Club Praia da Oura, is a resort in Portugal which was owned/and or managed by Petchy Leisure. At present consumers are being asked by the new owners to change from the original contract in favour of the resorts preferred contract.
I repeat the resorts preferred contracts.
As all timeshare owners are aware, a timeshare can be of value. It allows the individual or a family to secure their holidays at the destination of their choice for the foreseeable future. This is however provided that the maintenance fees are kept under control and are apparent. A timeshare in purported perpetuity can appear to be a burdensome obligation, in circumstances where the preservation/ maintenance fees are not transparent and are escalating beyond what a consumer (often elderly and sometimes infirm) can pay for.
An interview for the telegraph highlighted the problem and steps that should be taken by national legislature to address the problem
A timeshare owner, when facing a claim over disputed maintenance fees is entitled to take advice.
In the case of timeshare contracts, it is for the resort (or their duly appointed managing agent) to justify:-
(a) Any claim for maintenance fees; and
(b) That the timeshare owner is not able, under any circumstances, to cancel their timeshare or resign their membership in a Club which holds their timeshare week(s) on trust.
Any contractual party that is relying on a contractual term to pursue a claim against another party must prove that they have a contractual relationship. Once they have done this, it is necessary to identify the contractual term that is being relied and (in the context of consumers that the contractual term) is fair.
In the context of Clube Pria Da Oura, the issues are straightforward. Consumers are being told that they have a contractual liability for maintenance fees and that contractually this liability continues in perpetuity and that they have no contractual entitlement to resign from the Club.
Is this a truthful statement? Is it to be relied upon? The TCA after investigation says we have investigated and consumers ought to be aware that the sellers of the timeshare might have a big problem and are in desperate need to get you to transfer contracts and the existing contract has fundamental problems therefore if you have a timeshare in this resort you can exit when you want and with the correct guidance.
As far as we can tell the consumer purchases membership via a purchase agreement with a third party marketing company. The Club does not appear to have a constitution, or at least we are not aware of the existence of a valid constitution which would be the method by which a Club would create legal relations with its members.
In the absence of these documents, we found we had no option but to advise the consumer not to pay disputed maintenance fees and to adopt the position that they are simply entitled to resign their membership in Club Pria Da Oura. In the circumstances, this was the only advice we could give.
That said and over the last 3 months we have been advancing the obvious conundrum and it appears that if no such contractual documentation existed in the first place then the product would have been sold un-fit for purpose and as such all the timeshares owners ought to be seeking a damage based claim and for all they money back including but not limited to interest from the date what the acquired their timeshare.
The TCA has been petitioning law firms who could assist consumers in the hope that one might “step up to the mark” and investigate the issue thoroughly as potentially it could give benefit to consumers.
In a recent case in Manchester this issue was tested and the court suspended the claims from Club Pria Da Oura until such time as they provided the consumer defendant with the contractual documentation. Later the resort withdrew its claim, did not provide the documentation and was purportedly ordered to pay the consumers legal costs in full.
The question is therefore, if Club Pria Da Oura does have the documents why did they not provide the court when asked? Why pay money when all they had to do was hand over the reasonably requested documents.
Occam’s Razor
States: “all things being equal the simplest answer is generally the right one” and that has to mean they don’t have contractual documents
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