracts whose nullity was sought and to which the Court agreed, were concluded on 2 August 2004 and 4 November 2004, under the validity of the aforementioned Law 42/1998 (in force since 5 January 1999), being the same applicable.

WHAT INFRINGEMENTS HAVE BEEN COMMITTED AND DO THEY GIVE RISE TO RIGHTS FOR THE CLAIMANTS?

The nullity of these contracts, as a consequence of timeshare claims in Spain, is due to the fact that the contract did not contractually establish the date of termination of the Regime, and although it is always alleged that it was contemplated in the General Conditions, it is no less true that the client’s refusal to have received them is sufficient for such opposition to be ineffective.

The Law is clear when it establishes that “The general conditions will become part of the contract when the adherent accepts their incorporation into the contract and when they are signed by all the contracting parties”.

Every contract must refer to the incorporated general terms and conditions. Acceptance of the incorporation of the general terms and conditions into the contract shall not be deemed to have taken place if the predisposer has not expressly informed the adherent of their existence and has not provided him with a copy of them.

The contract concluded by any natural or legal person within the framework of his professional activity and relating to timeshare rights must be in writing and must at least state several points, including the date on which the contract is finished; apart from the date of conclusion of the contract, the details of the deed regulating the regime, with an indication of the date of execution, the authorising notary and the number of his protocol, and the details of registration in the Land Registry.

In the judgement we are commenting on, these circumstances have not been included in the contract examined in the judgement obtained by this office, nor were they included in any of the many cases studied by this office, so the consequence is clear, the nullity of the contract in accordance with the provisions of the aforementioned article 1.7.

According to the judgement, not only are the details of the deed regulating the regime omitted, with an indication of the date of execution, the authorising notary and the number of his protocol, but also the date on which the regime will be extinguished.

Consequently, the aforementioned omission must lead to the contract being declared null and void as of right in accordance with the provisions of the contract.

WHAT ARE THE LEGAL CONSEQUENCES OF SUCH BREACHES?

Having raised the question, and for the purposes of establishing the doctrine that we consider appropriate, we must start from the text of article 11 of Law 42/1998, of 15 December, applicable to the case.

It is, therefore, a legal prohibition and article 6.3 CC, states that acts contrary to mandatory and prohibitive rules are null and void, unless they establish a different effect for the case of contravention.

WHAT CAN I ASK FOR IN A CLAIM FOR DAMAGES?

The plaintiff also seeks the application of the aforementioned article 11 of Law 42/1998, which prohibits “the payment of any advance by the purchaser to the transferor before the expiry of the period for exercising the right of withdrawal or while he has the right of termination referred to in the previous article”.

If the purchaser has advanced any amount to the transferor, he shall have the right to demand at any time the return of said doubled amount, being able to choose between terminating the contract within the three months following its conclusion or demanding its full performance.

In the case of the judgement discussed in this article, the payment was made within 3 months of the conclusion of the contract, and therefore the non-compliance with the provisions of article 9 of Law 42/1998 has been accredited, and the payment of the double amount is appropriate.

WHAT IS THE DEADLINE FOR ME TO CLAIM IF I AM IN THIS SITUATION?

It is also necessary to analyse the exception of prescription formulated by the defendant. It alleges that the action for claiming the amount is time-barred by the passage of five years, since this action is time-barred, regardless of the fact that the action for radical nullity of the contract is not.

Therefore, there is no cause for concern and even if many years have passed, it will still be able to make legal claims about timeshare in Spain.

This Judge does not agree with the arguments put forward, since in accordance with article 1969 of the Civil Code, the limitation period is counted from the day on which it could be exercised and it is obvious that an action for restitution based on nullity cannot be exercised without first having requested and obtained the nullity of the legal transaction. I therefore consider that the limitation period begins with the finality of the judicial declaration of nullity, and I therefore reject the exception raised.

WHERE CAN I CLAIM?

You will have to make the relevant legal claim in the judicial district corresponding to the locality where the complex is located.

As for who can sue, all those who intervene in the contract should sue without the need to have to purge the role of each one, and this is because normally it is always a group of companies that sign the contract, and given that the responsibility of these companies in the fulfilment of the contract is not indicated, it must be understood that all of them are responsible.

This is included in the sentence 61/2024 in our last judicial claim presented in the Court of First Instance Nº 5 of Marbella, where it is stated against the allegation of one of the co-defendants who maintained that one of the co-defendants did not have to be sued, and against this, the Judge maintains that being a group of companies as it was the case, as it did not appear which function or activity was carried out in the case, they had to be sued as well.

CARLOS BAÑO LAW FIRM

A new success for the law firm of Carlos Baño Leon, specialists in real estate law, which is added to the many that have been obtained in the Courts and Tribunals throughout Spain.

Do not hesitate to contact our law firm if you want to make a legal claim for timeshare. We work in all Spanish Courts.