Senate Bill sb2534
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
By Senator Webster
9-1025A-03 See HB 1243
1 A bill to be entitled
2 An act relating to timeshare plans; amending s.
3 721.02, F.S.; revising provisions with respect
4 to legislative purpose under the Florida
5 Vacation Plan and Timesharing Act; amending s.
6 721.03, F.S.; revising provisions with respect
7 to the scope of the act to include reference to
8 personal property timeshare plans; amending s.
9 721.05, F.S.; providing definitions; amending
10 s. 721.06, F.S.; revising provisions with
11 respect to contracts for purchase of timeshare
12 interests to include provisions with respect to
13 personal property timeshare interests; amending
14 s. 721.065, F.S.; revising provisions with
15 respect to resale purchase agreements to
16 include reference to certain real property and
17 personal property timeshare plans; amending s.
18 721.07, F.S.; revising provisions with respect
19 to public offering statements; amending s.
20 721.075, F.S.; revising provisions with respect
21 to incidental benefits, requiring purchasers to
22 execute a statement indicating the source of
23 the benefit; amending s. 721.08, F.S.; revising
24 provisions with respect to escrow accounts;
25 amending s. 721.09, F.S.; revising provisions
26 with respect to reservation agreements;
27 amending s. 721.11, F.S.; revising provisions
28 with respect to advertising materials;
29 correcting cross-references; amending s.
30 721.12, F.S.; providing for required
31 recordkeeping by the seller of a personal
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 property timeshare plan; amending s. 721.13,
2 F.S.; revising provisions with respect to
3 management; amending s. 721.14, F.S.; providing
4 that a section of law governing the discharge
5 of the managing entity shall not apply with
6 respect to personal property timeshare plans;
7 amending s. 721.15, F.S.; revising provisions
8 with respect to assessments for common
9 expenses; amending s. 721.16, F.S.; providing
10 that a section of law governing certain liens
11 does not apply to personal property timeshare
12 plans; amending s. 721.17, F.S.; revising
13 provisions with respect to transfer of
14 interest; amending s. 721.18, F.S.; revising
15 provisions with respect to exchange programs;
16 amending s. 721.19, F.S.; including reference
17 to personal property timeshare interests;
18 amending s. 721.20, F.S., relating to licensing
19 requirements; providing for the application of
20 certain provisions to personal property
21 timeshare plans; amending s. 721.24, F.S.;
22 exempting accommodations and facilities of
23 personal property timeshare plans from a
24 provision of law governing firesafety; amending
25 s. 721.26, F.S.; revising provisions with
26 respect to regulation by the division; amending
27 s. 721.27, F.S.; reducing an annual fee for
28 each timeshare unit in a timeshare plan;
29 amending s. 721.52, F.S.; redefining the term
30 "multisite timeshare plan" and defining the
31 terms "nonspecific multisite timeshare plan"
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 and "specific multisite timeshare plan";
2 amending s. 721.53, F.S.; revising provisions
3 with respect to subordination instruments;
4 amending s. 721.54, F.S.; deleting a
5 cross-reference; amending s. 721.55, F.S.;
6 providing reference to filed rather than
7 registered public offering statements;
8 providing reference to multisite timeshare
9 plans; amending s. 721.551, F.S.; providing for
10 reference to filed rather than registered
11 public offering statements; amending s.
12 721.552, F.S.; providing reference to multisite
13 timeshare plans; amending s. 721.56, F.S.;
14 providing reference to personal property
15 timeshare plans; amending s. 721.57, F.S.;
16 revising provisions with respect to timeshare
17 estates in multisite timeshare plans; amending
18 s. 721.84, F.S.; revising provisions with
19 respect to appointment of a registered agent;
20 amending ss. 721.96 and 721.97, F.S.; including
21 reference to personal property timeshare
22 interests; providing an effective date.
23
24 Be It Enacted by the Legislature of the State of Florida:
25
26 Section 1. Subsections (1) and (5) of section 721.02,
27 Florida Statutes, are amended to read:
28 721.02 Purposes.--The purposes of this chapter are to:
29 (1) Give statutory recognition to real property
30 timeshare plans timesharing and personal property timeshare
31 plans timesharing in this the state.
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (5) Recognize that the tourism industry in this state
2 is a vital part of the state's economy; that the sale,
3 promotion, and use of timeshare plans is an emerging, dynamic
4 segment of the tourism industry; that this segment of the
5 tourism industry continues to grow, both in volume of sales
6 and in complexity and variety of product structure; and that a
7 uniform and consistent method of regulation is necessary in
8 order to safeguard Florida's tourism industry and the state's
9 economic well-being. In order to protect the quality of
10 Florida timeshare plans and the consumers who purchase them,
11 it is the intent of the Legislature that this chapter be
12 interpreted broadly in order to encompass all forms of
13 timeshare plans with a duration of at least 3 years that are
14 created with respect to accommodations and facilities that are
15 located in the state or that are offered for sale in the state
16 as provided herein, including, but not limited to,
17 condominiums, cooperatives, undivided interest campgrounds,
18 cruise ships, vessels, houseboats, recreational vehicles and
19 other motor vehicles, and including vacation clubs, multisite
20 vacation plans, and multiyear vacation and lodging
21 certificates.
22 Section 2. Paragraph (d) is added to subsection (1) of
23 section 721.03, Florida Statutes, and subsection (8) of that
24 section, is amended to read:
25 721.03 Scope of chapter.--
26 (1) This chapter applies to all timeshare plans
27 consisting of more than seven timeshare periods over a period
28 of at least 3 years in which the accommodations and
29 facilities, if any, are located within this state or offered
30 within this state; provided that:
31
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (d) For purposes of determining the term of the plan,
2 the period of any automatic renewals shall be included, except
3 as provided in s. 721.52(4)(b).
4 (8) With respect to any personal property
5 accommodation or facility of a timeshare plan: which is
6 situated upon
7 (a) This chapter applies only to personal property
8 timeshare plans that are offered in this state.,
9 (b) The division shall have the authority to adopt
10 rules interpreting and implementing the provisions of this
11 chapter as they apply to any personal property timeshare plan
12 or any such accommodation or facility that is part of a
13 personal property timeshare plan offered in this state, or as
14 the provisions of this chapter they apply to any other laws of
15 this state, of the several states, or of the United States, or
16 of any other jurisdiction, with respect to any personal
17 property timeshare plan or any such accommodation or facility
18 that is part of a personal property timeshare plan offered in
19 this state.
20 (c) Any developer and any managing entity of a
21 personal property timeshare plan must submit to personal
22 jurisdiction in this state in a form satisfactory to the
23 division at the time of filing a public offering statement.
24 Section 3. Section 721.05, Florida Statutes, is
25 amended to read:
26 721.05 Definitions.--As used in this chapter, the
27 term:
28 (1) "Accommodation" means any apartment, condominium
29 or cooperative unit, cabin, lodge, hotel or motel room,
30 campground, cruise ship cabin, houseboat or other vessel,
31 recreational or other motor vehicle, or any or other private
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 or commercial structure which is situated on real or personal
2 property and designed for overnight occupancy or use by one or
3 more individuals. The term does not include an incidental
4 benefit as defined in this section.
5 (2) "Agreement for deed" means any written contract
6 utilized in the sale of timeshare estates which provides that
7 legal title will not be conveyed to the purchaser until the
8 contract price has been paid in full and the terms of payment
9 of which extend for a period in excess of 180 days after
10 either the date of execution of the contract or completion of
11 construction, whichever occurs later.
12 (3) "Agreement for transfer" means any written
13 contract utilized in the sale of personal property timeshare
14 interests which provides that legal title will not be
15 transferred to the purchaser until the contract price has been
16 paid in full and the terms of payment of which extend for a
17 period in excess of 180 days after either the date of
18 execution of the contract or completion of construction,
19 whichever occurs later.
20 (4)(3) "Assessment" means the share of funds required
21 for the payment of common expenses which is assessed from time
22 to time against each purchaser by the managing entity.
23 (5)(4) "Closing" means:
24 (a) For any plan selling timeshare estates, conveyance
25 of the legal or beneficial title to a timeshare estate as
26 evidenced by the delivery of a deed for conveyance of legal
27 title, or other instrument for conveyance of beneficial title,
28 to the purchaser or to the clerk of the court for recording or
29 conveyance of the equitable title to a timeshare estate as
30 evidenced by the irretrievable delivery of an agreement for
31 deed to the clerk of the court for recording.
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (b) For any plan selling timeshare licenses or
2 personal property timeshare interests, the final execution and
3 delivery by all parties of the last document necessary for
4 vesting in the purchaser the full rights available under the
5 plan.
6 (6)(5) "Common expenses" means:
7 (a) Those expenses, fees, or taxes properly incurred
8 for the maintenance, operation, and repair of the
9 accommodations or facilities, or both, constituting the
10 timeshare plan.
11 (b) Any other expenses, fees, or taxes designated as
12 common expenses in a timeshare instrument.
13 (c) Any past due and uncollected ad valorem taxes
14 assessed against a timeshare development pursuant to s.
15 192.037.
16 (7)(6) "Completion of construction" means:
17 (a)1. That a certificate of occupancy has been issued
18 for the entire building in which the timeshare unit being sold
19 is located, or for the improvement, or that the equivalent
20 authorization has been issued, by the governmental body having
21 jurisdiction; or
22 2. In a jurisdiction in which no certificate of
23 occupancy or equivalent authorization is issued, that the
24 construction, finishing, and equipping of the building or
25 improvements according to the plans and specifications have
26 been substantially completed; or
27 3. With respect to personal property timeshare plans,
28 that all accommodations have been manufactured or built and
29 acquired or leased by the developer, owners' association,
30 managing entity, trustee, or other person for the use of
31 purchasers as set forth in the timeshare instrument; and
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (b) That all accommodations and facilities of the
2 timeshare plan are available for use in a manner identical in
3 all material respects to the manner portrayed by the
4 promotional material, advertising, and filed registered public
5 offering statements.
6 (8)(7) "Conspicuous type" means:
7 (a) Type in upper and lower case letters two point
8 sizes larger than the largest nonconspicuous type, exclusive
9 of headings, on the page on which it appears but in at least
10 10-point type; or
11 (b) Where the use of 10-point type would be
12 impractical or impossible with respect to a particular piece
13 of written advertising material, a different style of type or
14 print may be used, so long as the print remains conspicuous
15 under the circumstances.
16
17 Where conspicuous type is required, it must be separated on
18 all sides from other type and print. Conspicuous type may be
19 utilized in contracts for purchase or public offering
20 statements only where required by law or as authorized by the
21 division.
22 (9)(8) "Contract" means any agreement conferring the
23 rights and obligations of a timeshare plan on the purchaser.
24 (10)(9) "Developer" includes:
25 (a) A "creating developer," which means any person who
26 creates the timeshare plan;
27 (b) A "successor developer," which means any person
28 who succeeds to the interest of the persons in this subsection
29 by sale, lease, assignment, mortgage, or other transfer, but
30 the term includes only those persons who offer timeshare
31 interests in the ordinary course of business; and
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (c) A "concurrent developer," which means any person
2 acting concurrently with the persons in this subsection with
3 the purpose of offering timeshare interests in the ordinary
4 course of business.
5 (d) The term "developer" does not include:
6 1. An owner of a timeshare interest who has acquired
7 the timeshare interest for his or her own use and occupancy
8 and who later offers it for resale; provided that a rebuttable
9 presumption shall exist that an owner who has acquired more
10 than seven timeshare interests did not acquire them for his or
11 her own use and occupancy;
12 2. A managing entity, not otherwise a developer, that
13 offers, or engages a third party to offer on its behalf,
14 timeshare interests in a timeshare plan which it manages,
15 provided that such offer complies with the provisions of s.
16 721.065;
17 3. A person who owns or is conveyed, assigned, or
18 transferred more than seven timeshare interests and who
19 subsequently conveys, assigns, or transfers all acquired
20 timeshare interests to a single purchaser in a single
21 transaction, which transaction may occur in stages; or
22 4. A person who has acquired or has the right to
23 acquire more than seven timeshare interests from a developer
24 or other interestholder in connection with a loan,
25 securitization, conduit, or similar financing arrangement
26 transaction and who subsequently arranges for all or a portion
27 of the timeshare interests to be offered by one or more
28 developers in the ordinary course of business on their own
29 behalves or on behalf of such person.
30 (e) A successor or concurrent developer shall be
31 exempt from any liability inuring to a predecessor or
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 concurrent developer of the same timeshare plan, except as
2 provided in s. 721.15(7), provided that this exemption shall
3 not apply to any of the successor or concurrent developer's
4 responsibilities, duties, or liabilities with respect to the
5 timeshare plan that accrue after the date the successor or
6 concurrent developer became a successor or concurrent
7 developer, and provided that such transfer does not constitute
8 a fraudulent transfer. In addition to other provisions of law,
9 a transfer by a predecessor developer to a successor or
10 concurrent developer shall be deemed fraudulent if the
11 predecessor developer made the transfer:
12 1. With actual intent to hinder, delay, or defraud any
13 purchaser or the division; or
14 2. To a person that would constitute an insider under
15 s. 726.102(7).
16
17 The provisions of this paragraph shall not be construed to
18 relieve any successor or concurrent developer from the
19 obligation to comply with the provisions of any applicable
20 timeshare instrument.
21 (11)(10) "Division" means the Division of Florida Land
22 Sales, Condominiums, and Mobile Homes of the Department of
23 Business and Professional Regulation.
24 (12)(11) "Enrolled" means paid membership in an
25 exchange program or membership in an exchange program
26 evidenced by written acceptance or confirmation of membership.
27 (13)(12) "Escrow account" means an account established
28 solely for the purposes set forth in this chapter with a
29 financial institution located within this state.
30 (14)(13) "Escrow agent" includes only:
31
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (a) A savings and loan association, bank, trust
2 company, or other financial institution, any of which must be
3 located in this state and any of which must have a net worth
4 in excess of $5 million;
5 (b) An attorney who is a member of The Florida Bar or
6 his or her law firm;
7 (c) A real estate broker who is licensed pursuant to
8 chapter 475 or his or her brokerage firm; or
9 (d) A title insurance agent that is licensed pursuant
10 to s. 626.8417, a title insurance agency that is licensed
11 pursuant to s. 626.8418, or a title insurer authorized to
12 transact business in this state pursuant to s. 624.401.
13 (15)(14) "Exchange company" means any person owning or
14 operating, or owning and operating, an exchange program.
15 (16)(15) "Exchange program" means any method,
16 arrangement, or procedure for the voluntary exchange of the
17 right to use and occupy accommodations and facilities among
18 purchasers. The term does not include the assignment of the
19 right to use and occupy accommodations and facilities to
20 purchasers pursuant to a particular multisite timeshare plan's
21 reservation system. Any method, arrangement, or procedure that
22 otherwise meets this definition, wherein the purchaser's total
23 contractual financial obligation exceeds $3,000 per any
24 individual, recurring timeshare period, shall be regulated as
25 a multisite timeshare plan in accordance with part II.
26 (17)(16) "Facility" means any amenity, including any
27 structure, furnishing, fixture, equipment, service,
28 improvement, or real or personal property, improved or
29 unimproved, other than an the accommodation of the timeshare
30 plan, which is made available to the purchasers of a timeshare
31
11
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 plan. The term does not include an incidental benefit as
2 defined in this section.
3 (18) "Filed public offering statement" means a public
4 offering statement that has been filed with the division
5 pursuant to s. 721.07(5) or s. 721.55.
6 (19)(17) "Incidental benefit" means an accommodation,
7 product, service, discount, or other benefit which is offered
8 to a prospective purchaser of a timeshare plan or to a
9 purchaser of a timeshare plan prior to the expiration of his
10 or her initial 10-day voidability period pursuant to s.
11 721.10; which is not an exchange program as defined in
12 subsection (16) (15); and which complies with the provisions
13 of s. 721.075. The term shall not include an offer of the use
14 of the accommodations and facilities of the timeshare plan on
15 a free or discounted one-time basis.
16 (20)(18) "Independent," for purposes of determining
17 eligibility of escrow agents and trustees pursuant to s.
18 721.03(7), means that:
19 (a) The escrow agent or trustee is not a relative, as
20 described in s. 112.3135(1)(d), or an employee of the
21 developer, seller, or managing entity, or of any officer,
22 director, affiliate, or subsidiary thereof.
23 (b) There is no financial relationship, other than the
24 payment of fiduciary fees or as otherwise provided in this
25 subsection, between the escrow agent or trustee and the
26 developer, seller, or managing entity, or any officer,
27 director, affiliate, or subsidiary thereof.
28 (c) Compensation paid by the developer to an escrow
29 agent or trustee for services rendered shall not be paid from
30 funds in the escrow or trust account unless and until the
31 developer is otherwise entitled to receive the disbursement of
12
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 such funds from the escrow or trust account pursuant to this
2 chapter.
3 (d) A person shall not be disqualified to serve as an
4 escrow agent or a trustee solely because of the following:
5 1. A nonemployee, attorney-client relationship exists
6 between the developer and the escrow agent or trustee;
7 2. The escrow agent or trustee provides brokerage
8 services as defined by chapter 475 for the developer;
9 3. The escrow agent or trustee provides the developer
10 with routine banking services which do not include
11 construction or receivables financing or any other lending
12 activities; or
13 4. The escrow agent or trustee performs closings for
14 the developer or seller or issues owner's or lender's title
15 insurance commitments or policies in connection with such
16 closings.
17 (21)(19) "Interestholder" means a developer, an owner
18 of the underlying fee or owner of the underlying personal
19 property, a mortgagee, judgment creditor, or other lienor, or
20 any other person having an interest in or lien or encumbrance
21 against the accommodations or facilities of the timeshare
22 plan.
23 (22)(20) "Managing entity" means the person who
24 operates or maintains the timeshare plan pursuant to s.
25 721.13(1).
26 (23)(21) "Memorandum of agreement" means a written
27 document, in a recordable form sufficient to permit the
28 document to be recorded or otherwise filed in the appropriate
29 public records and to provide constructive notice of its
30 contents under applicable law, which includes the names of the
31 seller and the purchasers, a legal description of the
13
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 timeshare property, or other sufficient description for a
2 personal property timeshare plan, and all timeshare interests
3 to be included in such document, and a description of the type
4 of timeshare interest license sold by the seller.
5 (24)(22) "Offer to sell," "offer for sale," "offered
6 for sale," or "offer" means the solicitation, advertisement,
7 or inducement, or any other method or attempt, to encourage
8 any person to acquire the opportunity to participate in a
9 timeshare plan.
10 (25)(23) "One-to-one purchaser to accommodation ratio"
11 means the ratio of the number of purchasers eligible to use
12 the accommodations of a timeshare plan on a given day to the
13 number of accommodations available for use within the plan on
14 that day, such that the total number of purchasers eligible to
15 use the accommodations of the timeshare plan during a given
16 calendar year never exceeds the total number of accommodations
17 available for use in the timeshare plan during that year. For
18 purposes of calculation under this subsection, each purchaser
19 must be counted at least once, and no individual timeshare
20 unit may be counted more than 365 times per calendar year (or
21 more than 366 times per leap year). A purchaser who is
22 delinquent in the payment of timeshare plan assessments shall
23 continue to be considered eligible to use the accommodations
24 of the timeshare plan for purposes of this subsection
25 notwithstanding any application of s. 721.13(6).
26 (26)(24) "Owner of the underlying fee" or "owner of
27 the underlying personal property" means any person having an
28 interest in the real property or personal property comprising
29 or underlying the accommodations or facilities of a the
30 timeshare plan at or subsequent to the time of creation of the
31 timeshare plan.
14
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (27)(25) "Owners' association" means an the
2 association made up of all owners of timeshare interests in a
3 timeshare plan, including developers and purchasers of such a
4 timeshare plan who have purchased timeshare estates.
5 (28) "Personal property timeshare interest" means a
6 right to occupy an accommodation located on or in or comprised
7 of personal property that is not permanently affixed to real
8 property, whether or not coupled with a beneficial or
9 ownership interest in the accommodations or personal property.
10 (29)(26) "Public offering statement" means the written
11 materials describing a single-site timeshare plan or a
12 multisite timeshare plan, including a text and any exhibits
13 attached thereto as required by ss. 721.07, 721.55, and
14 721.551. The term "public offering statement" shall refer to
15 both a filed registered public offering statement and a
16 purchaser public offering statement.
17 (30)(27) "Purchaser" means any person, other than a
18 developer, who by means of a voluntary transfer acquires a
19 legal or equitable interest in a timeshare plan other than as
20 security for an obligation.
21 (31)(28) "Purchaser public offering statement" means
22 that portion of the filed registered public offering statement
23 which must be delivered to purchasers pursuant to s. 721.07(6)
24 or s. 721.551.
25 (29) "Registered public offering statement" means a
26 public offering statement which has been filed with the
27 division pursuant to s. 721.07(5) or s. 721.55.
28 (32)(30) "Regulated short-term product" means a
29 contractual right, offered by the seller, to use
30 accommodations of a timeshare plan or other accommodations,
31 provided that:
15
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (a) The agreement to purchase the short-term right to
2 use is executed in this state on the same day that the
3 prospective purchaser receives an offer to acquire an interest
4 in a timeshare plan and does not execute a purchase contract,
5 after attending a sales presentation; and
6 (b) The acquisition of the right to use includes an
7 agreement that all or a portion of the consideration paid by
8 the prospective purchaser for the right to use will be applied
9 to or credited against the price of a future purchase of a
10 timeshare interest, or that the cost of a future purchase of a
11 timeshare interest will be fixed or locked in at a specified
12 price.
13 (33)(31) "Seller" means any developer or any other
14 person, or any agent or employee thereof, who offers timeshare
15 interests in the ordinary course of business. The term
16 "seller" does not include:
17 (a) An owner of a timeshare interest who has acquired
18 the timeshare interest for his or her own use and occupancy
19 and who later offers it for resale; provided that a rebuttable
20 presumption shall exist that an owner who has acquired more
21 than seven timeshare interests did not acquire them for his or
22 her own use and occupancy;
23 (b) A managing entity, not otherwise a seller, that
24 offers, or engages a third party to offer on its behalf,
25 timeshare interests in a timeshare plan which it manages,
26 provided that such offer complies with the provisions of s.
27 721.065;
28 (c) A person who owns or is conveyed, assigned, or
29 transferred more than seven timeshare interests and who
30 subsequently conveys, assigns, or transfers all acquired
31
16
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 timeshare interests to a single purchaser in a single
2 transaction, which transaction may occur in stages; or
3 (d) A person who has acquired or has the right to
4 acquire more than seven timeshare interests from a developer
5 or other interestholder in connection with a loan,
6 securitization, conduit, or similar financing arrangement and
7 who subsequently arranges for all or a portion of the
8 timeshare interests to be offered by one or more developers in
9 the ordinary course of business on their own behalves or on
10 behalf of such person.
11 (34)(32) "Timeshare estate" means a right to occupy a
12 timeshare unit, coupled with a freehold estate or an estate
13 for years with a future interest in a timeshare property or a
14 specified portion thereof. The term shall also mean an
15 interest in a condominium unit pursuant to s. 718.103, an
16 interest in a cooperative unit pursuant to s. 719.103, or an
17 interest in a trust that complies in all respects with the
18 provisions of s. 721.08(2)(c)4., provided that the trust does
19 not contain any personal property timeshare interests. A
20 timeshare estate is a parcel of real property under the laws
21 of this state 3.
22 (35)(33) "Timeshare instrument" means one or more
23 documents, by whatever name denominated, creating or governing
24 the operation of a timeshare plan.
25 (36)(34) "Timeshare interest" means a timeshare
26 estate, a personal property timeshare interest, or a timeshare
27 license.
28 (37)(35) "Timeshare license" means a right to occupy a
29 timeshare unit, which right is not a personal property
30 timeshare neither coupled with a freehold interest or a
31
17
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 timeshare, nor coupled with an estate for years with a future
2 interest, in a timeshare property.
3 (38)(36) "Timeshare period" means the period or
4 periods of time when a purchaser of a timeshare interest is
5 afforded the opportunity to use the accommodations or
6 facilities, or both, of a timeshare plan.
7 (39)(37) "Timeshare plan" means any arrangement, plan,
8 scheme, or similar device, other than an exchange program,
9 whether by membership, agreement, tenancy in common, sale,
10 lease, deed, rental agreement, license, or right-to-use
11 agreement or by any other means, whereby a purchaser, for
12 consideration, receives ownership rights in or a right to use
13 accommodations, and facilities, if any, for a period of time
14 less than a full year during any given year, but not
15 necessarily for consecutive years. The term "timeshare plan"
16 includes:
17 (a) A "personal property timeshare plan," which means
18 a timeshare plan in which the accommodations are comprised of
19 personal property that is not permanently affixed to real
20 property; and
21 (b) A "real property timeshare plan," which means a
22 timeshare plan in which the accommodations of the timeshare
23 plan are comprised of or permanently affixed to real property.
24 (40)(38) "Timeshare property" means one or more
25 timeshare units subject to the same timeshare instrument,
26 together with any other property or rights to property
27 appurtenant to those timeshare units. Notwithstanding anything
28 to the contrary contained in chapter 718 or chapter 719, the
29 timeshare instrument for a timeshare condominium or
30 cooperative may designate personal property, contractual
31 rights, affiliation agreements of component sites of vacation
18
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 clubs, exchange companies, or reservation systems, or any
2 other agreements or personal property, as common elements or
3 limited common elements of the timeshare condominium or
4 cooperative.
5 (41)(39) "Timeshare unit" means an accommodation of a
6 timeshare plan which is divided into timeshare periods. Any
7 timeshare unit in which a door or doors connecting two or more
8 separate rooms are capable of being locked to create two or
9 more private dwellings shall only constitute one timeshare
10 unit for purposes of this chapter, unless the timeshare
11 instrument provides that timeshare interests may be separately
12 conveyed in such locked-off portions.
13 (40) "Vacation ownership plan" means any timeshare
14 plan consisting exclusively of timeshare estates.
15 (41) "Vacation plan" or "vacation membership plan"
16 means any timeshare plan consisting exclusively of timeshare
17 licenses or consisting of a combination of timeshare licenses
18 and timeshare estates.
19 Section 4. Section 721.06, Florida Statutes, is
20 amended to read:
21 721.06 Contracts for purchase of timeshare
22 interests.--
23 (1) Each seller shall utilize and furnish each
24 purchaser a fully completed and executed copy of a contract
25 pertaining to the sale, which contract shall include the
26 following information:
27 (a) The actual date the contract is executed by each
28 party.
29 (b) The names and addresses of the developer and the
30 timeshare plan.
31
19
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (c) The initial purchase price and any additional
2 charges to which the purchaser may be subject in connection
3 with the purchase of the timeshare interest, such as
4 financing, or which will be collected from the purchaser on or
5 before closing, such as the current year's annual assessment
6 for common expenses.
7 (d)1. For real property timeshare plans, an estimate
8 of any anticipated annual assessment stated on an Any annually
9 recurring basis for any use charges, fees, charge and the next
10 year's estimated annual assessment for common expenses, or and
11 for ad valorem taxes or, if an estimate for next year's
12 assessment is unavailable, the current year's actual annual
13 assessment for any use charges, fees, common expenses, or and
14 for ad valorem taxes.
15 2. For personal property timeshare plans, an estimate
16 of any anticipated annual assessment stated on an annually
17 recurring basis for any use charges, fees, common expenses, or
18 taxes or, if an estimate is unavailable, the current year's
19 actual annual assessment for any use charges, fees, common
20 expenses or taxes.
21 (e) The estimated date of completion of construction
22 of each accommodation or facility promised to be completed
23 which is not completed at the time the contract is executed
24 and the estimated date of closing.
25 (f) A brief description of the nature and duration of
26 the timeshare interest being sold, including whether any
27 interest in real property or personal property is being
28 conveyed and the specific number of years constituting the
29 term of the timeshare plan.
30
31
20
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (g) Immediately prior to the space reserved in the
2 contract for the signature of the purchaser, in conspicuous
3 type, substantially the following statements:
4 1. If the purchaser will receive a personal property
5 timeshare interest:
6 a. This personal property timeshare plan is governed
7 only by limited sections of the timeshare management
8 provisions of Florida law.
9 b. If the accommodations or facilities are located on
10 or in a documented vessel or foreign vessel as provided in s.
11 721.08(2)(c)3.e., the disclosure required by s.
12 721.08(2)(c)3.e.IV.
13 2. You may cancel this contract without any penalty or
14 obligation within 10 calendar days after the date you sign
15 this contract or the date on which you receive the last of all
16 documents required to be given to you pursuant to s.
17 721.07(6), Florida Statutes. If you decide to cancel this
18 contract, you must notify the seller in writing of your intent
19 to cancel. Your notice of cancellation shall be effective upon
20 the date sent and shall be sent to ... (Name of Seller) ...
21 at ... (Address of Seller) .... Any attempt to obtain a
22 waiver of your cancellation right is void and of no effect.
23 While you may execute all closing documents in advance, the
24 closing, as evidenced by delivery of the deed or other
25 document, before expiration of your 10-day cancellation
26 period, is prohibited.
27 (h) If a timeshare estate is being conveyed, the
28 following statement in conspicuous type:
29
30 For the purpose of ad valorem assessment, taxation and
31 special assessments, the managing entity will be considered
21
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 the taxpayer as your agent pursuant to section 192.037,
2 Florida Statutes.
3
4 (i) A statement that, in the event the purchaser
5 cancels the contract during a 10-day cancellation period, the
6 developer will refund to the purchaser the total amount of all
7 payments made by the purchaser under the contract, reduced by
8 the proportion of any contract benefits the purchaser has
9 actually received under the contract prior to the effective
10 date of the cancellation. The statement shall further provide
11 that the refund will be made within 20 days after receipt of
12 notice of cancellation or within 5 days after receipt of funds
13 from the purchaser's cleared check, whichever is later. A
14 seller and a purchaser shall agree in writing on a specific
15 value for each contract benefit received by the purchaser for
16 purposes of this paragraph. The term "contract benefit" shall
17 not include purchaser public offering statements or other
18 documentation or materials that must be furnished to a
19 purchaser pursuant to statute or rule.
20 (j) If the timeshare interest is being sold pursuant
21 to an agreement for deed or an agreement for transfer, a
22 statement that the signing of the agreement for deed or
23 agreement for transfer does not entitle the purchaser to
24 receive the conveyance or transfer of his or her timeshare
25 estate or personal property timeshare interest a deed until
26 all payments under the agreement have been made.
27 (k) Unless the developer is, at the time of offering
28 the plan, the owner in fee simple absolute of the
29 accommodations and facilities of the timeshare plan, free and
30 clear of all liens, and encumbrances, and claims of other
31 interestholders, a statement that the developer is not the
22
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 sole owner of the underlying fee or owner of the underlying
2 personal property or that the such accommodations or
3 facilities are subject to without liens or encumbrances, which
4 statement shall include:
5 1. The names and addresses of all other
6 interestholders persons or entities having an ownership
7 interest or other interest in the accommodations or
8 facilities; and
9 2. The actual interest of the developer in the
10 accommodations or facilities. As an alternative to including
11 the statement in the purchase contract, a seller may include a
12 reference in the purchase contract to the location in the
13 purchaser public offering statement text of such information.
14 (l) If the purchaser will receive an interest in a
15 multisite timeshare plan pursuant to part II, a statement
16 shall be provided in conspicuous type in substantially the
17 following form:
18
19 The developer is required to provide the managing
20 entity of the multisite timeshare plan with a copy of the
21 approved public offering statement text and exhibits filed
22 with the division and any approved amendments thereto, and any
23 other component site documents as described in section 721.07
24 or section 721.55, Florida Statutes, that are not required to
25 be filed with the division, to be maintained by the managing
26 entity for inspection as part of the books and records of the
27 plan.
28
29 (m) The following statement in conspicuous type:
30
31
23
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 Any resale of this timeshare interest must be
2 accompanied by certain disclosures in accordance with section
3 721.065, Florida Statutes.
4
5 (n) A description of any rights reserved by the
6 developer to alter or modify the offering prior to closing.
7 (2)(a) An agreement for deed shall be recorded by the
8 developer within 30 days after the day it is executed by the
9 purchaser. The developer shall pay all recording costs
10 associated therewith. A form copy of such instrument must be
11 filed with the division for review pursuant to s. 721.07.
12 (b) An agreement for transfer shall be filed with the
13 Secretary of State or other appropriate official responsible
14 for maintaining such records in the appropriate jurisdiction
15 within 30 days after the day it is executed by the purchaser.
16 The developer shall pay all filing costs associated therewith.
17 A form copy of such instrument must be filed with the division
18 for review pursuant to s. 721.07.
19 (3) The escrow agent shall provide the developer with
20 a receipt for all purchaser funds or other property received
21 by the escrow agent from a seller.
22 Section 5. Paragraph (b) of subsection (2) of section
23 721.065, Florida Statutes, is amended to read:
24 721.065 Resale purchase agreements.--
25 (2) Any resale purchase agreement utilized by a person
26 described in subsection (1) must contain all of the following:
27 (b) One of the following statements in conspicuous
28 type located immediately prior to the disclosure required by
29 paragraph (c):
30 1. If the resale purchase agreement pertains to a real
31 property timeshare plan:
24
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1
2 The current year's assessment for common expenses allocable to
3 the timeshare interest you are purchasing is $_____. This
4 assessment, which may be increased from time to time by the
5 managing entity of the timeshare plan, is payable in full each
6 year on or before __________. This assessment (includes/does
7 not include) yearly ad valorem real estate taxes, which
8 (are/are not) billed and collected separately. (If ad valorem
9 real property taxes are not included in the current year's
10 assessment for common expenses, the following statement must
11 be included: The most recent annual assessment for ad valorem
12 real estate taxes for the timeshare interest you are
13 purchasing is $_____.) (If there are any delinquent
14 assessments for common expenses or ad valorem taxes
15 outstanding with respect to the timeshare interest in
16 question, the following statement must be included: A
17 delinquency in the amount of $_____ for unpaid common expenses
18 or ad valorem taxes currently exists with respect to the
19 timeshare interest you are purchasing, together with a per
20 diem charge of $_____ for interest and late charges.) For the
21 purpose of ad valorem assessment, taxation, and special
22 assessments, the managing entity will be considered the
23 taxpayer as your agent pursuant to section 192.037, Florida
24 Statutes. Each owner is personally liable for the payment of
25 her or his assessments for common expenses, and failure to
26 timely pay these assessments may result in restriction or loss
27 of your use and/or ownership rights.
28
29 There are many important documents relating to the timeshare
30 plan which you should review prior to purchasing a timeshare
31 interest, including the declaration of condominium or
25
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 covenants and restrictions; the owners' association articles
2 and bylaws; the current year's operating and reserve budgets;
3 and any rules and regulations affecting the use of timeshare
4 plan accommodations and facilities.
5 2. If the resale purchase agreement pertains to a
6 personal property timeshare plan:
7
8 The current year's assessment for any common expenses, use
9 charges, fees, or taxes allocable to the timeshare interest
10 you are purchasing is $_____. This assessment, which may be
11 increased from time to time by the managing entity of the
12 timeshare plan, is payable in full each year on or before
13 __________. (If there are any delinquent assessments for
14 common expenses, use charges, fees, or taxes outstanding with
15 respect to the timeshare interest in question, the following
16 statement must be included: A delinquency in the amount of
17 $_____ for unpaid common expenses, use charges, fees, or taxes
18 currently exists with respect to the timeshare interest you
19 are purchasing, together with a per diem charge of $_____ for
20 interest and late charges.) Each owner is personally liable
21 for the payment of her or his assessments for common expenses,
22 and failure to timely pay these assessments may result in
23 restriction or loss of your use and/or ownership rights.
24
25 There are many important documents relating to the timeshare
26 plan which you should review prior to purchasing a timeshare
27 interest, including any owners association articles and
28 bylaws; the current year's operating and reserve budgets; and
29 any rules and regulations affecting the use of timeshare plan
30 accommodations and facilities.
31
26
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 Section 6. Section 721.07, Florida Statutes, is
2 amended to read:
3 721.07 Public offering statement.--Prior to offering
4 any timeshare plan, the developer must submit a filed
5 registered public offering statement to the division for
6 approval as prescribed by s. 721.03, s. 721.55, or this
7 section. Until the division approves such filing, any contract
8 regarding the sale of that timeshare plan is subject to
9 cancellation voidable by the purchaser pursuant to s. 721.10.
10 (1) The division shall, upon receiving a filed
11 registered public offering statement from a developer, mail to
12 the developer an acknowledgment of receipt. The failure of the
13 division to send such acknowledgment will not, however,
14 relieve the developer from the duty of complying with this
15 section.
16 (2)(a) Within 45 days after receipt of a filed
17 registered public offering statement which is subject only to
18 this part and is submitted in proper form as prescribed by
19 rule, or within 120 days after receipt of a filed registered
20 public offering statement which is subject to part II and is
21 submitted in proper form as prescribed by rule, the division
22 shall determine whether the proposed filed registered public
23 offering statement is adequate to meet the requirements of
24 this section and shall notify the developer by mail that the
25 division has either approved the statement or found specified
26 deficiencies in the statement. If the division fails to
27 approve the statement or specify deficiencies in the statement
28 within the period specified in this paragraph, the filing will
29 be deemed approved.
30 (b) If the developer fails to respond to any cited
31 deficiencies within 20 days after receipt of the division's
27
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 deficiency notice, the division may reject the filing.
2 Subsequent to such rejection, a new filing fee pursuant to
3 subsection (4) and a new division initial review period
4 pursuant to paragraph (a) shall apply to any refiling or
5 further review of the rejected filing.
6 (c) Within 20 days after receipt of the developer's
7 timely and complete response to any deficiency notice, the
8 division shall notify the developer by mail that the division
9 has either approved the filing, found additional specified
10 deficiencies in it, or determined that any previously
11 specified deficiency has not been corrected. If the division
12 fails to approve or specify additional deficiencies within 20
13 days after receipt of the developer's timely and complete
14 response, the filing will be deemed approved.
15 (d) A developer shall have the authority to deliver to
16 purchasers any purchaser public offering statement that is not
17 yet approved by the division, provided that the following
18 shall apply:
19 1. At the time the developer delivers an unapproved
20 purchaser public offering statement to a purchaser pursuant to
21 this paragraph, the developer shall deliver a fully completed
22 and executed copy of the purchase contract required by s.
23 721.06 that contains the following statement in conspicuous
24 type in substantially the following form which shall replace
25 the statements required by s. 721.06(1)(g):
26
27 The developer is delivering to you a public offering statement
28 that has been filed with but not yet approved by the Division
29 of Florida Land Sales, Condominiums, and Mobile Homes. Any
30 revisions to the unapproved public offering statement you have
31 received must be delivered to you, but only if the revisions
28
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 materially alter or modify the offering in a manner adverse to
2 you. After the division approves the public offering
3 statement, you will receive notice of the approval from the
4 developer and the required revisions, if any.
5
6 Your statutory right to cancel this transaction without any
7 penalty or obligation expires 10 calendar days after the date
8 you signed your purchase contract or the date on which you
9 receive the last of all documents required to be given to you
10 pursuant to section 721.07(6), Florida Statutes, or 10
11 calendar days after you receive revisions required to be
12 delivered to you, if any, whichever is later. If you decide to
13 cancel this contract, you must notify the seller in writing of
14 your intent to cancel. Your notice of cancellation shall be
15 effective upon the date sent and shall be sent to (Name of
16 Seller) at (Address of Seller). Any attempt to obtain a waiver
17 of your cancellation right is void and of no effect. While you
18 may execute all closing documents in advance, the closing, as
19 evidenced by delivery of the deed or other document, before
20 expiration of your 10-day cancellation period, is prohibited.
21
22 2. After receipt of approval from the division and prior to
23 closing, if any revisions made to the documents contained in
24 the purchaser public offering statement materially alter or
25 modify the offering in a manner adverse to a purchaser, the
26 developer shall send the purchaser such revisions together
27 with a notice containing a statement in conspicuous type in
28 substantially the following form:
29
30 The unapproved public offering statement previously delivered
31 to you, together with the enclosed revisions, has been
29
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 approved by the Division of Florida Land Sales, Condominiums,
2 and Mobile Homes. Accordingly, your cancellation right expires
3 10 calendar days after you sign your purchase contract or 10
4 calendar days after you receive these revisions, whichever is
5 later. If you have any questions regarding your cancellation
6 rights, you may contact the division at [insert division's
7 current address].
8 3. After receipt of approval from the division and
9 prior to closing, if no revisions have been made to the
10 documents contained in the unapproved purchaser public
11 offering statement, or if such revisions do not materially
12 alter or modify the offering in a manner adverse to a
13 purchaser, the developer shall send the purchaser a notice
14 containing a statement in conspicuous type in substantially
15 the following form:
16
17 The unapproved public offering statement previously delivered
18 to you has been approved by the Division of Florida Land
19 Sales, Condominiums, and Mobile Homes. Revisions made to the
20 unapproved public offering statement, if any, are either not
21 required to be delivered to you or are not deemed by the
22 developer, in its opinion, to materially alter or modify the
23 offering in a manner that is adverse to you. Accordingly, your
24 cancellation right expired 10 days after you signed your
25 purchase contract. A complete copy of the approved public
26 offering statement is available through the managing entity
27 for inspection as part of the books and records of the plan.
28 If you have any questions regarding your cancellation rights,
29 you may contact the division at [insert division's current
30 address].
31
30
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (3)(a)1. Any change to an approved public offering
2 statement filing shall be filed with the division for approval
3 as an amendment prior to becoming effective. The division
4 shall have 20 days after receipt of a proposed amendment to
5 approve or cite deficiencies in the proposed amendment. If the
6 division fails to act within 20 days, the amendment will be
7 deemed approved. If the proposed amendment adds a new
8 component site to an approved multisite timeshare plan, the
9 division's initial period in which to approve or cite
10 deficiencies is 45 days. If the developer fails to adequately
11 respond to any deficiency notice within 30 days, the division
12 may reject the amendment. Subsequent to such rejection, a new
13 filing fee pursuant to subsection (4) and a new division
14 initial review period pursuant to this paragraph shall apply
15 to any refiling or further review of the rejected amendment.
16 2. For filings only subject to this part, each
17 approved amendment to the approved purchaser public offering
18 statement, other than an amendment made only for the purpose
19 of the addition of a phase or phases to the timeshare plan in
20 the manner described in the timeshare instrument or any
21 amendment that does not materially alter or modify the
22 offering in a manner that is adverse to a purchaser, shall be
23 delivered to a purchaser no later than 10 days prior to
24 closing. For filings made under part II, each approved
25 amendment to the multisite timeshare plan purchaser public
26 offering statement, other than an amendment made only for the
27 purpose of the addition, substitution, or deletion of a
28 component site pursuant to part II or the addition of a phase
29 or phases to a component site of a multisite timeshare plan in
30 the manner described in the timeshare instrument or any
31 amendment that does not materially alter or modify the
31
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 offering in a manner that is adverse to a purchaser, shall be
2 delivered to a purchaser no later than 10 days prior to
3 closing.
4 3. Amendments made to a timeshare instrument for a
5 component site located in this state are not required to be
6 delivered to purchasers who do not receive a timeshare estate
7 or an interest in a specific multisite timeshare plan license
8 in that component site. Amendments made to a timeshare
9 instrument for a component site not located in this state are
10 not required to be delivered to purchasers.
11 (b) At the time that any amendments required to be
12 delivered to purchasers, as provided in paragraph (a), are
13 delivered to purchasers, the developer shall provide to those
14 purchasers who have not closed a written statement that the
15 purchaser or lessee will have a 10-day voidability period.
16 (4)(a) Upon the filing of a filed registered public
17 offering statement, the developer shall pay a filing fee of $2
18 for each 7 days of annual use availability in each timeshare
19 unit that may be offered as a part of the proposed timeshare
20 plan pursuant to the filing.
21 (b) Upon the filing of an amendment to an approved
22 filed registered public offering statement, other than an
23 amendment adding a phase to the timeshare plan, the developer
24 shall pay a filing fee of $100.
25 (5) Every filed registered public offering statement
26 for a timeshare plan which is not a multisite timeshare plan
27 shall contain the information required by this subsection. The
28 division is authorized to provide by rule the method by which
29 a developer must provide such information to the division.
30 (a) A cover page stating only:
31 1. The name of the timeshare plan; and
32
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 2. The following statement, in conspicuous type: This
2 public offering statement contains important matters to be
3 considered in acquiring a timeshare interest. The statements
4 contained in this public offering statement are only summary
5 in nature. A prospective purchaser should refer to all
6 references, accompanying exhibits, contract documents, and
7 sales materials. You should not rely upon oral representations
8 as being correct. Refer to this document and accompanying
9 exhibits for correct representations. The seller is prohibited
10 from making any representations other than those contained in
11 the contract and this public offering statement.
12 (b) A listing of all statements required to be in
13 conspicuous type in the public offering statement and in all
14 exhibits thereto.
15 (c) A separate index of the contents and exhibits of
16 the public offering statement.
17 (d) A text which shall include, where applicable, the
18 disclosures set forth in paragraphs (e)-(hh).
19 (e) A description of the timeshare plan, including,
20 but not limited to:
21 1. Its name and location.
22 2. An explanation of the form of timeshare ownership
23 that is being offered, including a statement as to whether any
24 interest in the underlying real property will be conveyed to
25 the purchaser. If the plan is being created or being sold on a
26 leasehold, a description of the material terms of the lease
27 shall be included. If the plan is a plan in which timeshare
28 estates or personal property timeshare interests are sold as
29 interests in a trust pursuant to the requirements of this
30 chapter, a full and accurate description of the trust
31 arrangement and the trustee's duties shall be included. If the
33
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 plan is a personal property timeshare plan, a description of
2 the material terms of the arrangement for the ownership or use
3 of the personal property shall be included.
4 3. An explanation of the manner in which the
5 apportionment of common expenses and ownership of the common
6 elements has been determined.
7 4. If ownership or use of the timeshare plan is based
8 on a point system, a statement indicating the circumstances by
9 which the point values may change, the extent of such changes,
10 and the person or entity responsible for the changes.
11 5. If any of the accommodations or facilities are part
12 of a personal property timeshare plan in which the
13 accommodations or facilities are located on or in a documented
14 vessel or foreign vessel as provided in s. 721.08(2)(c)3.e.,
15 the disclosure required by s. 721.08(2)(c)3.e.IV.
16 (f) A description of the accommodations, including,
17 but not limited to:
18 1. The number of timeshare units in each building, the
19 total number of timeshare periods declared as part of the
20 timeshare plan and filed with the division, and the number of
21 bathrooms and bedrooms in each type of timeshare unit.
22 2. The latest date estimated for completion of
23 constructing, finishing, and equipping the timeshare units
24 declared as part of the timeshare plan and filed with the
25 division.
26 3. The estimated maximum number of units and timeshare
27 periods that will use the accommodations and facilities. If
28 the maximum number of timeshare units or timeshare periods
29 will vary, a description of the basis for variation.
30 4. The duration, in years, of the timeshare plan.
31
34
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 5. If any of the accommodations are part of a personal
2 property timeshare plan, the name, vehicle registration
3 number, title certificate number, or any other identifying
4 registration number assigned to the accommodation of a
5 personal property timeshare plan by a state, federal, or
6 international governmental agency.
7 6. If any of the accommodations are part of a personal
8 property timeshare plan, the fire detection system and fire
9 safety equipment and description of method of compliance with
10 any applicable firesafety or fire detection regulations.
11 (g) A description of any the facilities that will be
12 used by purchasers of the plan, including, but not limited to:
13 1. The intended purpose, if not apparent from the
14 description.
15 2. The estimated date when each facility will be
16 available for use by the purchaser.
17 3. A statement as to whether the facilities will be
18 used exclusively by purchasers of the timeshare plan, and, if
19 not, a statement as to whether the purchasers of the timeshare
20 plan are required to pay any portion of the maintenance and
21 expenses of such facilities.
22 (h)1. If any facilities offered by the developer for
23 use by purchasers are to be leased or have club memberships
24 associated with them, other than participation in a vacation
25 club, one of the following statements in conspicuous type:
26 There is a lease associated with one or more facilities of the
27 timeshare plan; or, There is a club membership associated with
28 one or more facilities of the timeshare plan.
29 2. If it is mandatory that purchasers pay fees, rent,
30 dues, or other charges under a facilities lease or club
31 membership for the use of the facilities, other than
35
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 participation in a vacation club, the applicable statement in
2 conspicuous type in substantially the following form:
3 a. Membership in a facilities club is mandatory for
4 purchasers;
5 b. Purchasers or the owners' association(s) are
6 required, as a condition of ownership, to be lessees under the
7 facilities lease;
8 c. Purchasers or the owners' association(s) are
9 required to pay their share of the rent or costs and expenses
10 of maintenance, management, upkeep, and replacement under the
11 facilities lease (or the other instruments providing the
12 facilities); or
13 d. A similar statement of the nature of the
14 organization or the manner in which the use rights are
15 created, and that purchasers are required to pay.
16
17 Immediately following the applicable statement, a description
18 of the lease or other instrument shall be stated, including a
19 description of terms of the payment of rent or costs and
20 expenses of maintenance, management, upkeep, and replacement
21 of the facilities.
22 3. If the purchasers are required to pay a use fee, or
23 other payment for the use of the facilities, not including the
24 rent or maintenance, management, upkeep, or replacement costs
25 and expenses, the following statement in conspicuous type: The
26 purchasers or the owners' association(s) must pay use fees for
27 one or more facilities. Immediately following this statement,
28 a description of the use fees shall be included.
29 4. If any person other than the owners' association
30 has the right to a lien on the timeshare interests to secure
31 the payment of assessments, rent, or other exactions, a
36
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 statement in conspicuous type in substantially the following
2 form:
3 a. There is a lien or lien right against each
4 timeshare interest to secure the payment of rent and other
5 exactions under the facilities lease. A purchaser's failure to
6 make these payments may result in foreclosure of the lien; or
7 b. There is a lien or lien right against each
8 timeshare interest to secure the payment of assessments or
9 other exactions coming due for the use, maintenance, upkeep,
10 or repair of one or more facilities. A purchaser's failure to
11 make these payments may result in foreclosure of the lien.
12
13 Immediately following the applicable statement, a description
14 of the lien right shall be included.
15 (i) If the developer or any other person has the right
16 to increase or add to the facilities at any time after the
17 establishment of the timeshare plan, without the consent of
18 the purchasers or owners' association being required, a
19 statement in conspicuous type in substantially the following
20 form: Facilities may be expanded or added without consent of
21 the purchasers or the owners' association(s). Immediately
22 following this statement, a description of such reserved
23 rights shall be included.
24 (j)1. For a real property timeshare plan, an
25 explanation of the status of the title to the real property
26 underlying the timeshare plan, including a statement of the
27 existence of any lien, defect, judgment, mortgage, or other
28 encumbrance affecting the title to the property, and how such
29 lien, defect, judgment, mortgage, or other encumbrance will be
30 removed or satisfied prior to closing.
31
37
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 2. For a personal property timeshare plan, an
2 explanation of the status of title to the personal property
3 underlying the timeshare plan, including a statement of the
4 existence of any lien, defect, judgment, or other encumbrance
5 affecting the title to the personal property, and how such
6 lien, defect, judgment, or other encumbrance will be removed
7 or satisfied prior to closing.
8 (k) A description of any judgment against the
9 developer, the managing entity, owner of the underlying fee,
10 or owner of the underlying personal property fee, which
11 judgment is material to the timeshare plan; the status of any
12 pending suit to which the developer, the managing entity,
13 owner of the underlying fee, or owner of the underlying
14 personal property fee is a party, which suit is material to
15 the timeshare plan; and any other suit which is material to
16 the timeshare plan of which the developer, managing entity,
17 owner of the underlying fee, or owner of the underlying
18 personal property fee has actual knowledge. If no judgments or
19 pending suits exist, there shall be a statement of such fact.
20 (l) A description of all unusual and material
21 circumstances, features, and characteristics of the real
22 property or personal property underlying or comprising the
23 timeshare plan.
24 (m) A description of any financing to be offered to
25 purchasers by the developer or any person or entity in which
26 the developer has a financial interest, together with a
27 disclosure that the description of such financing may be
28 changed by the developer and that any change in the financing
29 offered to prospective purchasers will not be deemed to be a
30 material change.
31
38
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (n) A detailed explanation of any financial
2 arrangements which have been provided for completion of all
3 promised improvements.
4 (o) The name and address of the managing entity; a
5 statement whether the seller may change the managing entity or
6 its control and, if so, the manner by which the seller may
7 change the managing entity; a statement of the arrangements
8 for management, maintenance, and operation of the
9 accommodations and facilities and of other property that will
10 serve the purchasers; and a description of the management
11 arrangement and any contracts for these purposes having a term
12 in excess of 1 year, including the names of the contracting
13 parties, the term of the contract, the nature of the services
14 included, and the compensation, stated for a month and for a
15 year, and provisions for increases in the compensation. In the
16 case of a personal property timeshare plan in which the
17 accommodations or facilities are located on or in a documented
18 vessel or foreign vessel as provided in s. 721.08(2)(c)3.e., a
19 statement shall be included that describes the trustee's or
20 owners' association's access to the certificates of
21 classification and indicates that the certificate of
22 classification will be made available to purchasers on
23 request.
24 (p) If any person other than the purchasers has the
25 right to retain control of the board of administration of the
26 owners' association, if any, for a period of time which may
27 exceed 1 year after the closing of the sale of a majority of
28 the timeshare interests in that timeshare plan to persons
29 other than successors or concurrent developers and the plan is
30 one in which all purchasers automatically become members of
31 the owners' association, a statement in conspicuous type in
39
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 substantially the following form: The developer (or other
2 person) has the right to retain control of the owners'
3 association after a majority of the timeshare interests have
4 been sold. Immediately following this statement, a description
5 of the applicable transfer of control provisions of the
6 timeshare plan shall be included.
7 (q)1. If there are any restrictions upon the sale,
8 transfer, conveyance, or leasing of a timeshare interest, a
9 statement in conspicuous type in substantially the following
10 form: The sale, lease, or transfer of timeshare interests is
11 restricted or controlled. Immediately following this
12 statement, a description of the nature of the restriction,
13 limitation, or control on the sale, lease, or transfer of
14 timeshare interests shall be included.
15 2. The following statement in conspicuous type in
16 substantially the following form: The purchase of a timeshare
17 interest should be based upon its value as a vacation
18 experience or for spending leisure time, and not considered
19 for purposes of acquiring an appreciating investment or with
20 an expectation that the timeshare interest may be resold.
21 (r) If the timeshare plan is part of a phase project,
22 a statement to that effect and a complete description of the
23 phasing. Notwithstanding any provisions of s. 718.110 or s.
24 719.1055, a developer may develop a timeshare condominium or a
25 timeshare cooperative in phases if the original declaration of
26 condominium or cooperative documents submitting the initial
27 phase to condominium ownership or cooperative ownership or an
28 amendment to the declaration of condominium or cooperative
29 documents which has been approved by all of the unit owners
30 and unit mortgagees provides for phasing. Notwithstanding any
31 provisions of s. 718.403 or s. 719.403 to the contrary, the
40
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 original declaration of condominium or cooperative documents,
2 or an amendment to the declaration of condominium or
3 cooperative documents adopted pursuant to this subsection,
4 need only generally describe the developer's phasing plan and
5 the land which may become part of the condominium or
6 cooperative, and, in conjunction therewith, the developer may
7 also reserve all rights to vary his or her phasing plan as to
8 phase boundaries, plot plans and floor plans, timeshare unit
9 types, timeshare unit sizes and timeshare unit type mixes,
10 numbers of timeshare units, and facilities with respect to
11 each subsequent phase. There shall be no time limit during
12 which a developer of a timeshare condominium or timeshare
13 cooperative must complete his or her phasing plan, and the
14 developer shall not be required to notify owners of existing
15 timeshare estates of his or her decision not to add one or
16 more proposed phases.
17 (s) A description of the material restrictions, if
18 any, to be imposed on timeshare interests concerning the use
19 of any of the accommodations or facilities, including
20 statements as to whether there are restrictions upon children
21 and pets or a reference to a copy of the documents containing
22 the restrictions which shall be attached as an exhibit. If
23 there are no restrictions, there shall be a statement of such
24 fact.
25 (t) If there is any land or personal property that is
26 offered by the developer for use by the purchasers and which
27 is neither owned by them nor leased to them, the owners'
28 association, or any entity controlled by the purchasers, a
29 statement describing the land or personal property, how it
30 will serve the timeshare plan, and the nature and term of
31 service.
41
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (u) An estimated operating budget for the timeshare
2 plan and a schedule of the purchaser's expenses shall be
3 attached as an exhibit and shall contain the following
4 information:
5 1. The estimated annual expenses of the timeshare plan
6 collectible from purchasers by assessments. The estimated
7 payments by the purchaser for assessments shall also be stated
8 in the estimated amounts for the times when they will be due.
9 Expenses shall also be shown for the shortest timeshare period
10 offered for sale by the developer. If the timeshare plan
11 provides for the offer and sale of units to be used on a
12 nontimeshare basis, the estimated monthly and annual expenses
13 of such units shall be set forth in a separate schedule.
14 2. The estimated weekly, monthly, and annual expenses
15 of the purchaser of each timeshare interest, other than
16 assessments payable to the managing entity. Expenses which are
17 personal to purchasers that are not uniformly incurred by all
18 purchasers or that are not provided for or contemplated by the
19 timeshare plan documents may be excluded from this estimate.
20 3. The estimated items of expenses of the timeshare
21 plan and the managing entity, except as excluded under
22 subparagraph 2., including, but not limited to, if applicable,
23 the following items, which shall be stated either as
24 management expenses collectible by assessments or as expenses
25 of the purchaser payable to persons other than the managing
26 entity:
27 a. Expenses for the managing entity:
28 (I) Administration of the managing entity.
29 (II) Management fees.
30 (III) Maintenance.
31 (IV) Rent for facilities.
42
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (V) Taxes upon timeshare property.
2 (VI) Taxes upon leased areas.
3 (VII) Insurance.
4 (VIII) Security provisions.
5 (IX) Other expenses.
6 (X) Operating capital.
7 (XI) Reserves for deferred maintenance and reserves
8 for capital expenditures.
9 (A) All reserves for any accommodations and facilities
10 of real property timeshare plans located in this state shall
11 be calculated by a formula which is based upon estimated life
12 and replacement cost of each reserve item. Reserves for
13 deferred maintenance for such accommodations and facilities
14 shall include accounts for roof replacement, building
15 painting, pavement resurfacing, replacement of timeshare unit
16 furnishings and equipment, and any other component, the useful
17 life of which is less than the useful life of the overall
18 structure. For any accommodations and facilities of real
19 property timeshare plans located outside of this state, the
20 developer shall disclose the amount of reserves for deferred
21 maintenance or capital expenditures required by the law of the
22 situs state, if applicable, and maintained for such
23 accommodations and facilities.
24 (B) Reserves for deferred maintenance or capital
25 expenditures of accommodations and facilities of a personal
26 property timeshare plan, if any. If such reserves are
27 maintained, the estimated operating budget shall disclose the
28 methodology of how the reserves are calculated. If a personal
29 property timeshare plan does not require reserves, the
30 following statement, in conspicuous type, shall appear in both
31 the budget and the public offering statement:
43
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1
2 The estimated operating budget for this personal property
3 timeshare plan does not include reserves for deferred
4 maintenance or capital expenditures; each timeshare interest
5 may be subject to substantial special assessments from time to
6 time because no such reserves exist.
7
8 (XII) Fees payable to the division.
9 b. Expenses for a purchaser:
10 (I) Rent for the timeshare unit, if subject to a
11 lease.
12 (II) Rent payable by the purchaser directly to the
13 lessor or agent under any lease for the use of facilities,
14 which use and payment is a mandatory condition of ownership
15 and is not included in the common expenses or assessments for
16 common maintenance paid by the purchasers to the managing
17 entity.
18 4. The estimated amounts shall be stated for a period
19 of at least 12 months and may distinguish between the period
20 prior to the time that purchasers elect a majority of the
21 board of administration and the period after that date.
22 5. If the developer intends to guarantee the level of
23 assessments, such guarantee must be based upon a good faith
24 estimate of the revenues and expenses of the timeshare plan.
25 The guarantee must include a description of the following:
26 a. The specific time period measured in one or more
27 calendar or fiscal years during which the guarantee will be in
28 effect.
29 b. A statement that the developer will pay all common
30 expenses incurred in excess of the total revenues of the
31 timeshare plan pursuant to s. 721.15(2) if the developer has
44
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 excused himself or herself from the payment of assessments
2 during the guarantee period.
3 c. The level, expressed in total dollars, at which the
4 developer guarantees the budget. If the developer has reserved
5 the right to extend or increase the guarantee level pursuant
6 to s. 721.15(2), a disclosure must be included to that effect.
7 6. If the developer intends to provide a trust fund to
8 defer or reduce the payment of annual assessments, a copy of
9 the trust instrument shall be attached as an exhibit and shall
10 include a description of such arrangement, including, but not
11 limited to:
12 a. The specific amount of such trust funds and the
13 source of the funds.
14 b. The name and address of the trustee.
15 c. The investment methods permitted by the trust
16 agreement.
17 d. A statement in conspicuous type that the funds from
18 the trust account may not cover all assessments and that there
19 is no guarantee that purchasers will not have to pay
20 assessments in the future.
21 7. The budget of a phase timeshare plan may contain a
22 note identifying the number of timeshare interests covered by
23 the budget, indicating the number of timeshare interests, if
24 any, estimated to be declared as part of the timeshare plan
25 during that calendar year, and projecting the common expenses
26 for the timeshare plan based upon the number of timeshare
27 interests estimated to be declared as part of the timeshare
28 plan during that calendar year.
29 (v) A schedule of estimated closing expenses to be
30 paid by a purchaser or lessee of a timeshare interest and a
31 statement as to whether a title opinion or title insurance
45
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 policy is available to the purchaser and, if so, at whose
2 expense.
3 (w) The identity of the developer and the chief
4 operating officer or principal directing the creation and sale
5 of the timeshare plan and a statement of the experience of
6 each in this field or, if no experience, a statement of that
7 fact.
8 (x) A statement of the total financial obligation of
9 the purchaser, including the purchase price and any additional
10 charges to which the purchaser may be subject.
11 (y) The name of any person who will or may have the
12 right to alter, amend, or add to the charges to which the
13 purchaser may be subject and the terms and conditions under
14 which such alterations, amendments, or additions may be
15 imposed.
16 (z) A statement of the purchaser's right of
17 cancellation of the purchase contract.
18 (aa) A description of the insurance coverage provided
19 for the timeshare plan.
20 (bb) A statement as to whether the timeshare plan is
21 participating in an exchange program and, if so, the name and
22 address of the exchange company offering the exchange program.
23 (cc) The existence of rules and regulations regarding
24 any reservation features governing a purchaser's ability to
25 make reservations for a timeshare period, including, if
26 applicable, a conspicuous type disclaimer in substantially the
27 following form:
28
29 The right to reserve a timeshare period is subject to rules
30 and regulations of the timeshare plan reservation system.
31
46
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (dd) If a developer is filing a timeshare plan that
2 includes a timeshare instrument or component site document
3 that was in conformance with the laws and rules in existence
4 at the time the timeshare plan was created but does not
5 conform to existing laws and rules that govern the timeshare
6 plan and the developer does not have the authority or power to
7 amend or change the timeshare instrument or component site
8 document to conform to such existing laws or rules as directed
9 by the division, a brief explanation of current law and the
10 conflict with the timeshare instrument or component site
11 document, preceded by disclaimer in conspicuous type in
12 substantially the following form:
13
14 Florida law has been amended and certain provisions in [insert
15 appropriate reference to timeshare instrument or component
16 site document] that were in conformance with Florida law as it
17 existed at the time the timeshare plan was created are not in
18 conformance with current Florida law. These documents may only
19 be amended by [insert appropriate reference to person or
20 entity that has the right to amend or change the timeshare
21 instrument or component site document]. The developer does not
22 warrant that such documents are in technical compliance with
23 all applicable Florida laws and regulations. All questions
24 regarding amendment of these documents should be directed to
25 [insert appropriate reference to person or entity that has the
26 right to amend or change the timeshare instrument or component
27 site document].
28
29 (ee) Any other information that a seller, with the
30 approval of the division, desires to include in the public
31 offering statement.
47
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (ff) Copies of the following documents and plans, to
2 the extent they are applicable, shall be included as exhibits
3 to the filed registered public offering statement provided, if
4 the timeshare plan has not been declared or created at the
5 time of the filing, the developer shall provide proposed
6 documents:
7 1. The declaration of condominium.
8 2. The cooperative documents.
9 3. The declaration of covenants and restrictions.
10 4. The articles of incorporation creating the owners'
11 association.
12 5. The bylaws of the owners' association.
13 6. Any The ground lease or other underlying lease of
14 the real property associated with on which the timeshare plan
15 is situated. In the case of a personal property timeshare
16 plan, any lease of the personal property associated with the
17 personal property timeshare plan.
18 7. The management agreement and all maintenance and
19 other contracts regarding the management and operation of the
20 timeshare property which have terms in excess of 1 year.
21 8. The estimated operating budget for the timeshare
22 plan and the required schedule of purchasers' expenses.
23 9. The floor plan of each type of accommodation and
24 the plot plan showing the location of all accommodations and
25 facilities declared as part of the timeshare plan and filed
26 with the division.
27 10. The lease for any facilities.
28 11. A declaration of servitude of properties serving
29 the accommodations and facilities, but not owned by purchasers
30 or leased to them or the owners' association.
31
48
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 12. Any documents required by s. 721.03(3)(e) as the
2 result of the inclusion of a timeshare plan in the conversion
3 of the building to condominium or cooperative ownership.
4 13. The form of agreement for sale or lease of
5 timeshare interests.
6 14. The executed agreement for escrow of payments made
7 to the developer prior to closing and the form of any
8 agreement for escrow of ad valorem tax escrow payments, if
9 any, to be made into an ad valorem tax escrow account pursuant
10 to s. 192.037(6).
11 15. The documents containing any restrictions on use
12 of the property required by paragraph (s).
13 16. A letter from the escrow agent or filing attorney
14 confirming that the escrow agent and its officers, directors,
15 or other partners are independent pursuant to the requirements
16 of this chapter.
17 17. Any nondisturbance and notice to creditors
18 instrument required by s. 721.08.
19 18. In the case of any personal property timeshare
20 plan in which the accommodations and facilities are located on
21 or in a documented vessel or foreign vessel as provided in s.
22 721.08(2)(c)3.e., a copy of the certificate of ownership of
23 such vessel and either a copy of the certificate of
24 documentation or certificate of registry of such vessel.
25 19. An executed affidavit given under oath by an
26 attorney licensed to practice law in any jurisdiction in the
27 United States stating that the attorney has researched the
28 applicable laws of the jurisdiction in which governing law has
29 been established and the laws of the jurisdiction in which the
30 vessel is registered and has found that the timeshare
31
49
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 instrument complies with the provisions of s.
2 721.08(2)(c)3.e.(II)(C) and s. 721.08(2)(c)3.e.(III).
3 20.16. Any other documents or instruments creating the
4 timeshare plan.
5 (gg) Such other information as is necessary to fairly,
6 meaningfully, and effectively disclose all aspects of the
7 timeshare plan, including, but not limited to, any disclosures
8 made necessary by the operation of s. 721.03(8). However, if a
9 developer has, in good faith, attempted to comply with the
10 requirements of this section, and if, in fact, he or she has
11 substantially complied with the disclosure requirements of
12 this chapter, nonmaterial errors or omissions shall not be
13 actionable.
14 (hh) Notwithstanding the provisions of this
15 subsection, the filed registered public offering statement for
16 a component site of a multisite timeshare plan filed pursuant
17 to this subsection may contain cross-references to information
18 contained in the related multisite timeshare plan filed
19 registered public offering statement filed pursuant to s.
20 721.55 in lieu of repeating such information.
21 (6) The division is authorized to prescribe by rule
22 the form of the approved purchaser public offering statement
23 that must be furnished by the developer to each purchaser. The
24 form of the purchaser public offering statement must provide
25 fair, meaningful, and effective disclosure of all aspects of
26 the timeshare plan. For timeshare plans filed pursuant to this
27 part, the developer shall furnish each purchaser with the
28 following:
29 (a) A copy of the purchaser public offering statement
30 text in the form approved by the division for delivery to
31 purchasers.
50
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (b) Copies of the exhibits required to be filed with
2 the division pursuant to subparagraphs (5)(ff)1., 2., 4., 5.,
3 8., and 16.
4 (c) A receipt for timeshare plan documents and a list
5 describing any exhibit to the filed registered public offering
6 statement filed with the division which is not delivered to
7 the purchaser. The division is authorized to prescribe by rule
8 the form of the receipt for timeshare plan documents and the
9 description of exhibits list that must be furnished to the
10 purchaser. The description of documents list utilized by a
11 developer shall be filed with the division for review as part
12 of the filed registered public offering statement pursuant to
13 this section. The developer shall be required to provide the
14 managing entity with a copy of the approved filed registered
15 public offering statement and any approved amendments thereto
16 to be maintained by the managing entity as part of the books
17 and records of the timeshare plan pursuant to s. 721.13(3)(d).
18 (d) Any other exhibit which the developer includes as
19 part of the purchaser public offering statement, provided that
20 the developer first files the exhibit with the division.
21 (e) An executed copy of any document which the
22 purchaser signs.
23 (f) Each purchaser shall receive a fully executed
24 paper copy of the purchase contract.
25 Section 7. Paragraph (g) of subsection (1) of section
26 721.075, Florida Statutes, is amended and paragraph (e) is
27 added to subsection (2) of that section, to read:
28 721.075 Incidental benefits.--Incidental benefits
29 shall be offered only as provided in this section.
30 (1) Accommodations, facilities, products, services,
31 discounts, or other benefits which satisfy the requirements of
51
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 this subsection shall be subject to the provisions of this
2 section and exempt from the other provisions of this chapter
3 which would otherwise apply to such accommodations or
4 facilities if and only if:
5 (g) The incidental benefit is filed with the division
6 for review in conjunction with the filing of a timeshare plan
7 or in connection with a previously filed timeshare plan.
8 (2) Each purchaser shall execute a separate
9 acknowledgment and disclosure statement with respect to all
10 incidental benefits, which statement shall include the
11 following information:
12 (e) A statement indicating the source of the services,
13 points, or other products that constitute the incidental
14 benefit.
15 Section 8. Section 721.08, Florida Statutes, is
16 amended to read:
17 721.08 Escrow accounts; nondisturbance instruments;
18 alternate security arrangements; transfer of legal title.--
19 (1) Prior to the filing of a registered public
20 offering statement with the division, all developers shall
21 establish an escrow account with an escrow agent for the
22 purpose of protecting the funds or other property of
23 purchasers required to be escrowed by this section. An escrow
24 agent shall maintain the accounts called for in this section
25 only in such a manner as to be under the direct supervision
26 and control of the escrow agent. The escrow agent shall have a
27 fiduciary duty to each purchaser to maintain the escrow
28 accounts in accordance with good accounting practices and to
29 release the purchaser's funds or other property from escrow
30 only in accordance with this chapter. The escrow agent shall
31 retain all affidavits received pursuant to this section for a
52
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 period of 5 years. Should the escrow agent receive conflicting
2 demands for funds or other property held in escrow, the escrow
3 agent shall immediately notify the division of the dispute and
4 either promptly submit the matter to arbitration or, by
5 interpleader or otherwise, seek an adjudication of the matter
6 by court.
7 (2) One hundred percent of all funds or other property
8 which is received from or on behalf of purchasers of the
9 timeshare plan or timeshare interest prior to the occurrence
10 of events required in this subsection shall be deposited
11 pursuant to an escrow agreement approved by the division. The
12 escrow agreement shall provide that the funds or other
13 property may be released from escrow only as follows:
14 (a) Cancellation.--In the event a purchaser gives a
15 valid notice of cancellation pursuant to s. 721.10 or is
16 otherwise entitled to cancel the sale, the funds or other
17 property received from or on behalf of the purchaser, or the
18 proceeds thereof, shall be returned to the purchaser. Such
19 refund shall be made within 20 days after of demand therefor
20 by the purchaser or within 5 days after receipt of funds from
21 the purchaser's cleared check, whichever is later. If the
22 purchaser has received benefits under the contract prior to
23 the effective date of the cancellation, the funds or other
24 property to be returned to the purchaser may be reduced by the
25 proportion of contract benefits actually received.
26 (b) Purchaser's default.--Following expiration of the
27 10-day cancellation period, if the purchaser defaults in the
28 performance of her or his obligations under the terms of the
29 contract to purchase or such other agreement by which a seller
30 sells the timeshare interest, the developer shall provide an
31 affidavit to the escrow agent requesting release of the
53
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 escrowed funds or other property and shall provide a copy of
2 such affidavit to the purchaser who has defaulted. The
3 developer' s affidavit, as required herein, shall include:
4 1. A statement that the purchaser has defaulted and
5 that the developer has not defaulted;
6 2. A brief explanation of the nature of the default
7 and the date of its occurrence;
8 3. A statement that pursuant to the terms of the
9 contract the developer is entitled to the funds held by the
10 escrow agent; and
11 4. A statement that the developer has not received
12 from the purchaser any written notice of a dispute between the
13 purchaser and developer or a claim by the purchaser to the
14 escrow.
15 (c) Compliance with conditions.--
16 1. Timeshare licenses.--If the timeshare plan is one
17 in which timeshare licenses are to be sold and no cancellation
18 or default has occurred, the escrow agent may release the
19 escrowed funds or other property to or on the order of the
20 developer upon presentation of:
21 a. An affidavit by the developer that all of the
22 following conditions have been met:
23 (I) Expiration of the cancellation period.
24 (II) Completion of construction.
25 (III) Closing.
26 (IV) Either:
27 (A) Execution, delivery, and recordation by each
28 interestholder of the nondisturbance and notice to creditors
29 instrument, as described in this section; or, alternatively,
30 (B) Transfer by the developer of legal title to the
31 subject accommodations and facilities, or all use rights
54
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 therein, into to a trust satisfying the requirements of
2 subparagraph 4. sub-subparagraph 3.b. and the execution,
3 delivery, and recordation by each other interestholder of the
4 nondisturbance and notice to creditors instrument, as
5 described in this section.
6 b. A certified copy of each the recorded
7 nondisturbance and notice to creditors instrument that
8 complies with subsection (3).
9 c. One of the following:
10 (I) A copy of a memorandum of agreement, as defined in
11 s. 721.05(21), together with satisfactory evidence that the
12 original memorandum of agreement has been irretrievably
13 delivered for recording to the appropriate official
14 responsible for maintaining the public records in the county
15 in which the subject accommodations and facilities are
16 located. The original memorandum of agreement must be recorded
17 within 180 days after the date on which the purchaser executed
18 her or his purchase agreement.
19 (II) A notice delivered for recording to the
20 appropriate official responsible for maintaining the public
21 records in each county in which the subject accommodations and
22 facilities are located notifying all persons of the identity
23 of an independent escrow agent or trustee satisfying the
24 requirements of subparagraph 4. sub-subparagraph 3.b. that
25 shall maintain separate books and records, in accordance with
26 good accounting practices, for the timeshare plan in which
27 timeshare licenses are to be sold. The books and records shall
28 indicate each accommodation and facility that is subject to
29 such a timeshare plan and each purchaser of a timeshare
30 license in the timeshare plan.
31
55
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 2. Timeshare estates.--If the timeshare plan is one in
2 which timeshare estates are to be sold, other than interests
3 in a trust pursuant to subparagraph 3., and no cancellation or
4 default has occurred, the escrow agent may release the
5 escrowed funds or other property to or on the order of the
6 developer upon presentation of:
7 a. An affidavit by the developer that all of the
8 following conditions have been met:
9 (I) Expiration of the cancellation period.
10 (II) Completion of construction.
11 (III) Closing.
12 b. If the timeshare estate is sold by agreement for
13 deed, a certified copy of the recorded nondisturbance and
14 notice to creditors instrument, as described in this section.
15 c. Evidence that each accommodation and facility:
16 (I) Is free and clear of the claims of any
17 interestholders, other than the claims of interestholders
18 that, through a recorded instrument, are irrevocably made
19 subject to the timeshare instrument and the use rights of
20 purchasers made available through the timeshare instrument;
21 (II) Is the subject of a recorded nondisturbance and
22 notice to creditors instrument that complies with subsection
23 (3) and s. 721.17; or
24 (III) Has been transferred into a trust satisfying the
25 requirements of subparagraph 4.
26 d. Evidence that the timeshare estate:
27 (I) Is free and clear of the claims of any
28 interestholders, other than the claims of interestholders
29 that, through a recorded instrument, are irrevocably made
30 subject to the timeshare instrument and the use rights of
31
56
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 purchasers made available through the timeshare instrument;,
2 or
3 (II) Is that are the subject of a recorded
4 nondisturbance and notice to creditors instrument that
5 complies with subsection (3) and s. 721.17(3).
6 3. Personal property timeshare interests.-- If the
7 timeshare plan is one in which personal property timeshare
8 interests estates are to be sold as interests in a trust that
9 complies in all respects with the provisions of
10 sub-subparagraph b., and no cancellation or default has
11 occurred, the escrow agent may release the escrowed funds or
12 other property to or on the order of the developer upon
13 presentation of:
14 a. An affidavit by the developer that all of the
15 following conditions have been met:
16 (I) Expiration of the cancellation period.
17 (II) Completion of construction.
18 (III) Transfer of the subject accommodations and
19 facilities, or all use rights therein, to the trust.
20 (IV) Closing.
21 b. If the personal property timeshare interest is sold
22 by agreement for transfer, evidence that the agreement for
23 transfer complies fully with s. 721.06 and this section.
24 c. Evidence that one of the following has occurred:
25 (I) Transfer by the owner of the underlying personal
26 property of legal title to the subject accommodations and
27 facilities or all use rights therein into a trust satisfying
28 the requirements of subparagraph 4.; or
29 (II) Transfer by the owner of the underlying personal
30 property of legal title to the subject accommodations and
31
57
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 facilities or all use rights therein into an owners'
2 association satisfying the requirements of subparagraph 5.
3 d. Evidence of compliance with the provisions of
4 subparagraph 6., if required.
5 e. If a personal property timeshare plan is created
6 with respect to accommodations and facilities that are located
7 on or in a "documented vessel" or "foreign vessel" as defined
8 and governed by chapter 313 (Commercial Instruments and
9 Liens), Title 46, United States Code:
10 (I) In making the transfer required in
11 sub-subparagraph c., the developer shall use as its transfer
12 instrument a document that establishes and protects the
13 continuance of the use rights in the subject accommodations
14 and facilities in a manner that is enforceable by the trust or
15 owners' association.
16 (II) The transfer instrument shall comply fully with
17 the provisions of this chapter, shall be part of the timeshare
18 instrument, and shall contain specific provisions that:
19 (A) Prohibit the vessel owner, the developer, any
20 manager or operator of the vessel, the owners' association or
21 the trustee, the managing entity, or any other person from
22 incurring any liens against the vessel except for liens that
23 are required for the operation and upkeep of the vessel,
24 including liens for fuel expenditures, repairs, crews' wages,
25 and salvage, and except as provided in sub-sub-subparagraphs
26 4.b.(III) and 5.b.(III). All expenses, fees, and taxes
27 properly incurred in connection with the creation,
28 satisfaction, and discharge of any such permitted lien, or a
29 prorated portion thereof if less than all of the
30 accommodations on the vessel are subject to the timeshare
31 plan, shall be common expenses of the timeshare plan.
58
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (B) Grant a lien against the vessel in favor of the
2 owners' association or trustee to secure the full and faithful
3 performance of the vessel owner and developer of all of their
4 obligations to the purchasers.
5 (C) Establish governing law in a jurisdiction that
6 recognizes and will enforce the timeshare instrument and the
7 laws of the country of registry of the vessel.
8 (D) Require that a description of the use rights of
9 purchasers be posted and displayed on the vessel in a manner
10 that will give notice of such rights to any party examining
11 the vessel. This notice must identify the owners' association
12 or trustee and include a statement disclosing the limitation
13 on incurring liens against the vessel described in
14 sub-sub-sub-subparagraph (A).
15 (E) Include the nondisturbance and notice to creditors
16 instrument for the vessel owner and any other interestholders.
17 (F) The owners' association created under subparagraph
18 5. or trustee created under subparagraph 6. shall have access
19 to the certificates of classification in accordance with the
20 timeshare instrument.
21 (III) If the vessel is a foreign vessel, the vessel
22 must be registered in a jurisdiction that permits a filing
23 evidencing the use rights of purchasers in the subject
24 accommodations and facilities, offers protection for such use
25 rights against unfiled and inferior claims, and recognizes the
26 document or instrument creating such use rights as a lien
27 against the vessel.
28 (IV) In addition to the disclosures required by s.
29 721.07(5), the public offering statement and purchase contract
30 must contain a disclosure in conspicuous type in substantially
31 the following form:
59
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1
2 The laws of the State of Florida govern the offering of this
3 timeshare plan in this state. There are inherent risks in
4 purchasing a timeshare interest in this timeshare plan because
5 the accommodations and facilities of the timeshare plan are
6 located on a vessel that will sail into international waters
7 and into waters governed by many different jurisdictions.
8 Therefore, the laws of the State of Florida cannot fully
9 protect your purchase of an interest in this timeshare plan.
10 Specifically, management and operational issues may need to be
11 addressed in the jurisdiction in which the vessel is
12 registered, which is ____________ [insert jurisdiction in
13 which vessel is registered]. Concerns of purchasers may be
14 sent to ________________ [insert name of applicable regulatory
15 agency and address].
16 4. Trust.--
17 a. If the subject accommodations or facilities, or all
18 use rights therein, are to be transferred into a trust in
19 order to comply with this paragraph, such transfer shall take
20 place pursuant to this subparagraph.
21 b. Prior to the transfer by each interestholder of the
22 subject accommodations and facilities, or all use rights
23 therein, to a trust, any lien or other encumbrance against
24 such accommodations and facilities, or use rights therein,
25 shall be made subject to a nondisturbance and notice to
26 creditors instrument pursuant to subsection (3) as described
27 in this section. No transfer pursuant to this subparagraph
28 sub-subparagraph shall become effective until the trustee
29 accepts such transfer and the responsibilities set forth
30 herein. A trust established pursuant to this subparagraph
31 sub-subparagraph shall comply with the following provisions:
60
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (I) The trustee shall be an individual or a business
2 entity authorized and qualified to conduct trust business in
3 this state. Any corporation authorized to do business in this
4 state may act as trustee in connection with a timeshare plan
5 pursuant to this chapter. The trustee must be independent from
6 any developer or managing entity of the timeshare plan or any
7 interestholder of any accommodation or facility of such plan.
8 (II) The trust shall be irrevocable so long as any
9 purchaser has a right to occupy any portion of the timeshare
10 property pursuant to the timeshare plan.
11 (III) The trustee shall not convey, hypothecate,
12 mortgage, assign, lease, or otherwise transfer or encumber in
13 any fashion any interest in or portion of the timeshare
14 property with respect to which any purchaser has a right of
15 use or occupancy unless the timeshare plan is terminated
16 pursuant to the timeshare instrument, or such conveyance,
17 hypothecation, mortgage, assignment, lease, transfer, or
18 encumbrance is approved by a vote of two-thirds of all voting
19 interests of the timeshare plan and such decision is declared
20 by a court of competent jurisdiction to be in the best
21 interests of the purchasers of the timeshare plan. The trustee
22 shall notify the division in writing within 10 days after of
23 receiving notice of the filing of any petition relating to
24 obtaining such a court order. The division shall have standing
25 to advise the court of the division's interpretation of the
26 statute as it relates to the petition.
27 (IV) All purchasers of the timeshare plan or the
28 owners' association of the timeshare plan shall be the express
29 beneficiaries of the trust. The trustee shall act as a
30 fiduciary to the beneficiaries of the trust. The personal
31 liability of the trustee shall be governed by s. 737.306. The
61
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 agreement establishing the trust shall set forth the duties of
2 the trustee. The trustee shall be required to furnish promptly
3 to the division upon request a copy of the complete list of
4 the names and addresses of the owners in the timeshare plan
5 and a copy of any other books and records of the timeshare
6 plan required to be maintained pursuant to s. 721.13 that are
7 in the possession, custody, or control of the trustee. All
8 expenses reasonably incurred by the trustee in the performance
9 of its duties, together with any reasonable compensation of
10 the trustee, shall be common expenses of the timeshare plan.
11 (V) The trustee shall not resign upon less than 90
12 days' prior written notice to the managing entity and the
13 division. No resignation shall become effective until a
14 substitute trustee, approved by the division, is appointed by
15 the managing entity and accepts the appointment.
16 (VI) The documents establishing the trust arrangement
17 shall constitute a part of the timeshare instrument.
18 (VII) For trusts holding property in a timeshare plan
19 located outside this state, the trust and trustee holding such
20 property shall be deemed in compliance with the requirements
21 of this subparagraph if such trust and trustee are is
22 authorized and qualified to conduct trust business under the
23 laws of such jurisdiction and the agreement or law governing
24 such trust arrangement provides substantially similar
25 protections for the purchaser as are required in this
26 subparagraph for trusts holding property in a timeshare plan
27 in this state.
28 (VIII) The trustee shall have appointed a registered
29 agent in this state for service of process. In the event such
30 a registered agent is not appointed, service of process may be
31 served pursuant to s. 721.265.
62
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 5. Owners' association.--
2 a. If the subject accommodations or facilities, or all
3 use rights therein, are to be transferred into an owners'
4 association in order to comply with this paragraph, such
5 transfer shall take place pursuant to this subparagraph.
6 b. Prior to the transfer by each interestholder of the
7 subject accommodations and facilities, or all use rights
8 therein, to an owners' association, any lien or other
9 encumbrance against such accommodations and facilities, or use
10 rights therein, shall be made subject to a nondisturbance and
11 notice to creditors instrument pursuant to subsection (3). No
12 transfer pursuant to this subparagraph shall become effective
13 until the owners' association accepts such transfer and the
14 responsibilities set forth herein. An owners' association
15 established pursuant to this subparagraph shall comply with
16 the following provisions:
17 (I) The owners' association shall be a business entity
18 authorized and qualified to conduct business in this
19 state. Control of the board of directors of the owners'
20 association must be independent from any developer or managing
21 entity of the timeshare plan or any interestholder.
22 (II) The articles of incorporation of the owners'
23 association shall provide that the corporation may not be
24 voluntarily dissolved without the unanimous vote of all owners
25 of personal property timeshare interests so long as any
26 purchaser has a right to occupy any portion of the timeshare
27 property pursuant to the timeshare plan.
28 (III) The owners' association shall not convey,
29 hypothecate, mortgage, assign, lease, or otherwise transfer or
30 encumber in any fashion any interest in or portion of the
31 timeshare property with respect to which any purchaser has a
63
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 right of use or occupancy unless the timeshare plan is
2 terminated pursuant to the timeshare instrument, or such
3 conveyance, hypothecation, mortgage, assignment, lease,
4 transfer, or encumbrance is approved by a vote of two-thirds
5 of all voting interests of the association and such decision
6 is declared by a court of competent jurisdiction to be in the
7 best interests of the purchasers of the timeshare plan. The
8 owners' association shall notify the division in writing
9 within 10 days after receiving notice of the filing of any
10 petition relating to obtaining such a court order. The
11 division shall have standing to advise the court of the
12 division's interpretation of the statute as it relates to the
13 petition.
14 (IV) All purchasers of the timeshare plan shall be
15 members of the owners' association and shall be entitled to
16 vote on matters requiring a vote of the owners' association as
17 provided in this chapter or the timeshare instrument. The
18 owners' association shall act as a fiduciary to the purchasers
19 of the timeshare plan. The articles of incorporation
20 establishing the owners' association shall set forth the
21 duties of the owners' association. All expenses reasonably
22 incurred by the owners' association in the performance of its
23 duties, together with any reasonable compensation of the
24 officers or directors of the owners' association, shall be
25 common expenses of the timeshare plan.
26 (V) The documents establishing the owners' association
27 shall constitute a part of the timeshare instrument.
28 (VI) For owners' associations holding property in a
29 timeshare plan located outside this state, the owners'
30 association holding such property shall be deemed in
31 compliance with the requirements of this subparagraph if such
64
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 owners' association is authorized and qualified to conduct
2 owners' association business under the laws of such
3 jurisdiction and the agreement or law governing such
4 arrangement provides substantially similar protections for the
5 purchaser as are required in this subparagraph for owners'
6 associations holding property in a timeshare plan in this
7 state.
8 (VII) The owners' association shall have appointed a
9 registered agent in this state for service of process. In the
10 event such a registered agent is not appointed, service of
11 process may be made pursuant to s. 721.265.
12 6. Personal property subject to certificate of
13 title.--If any personal property that is an accommodation or
14 facility of a timeshare plan is subject to a certificate of
15 title in this state pursuant to chapter 319 or chapter 328,
16 the following notation must be made on such certificate of
17 title pursuant to s. 319.27(1) or s. 328.15(1):
18
19 The further transfer or encumbrance of the property subject to
20 this certificate of title, or any lien or encumbrance thereon,
21 is subject to the requirements of section 721.17, Florida
22 Statutes, and the transferee or lienor agrees to be bound by
23 all of the obligations set forth therein.
24 7.4. If the developer has previously provided a
25 certified copy of any document required by this paragraph, she
26 or he may for all subsequent disbursements substitute a true
27 and correct copy of the certified copy, provided no changes to
28 the document have been made or are required to be made.
29 8. In the event that use rights relating to an
30 accommodation or facility are transferred into a trust
31 pursuant to subparagraph 4. or into an owners' association
65
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 pursuant to subparagraph 5., all other interestholders,
2 including the owner of the underlying fee or underlying
3 personal property, must execute a nondisturbance and notice to
4 creditors instrument pursuant to subsection (3).
5 (d) Substitution of other assurances for escrowed funds
6 or other property.--Funds or other property escrowed as
7 provided in this section may be released from escrow to or on
8 the order of the developer upon acceptance by the director of
9 the division of other assurances pursuant to subsection (5) as
10 a substitute for such escrowed funds or other property. The
11 amount of escrowed funds or other property that may be
12 released pursuant to this paragraph shall be equal to or less
13 than the face amount of the assurances accepted by the
14 director from time to time.
15 (3) NONDISTURBANCE AND NOTICE TO CREDITORS
16 INSTRUMENT.--The nondisturbance and notice to creditors
17 instrument, when required, shall be executed by each
18 interestholder.
19 (a) The instrument shall state that:
20 1.(a) If the party seeking enforcement is not in
21 default of its obligations, the instrument may be enforced by
22 both the seller and any purchaser of the timeshare plan;
23 2.(b) The instrument shall be effective as between the
24 timeshare purchaser and interestholder despite any rejection
25 or cancellation of the contract between the timeshare
26 purchaser and developer as a result of bankruptcy proceedings
27 of the developer; and
28 3.(c) So long as a purchaser remains in good standing
29 with respect to her or his obligations under the timeshare
30 instrument, including making all payments to the managing
31 entity required by the timeshare instrument with respect to
66
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 the annual common expenses of the timeshare the interestholder
2 has any interest in the accommodations, facilities, or plan,
3 then the interestholder will fully honor all the rights of
4 such purchaser relating to the subject accommodation or
5 facility as reflected timeshare purchasers in and to the
6 timeshare instrument plan, will honor the purchasers' right to
7 cancel their contracts and receive appropriate refunds, and
8 will comply with all other requirements of this chapter and
9 rules promulgated hereunder.
10
11 The instrument shall contain language sufficient to provide
12 subsequent creditors of the developer and interestholders with
13 notice of the existence of the timeshare plan and of the
14 rights of purchasers and shall serve to protect the interest
15 of the timeshare purchasers from any claims of subsequent
16 creditors.
17 (b) Real property timeshare plans.--For real property
18 timeshare plans, the instrument shall be recorded in the
19 public records of the county in which the subject
20 accommodations or facilities are located.
21 (c) Personal property timeshare plans.--For personal
22 property timeshare plans, the instrument shall be included
23 within or attached as an exhibit to a security agreement or
24 other agreement executed by the interestholder. Constructive
25 notice of such security agreement or other agreement shall be
26 filed in the manner prescribed by chapter 679 or other
27 applicable law.
28 (d) A copy of the recorded or filed nondisturbance and
29 notice to creditors instrument, when required, shall be
30 provided to each timeshare purchaser at the time the purchase
31 contract is executed.
67
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (4) In lieu of any escrow provisions required by this
2 act, the director of the division shall have the discretion to
3 permit deposit of the funds or other property in an escrow
4 account as required by the jurisdiction in which the sale took
5 place.
6 (5)(a) In lieu of any escrows required by this
7 section, the director of the division shall have the
8 discretion to accept other assurances, including, but not
9 limited to, a surety bond issued by a company authorized and
10 licensed to do business in this state as surety or an
11 irrevocable letter of credit in an amount equal to the escrow
12 requirements of this section.
13 (b) Notwithstanding anything in chapter 718 or chapter
14 719 to the contrary, the director of the division shall have
15 the discretion to accept other assurances pursuant to
16 paragraph (a) in lieu of any requirement that completion of
17 construction of one or more accommodations or facilities of a
18 timeshare plan be accomplished prior to closing.
19 (c) In lieu of a nondisturbance and notice to
20 creditors instrument, when such an instrument is otherwise
21 required by this section, the director of the division shall
22 have the discretion to accept alternate means of protecting
23 the continuing rights of purchasers in and to the subject
24 accommodations or facilities of the timeshare plan as and for
25 the term described in the timeshare instrument, and of
26 providing effective constructive notice of such continuing
27 purchaser rights to subsequent owners of the accommodations or
28 facilities and to subsequent creditors of the affected
29 interestholder.
30 (6) An escrow agent holding funds escrowed pursuant to
31 this section may invest such escrowed funds in securities of
68
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 the United States Government, or any agency thereof, or in
2 savings or time deposits in institutions insured by an agency
3 of the United States Government. The right to receive the
4 interest generated by any such investments shall be paid to
5 the party to whom the escrowed funds or other property are
6 paid unless otherwise specified by contract.
7 (7) Each escrow agent shall maintain separate books
8 and records for each timeshare plan and shall maintain such
9 books and records in accordance with good accounting
10 practices.
11 (8) An escrow agent holding escrowed funds pursuant to
12 this chapter that have not been claimed for a period of 5
13 years after the date of deposit shall make at least one
14 reasonable attempt to deliver such unclaimed funds to the
15 purchaser who submitted such funds to escrow. In making such
16 attempt, an escrow agent is entitled to rely on a purchaser's
17 last known address as set forth in the books and records of
18 the escrow agent and is not required to conduct any further
19 search for the purchaser. If an escrow agent's attempt to
20 deliver unclaimed funds to any purchaser is unsuccessful, the
21 escrow agent may deliver such unclaimed funds to the division
22 and the division shall deposit such unclaimed funds in the
23 Division of Florida Land Sales, Condominiums, and Mobile Homes
24 Trust Fund, 30 days after giving notice in a publication of
25 general circulation in the county in which the timeshare
26 property containing the purchaser' s timeshare interest is
27 located. The purchaser may claim the same at any time prior to
28 the delivery of such funds to the division. After delivery of
29 such funds to the division, the purchaser shall have no more
30 rights to the unclaimed funds. The escrow agent shall not be
31 liable for any claims from any party arising out of the escrow
69
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 agent's delivery of the unclaimed funds to the division
2 pursuant to this section.
3 (9) For each transfer of the legal title to a
4 timeshare estate by a developer, the developer shall deliver
5 an instrument evidencing such transfer to the purchaser or to
6 a title insurance agent or to the clerk of the court for
7 recording. For each transfer of the legal title to a personal
8 property timeshare interest by a developer, the developer
9 shall deliver an instrument evidencing such transfer to the
10 purchaser subject to the provisions of this section.
11 (10)(a) Any developer, seller, or escrow agent who
12 intentionally fails to comply with the provisions of this
13 section concerning the establishment of an escrow account,
14 deposits of funds into escrow, and withdrawal therefrom is
15 guilty of a felony of the third degree, punishable as provided
16 in s. 775.082, s. 775.083, or s. 775.084, or the successor
17 thereof. The failure to establish an escrow account or to
18 place funds therein as required in this section is prima facie
19 evidence of an intentional and purposeful violation of this
20 section.
21 (b) Any developer, interestholder, trustee, or officer
22 or director of an owners' association who intentionally fails
23 to comply with the provisions of this section concerning the
24 establishment of a trust or owners' association, conveyances
25 of property into the trust or owners' association, and
26 conveyances or encumbrances of trust or owners' association
27 property is guilty of a felony of the third degree, punishable
28 as provided in s. 775.082, s. 775.083, or s. 775.084, or the
29 successor thereof. The failure to establish a trust or owners'
30 association, or to transfer property into the trust or owners'
31 association, or the failure of a trustee or officer or
70
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 director of an owners' association to comply with the trust
2 agreement, articles of incorporation, or bylaws with respect
3 to conveyances or encumbrances of trust or owners' association
4 property, as required by this section, is prima facie evidence
5 of an intentional and purposeful violation of this section.
6 Section 9. Paragraphs (a) and (d) of subsection (1),
7 paragraph (c) of subsection (2), and paragraph (c) of
8 subsection (3) of section 721.09, Florida Statutes, are
9 amended to read:
10 721.09 Reservation agreements; escrows.--
11 (1)(a) Prior to filing the filed registered public
12 offering statement with the division, a seller shall not offer
13 a timeshare plan for sale but may accept reservation deposits
14 and advertise the reservation deposit program upon approval by
15 the division of a fully executed escrow agreement and
16 reservation agreement properly filed with the division.
17 (d) A seller who has filed a reservation agreement and
18 an escrow agreement under this section may advertise the
19 reservation agreement program if the advertising material
20 meets the following requirements:
21 1. The seller complies with the provisions of s.
22 721.11 with respect to such advertising material.
23 2. The advertising material is limited to a general
24 description of the proposed timeshare plan, including, but not
25 limited to, a general description of the type, number, and
26 size of accommodations and facilities and the name of the
27 proposed timeshare plan.
28 3. The advertising material contains a statement that
29 the advertising material is being distributed in connection
30 with an approved reservation agreement filing only and that
31 the seller cannot offer an interest in the timeshare plan for
71
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 sale until a filed registered public offering statement has
2 been filed with the division under this chapter.
3 (2) Each executed reservation agreement shall be
4 signed by the developer and shall contain the following:
5 (c) A statement of the obligation of the developer to
6 file a filed registered public offering statement with the
7 division prior to entering into binding contracts.
8 (3)
9 (c) The escrow agent may invest the escrowed funds in
10 securities of the United States Government, or any agency
11 thereof, or in savings or time deposits in institutions
12 insured by an agency of the United States Government. The
13 interest generated by any such investments shall be payable to
14 the party entitled to receive the escrowed funds or other
15 property.
16 Section 10. Paragraph (a) of subsection (1),
17 paragraphs (b) and (e) of subsection (6), and subsections (7),
18 (8), and (9) of section 721.11, Florida Statutes, are amended
19 to read:
20 721.11 Advertising materials; oral statements.--
21 (1)(a) A developer may file All advertising material
22 must be filed with the division for review by the developer
23 prior to use. At the request of the developer, The division
24 shall review any the advertising material filed for review by
25 the developer and notify the developer of any deficiencies
26 within 10 days after the filing. If the developer corrects the
27 deficiencies or if there are no deficiencies, the division
28 shall notify the developer of its approval of the advertising
29 materials. Notwithstanding anything to the contrary contained
30 in this subsection, so long as the developer uses advertising
31 materials approved by the division, following the developer's
72
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 request for a review, the developer shall not be liable for
2 any violation of this section or s. 721.111 with respect to
3 such advertising materials.
4 (6) Failure to provide cancellation rights or
5 disclosures as required by this subsection in connection with
6 the sale of a regulated short-term product constitutes
7 misrepresentation in accordance with paragraph (4)(a). Any
8 agreement relating to the sale of a regulated short-term
9 product must be regulated as advertising material and is
10 subject to the following:
11 (b) A purchaser of a regulated short-term product has
12 the right to cancel the agreement until midnight of the 10th
13 calendar day following the execution date of the agreement.
14 The right of cancellation may not be waived by the prospective
15 purchaser or by any other person on behalf of the prospective
16 purchaser. Notice of cancellation must be given in the same
17 manner prescribed for giving notice of cancellation under s.
18 721.10(2). If the prospective purchaser gives a valid notice
19 of cancellation or is otherwise entitled to cancel the sale,
20 the funds or other property received from or on behalf of the
21 prospective purchaser, or the proceeds thereof, must be
22 returned to the prospective purchaser. Such refund must be
23 made in the same manner prescribed for refunds under s.
24 721.10.
25 (e) If the seller provides the purchaser with the
26 right to cancel the purchase of a regulated short-term product
27 at any time up to 7 days prior to the purchaser's reserved use
28 of the accommodations, but in no event less than 10 days, and
29 if the seller refunds the total amount of all payments made by
30 the purchaser reduced by the proportion of any benefits the
31 purchaser has actually received prior to the effective date of
73
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 the cancellation, the specific value of which has been agreed
2 to between the purchaser and the seller, the short-term
3 product offer shall be exempt from the requirements of
4 paragraphs (b), (c), and (d). An agreement relating to the
5 sale of the regulated short-term product made pursuant to this
6 paragraph must contain a statement setting forth the
7 cancellation and refund rights of the prospective purchaser in
8 a manner that is consistent with this section and s. 721.10,
9 including a description of the length of the cancellation
10 right, a statement that the purchaser's intent to cancel must
11 be in writing and sent to the seller at a specified address, a
12 statement that the notice of cancellation is effective upon
13 the date sent, and a statement that any attempt to waive the
14 cancellation right is unlawful. The right of cancellation
15 provided to the purchaser pursuant to this paragraph may not
16 be waived by the prospective purchaser or by any other person
17 on behalf of the prospective purchaser. Notice of cancellation
18 must be given in the same manner prescribed for giving notice
19 of cancellation pursuant to s. 721.10(2). If the prospective
20 purchaser gives a valid notice of cancellation, or is
21 otherwise entitled to cancel the sale, the funds or other
22 property received from or on behalf of the prospective
23 purchaser, or the proceeds thereof, shall be returned to the
24 prospective purchaser. Such refund shall be made in the manner
25 prescribed for refunds under s. 721.10.
26 (7) Notwithstanding the provisions of s. 721.05(7)
27 (6)(b), a seller may portray possible accommodations or
28 facilities to prospective purchasers in advertising material,
29 or a purchaser public offering statement, without such
30 accommodations or facilities being available for use by
31 purchasers so long as the advertising material or purchaser
74
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 public offering statement complies with the provisions of
2 subsection (4).
3 (8) Notwithstanding the provisions of s. 721.05(7)
4 (6)(b), a developer may portray possible accommodations or
5 facilities to prospective purchasers by disseminating oral or
6 written statements regarding same to broadcast or print media
7 with no obligation on the developer's part to actually
8 construct such accommodations or facilities or to file such
9 accommodations or facilities with the division, but only so
10 long as such oral or written statements are not considered
11 advertising material pursuant to paragraph (3)(e).
12 (9) Notwithstanding the provisions of s. 721.05(7)
13 (6)(b), a seller of a multisite timeshare plan may portray a
14 possible component site to prospective purchasers with no
15 accommodations or facilities located at such component site
16 being available for use by purchasers so long as the seller
17 satisfies the following requirements:
18 (a) A developer of a multisite timeshare plan may
19 disseminate oral or written statements to broadcast or print
20 media describing a possible component site with no obligation
21 on the developer's part to actually add such component site to
22 the multisite timeshare plan or to amend the developer's
23 filing with the division, but only so long as such oral or
24 written statements are not considered advertising material
25 pursuant to paragraph (3)(e).
26 (b) A seller may make representations to purchasers in
27 advertising material or in a purchaser public offering
28 statement regarding the possible accommodations and facilities
29 of a possible component site without such accommodations or
30 facilities being available for use by purchasers so long as
31
75
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 the advertising material or purchaser public offering
2 statement complies with the provisions of subsection (4).
3 (c) In the event a seller makes any of the
4 representations permitted by paragraph (b), the purchase
5 agreement must contain the following conspicuous disclosure
6 unless and until such time as the developer has committed
7 itself in the timeshare instrument to adding the possible
8 component site to the multisite timeshare plan, at which time
9 the seller may portray the component site pursuant to the
10 timeshare instrument without restriction:
11
12 [Description of possible component site] is only a possible
13 component site which may never be added to the multisite
14 timeshare plan (or multisite vacation ownership plan or
15 multisite vacation plan or vacation club). Do not purchase an
16 interest in the multisite timeshare plan (or multisite
17 vacation ownership plan or multisite vacation plan or vacation
18 club) in reliance upon the addition of this component site.
19 (d) Notwithstanding anything contained in this chapter
20 to the contrary, a developer or managing entity may
21 communicate with existing purchasers regarding possible
22 component sites without restriction, so long as all oral and
23 written statements made to existing purchasers pursuant to
24 this subsection comply with the provisions of subsection (4).
25 (e) Any violation of this subsection by a developer,
26 seller, or managing entity shall constitute a violation of
27 this chapter. Any violation of this subsection with respect to
28 a purchaser whose purchase has not yet closed shall be deemed
29 to provide that purchaser with a new 10-day voidability
30 period.
31
76
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 Section 11. Subsection (1) of section 721.12, Florida
2 Statutes, is amended to read:
3 721.12 Recordkeeping by seller.--Each seller of a
4 timeshare plan shall maintain among its business records the
5 following:
6 (1) A copy of each contract for the sale of a
7 timeshare interest, which contract has not been canceled. If a
8 timeshare estate is being sold, the seller is required to
9 retain a copy of the contract only until a deed of conveyance,
10 agreement for deed, or lease is recorded in the office of the
11 clerk of the circuit court in the county wherein the plan is
12 located. If a personal property timeshare plan is being sold,
13 the seller is required to retain a copy of the contract only
14 until a certificate of transfer, agreement for transfer,
15 lease, or other instrument of transfer that fully complies
16 with s. 721.08 is delivered to the purchaser.
17 Section 12. Paragraphs (a) and (b) of subsection (1),
18 paragraph (b) of subsection (2), paragraphs (c), (d), and (e)
19 of subsection (3), paragraph (g) of subsection (6), and
20 subsections (4) and (8) of section 721.13, Florida Statutes,
21 are amended, subsection (9) is renumbered as subsection (10),
22 and new subsections (9) and (11) are added to that section, to
23 read:
24 721.13 Management.--
25 (1)(a) For each timeshare plan, the developer shall
26 provide for a managing entity, which shall be either the
27 developer, a separate manager or management firm, or an
28 owners' association. Any owners' association shall be created
29 prior to the first closing recording of the sale of a
30 timeshare interest instrument.
31
77
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (b)1. With respect to a timeshare plan which is also
2 regulated under chapter 718 or chapter 719, or which contains
3 a mandatory owners' association, the board of administration
4 of the owners' association shall be considered the managing
5 entity of the timeshare plan.
6 2. During any period of time in which such owners'
7 association has entered into a contract with a manager or
8 management firm to provide some or all of the management
9 services to the timeshare plan, both the board of
10 administration and the manager or management firm shall be
11 considered the managing entity of the timeshare plan and shall
12 be jointly and severally responsible for the faithful
13 discharge of the duties of the managing entity.
14 3. An owners' association which is the managing entity
15 of a timeshare plan that includes condominium units or
16 cooperative units shall not be considered a condominium
17 association pursuant to the provisions of chapter 718 or a
18 cooperative association pursuant to the provisions of chapter
19 719, unless such owners' association also operates the entire
20 condominium pursuant to s. 718.111 or the entire cooperative
21 pursuant to s. 719.104.
22 (2)
23 (b) The managing entity shall invest the operating and
24 reserve funds of the timeshare plan in accordance with s.
25 518.11(1); however, the managing entity shall give safety of
26 capital greater weight than production of income. In no event
27 shall the managing entity invest timeshare plan funds with a
28 developer or with any entity that is not independent of any
29 developer or any managing entity within the meaning of s.
30 721.05(20) (18), and in no event shall the managing entity
31
78
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 invest timeshare plan funds in notes and mortgages related in
2 any way to the timeshare plan.
3 (3) The duties of the managing entity include, but are
4 not limited to:
5 (c)1. Providing each year to all purchasers an
6 itemized annual budget which shall include all estimated
7 revenues and expenses. The budget shall be in the form
8 required by s. 721.07(5)(u). The budget and shall be the final
9 budget adopted by the managing entity for the current fiscal
10 year. The final adopted budget is not required to be delivered
11 if the managing entity has previously delivered a proposed
12 annual budget for the current fiscal year to purchasers in
13 accordance with chapter 718 or chapter 719, and the managing
14 entity includes a description of any changes in the adopted
15 budget with the assessment notice and a disclosure regarding
16 the purchasers' right to receive a copy of the adopted budget
17 if desired. The budget shall contain, as a footnote or
18 otherwise, any related party transaction disclosures or notes
19 which appear in the audited financial statements of the
20 managing entity for the previous budget year as required by
21 paragraph (e). A copy of the final budget shall be filed with
22 the division for review within 30 days after the beginning of
23 each fiscal year together with a statement of the number of
24 periods of 7-day annual use availability that exist within the
25 timeshare plan, including those periods filed for sale by the
26 developer but not yet committed to the timeshare plan, for
27 which annual fees are required to be paid to the division
28 under s. 721.27.
29 2. Notwithstanding anything contained in chapter 718
30 or chapter 719 to the contrary, the board of administration of
31 an owners' association which serves as the managing entity may
79
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 from time to time reallocate reserves for deferred maintenance
2 and capital expenditures required by s. 721.07(5)(u)3.a.(XI)
3 from any deferred maintenance or capital expenditure reserve
4 account to any other deferred maintenance or capital
5 expenditure reserve account or accounts in its discretion
6 without the consent of purchasers of the timeshare plan. Funds
7 in any deferred maintenance or capital expenditure reserve
8 account may not be transferred to any operating account
9 without the consent of a majority of the purchasers of the
10 timeshare plan. The managing entity may from time to time
11 transfer excess funds in any operating account to any deferred
12 maintenance or capital expenditure reserve account without the
13 vote or approval of purchasers of the timeshare plan. In the
14 event any amount of reserves for accommodations and facilities
15 of a timeshare plan containing timeshare licenses or personal
16 property timeshare interests exists at the end of the term of
17 the timeshare plan, such reserves shall be refunded to
18 purchasers on a pro rata basis.
19 (d)1. Maintenance of all books and records concerning
20 the timeshare plan so that all such books and records are
21 reasonably available for inspection by any purchaser or the
22 authorized agent of such purchaser. For purposes of this
23 subparagraph, the books and records of the timeshare plan
24 shall be considered "reasonably available" if copies of the
25 requested portions are delivered to the purchaser or the
26 purchaser's agent within 7 days after of the date the managing
27 entity receives a written request for the records signed by
28 the purchaser. The managing entity may charge the purchaser a
29 reasonable fee for copying the requested information not to
30 exceed 25 cents per page. However, any purchaser or agent of
31 such purchaser shall be permitted to personally inspect and
80
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 examine the books and records wherever located at any
2 reasonable time, under reasonable conditions, and under the
3 supervision of the custodian of those records. The custodian
4 shall supply copies of the records where requested and upon
5 payment of the copying fee. No fees other than those set forth
6 in this section may be charged for the providing of,
7 inspection, or examination of books and records. All books and
8 financial records of the timeshare plan must be maintained in
9 accordance with generally accepted accounting practices.
10 2. If the books and records of the timeshare plan are
11 not maintained on the premises of the accommodations and
12 facilities of the timeshare plan, the managing entity shall
13 inform the division in writing of the location of the books
14 and records and the name and address of the person who acts as
15 custodian of the books and records at that location. In the
16 event that the location of the books and records changes, the
17 managing entity shall notify the division of the change in
18 location and the name and address of the new custodian within
19 30 days after of the date the books and records are moved. The
20 purchasers shall be notified of the location of the books and
21 records and the name and address of the custodian in the copy
22 of the annual budget provided to them pursuant to paragraph
23 (c).
24 3. The division is authorized to adopt rules which
25 specify those items and matters that shall be included in the
26 books and records of the timeshare plan and which specify
27 procedures to be followed in requesting and delivering copies
28 of the books and records.
29 4. Notwithstanding any provision of chapter 718 or
30 chapter 719 to the contrary, the managing entity may not
31 furnish the name, address, or electronic mail address of any
81
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 purchaser to any other purchaser or authorized agent thereof
2 unless the purchaser whose name, and address, or electronic
3 mail address is are requested first approves the disclosure in
4 writing.
5 (e) Arranging for an annual audit of the financial
6 statements of the timeshare plan by a certified public
7 accountant licensed by the Board of Accountancy of the
8 Department of Business and Professional Regulation, in
9 accordance with generally accepted auditing standards as
10 defined by the rules of the Board of Accountancy of the
11 Department of Business and Professional Regulation. The
12 financial statements required by this section must be prepared
13 on an accrual basis using fund accounting, and must be
14 presented in accordance with generally accepted accounting
15 principles. A copy of the audited financial statements must be
16 filed with the division for review and forwarded to the board
17 of directors and officers of the owners' association, if one
18 exists, no later than 5 calendar months after the end of the
19 timeshare plan's fiscal year. If no owners' association
20 exists, each purchaser must be notified, no later than 5
21 months after the end of the timeshare plan's fiscal year, that
22 a copy of the audited financial statements is available upon
23 request to the managing entity. Notwithstanding any
24 requirement of s. 718.111(13) or s. 719.104(4), the audited
25 financial statements required by this section are the only
26 annual financial reporting requirements for timeshare
27 condominiums or timeshare cooperatives.
28 (4) The managing entity shall maintain among its
29 records and provide to the division upon request a complete
30 list of the names and addresses of all purchasers and owners
31 of timeshare units in the timeshare plan. The managing entity
82
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 shall update this list no less frequently than quarterly.
2 Pursuant to paragraph (3)(d), the managing entity may not
3 publish this owner's list or provide a copy of it to any
4 purchaser or to any third party other than the division.
5 However, the managing entity shall to those persons listed on
6 the owner's list materials provided by any purchaser, upon the
7 written request of that purchaser, if the purpose of the
8 mailing is to advance legitimate owners' association business,
9 such as a proxy solicitation for any purpose, including the
10 recall of one or more board members elected by the owners or
11 the discharge of the manager or management firm. The use of
12 any proxies solicited in this manner must comply with the
13 provisions of the timeshare instrument and this chapter. A
14 mailing requested for the purpose of advancing legitimate
15 owners' association business shall occur within 30 days after
16 receipt of a request from a purchaser. The board of
17 administration of the owners' association shall be responsible
18 for determining the appropriateness of any mailing requested
19 pursuant to this subsection. The purchaser who requests the
20 mailing must reimburse the owners' association in advance for
21 the owners' association's actual costs in performing the
22 mailing. It shall be a violation of this chapter and, if
23 applicable, of part VIII of chapter 468, for the board of
24 administration or the manager or management firm to refuse to
25 mail any material requested by the purchaser to be mailed,
26 provided the sole purpose of the materials is to advance
27 legitimate owners' association business. If the purpose of the
28 mailing is a proxy solicitation to recall one or more board
29 members elected by the owners or to discharge the manager or
30 management firm and the managing entity does not mail the
31 materials within 30 days after receipt of a request from a
83
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 purchaser, the circuit court in the county where the timeshare
2 plan is located may, upon application from the requesting
3 purchaser, summarily order the mailing of the materials solely
4 related to the recall of one or more board members elected by
5 the owners or the discharge of the manager or management firm.
6 The court shall dispose of an application on an expedited
7 basis. In the event of such an order, the court may order the
8 managing entity to pay the purchaser's costs, including
9 attorney's fees reasonably incurred to enforce the purchaser's
10 rights, unless the managing entity can prove it refused the
11 mailing in good faith because of a reasonable basis for doubt
12 about the legitimacy of the mailing.
13 (6)
14 (g) A managing entity shall have breached its
15 fiduciary duty described in subsection (2) in the event it
16 enforces the denial of use pursuant to paragraph (b) against
17 any one purchaser or group of purchasers without similarly
18 enforcing it against all purchasers, including all developers
19 and owners of the underlying fee or underlying personal
20 property; however, a managing entity shall not be required to
21 solicit rentals pursuant to paragraph (f) for every delinquent
22 purchaser. A managing entity shall also have breached its
23 fiduciary duty in the event an error in the books and records
24 of the timeshare plan results in a denial of use pursuant to
25 this subsection of any purchaser who is not, in fact,
26 delinquent. In addition to any remedies otherwise available to
27 purchasers of the timeshare plan arising from such breaches of
28 fiduciary duty, such breach shall also constitute a violation
29 of this chapter. In addition, any purchaser receiving a notice
30 of delinquency pursuant to paragraph (b), or any third party
31 claiming under such purchaser pursuant to paragraph (b), may
84
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 immediately bring an action for injunctive or declaratory
2 relief against the managing entity seeking to have the notice
3 invalidated on the grounds that the purchaser is not, in fact,
4 delinquent, that the managing entity failed to follow the
5 procedures prescribed by this section, or on any other
6 available grounds. The prevailing party in any such action
7 shall be entitled to recover his or her reasonable attorney's
8 fees from the losing party.
9 (8) Notwithstanding anything to the contrary in s.
10 718.110, s. 718.113, s. 718.114, or s. 719.1055, the board of
11 administration of any owners' association that operates a
12 timeshare condominium pursuant to s. 718.111, or a timeshare
13 cooperative pursuant to s. 719.104, shall have the power to
14 make material alterations or substantial additions to the
15 accommodations or facilities of such timeshare condominium or
16 timeshare cooperative without the approval of the owners'
17 association. However, if the timeshare condominium or
18 timeshare cooperative contains any residential units that are
19 not subject to the timeshare plan, such action by the board of
20 administration must be approved by a majority of the owners of
21 such residential units. Unless otherwise provided in the
22 timeshare instrument as originally recorded, no such amendment
23 may change the configuration or size of any accommodation in
24 any material fashion, or change the proportion or percentage
25 by which a member of the owners' association shares the common
26 expenses, unless the record owners of the affected units or
27 timeshare interests and all record owners of liens on the
28 affected units or timeshare interests join in the execution of
29 the amendment.
30 (9) All notices or other information sent by a board
31 of administration of an owners' association may be delivered
85
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 to a purchaser by electronic mail, provided that the purchaser
2 first consents electronically to the use of electronic mail
3 for notice purposes in a manner that reasonably demonstrates
4 that the purchaser has the ability to access the notice by
5 electronic mail. Proxies or written consents on votes of any
6 owners' association may be received by electronic mail, shall
7 have legal effect, and may be utilized for votes of an owners'
8 association, provided that the electronic signature is
9 authenticated through use of a password, cryptography
10 software, or other reasonable means and that proof of such
11 authentication is made available to the board of directors.
12 (10)(9) Any failure of the managing entity to
13 faithfully discharge the fiduciary duty to purchasers imposed
14 by this section or to otherwise comply with the provisions of
15 this section shall be a violation of this chapter and of part
16 VIII of chapter 468.
17 (11) Notwithstanding the other provisions of this
18 section, personal property timeshare plans are only subject to
19 the provisions of subsections (1)(a)-(d), (2)(a), (3)(a)-(h),
20 (5), (6), (9), and (10).
21 Section 13. Subsection (4) is added to section 721.14,
22 Florida Statutes, to read:
23 721.14 Discharge of managing entity.--
24 (4) This section shall not apply to personal property
25 timeshare plans.
26 Section 14. Paragraph (c) of subsection (2) of section
27 721.15, Florida Statutes, is amended, and subsection (10) is
28 added to that section, to read:
29 721.15 Assessments for common expenses.--
30 (2)
31
86
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (c) For the purpose of calculating the obligation of a
2 developer under a guarantee pursuant to paragraph (b),
3 depreciation expenses related to real property shall be
4 excluded from common expenses incurred during the guarantee
5 period, except that for real property that is used for the
6 production of fees, revenues, or other income, depreciation
7 expenses shall be excluded only to the extent that they exceed
8 the net income from the production of such fees, revenues, or
9 other income.
10 (10) This section shall not apply to personal property
11 timeshare plans.
12 Section 15. Subsection (6) is added to section 721.16,
13 Florida Statutes, to read:
14 721.16 Liens for overdue assessments; liens for labor
15 performed on, or materials furnished to, a timeshare unit.--
16 (6) This section shall not apply to personal property
17 timeshare plans.
18 Section 16. Section 721.17, Florida Statutes, is
19 amended to read:
20 721.17 Transfer of interest.--Except in the case of a
21 timeshare plan subject to the provisions of chapter 718 or
22 chapter 719, no developer, or owner of the underlying fee, or
23 owner of the underlying personal property shall sell, lease,
24 assign, mortgage, or otherwise transfer his or her interest in
25 the accommodations and facilities of the timeshare plan except
26 by an instrument evidencing the transfer recorded in the
27 public records of the county in which such accommodations and
28 facilities are located, or, with respect to personal property
29 timeshare plans, in full compliance with s. 721.08. The
30 instrument shall be executed by both the transferor and
31 transferee and shall state:
87
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (1) That its provisions are intended to protect the
2 rights of all purchasers of the plan.
3 (2) That its terms may be enforced by any prior or
4 subsequent timeshare purchaser so long as that purchaser is
5 not in default of his or her obligations.
6 (3) That so long as a purchaser remains in good
7 standing with respect to her or his obligations under the
8 timeshare instrument, including making all payments to the
9 managing entity required by the timeshare instrument with
10 respect to the annual common expenses of the timeshare plan,
11 the transferee shall will fully honor all the rights of such
12 purchaser relating to the subject accommodation or facility as
13 reflected the purchasers to occupy and use the accommodations
14 and facilities as provided in their original contracts and the
15 timeshare instrument instruments.
16 (4) That the transferee will fully honor all rights of
17 timeshare purchasers to cancel their contracts and receive
18 appropriate refunds.
19 (5) That the obligations of the transferee under such
20 instrument will continue to exist despite any cancellation or
21 rejection of the contracts between the developer and purchaser
22 arising out of bankruptcy proceedings.
23
24 Should any transfer of the interest of the developer, or owner
25 of the underlying fee, or owner of the underlying property
26 occur in a manner which is not in compliance with this
27 section, the terms set forth in this section shall be presumed
28 to be a part of the transfer and shall be deemed to be
29 included in the instrument of transfer. Notice shall be mailed
30 to each purchaser of record within 30 days after of the
31 transfer unless such transfer does not affect the purchaser's
88
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 rights in or use of the timeshare plan. Persons who hold
2 mortgages or liens on the property constituting a timeshare
3 plan before the filed registered public offering statement of
4 such plan is approved by the division shall not be considered
5 transferees for the purposes of this section.
6 Section 17. Section 721.18, Florida Statutes, is
7 amended to read:
8 721.18 Exchange programs; filing of information and
9 other materials; filing fees; unlawful acts in connection with
10 an exchange program.--
11 (1) If a purchaser is offered the opportunity to
12 subscribe to an exchange program, the seller shall deliver to
13 the purchaser, together with the purchaser public offering
14 statement, and prior to the offering or execution of any
15 contract between the purchaser and the company offering the
16 exchange program, written information regarding such exchange
17 program; or, if the exchange company is dealing directly with
18 the purchaser, the exchange company shall deliver to the
19 purchaser, prior to the initial offering or execution of any
20 contract between the purchaser and the company offering the
21 exchange program, written information regarding such exchange
22 program. In either case, the purchaser shall certify in
23 writing to the receipt of such information. Such information
24 shall include, but is not limited to, the following
25 information, the form and substance of which shall first be
26 approved by the division in accordance with subsection (2):
27 (a) The name and address of the exchange company.
28 (b) The names of all officers, directors, and
29 shareholders of the exchange company.
30 (c) Whether the exchange company or any of its
31 officers or directors has any legal or beneficial interest in
89
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 any developer, seller, or managing entity for any timeshare
2 plan participating in the exchange program and, if so, the
3 name and location of the timeshare plan and the nature of the
4 interest.
5 (d) Unless otherwise stated, a statement that the
6 purchaser's contract with the exchange company is a contract
7 separate and distinct from the purchaser's contract with the
8 seller of the timeshare plan.
9 (e) Whether the purchaser's participation in the
10 exchange program is dependent upon the continued affiliation
11 of the timeshare plan with the exchange program.
12 (f) A statement that Whether the purchaser's
13 participation in the exchange program is voluntary. This
14 statement is not required to be given by the seller or
15 managing entity of a multisite timeshare plan to purchasers in
16 the multisite timeshare plan.
17 (g) A complete and accurate description of the terms
18 and conditions of the purchaser's contractual relationship
19 with the exchange program and the procedure by which changes
20 thereto may be made.
21 (h) A complete and accurate description of the
22 procedure to qualify for and effectuate exchanges.
23 (i) A complete and accurate description of all
24 limitations, restrictions, or priorities employed in the
25 operation of the exchange program, including, but not limited
26 to, limitations on exchanges based on seasonality, timeshare
27 unit size, or levels of occupancy, expressed in boldfaced
28 type, and, in the event that such limitations, restrictions,
29 or priorities are not uniformly applied by the exchange
30 program, a clear description of the manner in which they are
31 applied.
90
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (j) Whether exchanges are arranged on a
2 space-available basis and whether any guarantees of
3 fulfillment of specific requests for exchanges are made by the
4 exchange program.
5 (k) Whether and under what circumstances a purchaser,
6 in dealing with the exchange program, may lose the use and
7 occupancy of her or his timeshare period in any properly
8 applied for exchange without her or his being provided with
9 substitute accommodations by the exchange program.
10 (l) The fees or range of fees for membership or
11 participation by purchasers in the exchange program by
12 purchasers, including any conversion or other fees payable to
13 third parties, a statement whether any such fees may be
14 altered by the exchange company, and the circumstances under
15 which alterations may be made.
16 (m) The name and address of the site of each
17 accommodation or facility included in the timeshare plan plans
18 participating in the exchange program.
19 (n) The number of the timeshare units in each
20 timeshare plan which are available for occupancy and which
21 qualify for participation in the exchange program, expressed
22 within the following numerical groupings: 1-5; 6-10; 11-20;
23 21-50; and 51 and over.
24 (o) The number of currently enrolled purchasers for
25 each timeshare plan participating in the exchange program,
26 expressed within the following numerical groupings: 1-100;
27 101-249; 250-499; 500-999; and 1,000 and over; and a statement
28 of the criteria used to determine those purchasers who are
29 currently enrolled with the exchange program.
30 (p) The disposition made by the exchange company of
31 timeshare periods deposited with the exchange program by
91
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 purchasers enrolled in the exchange program and not used by
2 the exchange company in effecting exchanges.
3 (q) The following information, which shall be
4 independently audited by a certified public accountant or
5 accounting firm in accordance with the standards of the
6 Accounting Standards Board of the American Institute of
7 Certified Public Accountants and reported annually beginning
8 no later than July 1, 1982:
9 1. The number of purchasers currently enrolled in the
10 exchange program.
11 2. The number of accommodations and facilities that
12 have current written affiliation agreements with the exchange
13 program.
14 3. The percentage of confirmed exchanges, which is the
15 number of exchanges confirmed by the exchange program divided
16 by the number of exchanges properly applied for, together with
17 a complete and accurate statement of the criteria used to
18 determine whether an exchange request was properly applied
19 for.
20 4. The number of timeshare periods for which the
21 exchange program has an outstanding obligation to provide an
22 exchange to a purchaser who relinquished a timeshare period
23 during the year in exchange for a timeshare period in any
24 future year.
25 5. The number of exchanges confirmed by the exchange
26 program during the year.
27 (r) A statement in boldfaced type to the effect that
28 the percentage described in subparagraph (q)3. is a summary of
29 the exchange requests entered with the exchange program in the
30 period reported and that the percentage does not indicate the
31
92
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 probabilities of a purchaser's being confirmed to any specific
2 choice or range of choices.
3 (2) Each exchange company offering an exchange program
4 to purchasers in this state shall file with the division for
5 review the information specified in subsection (1), together
6 with any membership agreement and application between the
7 purchaser and the exchange company, and the audit specified in
8 subsection (1) on or before June 1 of each year. However, an
9 exchange company shall make its initial filing at least 20
10 days prior to offering an exchange program to any purchaser in
11 this state. Each filing shall be accompanied by an annual
12 filing fee of $500. Within 20 days after of receipt of such
13 filing, the division shall determine whether the filing is
14 adequate to meet the requirements of this section and shall
15 notify the exchange company in writing that the division has
16 either approved the filing or found specified deficiencies in
17 the filing. If the division fails to respond within 20 days,
18 the filing shall be deemed approved. The exchange company may
19 correct the deficiencies; and, within 10 days after receipt of
20 corrections from the exchange company, the division shall
21 notify the exchange company in writing that the division has
22 either approved the filing or found additional specified
23 deficiencies in the filing. If the exchange company fails to
24 adequately respond to any deficiency notice within 10 days,
25 the division may reject the filing. Subsequent to such
26 rejection, a new filing fee and a new division initial review
27 period pursuant to this subsection shall apply to any refiling
28 or further review of the rejected filing.
29 (a) Any material change to an approved exchange
30 company filing shall be filed with the division for approval
31 as an amendment prior to becoming effective. Each amendment
93
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 filing shall be accompanied by a filing fee of $100. The
2 exchange company may correct the deficiencies; and, within 10
3 days after receipt of corrections from the exchange company,
4 the division shall notify the exchange company in writing that
5 the division has either approved the filing or found
6 additional specified deficiencies in the filing. Each approved
7 amendment to the approved exchange company filing, other than
8 an amendment that does not materially alter or modify the
9 exchange program in a manner that is adverse to a purchaser,
10 as determined by the exchange company in its reasonable
11 discretion, shall be delivered to each purchaser who has not
12 closed. An approved exchange program filing is required to be
13 updated with respect to added or deleted resorts only once
14 each year, and such annual update shall not be deemed to be a
15 material change to the filing.
16 (b) If at any time the division determines that any of
17 such information supplied by an exchange company fails to meet
18 the requirements of this section, the division may undertake
19 enforcement action against the exchange company in accordance
20 with the provision of s. 721.26.
21 (3) No developer shall have any liability with respect
22 to any violation of this chapter arising out of the
23 publication by the developer of information provided to it by
24 an exchange company pursuant to this section. No exchange
25 company shall have any liability with respect to any violation
26 of this chapter arising out of the use by a developer of
27 information relating to an exchange program other than that
28 provided to the developer by the exchange company.
29 (4) At the request of the exchange company, the
30 division shall review any audio, written, or visual
31 publications or materials relating to an exchange company or
94
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 an exchange program shall be filed for review by the exchange
2 company and shall notify the exchange company of any
3 deficiencies within 10 with the division within 3 days after
4 the filing of their use. If the exchange company corrects the
5 deficiencies or if there are no deficiencies, the division
6 shall notify the exchange company of its approval of the
7 advertising materials. If the exchange company fails to
8 adequately respond to any deficiency notice within 10 days,
9 the division may reject the advertising materials. Subsequent
10 to such rejection, a new division initial review period
11 pursuant to this subsection shall apply to any refiling or
12 further review.
13 (5) The failure of an exchange company to observe the
14 requirements of this section, or the use of any unfair or
15 deceptive act or practice in connection with the operation of
16 an exchange program, is a violation of this chapter.
17 Section 18. Section 721.19, Florida Statutes, is
18 amended to read:
19 721.19 Provisions requiring purchase or lease of
20 timeshare property by owners' association or purchasers;
21 validity.--In any timeshare plan in which timeshare estates or
22 personal property timeshare interests are sold, no grant or
23 reservation made by a declaration, lease, or other document,
24 nor any contract made by the developer, managing entity, or
25 owners' association, which requires the owners' association or
26 purchasers to purchase or lease any portion of the timeshare
27 property shall be valid unless approved by a majority of the
28 purchasers other than the developer, after more than 50
29 percent of the timeshare periods have been sold.
30 Section 19. Section 721.20, Florida Statutes, is
31 amended to read:
95
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 721.20 Licensing requirements; suspension or
2 revocation of license; exceptions to applicability; collection
3 of advance fees for listings unlawful.--
4 (1) Any seller of a timeshare plan must be a licensed
5 real estate salesperson, broker, or broker-salesperson as
6 defined in s. 475.01, except as provided in s. 475.011.
7 (2) Solicitors who engage only in the solicitation of
8 prospective purchasers and any purchaser who refers no more
9 than 20 people to a developer per year or who otherwise
10 provides testimonials on behalf of a developer are exempt from
11 the provisions of chapter 475.
12 (3) A solicitor who has violated the provisions of
13 chapter 468, chapter 718, chapter 719, this chapter, or the
14 rules of the division governing timesharing shall be subject
15 to the provisions of s. 721.26. Any developer or other person
16 who supervises, directs, or engages the services of a
17 solicitor shall be liable for any violation of the provisions
18 of chapter 468, chapter 718, chapter 719, this chapter, or the
19 rules of the division governing timesharing committed by such
20 solicitor.
21 (4) County and municipal governments shall have the
22 authority to adopt codes of conduct and regulations to govern
23 solicitor activity conducted on public property, including
24 providing for the imposition of penalties prescribed by a
25 schedule of fines adopted by ordinance for violations of any
26 such code of conduct or regulation. Any violation of any such
27 adopted code of conduct or regulation shall not constitute a
28 separate violation of this chapter. This subsection is not
29 intended to restrict or invalidate any local code of conduct
30 or regulation.
31
96
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (5) This section does not apply to those individuals
2 who offer for sale only timeshare interests in timeshare
3 property located outside this state and who do not engage in
4 any sales activity within this state or to timeshare plans
5 which are registered with the Securities and Exchange
6 Commission. For the purposes of this section, both timeshare
7 licenses and timeshare estates are considered to be interests
8 in real property.
9 (6) Notwithstanding the provisions of s. 475.452, it
10 is unlawful for any broker, salesperson, or broker-salesperson
11 to collect any advance fee for the listing of any timeshare
12 estate or timeshare license.
13 (7) It is unlawful for any broker, salesperson, or
14 broker-salesperson to collect any advance fee for the listing
15 of a personal property timeshare interest.
16 (8) Subsections (1), (2), and (3) do not apply to
17 persons who offer personal property timeshare plans.
18 Section 20. Subsection (6) is added to section 721.24,
19 Florida Statutes, to read:
20 721.24 Firesafety.--
21 (6) Accommodations and facilities of personal property
22 timeshare plans shall be exempt from the requirements of this
23 section.
24 Section 21. Paragraphs (a), (d), and (e) of subsection
25 (5) of section 721.26, Florida Statutes, are amended to read:
26 721.26 Regulation by division.--The division has the
27 power to enforce and ensure compliance with the provisions of
28 this chapter, except for parts III and IV, using the powers
29 provided in this chapter, as well as the powers prescribed in
30 chapters 498, 718, and 719. In performing its duties, the
31 division shall have the following powers and duties:
97
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (5) Notwithstanding any remedies available to
2 purchasers, if the division has reasonable cause to believe
3 that a violation of this chapter, or of any division rule or
4 order promulgated or issued pursuant to this chapter, has
5 occurred, the division may institute enforcement proceedings
6 in its own name against any regulated party, as such term is
7 defined in this subsection:
8 (a)1. "Regulated party," for purposes of this section,
9 means any developer, exchange company, seller, managing
10 entity, owners' association, owners' association director,
11 owners' association officer, manager, management firm, escrow
12 agent, trustee, any respective assignees or agents, or any
13 other person having duties or obligations pursuant to this
14 chapter.
15 2. Any person who materially participates in any offer
16 or disposition of any interest in, or the management or
17 operation of, a timeshare plan in violation of this chapter or
18 relevant rules involving fraud, deception, false pretenses,
19 misrepresentation, or false advertising or the disbursement,
20 concealment, or diversion of any funds or assets, which
21 conduct adversely affects the interests of a purchaser, and
22 which person directly or indirectly controls a regulated party
23 or is a general partner, officer, director, agent, or employee
24 of such regulated party, shall be jointly and severally liable
25 under this subsection with such regulated party, unless such
26 person did not know, and in the exercise of reasonable care
27 could not have known, of the existence of the facts giving
28 rise to the violation of this chapter. A right of contribution
29 shall exist among jointly and severally liable persons
30 pursuant to this paragraph.
31
98
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (d)1. The division may bring an action in circuit
2 court for declaratory or injunctive relief or for other
3 appropriate relief, including restitution.
4 2. The division shall have broad authority and
5 discretion to petition the circuit court to appoint a receiver
6 with respect to any managing entity which fails to perform its
7 duties and obligations under this chapter with respect to the
8 operation of a timeshare plan. The circumstances giving rise
9 to an appropriate petition for receivership under this
10 subparagraph include, but are not limited to:
11 a. Damage to or destruction of any of the
12 accommodations or facilities of a timeshare plan, where the
13 managing entity has failed to repair or reconstruct same.
14 b. A breach of fiduciary duty by the managing entity,
15 including, but not limited to, undisclosed self-dealing or
16 failure to timely assess, collect, or disburse the common
17 expenses of the timeshare plan.
18 c. Failure of the managing entity to operate the
19 timeshare plan in accordance with the timeshare instrument and
20 this chapter.
21
22 If, under the circumstances, it appears that the events giving
23 rise to the petition for receivership cannot be reasonably and
24 timely corrected in a cost-effective manner consistent with
25 the timeshare instrument, the receiver may petition the
26 circuit court to implement such amendments or revisions to the
27 timeshare instrument as may be necessary to enable the
28 managing entity to resume effective operation of the timeshare
29 plan, or to enter an order terminating the timeshare plan, or
30 to enter such further orders regarding the disposition of the
31 timeshare property as the court deems appropriate, including
99
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 the disposition and sale of the timeshare property held by the
2 owners' association or the purchasers. In the event of a
3 receiver's sale, all rights, title, and interest held by the
4 owners' association or any purchaser shall be extinguished and
5 title shall vest in the buyer. This provision applies to
6 timeshare estates, personal property timeshare interests, and
7 timeshare licenses. All reasonable costs and fees of the
8 receiver relating to the receivership shall become common
9 expenses of the timeshare plan upon order of the court.
10 3. The division may revoke its approval of any filing
11 for any timeshare plan for which a petition for receivership
12 has been filed pursuant to this paragraph.
13 (e)1. The division may impose a penalty against any
14 regulated party for a violation of this chapter or any rule
15 adopted thereunder. A penalty may be imposed on the basis of
16 each day of continuing violation, but in no event may the
17 penalty for any offense exceed $10,000. All accounts collected
18 shall be deposited with the Treasurer to the credit of the
19 Division of Florida Land Sales, Condominiums, and Mobile Homes
20 Trust Fund.
21 2.a. If a regulated party fails to pay a penalty, the
22 division shall thereupon issue an order directing that such
23 regulated party cease and desist from further operation until
24 such time as the penalty is paid; or the division may pursue
25 enforcement of the penalty in a court of competent
26 jurisdiction.
27 b. If an owners' association or managing entity fails
28 to pay a civil penalty, the division may pursue enforcement in
29 a court of competent jurisdiction.
30 Section 22. Section 721.27, Florida Statutes, is
31 amended to read:
100
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 721.27 Annual fee for each timeshare unit in plan.--On
2 January 1 of each year, each managing entity of a timeshare
3 plan located in this state shall collect as a common expense
4 and pay to the division an annual fee of $1.50 $2 for each 7
5 days of annual use availability that exist within the
6 timeshare plan at that time, subject to any limitations on the
7 amount of such annual fee pursuant to s. 721.58. If any
8 portion of the annual fee is not paid by March 1, the managing
9 entity may be assessed a penalty pursuant to s. 721.26.
10 Section 23. Section 721.52, Florida Statutes, is
11 amended to read:
12 721.52 Definitions.--As used in this chapter, the
13 term:
14 (1) "Applicable law" means the law of the jurisdiction
15 where the accommodations and facilities referred to are
16 located.
17 (2) "Component site" means a specific geographic site
18 where a portion of the accommodations and facilities of the
19 multisite timeshare plan are located. If permitted under
20 applicable law, separate phases operated as a single
21 development located at a specific geographic site under common
22 management shall be deemed a single component site for
23 purposes of this part.
24 (3) "Inventory" means the accommodations and
25 facilities located at a particular component site or sites
26 owned, leased, licensed, or otherwise acquired for use by a
27 developer and offered as part of the multisite timeshare plan.
28 (4) "Multisite timeshare plan" means any method,
29 arrangement, or procedure with respect to which a purchaser
30 obtains, by any means, a recurring right to use and occupy
31 accommodations or facilities of more than one component site,
101
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 only through use of a reservation system, whether or not the
2 purchaser is able to elect to cease participating in the plan.
3 However, the term "multisite timeshare plan" shall not include
4 any method, arrangement, or procedure wherein:
5 (a) The contractually specified maximum total
6 financial obligation on the purchaser's part is $3,000 or
7 less, during the entire term of the plan; or
8 (b) The term is for a period of 3 years or less,
9 regardless of the purchaser's contractually specified maximum
10 total financial obligation, if any. For purposes of
11 determining the term of such use and occupancy rights, the
12 period of any optional renewals which a purchaser, in his or
13 her sole discretion, may elect to exercise, whether or not for
14 additional consideration, shall not be included. For purposes
15 of determining the term of such use and occupancy rights, the
16 period of any automatic renewals shall be included unless a
17 purchaser has the right to terminate the membership at any
18 time and receive a pro rata refund or the purchaser receives a
19 notice no less than 30 days and no more than 60 days prior to
20 the date of renewal informing the purchaser of the right to
21 terminate at any time prior to the date of automatic renewal.
22
23 Multisite timeshare plan does not mean an exchange program as
24 defined in s. 721.05. Timeshare estates may only be offered in
25 a multisite timeshare plan pursuant to s. 721.57.
26 (5) "Nonspecific multisite timeshare plan" means a
27 multisite timeshare plan containing timeshare licenses or
28 personal property timeshare interests, with respect to which a
29 purchaser receives a right to use all of the accommodations
30 and facilities, if any, of the multisite timeshare plan
31 through the reservation system, but no specific right to use
102
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 any particular accommodations and facilities for the remaining
2 term of the multisite timeshare plan in the event that the
3 reservation system is terminated for any reason prior to the
4 expiration of the term of the multisite timeshare plan.
5 (6)(5) "Reservation system" means the method,
6 arrangement, or procedure by which a purchaser, in order to
7 reserve the use and occupancy of any accommodation or facility
8 of the multisite timeshare plan for one or more use periods,
9 is required to compete with other purchasers in the same
10 multisite timeshare plan regardless of whether such
11 reservation system is operated and maintained by the multisite
12 timeshare plan managing entity, an exchange company, or any
13 other person. In the event that a purchaser is required to use
14 an exchange program as the purchaser's principal means of
15 obtaining the right to use and occupy a multisite timeshare
16 plan's accommodations and facilities, such arrangement shall
17 be deemed a reservation system. When an exchange company
18 utilizes a mechanism for the exchange of use of timeshare
19 periods among members of an exchange program, such utilization
20 is not a reservation system of a multisite timeshare plan.
21 (7) "Specific multisite timeshare plan" means a
22 multisite timeshare plan containing timeshare licenses or
23 personal property timeshare interests, with respect to which a
24 purchaser receives a specific right to use accommodations and
25 facilities, if any, at one component site of a multisite
26 timeshare plan, together with use rights in the other
27 accommodations and facilities of the multisite timeshare plan
28 created by or acquired through the reservation system.
29 (8)(6) "Vacation club" means a multisite timeshare
30 plan.
31
103
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 Section 24. Paragraph (a) of subsection (1) of section
2 721.53, Florida Statutes, is amended and paragraph (f) is
3 added to subsection (1) of that section, to read:
4 721.53 Subordination instruments; alternate security
5 arrangements.--
6 (1) With respect to each accommodation or facility of
7 a multisite timeshare plan, the developer shall provide the
8 division with satisfactory evidence that one of the following
9 has occurred with respect to each interestholder prior to
10 offering the accommodation or facility as a part of the
11 multisite timeshare plan:
12 (a) The interestholder has executed and recorded a
13 nondisturbance and notice to creditors instrument pursuant to
14 s. 721.08(2)(c).
15 (f) With respect to any personal property
16 accommodations or facilities, the developer and any other
17 interestholder have complied fully with the applicable
18 provisions of s. 721.08.
19 Section 25. Section 721.54, Florida Statutes, is
20 amended to read:
21 721.54 Term of nonspecific multisite timeshare
22 plans.--It shall be a violation of this part to represent to a
23 purchaser of a nonspecific multisite timeshare plan as defined
24 in s. 721.552(4) that the term of the plan for that purchaser
25 is longer than the shortest term of availability of any of the
26 accommodations included within the plan at the time of
27 purchase.
28 Section 26. Section 721.55, Florida Statutes, is
29 amended to read:
30 721.55 Multisite timeshare plan public offering
31 statement.--Each filed registered public offering statement
104
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 for a multisite timeshare plan shall contain the information
2 required by this section and shall comply with the provisions
3 of s. 721.07, except as otherwise provided therein. The
4 division is authorized to provide by rule the method by which
5 a developer must provide such information to the division.
6 Each multisite timeshare plan filed registered public offering
7 statement shall contain the following information and
8 disclosures:
9 (1) A cover page containing:
10 (a) The name of the multisite timeshare plan.
11 (b) The following statement in conspicuous type:
12
13 This public offering statement contains important
14 matters to be considered in acquiring an interest in a
15 multisite timeshare plan (or multisite vacation ownership plan
16 or multisite vacation plan or vacation club). The statements
17 contained herein are only summary in nature. A prospective
18 purchaser should refer to all references, accompanying
19 exhibits, contract documents, and sales materials. The
20 prospective purchaser should not rely upon oral
21 representations as being correct and should refer to this
22 document and accompanying exhibits for correct
23 representations.
24
25 (2) A summary containing all statements required to be
26 in conspicuous type in the public offering statement and in
27 all exhibits thereto.
28 (3) A separate index for the contents and exhibits of
29 the public offering statement.
30 (4) A text, which shall include, where applicable, the
31 information and disclosures set forth in paragraphs (a)-(l).
105
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (a) A description of the multisite timeshare plan,
2 including its term, legal structure, and form of ownership.
3 For multisite timeshare plans in which the purchaser will
4 receive a timeshare estate pursuant to s. 721.57 and for or a
5 specific multisite timeshare plans license as defined in s.
6 721.552(4), the description must also include the term of each
7 component site within the multisite timeshare plan.
8 (b) A description of the structure and ownership of
9 the reservation system together with a disclosure of the
10 entity responsible for the operation of the reservation
11 system. The description shall include the financial terms of
12 any lease of the reservation system, if applicable. The
13 developer shall not be required to disclose the financial
14 terms of any such lease if such lease is prepaid in full for
15 the term of the multisite timeshare plan or to any extent that
16 neither purchasers nor the managing entity will be required to
17 make payments for the continued use of the system following
18 default by the developer or termination of the managing
19 entity.
20 (c)1. A description of the manner in which the
21 reservation system operates. The description shall include a
22 disclosure in compliance with the demand balancing standard
23 set forth in s. 721.56(6) and shall describe the developer's
24 efforts to comply with same in creating the reservation
25 system. The description shall also include a summary of the
26 rules and regulations governing access to and use of the
27 reservation system.
28 2. In lieu of describing the rules and regulations of
29 the reservation system in the public offering statement text,
30 the developer may attach the rules and regulations as a
31 separate public offering statement exhibit, together with a
106
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 cross-reference in the public offering statement text to such
2 exhibit.
3 (d) The existence of and an explanation regarding any
4 priority reservation features that affect a purchaser' s
5 ability to make reservations for the use of a given
6 accommodation or facility on a first come, first served basis,
7 including, if applicable, the following statement in
8 conspicuous type:
9
10 Component sites contained in the multisite timeshare
11 plan (or multisite vacation ownership plan or multisite
12 vacation plan or vacation club) are subject to priority
13 reservation features which may affect your ability to obtain a
14 reservation.
15
16 (e) A summary of the material rules and regulations,
17 if any, other than the reservation system rules and
18 regulations, affecting the purchaser's use of each
19 accommodation and facility at each component site.
20 (f) If the provisions of s. 721.552 and the timeshare
21 instrument permit additions, substitutions, or deletions of
22 accommodations or facilities, the public offering statement
23 must include substantially the following information:
24 1. Additions.--
25 a. A description of the basis upon which new
26 accommodations and facilities may be added to the multisite
27 timeshare plan; by whom additions may be made; and the
28 anticipated effect of the addition of new accommodations and
29 facilities upon the reservation system, its priorities, its
30 rules and regulations, and the availability of existing
31 accommodations and facilities.
107
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 b. The developer must disclose the existence of any
2 cap on annual increases in common expenses of the multisite
3 timeshare plan that would apply in the event that additional
4 accommodations and facilities are made a part of the plan.
5 c. The developer shall also disclose any extent to
6 which the purchasers of the multisite timeshare plan will have
7 the right to consent to any proposed additions; if the
8 purchasers do not have the right to consent, the developer
9 must include the following disclosure in conspicuous type:
10
11 Accommodations and facilities may be added to this
12 multisite timeshare plan (or multisite vacation ownership plan
13 or multisite vacation plan or vacation club) without the
14 consent of the purchasers. The addition of accommodations and
15 facilities to the plan may result in the addition of new
16 purchasers who will compete with existing purchasers in making
17 reservations for the use of available accommodations and
18 facilities within the plan, and may also result in an increase
19 in the annual assessment against purchasers for common
20 expenses.
21
22 2. Substitutions.--
23 a. A description of the basis upon which new
24 accommodations and facilities may be substituted for existing
25 accommodations and facilities of the multisite timeshare plan;
26 by whom substitutions may be made; the basis upon which the
27 determination may be made to cause such substitutions to
28 occur; and any limitations upon the ability to cause
29 substitutions to occur.
30 b. The developer shall also disclose any extent to
31 which purchasers will have the right to consent to any
108
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 proposed substitutions; if the purchasers do not have the
2 right to consent, the developer must include the following
3 disclosure in conspicuous type:
4
5 New accommodations and facilities may be substituted
6 for existing accommodations and facilities of this multisite
7 timeshare plan (or multisite vacation ownership plan or
8 multisite vacation plan or vacation club) without the consent
9 of the purchasers. The replacement accommodations and
10 facilities may be located at a different place or may be of a
11 different type or quality than the replaced accommodations and
12 facilities. The substitution of accommodations and facilities
13 may also result in an increase in the annual assessment
14 against purchasers for common expenses.
15
16 3. Deletions.--A description of any provision of the
17 timeshare instrument governing deletion of accommodations or
18 facilities from the multisite timeshare plan. If the timeshare
19 instrument does not provide for business interruption
20 insurance in the event of a casualty, or if it is unavailable,
21 or if the instrument permits the developer, the managing
22 entity, or the purchasers to elect not to reconstruct after
23 casualty under certain circumstances or to secure replacement
24 accommodations or facilities in lieu of reconstruction, the
25 public offering statement must contain a disclosure that
26 during the reconstruction, replacement, or acquisition period,
27 or as a result of a decision not to reconstruct, purchasers of
28 the plan may temporarily compete for available accommodations
29 on a greater than one-to-one purchaser to accommodation ratio.
30 (g) A description of the developer and the managing
31 entity of the multisite timeshare plan, including:
109
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 1. The identity of the developer; the developer's
2 business address; the number of years of experience the
3 developer has in the timeshare, hotel, motel, travel, resort,
4 or leisure industries; and a description of any pending
5 lawsuit or judgment against the developer which is material to
6 the plan. If there are no such pending lawsuits or judgments,
7 there shall be a statement to that effect.
8 2. The identity of the managing entity of the
9 multisite timeshare plan; the managing entity's business
10 address; the number of years of experience the managing entity
11 has in the timeshare, hotel, motel, travel, resort, or leisure
12 industries; and a description of any lawsuit or judgment
13 against the managing entity which is material to the plan. If
14 there are no pending lawsuits or judgments, there shall be a
15 statement to that effect. The description of the managing
16 entity shall also include a description of the relationship
17 among the managing entity of the multisite timeshare plan and
18 the various component site managing entities.
19 (h) A description of the purchaser's liability for
20 common expenses of the multisite timeshare plan, including the
21 following:
22 1. A description of the common expenses of the plan,
23 including the method of allocation and assessment of such
24 common expenses, whether component site common expenses and
25 real estate taxes are included within the total common expense
26 assessment of the multisite timeshare plan, and, if not, the
27 manner in which timely payment of component site common
28 expenses and real estate taxes shall be accomplished.
29 2. A description of any cap imposed upon the level of
30 common expenses payable by the purchaser. In no event shall
31 the total common expense assessment for the multisite
110
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 timeshare plan in a given calendar year exceed 125 percent of
2 the total common expense assessment for the plan in the
3 previous calendar year.
4 3. A description of the entity responsible for the
5 determination of the common expenses of the multisite
6 timeshare plan, as well as any entity which may increase the
7 level of common expenses assessed against the purchaser at the
8 multisite timeshare plan level.
9 4. A description of the method used to collect common
10 expenses, including the entity responsible for such
11 collections, and the lien rights of any entity for nonpayment
12 of common expenses. If the common expenses of any component
13 site are collected by the managing entity of the multisite
14 timeshare plan, a statement to that effect together with the
15 identity and address of the escrow agent required by s.
16 721.56(3).
17 5. If the purchaser will receive an interest in a
18 nonspecific multisite timeshare plan license as defined in s.
19 721.552(4), a statement that a multisite timeshare plan budget
20 is attached to the public offering statement as an exhibit
21 pursuant to paragraph (7)(c). The multisite timeshare plan
22 budget shall comply with the provisions of s. 721.07(5)(u).
23 6. If the developer intends to guarantee the level of
24 assessments for the multisite timeshare plan, such guarantee
25 must be based upon a good faith estimate of the revenues and
26 expenses of the multisite timeshare plan. The guarantee must
27 include a description of the following:
28 a. The specific time period, measured in one or more
29 calendar or fiscal years, during which the guarantee will be
30 in effect.
31
111
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 b. A statement that the developer will pay all common
2 expenses incurred in excess of the total revenues of the
3 multisite timeshare plan, if the developer is to be excused
4 from the payment of assessments during the guarantee period.
5 c. The level, expressed in total dollars, at which the
6 developer guarantees the assessments. If the developer has
7 reserved the right to extend or increase the guarantee level,
8 a disclosure must be included to that effect.
9 7. If required under applicable law, the developer
10 shall also disclose the following matters for each component
11 site:
12 a. Any limitation upon annual increases in common
13 expenses;
14 b. The existence of any bad debt or working capital
15 reserve; and
16 c. The existence of any replacement or deferred
17 maintenance reserve.
18 (i) If there are any restrictions upon the sale,
19 transfer, conveyance, or leasing of an interest in a multisite
20 timeshare plan, a description of the restrictions together
21 with a statement in conspicuous type in substantially the
22 following form:
23
24 The sale, lease, or transfer of interests in this
25 multisite timeshare plan is restricted or controlled.
26
27 (j) The following statement in conspicuous type in
28 substantially the following form:
29
30 The purchase of an interest in a multisite timeshare
31 plan (or multisite vacation ownership plan or multisite
112
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 vacation plan or vacation club) should be based upon its value
2 as a vacation experience or for spending leisure time, and not
3 considered for purposes of acquiring an appreciating
4 investment or with an expectation that the interest may be
5 resold.
6
7 (k) If the multisite timeshare plan provides
8 purchasers with the opportunity to participate in an exchange
9 program, a description of the name and address of the exchange
10 company and the method by which a purchaser accesses the
11 exchange program. In lieu of this requirement, the public
12 offering statement text may contain a cross-reference to other
13 provisions in the public offering statement or in an exhibit
14 containing this information.
15 (l) A description of each component site, which
16 description may be disclosed in a written, graphic, tabular,
17 or other form approved by the division. The description of
18 each component site shall include the following information:
19 1. The name and address of each component site.
20 2. The number of accommodations, timeshare interests,
21 and timeshare periods, expressed in periods of 7-day use
22 availability, committed to the multisite timeshare plan and
23 available for use by purchasers.
24 3. Each type of accommodation in terms of the number
25 of bedrooms, bathrooms, sleeping capacity, and whether or not
26 the accommodation contains a full kitchen. For purposes of
27 this description, a full kitchen shall mean a kitchen having a
28 minimum of a dishwasher, range, sink, oven, and refrigerator.
29 4. A description of facilities available for use by
30 the purchaser at each component site, including the following:
31
113
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 a. The intended use of the facility, if not apparent
2 from the description.
3 b. Any user fees associated with a purchaser's use of
4 the facility.
5 5. A cross-reference to the location in the public
6 offering statement of the description of any priority
7 reservation features which may affect a purchaser's ability to
8 obtain a reservation in the component site.
9 (5) Such other information as the division determines
10 is necessary to fairly, meaningfully, and effectively disclose
11 all aspects of the multisite timeshare plan, including, but
12 not limited to, any disclosures made necessary by the
13 operation of s. 721.03(8). However, if a developer has, in
14 good faith, attempted to comply with the requirements of this
15 section, and if, in fact, the developer has substantially
16 complied with the disclosure requirements of this chapter,
17 nonmaterial errors or omissions shall not be actionable.
18 (6) Any other information that the developer, with the
19 approval of the division, desires to include in the public
20 offering statement text.
21 (7) The following documents shall be included as
22 exhibits to the filed registered public offering statement, if
23 applicable:
24 (a) The timeshare instrument.
25 (b) The reservation system rules and regulations.
26 (c) The multisite timeshare plan budget pursuant to
27 subparagraph (4)(h)5.
28 (d) Any document containing the material rules and
29 regulations described in paragraph (4)(e).
30
31
114
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (e) Any contract, agreement, or other document through
2 which component sites are affiliated with the multisite
3 timeshare plan.
4 (f) Any escrow agreement required pursuant to s.
5 721.08 or s. 721.56(3).
6 (g) The form agreement for sale or lease of an
7 interest in the multisite timeshare plan.
8 (h) The form receipt for multisite timeshare plan
9 documents required to be given to the purchaser pursuant to s.
10 721.551(2)(b).
11 (i) The description of documents list required to be
12 given to the purchaser by s. 721.551(2)(b).
13 (j) The component site managing entity affidavit or
14 statement required by s. 721.56(1).
15 (k) Any subordination instrument required by s.
16 721.53.
17 (l)1. If the multisite timeshare plan contains any
18 component sites located in this state, the information
19 required by s. 721.07(5) pertaining to each such component
20 site unless exempt pursuant to s. 721.03.
21 2. If the purchaser will receive a timeshare estate
22 pursuant to s. 721.57, or an interest in a specific multisite
23 timeshare plan, license as defined in s. 721.552(4) in a
24 component site located outside of this state but which is
25 offered in this state, the information required by s.
26 721.07(5) pertaining to that component site,; provided,
27 however, that the provisions of s. 721.07(5)(u) shall only
28 require disclosure of information related to the estimated
29 budget for the timeshare plan and purchaser's expenses as
30 required by the jurisdiction in which the component site is
31 located.
115
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (8)(a) A timeshare plan containing only one component
2 site must be filed with the division as a multisite timeshare
3 plan if the timeshare instrument reserves the right for the
4 developer to add future component sites. However, if the
5 developer fails to add at least one additional component site
6 to a timeshare plan described in this paragraph within 3 years
7 after the date the plan is initially filed with the division,
8 the multisite filing for such plan shall thereupon terminate,
9 and the developer may not thereafter offer any further
10 interests in such plan unless and until he or she refiles such
11 plan with the division pursuant to this chapter.
12 (b) The public offering statement for any timeshare
13 plan described in paragraph (a) must include the following
14 disclosure in conspicuous type:
15
16 This timeshare plan has been filed as a multisite
17 timeshare plan (or multisite vacation ownership plan or
18 multisite vacation plan or vacation club); however, this plan
19 currently contains only one component site. The developer is
20 not required to add any additional component sites to the
21 plan. Do not purchase an interest in this plan in reliance
22 upon the addition of any other component sites.
23 Section 27. Paragraphs (b), (c), and (f) of subsection
24 (2) of section 721.551, Florida Statutes, are amended to read:
25 721.551 Delivery of multisite timeshare plan purchaser
26 public offering statement.--
27 (2) The developer shall furnish each purchaser with
28 the following:
29 (b) A receipt for multisite timeshare plan documents
30 and a list describing any exhibit to the filed registered
31 public offering statement which is not delivered to the
116
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 purchaser. The division is authorized to prescribe by rule the
2 form of the receipt for multisite timeshare plan documents and
3 the description of exhibits list that must be furnished to the
4 purchaser pursuant to this section.
5 (c) If the purchaser will receive a timeshare estate
6 pursuant to s. 721.57, or an interest in a specific multisite
7 timeshare plan, license as defined in s. 721.552(4) in a
8 component site located in this state, the developer shall also
9 furnish the purchaser with the information required to be
10 delivered pursuant to s. 721.07(6)(a) and (b) for the
11 component site in which the purchaser will receive an estate
12 or interest in a specific multisite timeshare plan license.
13 (f) The developer shall be required to provide the
14 managing entity of the multisite timeshare plan with a copy of
15 the approved filed registered public offering statement and
16 any approved amendments thereto to be maintained by the
17 managing entity as part of the books and records of the
18 timeshare plan pursuant to s. 721.13(3)(d).
19 Section 28. Paragraph (a) of subsection (2), paragraph
20 (c) of subsection (3), and subsections (4) and (5) of section
21 721.552, Florida Statutes, are amended to read:
22 721.552 Additions, substitutions, or deletions of
23 component site accommodations or facilities; purchaser
24 remedies for violations.--Additions, substitutions, or
25 deletions of component site accommodations or facilities may
26 be made only in accordance with the following:
27 (2) SUBSTITUTIONS.--
28 (a) Substitutions are available only for nonspecific
29 multisite timeshare license plans as defined in subsection
30 (4). Specific multisite timeshare license plans or as defined
31 in subsection (4) and plans offering timeshare estates
117
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 pursuant to s. 721.57 may not contain an accommodation
2 substitution right.
3 (3) DELETIONS.--
4 (c) Automatic deletion.--The timeshare instrument may
5 provide that a component site will be automatically deleted
6 upon the expiration of its term in a timeshare plan other than
7 a nonspecific multisite timeshare license plan or as otherwise
8 provided in the timeshare instrument. However, the timeshare
9 instrument must also provide that in the event a component
10 site is deleted from the plan in this manner, a sufficient
11 number of purchasers of the plan will also be deleted so as to
12 maintain no greater than a one-to-one purchaser to
13 accommodation ratio.
14 (4) SPECIFIC AND NONSPECIFIC TIMESHARE LICENSES.--For
15 purposes of this chapter, a specific timeshare license means
16 one with respect to which a purchaser receives a specific
17 right to use accommodations and facilities, if any, at one
18 component site of a multisite timeshare plan, together with
19 use rights in the other accommodations and facilities of the
20 multisite timeshare plan created by or acquired through the
21 reservation system. For purposes of this chapter, a
22 nonspecific timeshare license means one with respect to which
23 a purchaser receives a right to use all of the accommodations
24 and facilities, if any, of a multisite timeshare plan through
25 the reservation system, but no specific right to use any
26 particular accommodations and facilities for the remaining
27 term of the multisite timeshare plan in the event that the
28 reservation system is terminated for any reason prior to the
29 expiration of the term of the multisite timeshare plan.
30
31
118
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 (4)(5) VIOLATIONS; PURCHASER REMEDIES.--All purchaser
2 remedies pursuant to s. 721.21 shall be available for any
3 violation of the provisions of this section.
4 Section 29. Subsections (4) and (5) of section 721.56,
5 Florida Statutes, are amended to read:
6 721.56 Management of multisite timeshare plans;
7 reservation systems; demand balancing.--
8 (4) The managing entity of a multisite timeshare plan
9 shall comply fully with the requirements of s. 721.13, subject
10 to the provisions of s. 721.13(11) for personal property
11 timeshare plans; however, with respect to a given component
12 site, the managing entity of the multisite timeshare plan
13 shall not be responsible for compliance as the managing entity
14 of that component site unless the managing entity of the
15 multisite timeshare plan is also the managing entity of that
16 component site. Unless the timeshare instrument provides
17 otherwise, the operator of the reservation system is the
18 managing entity of a multisite timeshare plan.
19 (5)(a)1. The reservation system is a facility of any
20 nonspecific timeshare license multisite timeshare plan as
21 defined in s. 721.552(4). The reservation system is not a
22 facility of any specific timeshare license multisite timeshare
23 plan as defined in s. 721.552(4), nor is it a facility of any
24 multisite timeshare plan in which timeshare estates are
25 offered pursuant to s. 721.57.
26 2. The reservation system of any multisite timeshare
27 plan shall include any computer software and hardware employed
28 for the purpose of enabling or facilitating the operation of
29 the reservation system. Nothing contained in this part shall
30 preclude a manager or management firm that is serving as
31 managing entity of a multisite timeshare plan from providing
119
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 in its contract with the purchasers or owners' association of
2 the multisite timeshare plan or in the timeshare instrument
3 that the manager or management firm owns the reservation
4 system and that the managing entity shall continue to own the
5 reservation system in the event the purchasers discharge the
6 managing entity pursuant to s. 721.14.
7 (b) In the event of a termination of a managing entity
8 of a nonspecific license multisite timeshare plan as defined
9 in s. 721.552(4), which managing entity owns the reservation
10 system, irrespective of whether the termination is voluntary
11 or involuntary and irrespective of the cause of such
12 termination, in addition to any other remedies available to
13 purchasers in this part, the terminated managing entity shall,
14 prior to such termination, establish a trust meeting the
15 criteria set forth in this paragraph. It is the intent of the
16 Legislature that this trust arrangement provide for an
17 adequate period of continued operation of the reservation
18 system of the multisite timeshare plan, during which period
19 the new managing entity shall make provision for the
20 acquisition of a substitute reservation system.
21 1. The trust shall be established with an independent
22 trustee. Both the terminated managing entity and the new
23 managing entity shall attempt to agree on an acceptable
24 trustee. In the event they cannot agree on an acceptable
25 trustee, they shall each designate a nominee, and the two
26 nominees shall select the trustee.
27 2. The terminated managing entity shall take all steps
28 necessary to enable the trustee or the trustee's designee to
29 operate the reservation system in the same manner as provided
30 in the timeshare instrument and the public offering statement.
31 The trustee may, but shall not be required to, contract with
120
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 the terminated managing entity for the continued operation of
2 the reservation system. In the event the trustee elects to
3 contract with the terminated managing entity, that managing
4 entity shall be required to operate the reservation system and
5 shall be entitled to payment for that service. The payment
6 shall in no event exceed the amount previously paid to the
7 terminated managing entity for operation of the reservation
8 system.
9 3. The trust shall remain in effect for a period of no
10 longer than 1 year following the date of termination of the
11 managing entity.
12 4. Nothing contained in this subsection shall abrogate
13 or otherwise interfere with any proprietary rights in the
14 reservation system that have been reserved by the discharged
15 managing entity, in its management contract or otherwise, so
16 long as such proprietary rights are not asserted in a manner
17 that would prevent the continued operation of the reservation
18 system as contemplated in this subsection.
19 (c) In the event of a termination of a managing entity
20 of a timeshare estate or specific license multisite timeshare
21 plan as defined in s. 721.552(4), which managing entity owns
22 the reservation system, irrespective of whether the
23 termination is voluntary or involuntary and irrespective of
24 the cause of such termination, in addition to any other
25 remedies available to purchasers in this part, the terminated
26 managing entity shall, prior to such termination, promptly
27 transfer to each component site managing entity all relevant
28 data contained in the reservation system with respect to that
29 component site, including, but not limited to:
30 1. The names, addresses, and reservation status of
31 component site accommodations.
121
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 2. The names and addresses of all purchasers of
2 timeshare interests at that component site.
3 3. All outstanding confirmed reservations and
4 reservation requests for that component site.
5 4. Such other component site records and information
6 as are necessary, in the reasonable discretion of the
7 component site managing entity, to permit the uninterrupted
8 operation and administration of the component site, provided
9 that a given component site managing entity shall not be
10 entitled to any information regarding other component sites or
11 regarding the terminated multisite timeshare plan managing
12 entity.
13
14 All reasonable costs incurred by the terminated managing
15 entity in effecting the transfer of information required by
16 this paragraph shall be reimbursed to the terminated managing
17 entity on a pro rata basis by each component site, and the
18 amount of such reimbursement shall constitute a common expense
19 of each component site.
20 Section 30. Subsection (2) of section 721.57, Florida
21 Statutes, is amended to read:
22 721.57 Offering of timeshare estates in multisite
23 timeshare plans; required provisions in the timeshare
24 instrument.--
25 (2) The timeshare instrument of a multisite timeshare
26 plan in which timeshare estates are offered, other than a
27 trust meeting the requirements of s. 721.08, must contain or
28 provide for all of the following matters:
29 (a) The purchaser will receive a timeshare estate as
30 defined in s. 721.05 in one of the component sites of the
31 multisite timeshare plan. The use rights in the other
122
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 component sites of the multisite timeshare plan shall be made
2 available to the purchaser through the reservation system
3 pursuant to the timeshare instrument.
4 (b) In the event that the reservation system is
5 terminated or otherwise becomes unavailable for any reason
6 prior to the expiration of the term of the multisite timeshare
7 plan:
8 1. The purchaser will be able to continue to use the
9 accommodations and facilities of the component site in which
10 she or he has been conveyed a timeshare estate in the manner
11 described in the timeshare instrument for the remaining term
12 of the timeshare estate; and
13 2. Any use rights in that component site which had
14 previously been made available through the reservation system
15 to purchasers of the multisite timeshare plan who were not
16 offered a timeshare estate at that component site will
17 terminate when the reservation system is terminated or
18 otherwise becomes unavailable for any reason.
19 Section 31. Subsection (6) of section 721.84, Florida
20 Statutes, is amended to read:
21 721.84 Appointment of a registered agent; duties.--
22 (6) Unless otherwise provided in this section, a
23 registered agent in receipt of any notice or other document
24 addressed from the lienholder to the obligor in care of the
25 registered agent at the registered office must mail, by first
26 class mail if the obligor's address is within the United
27 States, and by international air mail if the obligor's address
28 is outside the United States, with postage fees prepaid, such
29 notice or documents to the obligor at the obligor's last
30 designated address within 5 days after of receipt.
31
123
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 Section 32. Section 721.96, Florida Statutes, is
2 amended to read:
3 721.96 Purpose.--The purpose of this part is to
4 provide for the appointment of commissioners of deeds to take
5 acknowledgments, proofs of execution, and oaths outside the
6 United States in connection with the execution of any deed,
7 mortgage, deed of trust, contract, power of attorney, or any
8 other agreement, instrument or writing concerning, relating
9 to, or to be used or recorded in connection with a timeshare
10 estate, personal property timeshare interest, timeshare
11 license, any property subject to a timeshare plan, or the
12 operation of a timeshare plan located within this state.
13 Section 33. Subsection (1) of section 721.97, Florida
14 Statutes, is amended to read:
15 721.97 Timeshare commissioner of deeds.--
16 (1) The Governor may appoint commissioners of deeds to
17 take acknowledgments, proofs of execution, or oaths in any
18 foreign country. The term of office is 4 years. Commissioners
19 of deeds shall have authority to take acknowledgments, proofs
20 of execution, and oaths in connection with the execution of
21 any deed, mortgage, deed of trust, contract, power of
22 attorney, or any other writing to be used or recorded in
23 connection with a timeshare estate, personal property
24 timeshare interest, timeshare license, any property subject to
25 a timeshare plan, or the operation of a timeshare plan located
26 within this state; provided such instrument or writing is
27 executed outside the United States. Such acknowledgments,
28 proofs of execution, and oaths must be taken or made in the
29 manner directed by the laws of this state, including but not
30 limited to s. 117.05(4), (5)(a), and (6), Florida Statutes
31 1997, and certified by a commissioner of deeds. The
124
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 SB 2534
9-1025A-03 See HB 1243
1 certification must be endorsed on or annexed to the instrument
2 or writing aforesaid and has the same effect as if made or
3 taken by a notary public licensed in this state.
4 Section 34. This act shall take effect upon becoming a
5 law.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
125
CODING: Words stricken are deletions; words underlined are additions.