This is a guide and is intended to assist Timeshare Consumers in formulating your own list which will be used in the relinquishment of your timeshare contract(s).
You are reminded, if your timeshare was sold to you with express or implied promises what was said is very relevant.
If those promises induced you into buying your timeshare, you are entitled to rely upon them.
The issue in all misrepresentations arguments are:-
- Did you rely upon them?
- Did the representation induce you to buying the timeshare on offer?
- Did the representation impart a benefit to you that you wanted?
Assuming the seller did make express and or implied representations to you and you later believed they were wrongful and misleading representations, they are called misrepresentations.
You can at all times rely upon them, however to void a contract those representations have to be material and of such gravity that you would not have entered into the contract if they were not made, or a collection of misrepresentations which collectively are material.
What do we mean by material?
Material is a considered view and has to be looked at objectively.
For instance if it was said “every time that you visit the resort you will have a new bar of soap in the bathroom” and this does not materialise, it is a misrepresentations but one that will not warrant the voiding of the contract (it might be seen by a reasonable person a small damages based claim).
If on the other hand you are told that “buying your timeshare is an investment which will make you money in the future” and it doesn’t, then this is more likely to be a voidable misrepresentation.
What is important is that it’s not for you or us to judge the severity, the applied inference or application, it is for the judge.
To warrant that the judge will treat the misrepresentation as one which will cause him to void the contract it is always a matter of speculation. To impart any other advice would be puffery by an advisor.
As we deal with many claims in timeshare we assist consumers by grouping claims together.
By doing this we can show that the individual consumers were all told the same things and by different salesmen working for a single seller. That will show the misrepresentations are endemic, as many people relied upon them (as they are entitled to do). It therefore follows that it is only fair and reasonable that if a group of people who are unconnected all believe they were duped, the court will find it hard not to agree.
Resorts may choose to defend the allegations which consumers make. They are entitled to do so; however those defences will be tested in respect to evidence, testimony and purpose. As the salesmen move onto other resorts (on many occasions) it is (in many cases) the consumer’s testimony which is only available to the court. If truthful and backed up by others then it ought to be accepted as a fact and the courts are entitled to make “a finding of fact” in all cases.
The normal complication in all misrepresentation cases which advance to court is the defence of the Limitation Act 1980 and the Common Law principle of Affirmation. It is therefore wise and prudent to deal with it prior to raising a claim so that we or you do not attract an adverse costs order for a floundered case.
Limitation act 1980
Under this Act, consumers are subjected to time constraints in bringing a misrepresentation claim. (Within 6 years of the becoming aware or in knowledge of the misrepresentations). In short if you were aware of the misrepresentations and did nothing about it for a period over 6 years you might be barred from relying upon it.
The Common Law Principle of “Affirmation”
If ‘you’ the consumer knew about the misrepresentation and accepted it (as not a material breach of the sale contract, or they acted in a manner which a ‘reasonable person’ would interpret as an acceptance of the breach) then the consumer may not rely upon it in court.
What Can the Timeshare Consumer Association (TCA) do if I feel I have a Claim?
We are here to help and will investigate all claims of misrepresentation that our consumers make.
Please give consideration to the examples we have brought to your attention
For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk