This article has been authored and approved by the TCA and for publishing in accoudance with duties to consumers 4th July 2014.
“I have been acting for a number of years for consumers that have timeshare weeks at Club Praia da Oura, a resort in Portugal which is owned/and or managed by Petchey Leisure, including resisting claims brought against unhappy members who were unwilling to pay maintenance fees for a timeshare that they no longer used and, in many cases could no longer afford.
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 transparent. A timeshare in perpetuity can be an extremely burdensome obligation, in circumstances where the maintenance fees are not transparent and are escalating beyond what a consumer (often elderly and sometimes infirm) can afford.
I recently gave an interview for the telegraph which 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 Club Praia 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. In any timeshare case, that may or may not be correct. Much will depend on the contractual documents.
I have repeatedly asked Petchey Leisure to disclose the contractual documents that they rely on to support its contractual claims. Such documentation is not forthcoming.
As far as I can tell the consumer purchases membership via a purchase agreement with a third party marketing company. The Club does not have a constitution, or at least I am 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, I am finding that I have 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 Praia Da Oura. In the circumstances, this is the only advice I can give.”
Stephen Boyd LLM
Hermes Law LLP
Last modified: September 7, 2015