1 | A bill to be entitled |
2 | An act relating to vacation and timeshare plans; amending |
3 | s. 721.03, F.S.; authorizing a seller to offer timeshare |
4 | interests in timeshare plans located outside of this state |
5 | without filing a public offering statement for such out- |
6 | of-state timeshare plan; providing criteria for such |
7 | offers; amending s. 721.05, F.S.; revising the definition |
8 | of the term "one-to-one purchaser to accommodation ratio"; |
9 | amending s. 721.07, F.S.; providing that the developer may |
10 | deliver certain documents by means of certain alternative |
11 | media; prescribing guidelines for the use of alternative |
12 | media in the delivery of such documents; requiring certain |
13 | alternative media to contain a disclosure statement; |
14 | amending s. 721.13, F.S.; providing that timeshare |
15 | condominium associations and timeshare cooperative |
16 | associations are not subject to certain provisions |
17 | relating to transfer of association control; amending s. |
18 | 721.165, F.S.; authorizing certain insurance to include |
19 | reasonable deductibles as determined initially by the |
20 | seller and thereafter by the managing entity; providing an |
21 | effective date. |
22 |
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23 | Be It Enacted by the Legislature of the State of Florida: |
24 |
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25 | Section 1. Subsection (11) is added to section 721.03, |
26 | Florida Statutes, to read: |
27 | 721.03 Scope of chapter.-- |
28 | (11) A seller may offer timeshare interests in a timeshare |
29 | plan located outside of this state without filing a public |
30 | offering statement for such out-of-state timeshare plans |
31 | pursuant to s. 721.07 or s. 721.55, provided all of the |
32 | following criteria have been satisfied: |
33 | (a) The seller shall provide a disclosure statement to |
34 | each prospective purchaser of such out-of-state timeshare plan. |
35 | The disclosure statement shall contain information that is |
36 | substantively equivalent to the disclosures required to be |
37 | provided for similar timeshare plans pursuant to s. 721.07 or s. |
38 | 721.55, whichever is applicable. The disclosure statement shall |
39 | also include the exhibits that are required by s. |
40 | 721.07(5)(ff)1., 2., 3., 4., 5., 7., 8., and 20. |
41 | (b) With respect to any offer for an out-of-state |
42 | timeshare plan made pursuant to this subsection, the delivery by |
43 | the seller to a prospective purchaser of the disclosure |
44 | statement required by paragraph (a) shall be deemed to satisfy |
45 | any requirement of this chapter regarding a public offering |
46 | statement. The disclosure statement and any other required |
47 | documents may be delivered by means of alternative media as |
48 | otherwise permitted by this chapter. |
49 | (c) The seller shall utilize and furnish to each purchaser |
50 | of an out-of-state timeshare plan offered pursuant to this |
51 | subsection a fully completed and executed copy of a purchase |
52 | contract that contains the statement set forth in s. |
53 | 721.065(2)(c) in conspicuous type located immediately prior to |
54 | the space in the contract reserved for the purchaser's |
55 | signature. The contract shall also contain the initial purchase |
56 | price and any additional charges to which the purchaser may be |
57 | subject in connection with the purchase of the timeshare plan, |
58 | such as financing, or that will be collected from the purchaser |
59 | on or before closing, such as the current year's annual |
60 | assessment for common expenses. |
61 | (d) All purchase contracts for out-of-state timeshare |
62 | plans offered pursuant to this subsection must also contain the |
63 | following statements in conspicuous type: |
64 |
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65 | This timeshare plan has not been reviewed or approved by the |
66 | State of Florida. |
67 |
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68 | The timeshare interest you are purchasing requires certain |
69 | procedures to be followed in order for you to use your interest. |
70 | These procedures may be different from those followed in other |
71 | timeshare plans. You should read and understand these procedures |
72 | prior to purchasing. |
73 |
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74 | (e)1. An out-of-state timeshare plan may only be offered |
75 | pursuant to this subsection by the seller on behalf of: |
76 | a. The developer of a timeshare plan that has been |
77 | approved by the division within the preceding 7 years pursuant |
78 | to s. 721.07 or s. 721.55, or concerning which an amendment by |
79 | the developer has been approved by the division within the |
80 | preceding 7 years, which timeshare plan has neither been |
81 | terminated nor withdrawn; or |
82 | b. A developer under common ownership or control with a |
83 | developer described in sub-subparagraph a., provided that any |
84 | common ownership shall constitute at least a 50-percent |
85 | ownership interest. |
86 | 2. An out-of-state timeshare plan may only be offered |
87 | pursuant to this subsection to a person who already owns a |
88 | timeshare interest in a timeshare plan filed by a developer |
89 | described in subparagraph 1. |
90 | (f)1. Except as provided in ss. 721.06, 721.065, 721.07, |
91 | 721.27, 721.55, and 721.58, any out-of-state timeshare plan |
92 | offered pursuant to this subsection must meet all requirements |
93 | of this chapter. The out-of-state timeshare plan shall also be |
94 | eligible for any exemptions provided by this chapter. |
95 | 2. Any escrow account required to be established by s. |
96 | 721.08 for any out-of-state timeshare plan offered under this |
97 | subsection may be maintained in the situs jurisdiction. |
98 | (g) Any seller of an out-of-state timeshare plan offered |
99 | pursuant to this subsection shall be required to provide notice |
100 | of such plan to the division on a form prescribed by the |
101 | division, along with payment of a one-time fee not to exceed |
102 | $1,000 per filing. |
103 | Section 2. Subsection (25) of section 721.05, Florida |
104 | Statutes, is amended to read: |
105 | 721.05 Definitions.--As used in this chapter, the term: |
106 | (25) "One-to-one purchaser to accommodation ratio" means |
107 | the ratio of the number of purchasers eligible to use the |
108 | accommodations of a timeshare plan on a given day to the number |
109 | of accommodations available for use within the plan on that day, |
110 | such that the total number of purchasers eligible to use the |
111 | accommodations of the timeshare plan during any 12-month period |
112 | a given calendar year never exceeds the total number of |
113 | accommodations available for use in the timeshare plan during |
114 | that 12-month period year. For purposes of calculation under |
115 | this subsection, each purchaser must be counted at least once, |
116 | and no individual timeshare unit may be counted more than 365 |
117 | times per 12-month period calendar year (or more than 366 times |
118 | per leap year). A purchaser who is delinquent in the payment of |
119 | timeshare plan assessments shall continue to be considered |
120 | eligible to use the accommodations of the timeshare plan for |
121 | purposes of this subsection notwithstanding any application of |
122 | s. 721.13(6). |
123 | Section 3. Paragraph (f) of subsection (6) of section |
124 | 721.07, Florida Statutes, is amended, and subsection (7) is |
125 | added to that section, to read: |
126 | 721.07 Public offering statement.--Prior to offering any |
127 | timeshare plan, the developer must submit a filed public |
128 | offering statement to the division for approval as prescribed by |
129 | s. 721.03, s. 721.55, or this section. Until the division |
130 | approves such filing, any contract regarding the sale of that |
131 | timeshare plan is subject to cancellation by the purchaser |
132 | pursuant to s. 721.10. |
133 | (6) The division is authorized to prescribe by rule the |
134 | form of the approved purchaser public offering statement that |
135 | must be furnished by the developer to each purchaser. The form |
136 | of the purchaser public offering statement must provide fair, |
137 | meaningful, and effective disclosure of all aspects of the |
138 | timeshare plan. For timeshare plans filed pursuant to this part, |
139 | the developer shall furnish each purchaser with the following: |
140 | (f) Each purchaser shall receive a fully executed paper |
141 | copy of the purchase contract. |
142 | (7)(a) A developer may provide a purchaser with the option |
143 | of receiving through alternative media, in any commercially |
144 | acceptable format, any document required by this chapter to be |
145 | delivered to a purchaser in lieu of delivering a paper copy of |
146 | such document to the purchaser. The purchaser's choice of the |
147 | document format shall be set forth in writing on a separate form |
148 | that shall also disclose the system requirements necessary to |
149 | view the alternative media and shall be signed by the purchaser. |
150 | The form shall also state that the purchaser should not select |
151 | alternative media unless the alternative media can be viewed by |
152 | the purchaser prior to expiration of the 10-day cancellation |
153 | period. The alternative media disclosure statement shall be |
154 | listed on the receipt for timeshare documents pursuant to a form |
155 | prescribed by the division. |
156 | (b) If a portion, but not all, of such documents is |
157 | delivered to a purchaser through the use of alternative media, |
158 | the developer shall identify which information appears in the |
159 | alternative media and which information is being delivered in |
160 | paper format in the applicable table of contents and in the |
161 | receipt for timeshare documents. |
162 | (c) If a purchase contract is delivered by alternative |
163 | media pursuant to this subsection, such alternative media shall |
164 | contain substantially the following statement located on the |
165 | outside of any compact disc or other alternative media jacket, |
166 | sleeve, or other container: |
167 |
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168 | You may cancel your contract without any penalty or obligation |
169 | within 10 calendar days after you sign the contract or the date |
170 | you receive the last of all documents required to be delivered |
171 | to you. Refer to your purchase contract for more details. |
172 |
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173 | The division is authorized to prescribe by rule the prominent |
174 | location where the statement shall be located. |
175 | (d) The order and content of a purchaser public offering |
176 | statement or a multisite purchaser public offering statement |
177 | delivered through alternative media shall comply with rules |
178 | adopted or issued by the division. |
179 | (e) Prior to delivery of the purchaser public offering |
180 | statement through alternative media, the developer must submit |
181 | to the division a copy of the purchaser public offering |
182 | statement in the alternative media format proposed to be used by |
183 | the developer together with an executed certificate, using forms |
184 | prescribed by the division, certifying that the portion of the |
185 | purchaser public offering statement delivered through the |
186 | proposed alternative media format is an accurate representation |
187 | of, and, where practical, identical to, the corresponding |
188 | portion of the written purchaser public offering statement. |
189 | (f) The alternative media format used to display the |
190 | purchaser public offering statement may also contain materials |
191 | in addition to the purchaser public offering statement, |
192 | including advertising materials. In the event that the |
193 | alternative media contains materials other than the purchaser |
194 | public offering statement, the location of the purchaser public |
195 | offering statement in the alternative media must be specifically |
196 | and prominently identified in the alternative media and easily |
197 | accessed by the purchaser. |
198 | (g) If the developer subsequently amends the written |
199 | purchaser public offering statement, the alternative media |
200 | purchaser public offering statement must also be amended to |
201 | conform to such amendment, and the developer shall file with the |
202 | division an executed certificate, using forms prescribed by the |
203 | division, certifying that the portions of the purchaser public |
204 | offering statement set forth in alternative media format are |
205 | identical to the corresponding portions of the written purchaser |
206 | public offering statement, as amended. Alternatively, the |
207 | developer may provide paper copies of the amendments to the |
208 | purchaser. |
209 | Section 4. Paragraph (b) of subsection (1) of section |
210 | 721.13, Florida Statutes, is amended to read: |
211 | 721.13 Management.-- |
212 | (1) |
213 | (b)1. With respect to a timeshare plan which is also |
214 | regulated under chapter 718 or chapter 719, or which contains a |
215 | mandatory owners' association, the board of administration of |
216 | the owners' association shall be considered the managing entity |
217 | of the timeshare plan. |
218 | 2. During any period of time in which such owners' |
219 | association has entered into a contract with a manager or |
220 | management firm to provide some or all of the management |
221 | services to the timeshare plan, both the board of administration |
222 | and the manager or management firm shall be considered the |
223 | managing entity of the timeshare plan and shall be jointly and |
224 | severally responsible for the faithful discharge of the duties |
225 | of the managing entity. |
226 | 3. An owners' association which is the managing entity of |
227 | a timeshare plan that includes condominium units or cooperative |
228 | units shall not be considered a condominium association pursuant |
229 | to the provisions of chapter 718 or a cooperative association |
230 | pursuant to the provisions of chapter 719, unless such owners' |
231 | association also operates the entire condominium pursuant to s. |
232 | 718.111 or the entire cooperative pursuant to s. 719.104. |
233 | 4. Notwithstanding anything to the contrary contained in |
234 | chapter 718 or chapter 719, timeshare condominium associations |
235 | and timeshare cooperative associations are not subject to the |
236 | provisions of s. 718.301 or s. 719.301. |
237 | Section 5. Subsection (1) of section 721.165, Florida |
238 | Statutes, is amended to read: |
239 | 721.165 Insurance.-- |
240 | (1) The seller, initially, and thereafter the managing |
241 | entity, shall be responsible for obtaining insurance to protect |
242 | the accommodations and facilities of the timeshare plan in an |
243 | amount equal to the replacement cost of such accommodations and |
244 | facilities. Any insurance, regardless of any requirement in the |
245 | timeshare instrument for coverage for "full insurable value," |
246 | "replacement cost," or the like, may include reasonable |
247 | deductibles as determined initially by the seller and thereafter |
248 | by the managing entity. Failure to obtain and maintain the |
249 | insurance required by this subsection during any period of |
250 | developer control of the managing entity shall constitute a |
251 | breach of s. 721.13(2)(a) by the managing entity, unless the |
252 | managing entity can show that, despite such failure, it |
253 | exercised due diligence to obtain and maintain the insurance |
254 | required by this subsection. |
255 | Section 6. This act shall take effect July 1, 2006. |