Timeshares are sold and rarely bought. This has been the principle which has been suggested thought-out the ages. The resorts may use certain practices which allow them to ply and re sell their products however governments and regulatory bodies have provided legislation to curtail the industry and the habitual bad practices which I have to say are endemic in the timeshare industry.
With the legislation in place consumers can now bring these Bad Practices (which are employed by some companies/organisations and clubs) to the attention of the courts in the United Kingdom.
In consideration of the Consumer Protection from Unfair Trading Regulations 2008, consumers should consider these regulations before embarking on a dispute, so that their issues can be addressed properly giving weight to the problems they are experiencing with resorts and the selling of timeshare.
Equally consumers can easily summarise the actions which other have done and justly consider whether or not those actions are in contravention of the regulation which would render the perpetrators liable in damages.
The Basic Rules
There are three main sections in the Consumer Protection from Unfair Trading Regulations CPUTR. They are explained as follows:
A general ban on unfair/ unreasonable commercial practices
Misleading/evasive/ deceptive/disingenuous and aggressive practices which are assessed in light of the effects they have on consumers, or which are likely to have, on the average consumer.
A (so called) Black List which contains the list of those practices which are unfair and thus banned practices.
Misleading/Evasive/ Deceptive/Disingenuous and Aggressive Practices and Actions
Note in this event traders can be companies, firms, clubs, individuals, organisations and enterprises which profiteer from the selling of goods and services to Timeshare consumers.
Traders are not permitted to employ misleading, deceptive or underhand tactics/methods to get you to part with your hard earned cash.
Misleading actions include (by way of example) advertising/ promoting goods that don’t in reality exist, or tendering/offering just a selective and limited items at the advertised price with little or no hope of meeting large demand which could occur in the event of a consumer stampede. In respect to timeshare products if a trader markets represents or promotes in writing or verbally that a product is (for example) an investment or that a consumer will be enriched in some way if they acquire the product that will be misleading.
If a trader has signed up to a code of practice, then if it fails to follow the code, it will properly be a breach of the Consumer Protection from Unfair Trading Regulations as it has advertised a practise and not complied to the advertised promise.
For example, if a resort/trader has signed up to the likes of TATOC, RDO or any other purported self serving body who claim to be reputable consumer regulated bodies then consumers can and should take note of these codes of practice and use those codes of practice to action claims in pleading. In short, failing to follow the codes which they sign up to will constitute a breach of the Consumer Protection from Unfair Trading Regulations.
Traders are also banned from lying or being deceitful about the products, amendments to existing products (they meddle in) or passing products off as another product to give them credibility.
For example creating the illusion that a point system is better that a fixed week system. Moreover (and more pertinent), altering clauses in club constitutions which in reality gives an enhanced benefit to the trader at the expense the consumer.
Sometimes consumers have to understand it’s not what was actually said that’s the problem. Sometimes it’s what’s been omitted that is the real concern.
The Consumer Protection from Unfair Trading Regulations proffers protections against traders who are economical with the truth, conservative with the truth and silent to the blind implications.
They on many occasions miss out key information that you might require to make an informed verdict to a decision.
Traders must make sure the required information is provided in a timely manner and at the point of sale/amendment/alteration etc. Adding the phase like “ground breaking” to a topic when in reality it’s not, is proffering a delusion which in reality is not there.
It’s considered misleading or painting a picture which lends a consumer to take a path which they should not have taken.
If a trader does any of the following they are in breach of the regulations:
Leaves out material information that the average consumer needs, according to the context, to make an informed transactional decision.
Hides or provide material information in an unclear, unintelligible, ambiguous or untimely manner.
Fails in part or whole to identify the commercial intent of the commercial practice if not already apparent from the context.
And information must also be displayed clearly – obscure presentation is tantamount to an omission.
Sales Methodology and Tactics
Sales tactics can greatly manipulate a consumer’s conclusions. Traders who fail to take or won’t take “no for an answer”, refuse to go away until a contract is signed or use menacing behaviour will certainly be committing an offence under the regulations.
A practice is considered aggressive if the average consumer’s freedom of choice or conduct is significantly impaired by the actions of the seller/promoter.
The regulation contains a list of criteria to assist consumers to determine whether a commercial practice is exploiting harassment, coercion, including physical force, or undue influence.
Undue influence is categorised by something that applies pressure ‘even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision.’
The Regulations in Practice
If you the consumer accuse a trader of misleading you or acting aggressively towards you, it’s not enough to simply demonstrate the activity you also have to show that the practice they used influenced you when arriving at your decision.
This doesn’t necessarily mean that the consumer has to have entered into a contract, just that their actions were influenced in some way.
It could be enough that the consumer phoned the trader or decided to go into their shop.
So in Conclusion
Unfair or misleading trading practices, aggressive selling and misleading omissions are all covered by the Consumer Protection from Unfair Trading Regulations.
On the 1st October 2014 amendments have been made to these regulations which give consumers new rights of protection and redress and if you’ve been the victim of misleading actions or aggressive selling.
In addition to tackling misleading and aggressive timeshare sales behaviour, the Consumer Protection from Unfair Trading Regulations outlaw 31 specific practices such as claiming something is free when in reality it’s not and persistent cold-calling/harassment.
With these 31 practices it’s enough simply to demonstrate wrongdoing, and there is no need to show that it influenced the consumer’s decision in any way.
The banned practices under the Consumer Protection from Unfair Trading Regulations are to ensure that traders, marketing professionals and customers are clear about what is prohibited and help provide consumer protection.
The list of banned practices include the following and all consumers ought to be aware of them when considering any and all sale of timeshare in the UK. Equally if your clubs have altered amended and basically fiddled with your right which you bought into these regulations trump the clauses which other have introduced and have applied.
Luring the consumer with attractive advertising around special prices when the trader knows that they cannot offer that product, or only has a few available at that price.
Bait and switch
Promoting one product with the intention of selling you something else at timeshare presentations
Falsely and wrongly stating that a timeshare product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time. This in short is a delusion if untrue and is used in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
False Free Offers
Describing a product as free or without charge if the consumer has to pay anything other than the unavoidable cost of responding to the offer and collecting or paying for delivery of the item.
Creating the impression that the consumer cannot leave the premises until a contract is formed. This in reality is perception of imprisonment and is illegal in every sense of the word.
Aggressive Doorstep Selling
Conducting personal visits to timeshare consumer’s homes. When entry has been given then ignoring the consumer’s request to leave and not to return.
Cross border trading
The Consumer Protection from Unfair Trading Regulations also aims to clarify consumers’ rights and simplify the process of cross-border trade which occurs in the timeshare industry.
The regulations give you the same protection against unfair practices and timeshare rouge traders whether you’re buying in the UK or purchasing from a website based in Spain, France Italy etc.
These regulation are enforced European wide and also imparts on every European trader/businesses that advertise and market to all 480 million consumers in the EU, in the same way they do to domestic customers.
The principle aim of the regulation is to boost consumer confidence and give businesses a uniform and transparent EU wide set of rules.
New right to redress
As of 1st October 2014 new amendments have been made to the Consumer Protection from Unfair Trading Regulations which give consumers new rights to redress – specifically if you’ve been the victim of a misleading action/ in-action – for example a false statement – or aggressive selling.
These break down into three key areas:
A right to undo the contract and void them
You will be able to void the contract/club memberships (as long as you haven’t fully engaged with or consumed the product, or received a service in full).
To obtain a full/part refund you will also have to exercise your right to unwind the contract not more than 90 days from when you received the goods or the service started.
This is on the provision that any goods supplied to you are made available by the trader. In the case of timeshare products this could be extended for 12 months or when you maintenance fees are due again.
In the event that those fees increase and those increases were not expressly represented to you, then again you might have a claim.
It’s important to note that if you took out finance to pay for the timeshare product that was made as a result of misleading or aggressive selling; you can get out of the contract and recoup anything that you have paid from the financier.
A right to a discount on the price paid
You will be able to seek a discount in respect of past or future payments due under a timeshare contract.
The new regulations entitle you to a 25%, 50%, 75% or 100% discount on the payments depending on whether the trader’s breach is considered to be minor, significant, serious or very serious.
When considering this, all consumers should appreciate that the costs of court action. When conducting this exercise also consider the fact that it will cost your opponent about the same to defend the action you bring. All you have to do in this event is to prove a small infraction and your opponents will be on the hook for you entire legal costs.
This being a very real position, it could be considered wise by the trader to capitulate with you at an early stage to offset the possible adverse liability they could incur.
The level of seriousness of the trader’s actions will depend on their behaviour, the impact this has had a consumer and how long it has been since you signed the contract.
An Entitlement to seek Damages
If you incur a financial loss that you wouldn’t have done if it weren’t for the trader’s actions/ in-action, you will be allowed to make a claim for damages.
The Act is so far reaching you can also make a claim if you have suffered alarm, distress, physical inconvenience or discomfort as a result of the trader’s actions/ inactions and as a consequence of the mis-adventure.
Be aware that these regulations give the trader a defence to a claim for damages in certain circumstance, for example if they can demonstrate that their actions were accidental, due to a mistake or factors outside their control. This is sometime exploited by the trader however the court look very seriously at these defences and will determined the defence in the light of the purpose and intent of the breaching party
Important Factors to Note:
You must have Entered into a Contract
For these new rights to redress to apply, you must have entered into a contract/ commitment/agreement etc.
This is different from the rest of the regulations where it is enough to show you took some other kind of transactional decision, like going into a shop because of a misleading ad in the window.
Misleading Action must be a Significant Factor
If you entered into a contract as a result of a misleading action/ in-action or aggressive selling, you will need to show that this was at least a significant factor in your decision to enter into the contract.
Misleading omissions are not covered
These new rights to redress do not apply to misleading omissions.