The Florida Senate

721.56  Management of multisite timeshare plans; reservation systems; demand balancing.--

(1)  The developer as a prerequisite for approval of his or her public offering statement filing or his or her phase filing must obtain an affidavit, or other evidence satisfactory to the director of the division, from the component site managing entity containing all of the following:

(a)  A statement that all assessments on inventory are fully paid as required by applicable law.

(b)  A statement as to the amount of delinquent assessments existing at the component site, if any.

(c)  If required by applicable law, a statement that the latest annual audit of the component site shows that, if required, reserves are adequately maintained with respect to each component site.

(d)  A statement that the component site managing entity specifically acknowledges the existence of the multisite timeshare plan relating to the use of the accommodations and facilities of the component site by purchasers of the plan.

(2)  In the event that the developer files an affidavit or other evidence with the division pursuant to subsection (1) and subsequently determines that the status of the component site has materially changed such that any portion of the affidavit or other evidence is consequently materially changed, the developer shall immediately notify the division of the change.

(3)(a)  The managing entity of the multisite timeshare plan shall establish an escrow account with an escrow agent qualified pursuant to s. 721.05 and deposit into such account all payments received by the managing entity from time to time from the developer and purchasers of the plan that relate to common expenses and real estate taxes due with respect to any component site. The managing entity of the multisite timeshare plan shall not be required to escrow payments received from the developer or purchasers that relate to other plan expenses, including those pertaining to the compensation of the managing entity of the multisite timeshare plan and pertaining to the operation of the reservation system.

(b)  Funds may only be disbursed from the escrow account described in paragraph (a) by the escrow agent upon receipt of an affidavit from the managing entity of the multisite timeshare plan specifying the purpose for which the disbursement is requested and making reference to the budgetary source of authority for such disbursement. The escrow agent shall only disburse moneys from escrow relating to a particular component site directly to the managing entity of that component site. Real estate tax payments shall only be disbursed from the escrow account to the component site managing entity or to the appropriate tax collection authority pursuant to applicable law.

(c)  The escrow agent shall be entitled to rely upon the affidavit of the managing entity and shall have no obligation to independently ascertain the propriety of the requested disbursement so long as the escrow agent has no actual knowledge that the affidavit is false in any respect.

(d)  An escrow agent shall maintain the account called for in this section only in such a manner as to be under the direct supervision and control of the escrow agent. The escrow agent shall have a fiduciary duty to each purchaser to maintain the escrow account in accordance with good accounting principles and to release funds from escrow only in accordance with this subsection. The escrow agent shall retain all affidavits received pursuant to this subsection for a period of 5 years. Should the escrow agent receive conflicting demands for the escrowed funds, the escrow agent shall immediately notify the division of the dispute and either promptly submit the matter to arbitration or, by interpleader or otherwise, seek an adjudication of the matter by court.

(e)  Any managing entity or escrow agent who intentionally fails to comply with the provisions of this subsection concerning the establishment of an escrow account, deposit of funds into escrow, and withdrawal therefrom commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, or the successor thereof. The failure to establish an escrow account or to place funds therein as required in this subsection is prima facie evidence of an intentional and purposeful violation of this subsection.

(f)  In lieu of the escrow required by this subsection, the director of the division shall have the discretion to accept other assurances in accordance with s. 721.08, provided that such other assurances are maintained at a minimum amount equal to the total common expense assessment payments for the then-current fiscal year.

(g)  The provisions of this subsection shall not apply to any payments made directly to a component site managing entity by the developer or a purchaser of a multisite timeshare plan.

(4)  The managing entity of a multisite timeshare plan shall comply fully with the requirements of s. 721.13; however, with respect to a given component site, the managing entity of the multisite timeshare plan shall not be responsible for compliance as the managing entity of that component site unless the managing entity of the multisite timeshare plan is also the managing entity of that component site. Unless the timeshare instrument provides otherwise, the operator of the reservation system is the managing entity of a multisite timeshare plan.

(5)(a)1.  The reservation system is a facility of any nonspecific timeshare license multisite timeshare plan as defined in s. 721.552(4). The reservation system is not a facility of any specific timeshare license multisite timeshare plan as defined in s. 721.552(4), nor is it a facility of any multisite timeshare plan in which timeshare estates are offered pursuant to s. 721.57

2.  The reservation system of any multisite timeshare plan shall include any computer software and hardware employed for the purpose of enabling or facilitating the operation of the reservation system. Nothing contained in this part shall preclude a manager or management firm that is serving as managing entity of a multisite timeshare plan from providing in its contract with the purchasers or owners' association of the multisite timeshare plan or in the timeshare instrument that the manager or management firm owns the reservation system and that the managing entity shall continue to own the reservation system in the event the purchasers discharge the managing entity pursuant to s. 721.14

(b)  In the event of a termination of a managing entity of a nonspecific license multisite timeshare plan as defined in s. 721.552(4), which managing entity owns the reservation system, irrespective of whether the termination is voluntary or involuntary and irrespective of the cause of such termination, in addition to any other remedies available to purchasers in this part, the terminated managing entity shall, prior to such termination, establish a trust meeting the criteria set forth in this paragraph. It is the intent of the Legislature that this trust arrangement provide for an adequate period of continued operation of the reservation system of the multisite timeshare plan, during which period the new managing entity shall make provision for the acquisition of a substitute reservation system.

1.  The trust shall be established with an independent trustee. Both the terminated managing entity and the new managing entity shall attempt to agree on an acceptable trustee. In the event they cannot agree on an acceptable trustee, they shall each designate a nominee, and the two nominees shall select the trustee.

2.  The terminated managing entity shall take all steps necessary to enable the trustee or the trustee's designee to operate the reservation system in the same manner as provided in the timeshare instrument and the public offering statement. The trustee may, but shall not be required to, contract with the terminated managing entity for the continued operation of the reservation system. In the event the trustee elects to contract with the terminated managing entity, that managing entity shall be required to operate the reservation system and shall be entitled to payment for that service. The payment shall in no event exceed the amount previously paid to the terminated managing entity for operation of the reservation system.

3.  The trust shall remain in effect for a period of no longer than 1 year following the date of termination of the managing entity.

4.  Nothing contained in this subsection shall abrogate or otherwise interfere with any proprietary rights in the reservation system that have been reserved by the discharged managing entity, in its management contract or otherwise, so long as such proprietary rights are not asserted in a manner that would prevent the continued operation of the reservation system as contemplated in this subsection.

(c)  In the event of a termination of a managing entity of a timeshare estate or specific license multisite timeshare plan as defined in s. 721.552(4), which managing entity owns the reservation system, irrespective of whether the termination is voluntary or involuntary and irrespective of the cause of such termination, in addition to any other remedies available to purchasers in this part, the terminated managing entity shall, prior to such termination, promptly transfer to each component site managing entity all relevant data contained in the reservation system with respect to that component site, including, but not limited to:

1.  The names, addresses, and reservation status of component site accommodations.

2.  The names and addresses of all purchasers of timeshare interests at that component site.

3.  All outstanding confirmed reservations and reservation requests for that component site.

4.  Such other component site records and information as are necessary, in the reasonable discretion of the component site managing entity, to permit the uninterrupted operation and administration of the component site, provided that a given component site managing entity shall not be entitled to any information regarding other component sites or regarding the terminated multisite timeshare plan managing entity.

All reasonable costs incurred by the terminated managing entity in effecting the transfer of information required by this paragraph shall be reimbursed to the terminated managing entity on a pro rata basis by each component site, and the amount of such reimbursement shall constitute a common expense of each component site.

(6)  Prior to offering the multisite timeshare plan, the developer shall create the reservation system and shall establish rules and regulations for its operation. In establishing these rules and regulations, the developer shall take into account the location and anticipated relative use demand of each component site that he or she intends to offer as a part of the plan and shall use his or her best efforts, in good faith and based upon all reasonably available evidence under the circumstances, to further the best interests of the purchasers of the plan as a whole with respect to their opportunity to use and enjoy the accommodations and facilities of the plan. The rules and regulations shall also provide for periodic adjustment or amendment of the reservation system by the managing entity from time to time in order to respond to actual purchaser use patterns and changes in purchaser use demand for the accommodations and facilities existing at that time within the plan. The person authorized to make additions and substitutions during the term of the multisite timeshare plan shall also comply with the requirements of this subsection in ascertaining the desirability of the proposed addition, substitution, adjustment, or amendment and the impact of same upon the demand for and availability of existing plan accommodations and facilities.

History.--s. 12, ch. 93-58; s. 26, ch. 95-274; s. 910, ch. 97-102; s. 41, ch. 2000-302.