| FS 721 -- VACATION PLANS AND TIMESHARING |
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PART II VACATION CLUBS 721.50 Short title. 721.51 Legislative purpose; scope. 721.52 Definitions. 721.53 Subordination instruments; alternate security arrangements. 721.54 Term of nonspecific multisite timeshare plans. 721.55 Multisite timeshare plan public offering statement. 721.551 Delivery of multisite timeshare plan purchaser public offering statement. 721.552 Additions, substitutions, or deletions of component site accommodations or facilities; purchaser remedies for violations. 721.56 Management of multisite timeshare plans; reservation systems; demand balancing. 721.57 Offering of timeshare estates in multisite timeshare plans; required provisions in the timeshare instrument. 721.58 Filing fee; annual fee. 721.50 Short title.--This part may be cited as the "McAllister Act" in recognition and appreciation for the years of extraordinary and insightful contributions by Mr. Bryan C. McAllister, Examinations Supervisor, Division of Florida Land Sales, Condominiums, and Mobile Homes. History.--s. 12, ch. 93-58; s. 33, ch. 95-274. 721.51 Legislative purpose; scope.-- (1) The purpose of this part is to advance the purposes of this chapter as set forth in s. 721.02 with respect to multisite vacation and timeshare plans, also known as vacation clubs. (2) All multisite timeshare plans shall be governed by both part I and this part except where otherwise provided in this part. In the event of a conflict between the provisions of part I and this part, the provisions of this part shall prevail. History.--s. 12, ch. 93-58; s. 18, ch. 95-274; s. 34, ch. 2000-302.
721.52 Definitions.--As used in this chapter, the term: (1) "Applicable law" means the law of the jurisdiction where the accommodations and facilities referred to are located. (2) "Component site" means a specific geographic site where a portion of the accommodations and facilities of the multisite timeshare plan are located. If permitted under applicable law, separate phases operated as a single development located at a specific geographic site under common management shall be deemed a single component site for purposes of this part. (3) "Inventory" means the accommodations and facilities located at a particular component site or sites owned, leased, licensed, or otherwise acquired for use by a developer and offered as part of the multisite timeshare plan. (4) "Multisite timeshare plan" means any method, arrangement, or procedure with respect to which a purchaser obtains, by any means, a recurring right to use and occupy accommodations or facilities of more than one component site, only through use of a reservation system, whether or not the purchaser is able to elect to cease participating in the plan. However, the term "multisite timeshare plan" shall not include any method, arrangement, or procedure wherein: (a) The contractually specified maximum total financial obligation on the purchaser's part is $3,000 or less, during the entire term of the plan; or (b) The
term is for a period of 3 years or less, regardless of the purchaser's
contractually specified maximum total financial obligation, if any. For
purposes of determining the term of such use and occupancy rights, the
period of any optional renewals which a purchaser, in his or her sole
discretion, may elect to exercise, whether or not for additional
consideration, shall not be included. For purposes of determining the term
of such use and occupancy rights, the period of any automatic renewals
shall be included unless a purchaser has the right to terminate the
membership at any time and receive a pro rata refund or the purchaser
receives a notice no less than 30 days and no more than 60 days prior to
the date of renewal informing the purchaser of the right to terminate at
any time prior to the date of automatic renewal. (5) "Nonspecific multisite timeshare plan" means a multisite timeshare plan containing timeshare licenses or personal property timeshare interests, with respect to which a purchaser receives a right to use all of the accommodations and facilities, if any, of the multisite timeshare plan through the reservation system, but no specific right to use any particular accommodations and facilities for the remaining term of the multisite timeshare plan in the event that the reservation system is terminated for any reason prior to the expiration of the term of the multisite timeshare plan. (6) "Reservation system" means the method, arrangement, or procedure by which a purchaser, in order to reserve the use and occupancy of any accommodation or facility of the multisite timeshare plan for one or more use periods, is required to compete with other purchasers in the same multisite timeshare plan regardless of whether such reservation system is operated and maintained by the multisite timeshare plan managing entity, an exchange company, or any other person. In the event that a purchaser is required to use an exchange program as the purchaser's principal means of obtaining the right to use and occupy a multisite timeshare plan's accommodations and facilities, such arrangement shall be deemed a reservation system. When an exchange company utilizes a mechanism for the exchange of use of timeshare periods among members of an exchange program, such utilization is not a reservation system of a multisite timeshare plan. (7) "Specific multisite timeshare plan" means a multisite timeshare plan containing timeshare licenses or personal property timeshare interests, with respect to which a purchaser receives a specific right to use accommodations and facilities, if any, at one component site of a multisite timeshare plan, together with use rights in the other accommodations and facilities of the multisite timeshare plan created by or acquired through the reservation system. (8) "Vacation club" means a multisite timeshare plan. However, notwithstanding any other provision of this chapter, the use of the term "vacation club" by a person or entity as part of a company, brand, or product name shall not, in and of itself, subject the person, entity, or product being offered to the provisions of this part unless the product offered otherwise meets the definition of a "multisite timeshare plan" as defined in subsection (4). History.--s. 12, ch. 93-58; s. 19, ch. 95-274; s. 906, ch. 97-102; s. 35, ch. 2000-302; s. 22, ch. 2004-279; s. 10, ch. 2007-75.
721.53 Subordination instruments; alternate security arrangements.-- (1) With respect to each accommodation or facility of a multisite timeshare plan, the developer shall provide the division with satisfactory evidence that one of the following has occurred with respect to each interestholder prior to offering the accommodation or facility as a part of the multisite timeshare plan: (a) The interestholder has executed and recorded a nondisturbance and notice to creditors instrument pursuant to s. 721.08. (b) The interestholder has executed a subordination and notice to creditors instrument and recorded it among the appropriate public records in the jurisdiction in which the subject accommodation or facility is located. The subordination instrument shall expressly subordinate the interest or lien of the interestholder in the subject accommodation or facility to the rights of purchasers of the multisite timeshare plan created with respect to such accommodation or facility by the timeshare instrument, and shall provide that: 1. If the party seeking enforcement is not in default of its obligations, the instrument may be enforced by both the seller and any purchaser of the multisite timeshare plan; 2. The instrument shall be effective as between the timeshare purchaser and interestholder despite any rejection or cancellation of the contract between the timeshare purchaser and developer as a result of bankruptcy proceedings of the developer; and 3. So
long as a purchaser remains in good standing with respect to her or his
obligations under the timeshare instrument, including making all payments
to the managing entity required by the timeshare instrument with respect
to the annual common expenses of the multisite timeshare plan, then the
interestholder will honor all rights of such purchaser relating to the
subject accommodation or facility as reflected in the timeshare
instrument. (c) The interestholder has transferred the subject accommodation or facility or all use rights therein to a nonprofit organization or owners' association to be held for the use and benefit of the purchasers, which entity shall act as a fiduciary to the purchasers. Prior to such transfer, any lien or other encumbrance against such accommodation or facility shall be made subject to a subordination and notice to creditors instrument pursuant to either paragraph (a) or paragraph (b). No transfer pursuant to this paragraph shall become effective until the nonprofit organization or owners' association accepts such transfer and the responsibilities set forth in subsection (2). (d) The subject accommodation or facility is free and clear of the claims of any interestholder, and the purchasers' rights in and to the subject accommodation or facility as described in and limited by the timeshare instrument are protected by a recorded instrument against the claims of any subsequent creditors of any owner of the underlying fee. (e) The interestholder has transferred the subject accommodation or facility or all use rights therein to a trust that complies with this paragraph. Prior to such transfer, any lien or other encumbrance against such accommodation or facility shall be made subject to a nondisturbance and notice to creditors instrument pursuant to paragraph (a) or a subordination and notice to creditors instrument pursuant to paragraph (b). No transfer pursuant to this paragraph shall become effective until the trust accepts such transfer and the responsibilities set forth herein. A trust established pursuant to this paragraph shall comply with the following provisions: 1. The trustee shall be an individual or a business entity authorized and qualified to conduct trust business in this state. Any corporation authorized to do business in this state may act as trustee in connection with a timeshare plan pursuant to this chapter. The trustee must be independent from any developer or managing entity of the timeshare plan or any interestholder of any accommodation or facility of such plan. The same trustee may hold the accommodations and facilities, or use rights therein, for one or more of the component sites of the timeshare plan. 2. The trust shall be irrevocable so long as any purchaser has a right to occupy any portion of the timeshare property pursuant to the timeshare plan. 3. The trustee shall not convey, hypothecate, mortgage, assign, lease, or otherwise transfer or encumber in any fashion any interests in or portion of the timeshare property with respect to which any purchaser has a right of use or occupancy unless the timeshare plan is terminated pursuant to the timeshare instrument, or the timeshare property held in trust is deleted from a multisite timeshare plan pursuant to s. 721.552(3), or such conveyance, hypothecation, mortgage, assignment, lease, transfer, or encumbrance is approved by vote of two-thirds of all voting interests of the timeshare plan and such decision is declared by a court of competent jurisdiction to be in the best interests of the purchasers of the timeshare plan. 4. All purchasers of the timeshare plan or the owners' association of the timeshare plan shall be express beneficiaries of the trust. The trustee shall act as a fiduciary to the beneficiaries of the trust. The personal liability of the trustee shall be governed by ss. 736.08125, 736.08163, 736.1013, and 736.1015. The agreement establishing the trust shall set forth the duties of the trustee. The trustee shall be required to furnish promptly to the division upon request a copy of the complete list of the names and addresses of the owners in the timeshare plan and a copy of any other books and records of the timeshare plan required to be maintained pursuant to s. 721.13 that are in the possession of the trustee. All expenses reasonably incurred by the trustee in the performance of its duties, together with any reasonable compensation of the trustee, shall be common expenses of the timeshare plan. 5. The trustee shall not resign upon less than 90 days' prior written notice to the managing entity and the division. No resignation shall become effective until a substitute trustee, approved by the division, is appointed by the managing entity and accepts the appointment. 6. The documents establishing the trust arrangement shall constitute a part of the timeshare instrument. 7. For trusts holding property in component sites located outside this state, the trust holding such property shall be deemed in compliance with the requirements of this paragraph, if such trust is authorized and qualified to conduct trust business under the laws of such jurisdiction and the agreement or law governing such trust arrangement provides substantially similar protections for the purchaser as are required in this paragraph for trusts holding property in a component site located in this state. 8. The trustee shall have appointed a registered agent in this state for service of process. In the event such a registered agent is not appointed, service of process may be served pursuant to s. 721.265. (f) With respect to any personal property accommodations or facilities, the developer and any other interestholder have complied fully with the applicable provisions of s. 721.08. (2) The nonprofit organization or owners' association described in paragraph (1)(c) shall comply with the following provisions: (a) The nonprofit organization or owners' association shall not convey, hypothecate, mortgage, assign, or otherwise transfer or encumber in any fashion any portion of the timeshare property with respect to which any purchaser has a right of use or occupancy unless the timeshare plan is terminated pursuant to the timeshare instrument or the timeshare property held by the entity is deleted from a multisite timeshare plan pursuant to s. 721.552(3). (b) The nonprofit organization or owners' association shall notify the division and the managing entity of the multisite timeshare plan of any proposed transfer of the accommodations or facilities or use rights therein which is permitted by paragraph (a) at least 30 days prior to said transfer. (c) All expenses reasonably incurred by the nonprofit organization or owners' association in the performance of its duties, pursuant to paragraph (a), shall be common expenses of the timeshare plan. (3) In lieu of the requirements of subsection (1) or subsection (2), the director of the division may accept other assurances from the developer with respect to the subject accommodation or facility, including, but not limited to, a surety or fidelity bond or an irrevocable letter of credit, based upon the value of the subject accommodation or facility as established by independent appraisal or other evidence acceptable to the director. History.--s. 12, ch. 93-58; s. 20, ch. 95-274; s. 907, ch. 97-102; s. 36, ch. 2000-302; s. 23, ch. 2004-279; s. 26, ch. 2006-217.
721.54 Term of nonspecific multisite timeshare plans.--It shall be a violation of this part to represent to a purchaser of a nonspecific multisite timeshare plan as defined in s. 721.52(5) that the term of the plan for that purchaser is longer than the shortest term of availability of any of the accommodations included within the plan at the time of purchase. History.--s. 12, ch. 93-58; s. 21, ch. 95-274; s. 24, ch. 2004-279.
721.55 Multisite timeshare plan public offering statement.--Each filed public offering statement for a multisite timeshare plan shall contain the information required by this section and shall comply with the provisions of s. 721.07, except as otherwise provided therein. The division is authorized to provide by rule the method by which a developer must provide such information to the division. Each multisite timeshare plan filed public offering statement shall contain the following information and disclosures: (1) A cover page containing: (a) The name of the multisite timeshare plan. (b) The
following statement in conspicuous type: This
public offering statement contains important matters to be considered in
acquiring an interest in a multisite timeshare plan (or multisite vacation
ownership plan or multisite vacation plan or vacation club). The
statements contained herein are only summary in nature. A prospective
purchaser should refer to all references, accompanying exhibits, contract
documents, and sales materials. The prospective purchaser should not rely
upon oral representations as being correct and should refer to this
document and accompanying exhibits for correct representations. (2) A summary containing all statements required to be in conspicuous type in the public offering statement and in all exhibits thereto. (3) A separate index for the contents and exhibits of the public offering statement. (4) A text, which shall include, where applicable, the information and disclosures set forth in paragraphs (a)-(l). (a) A description of the multisite timeshare plan, including its term, legal structure, and form of ownership. For multisite timeshare plans in which the purchaser will receive a timeshare estate pursuant to s. 721.57 and for specific multisite timeshare plans, the description must also include the term of each component site within the multisite timeshare plan. (b) A description of the structure and ownership of the reservation system together with a disclosure of the entity responsible for the operation of the reservation system. The description shall include the financial terms of any lease of the reservation system, if applicable. The developer shall not be required to disclose the financial terms of any such lease if such lease is prepaid in full for the term of the multisite timeshare plan or to any extent that neither purchasers nor the managing entity will be required to make payments for the continued use of the system following default by the developer or termination of the managing entity. (c)1. A description of the manner in which the reservation system operates. The description shall include a disclosure in compliance with the demand balancing standard set forth in s. 721.56(6) and shall describe the developer's efforts to comply with same in creating the reservation system. The description shall also include a summary of the rules and regulations governing access to and use of the reservation system. 2. In lieu of describing the rules and regulations of the reservation system in the public offering statement text, the developer may attach the rules and regulations as a separate public offering statement exhibit, together with a cross-reference in the public offering statement text to such exhibit. (d) The
existence of and an explanation regarding any priority reservation
features that affect a purchaser's ability to make reservations for the
use of a given accommodation or facility on a first come, first served
basis, including, if applicable, the following statement in conspicuous
type: Component
sites contained in the multisite timeshare plan (or multisite vacation
ownership plan or multisite vacation plan or vacation club) are subject to
priority reservation features which may affect your ability to obtain a
reservation. (e) A summary of the material rules and regulations, if any, other than the reservation system rules and regulations, affecting the purchaser's use of each accommodation and facility at each component site. (f) If the provisions of s. 721.552 and the timeshare instrument permit additions, substitutions, or deletions of accommodations or facilities, the public offering statement must include substantially the following information: 1. Additions.-- a. A description of the basis upon which new accommodations and facilities may be added to the multisite timeshare plan; by whom additions may be made; and the anticipated effect of the addition of new accommodations and facilities upon the reservation system, its priorities, its rules and regulations, and the availability of existing accommodations and facilities. b. The developer must disclose the existence of any cap on annual increases in common expenses of the multisite timeshare plan that would apply in the event that additional accommodations and facilities are made a part of the plan. c. The
developer shall also disclose any extent to which the purchasers of the
multisite timeshare plan will have the right to consent to any proposed
additions; if the purchasers do not have the right to consent, the
developer must include the following disclosure in conspicuous type: Accommodations
and facilities may be added to this multisite timeshare plan (or multisite
vacation ownership plan or multisite vacation plan or vacation club)
without the consent of the purchasers. The addition of accommodations and
facilities to the plan may result in the addition of new purchasers who
will compete with existing purchasers in making reservations for the use
of available accommodations and facilities within the plan, and may also
result in an increase in the annual assessment against purchasers for
common expenses. 2. Substitutions.-- a. A description of the basis upon which new accommodations and facilities may be substituted for existing accommodations and facilities of the multisite timeshare plan; by whom substitutions may be made; the basis upon which the determination may be made to cause such substitutions to occur; and any limitations upon the ability to cause substitutions to occur. b. The
developer shall also disclose any extent to which purchasers will have the
right to consent to any proposed substitutions; if the purchasers do not
have the right to consent, the developer must include the following
disclosure in conspicuous type: New
accommodations and facilities may be substituted for existing
accommodations and facilities of this multisite timeshare plan (or
multisite vacation ownership plan or multisite vacation plan or vacation
club) without the consent of the purchasers. The replacement
accommodations and facilities may be located at a different place or may
be of a different type or quality than the replaced accommodations and
facilities. The substitution of accommodations and facilities may also
result in an increase in the annual assessment against purchasers for
common expenses. 3. Deletions.--A description of any provision of the timeshare instrument governing deletion of accommodations or facilities from the multisite timeshare plan. If the timeshare instrument does not provide for business interruption insurance in the event of a casualty, or if it is unavailable, or if the instrument permits the developer, the managing entity, or the purchasers to elect not to reconstruct after casualty under certain circumstances or to secure replacement accommodations or facilities in lieu of reconstruction, the public offering statement must contain a disclosure that during the reconstruction, replacement, or acquisition period, or as a result of a decision not to reconstruct, purchasers of the plan may temporarily compete for available accommodations on a greater than one-to-one use right to use night requirement ratio. (g) A description of the developer and the managing entity of the multisite timeshare plan, including: 1. The identity of the developer; the developer's business address; the number of years of experience the developer has in the timeshare, hotel, motel, travel, resort, or leisure industries; and a description of any pending lawsuit or judgment against the developer which is material to the plan. If there are no such pending lawsuits or judgments, there shall be a statement to that effect. 2. The identity of the managing entity of the multisite timeshare plan; the managing entity's business address; the number of years of experience the managing entity has in the timeshare, hotel, motel, travel, resort, or leisure industries; and a description of any lawsuit or judgment against the managing entity which is material to the plan. If there are no pending lawsuits or judgments, there shall be a statement to that effect. The description of the managing entity shall also include a description of the relationship among the managing entity of the multisite timeshare plan and the various component site managing entities. (h) A description of the purchaser's liability for common expenses of the multisite timeshare plan, including the following: 1. A description of the common expenses of the plan, including the method of allocation and assessment of such common expenses, whether component site common expenses and real estate taxes are included within the total common expense assessment of the multisite timeshare plan, and, if not, the manner in which timely payment of component site common expenses and real estate taxes shall be accomplished. 2. A description of any cap imposed upon the level of common expenses payable by the purchaser. In no event shall the total common expense assessment for the multisite timeshare plan in a given calendar year exceed 125 percent of the total common expense assessment for the plan in the previous calendar year. 3. A description of the entity responsible for the determination of the common expenses of the multisite timeshare plan, as well as any entity which may increase the level of common expenses assessed against the purchaser at the multisite timeshare plan level. 4. A description of the method used to collect common expenses, including the entity responsible for such collections, and the lien rights of any entity for nonpayment of common expenses. If the common expenses of any component site are collected by the managing entity of the multisite timeshare plan, a statement to that effect together with the identity and address of the escrow agent required by s. 721.56(3). 5. If the purchaser will receive an interest in a nonspecific multisite timeshare plan, a statement that a multisite timeshare plan budget is attached to the public offering statement as an exhibit pursuant to paragraph (7)(c). The multisite timeshare plan budget shall comply with the provisions of s. 721.07(5)(t). 6. If the developer intends to guarantee the level of assessments for the multisite timeshare plan, such guarantee must be based upon a good faith estimate of the revenues and expenses of the multisite timeshare plan. The guarantee must include a description of the following: a. The specific time period, measured in one or more calendar or fiscal years, during which the guarantee will be in effect. b. A statement that the developer will pay all common expenses incurred in excess of the total revenues of the multisite timeshare plan, if the developer is to be excused from the payment of assessments during the guarantee period. c. The level, expressed in total dollars, at which the developer guarantees the assessments. If the developer has reserved the right to extend or increase the guarantee level, a disclosure must be included to that effect. 7. If required under applicable law, the developer shall also disclose the following matters for each component site: a. Any limitation upon annual increases in common expenses; b. The existence of any bad debt or working capital reserve; and c. The existence of any replacement or deferred maintenance reserve. (i) If
there are any restrictions upon the sale, transfer, conveyance, or leasing
of an interest in a multisite timeshare plan, a description of the
restrictions together with a statement in conspicuous type in
substantially the following form: The
sale, lease, or transfer of interests in this multisite timeshare plan is
restricted or controlled. (j) The
following statement in conspicuous type in substantially the following
form: The
purchase of an interest in a multisite timeshare plan (or multisite
vacation ownership plan or multisite vacation plan or vacation club)
should be based upon its value as a vacation experience or for spending
leisure time, and not considered for purposes of acquiring an appreciating
investment or with an expectation that the interest may be resold. (k) If the multisite timeshare plan provides purchasers with the opportunity to participate in an exchange program, a description of the name and address of the exchange company and the method by which a purchaser accesses the exchange program. In lieu of this requirement, the public offering statement text may contain a cross-reference to other provisions in the public offering statement or in an exhibit containing this information. (l) A description of each component site, which description may be disclosed in a written, graphic, tabular, or other form approved by the division. The description of each component site shall include the following information: 1. The name and address of each component site. 2. The number of accommodations, timeshare interests, and timeshare periods, expressed in periods of 7-day use availability, committed to the multisite timeshare plan and available for use by purchasers. 3. Each type of accommodation in terms of the number of bedrooms, bathrooms, sleeping capacity, and whether or not the accommodation contains a full kitchen. For purposes of this description, a full kitchen shall mean a kitchen having a minimum of a dishwasher, range, sink, oven, and refrigerator. 4. A description of facilities available for use by the purchaser at each component site, including the following: a. The intended use of the facility, if not apparent from the description. b. Any user fees associated with a purchaser's use of the facility. 5. A cross-reference to the location in the public offering statement of the description of any priority reservation features which may affect a purchaser's ability to obtain a reservation in the component site. (5) Such other information as the division determines is necessary to fairly, meaningfully, and effectively disclose all aspects of the multisite timeshare plan, including, but not limited to, any disclosures made necessary by the operation of s. 721.03(8). However, if a developer has, in good faith, attempted to comply with the requirements of this section, and if, in fact, the developer has substantially complied with the disclosure requirements of this chapter, nonmaterial errors or omissions shall not be actionable. (6) Any other information that the developer, with the approval of the division, desires to include in the public offering statement text. (7) The following documents shall be included as exhibits to the filed public offering statement, if applicable: (a) The timeshare instrument. (b) The reservation system rules and regulations. (c) The multisite timeshare plan budget pursuant to subparagraph (4)(h)5. (d) Any document containing the material rules and regulations described in paragraph (4)(e). (e) Any contract, agreement, or other document through which component sites are affiliated with the multisite timeshare plan. (f) Any escrow agreement required pursuant to s. 721.08 or s. 721.56(3). (g) The form agreement for sale or lease of an interest in the multisite timeshare plan. (h) The form receipt for multisite timeshare plan documents required to be given to the purchaser pursuant to s. 721.551(2)(b). (i) The description of documents list required to be given to the purchaser by s. 721.551(2)(b). (j) The component site managing entity affidavit or statement required by s. 721.56(1). (k) Any subordination instrument required by s. 721.53. (l)1. If the multisite timeshare plan contains any component sites located in this state, the information required by s. 721.07(5) pertaining to each such component site unless exempt pursuant to s. 721.03. 2. If the purchaser will receive a timeshare estate pursuant to s. 721.57, or an interest in a specific multisite timeshare plan, in a component site located outside of this state but which is offered in this state, the information required by s. 721.07(5) pertaining to that component site, provided, however, that the provisions of s. 721.07(5)(t) shall only require disclosure of information related to the estimated budget for the timeshare plan and purchaser's expenses as required by the jurisdiction in which the component site is located. (8)(a) A timeshare plan containing only one component site must be filed with the division as a multisite timeshare plan if the timeshare instrument reserves the right for the developer to add future component sites. However, if the developer fails to add at least one additional component site to a timeshare plan described in this paragraph within 3 years after the date the plan is initially filed with the division, the multisite filing for such plan shall thereupon terminate, and the developer may not thereafter offer any further interests in such plan unless and until he or she refiles such plan with the division pursuant to this chapter. (b) The
public offering statement for any timeshare plan described in paragraph
(a) must include the following disclosure in conspicuous type: This timeshare plan has been filed as a multisite timeshare plan (or multisite vacation ownership plan or multisite vacation plan or vacation club); however, this plan currently contains only one component site. The developer is not required to add any additional component sites to the plan. Do not purchase an interest in this plan in reliance upon the addition of any other component sites. History.--s. 12, ch. 93-58; s. 22, ch. 95-274; s. 14, ch. 97-93; s. 908, ch. 97-102; s. 37, ch. 2000-302; s. 25, ch. 2004-279; s. 11, ch. 2007-75.
721.551 Delivery of multisite timeshare plan purchaser public offering statement.-- (1) The division is authorized to prescribe by rule the form of the approved multisite timeshare plan public offering statement that must be furnished by a seller to each purchaser pursuant to this section. The form of the public offering statement that is furnished to purchasers must provide fair, meaningful, and effective disclosure of all aspects of the multisite timeshare plan. (2) The developer shall furnish each purchaser with the following: (a) A copy of the approved multisite timeshare plan public offering statement text containing the information required by s. 721.55(1)-(6). (b) A receipt for multisite timeshare plan documents and a list describing any exhibit to the filed public offering statement which is not delivered to the purchaser. The division is authorized to prescribe by rule the form of the receipt for multisite timeshare plan documents and the description of exhibits list that must be furnished to the purchaser pursuant to this section. (c) If the purchaser will receive a timeshare estate pursuant to s. 721.57, or an interest in a specific multisite timeshare plan, in a component site located in this state, the developer shall also furnish the purchaser with the information required to be delivered pursuant to s. 721.07(6)(a) and (b) for the component site in which the purchaser will receive an estate or interest in a specific multisite timeshare plan. (d) Any other exhibit that the developer elects to include as part of the purchaser public offering statement, provided that the developer first files the exhibit with the division. (e) An executed copy of any document which the purchaser signs. (f) The developer shall be required to provide the managing entity of the multisite timeshare plan with a copy of the approved filed public offering statement and any approved amendments thereto to be maintained by the managing entity as part of the books and records of the timeshare plan pursuant to s. 721.13(3)(d). History.--s. 23, ch. 95-274; s. 38, ch. 2000-302; s. 26, ch. 2004-279.
721.552 Additions, substitutions, or deletions of component site accommodations or facilities; purchaser remedies for violations.--Additions, substitutions, or deletions of component site accommodations or facilities may be made only in accordance with the following: (1) ADDITIONS.-- (a) The timeshare instrument must provide for: 1. The basis upon which new accommodations and facilities may be added to the multisite timeshare plan; by whom additions may be made; and the anticipated effect of the addition of new accommodations and facilities upon the reservation system, its priorities, its rules and regulations, and the availability of existing accommodations and facilities. 2. Any cap on annual increases in common expenses of the multisite timeshare plan that would apply in the event that additional accommodations and facilities are made a part of the plan. 3. The extent, if any, to which purchasers of the multisite timeshare plan will have the right to consent to any proposed additions. (b) Any person who is authorized by the timeshare instrument to make additions to the multisite timeshare plan pursuant to this subsection shall act as a fiduciary in such capacity in the best interests of the purchasers of the plan as a whole and shall adhere to the demand balancing standard set forth in s. 721.56(6) in connection with such additions. Additions that are otherwise permitted may be made only so long as a one-to-one use right to use night requirement ratio is maintained at all times. (2) SUBSTITUTIONS.-- (a) Substitutions are available only for nonspecific multisite timeshare plans. Specific multisite timeshare plans or plans offering timeshare estates pursuant to s. 721.57 may not contain an accommodation substitution right. (b) The timeshare instrument shall provide for the following: 1. The basis upon which new accommodations and facilities may be substituted for existing accommodations and facilities of the multisite timeshare plan; by whom substitutions may be made; and the basis upon which the determination may be made to cause such substitutions to occur. 2. The replacement accommodations and facilities must provide purchasers with an opportunity to enjoy a substantially similar vacation experience as was available with the replaced accommodation or facility. In determining whether the replacement accommodations and facilities will provide a substantially similar vacation experience, all relevant factors must be considered, including, but not limited to, some or all of the following: size, capacity, furnishings, maintenance, location (geographic, topographic, and scenic), demand, and availability for purchaser use, and recreational capabilities. 3. The extent, if any, to which purchasers will have the right to consent to any proposed substitutions. (c) No substitutions may be made during the first year after the developer begins to offer the multisite timeshare plan. (d) No more than 25 percent of the available accommodations at a given component site may undergo substitution in a given calendar year in which substitution is permitted. This paragraph shall be interpreted to permit the substitution of an entire component site over a 4-year period. (e) The person authorized to make substitutions shall notify all purchasers of the multisite timeshare plan in writing of her or his intention to delete accommodations at a given component site and to substitute them with other specified accommodations pursuant to this subsection. This notice must be given at least 6 months in advance of the date that the substitution will occur, and the notice must inform the purchasers that they may reserve the use of the accommodations to be deleted during this 6-month period. At the end of the 6-month period, the person authorized to make substitutions may delete accommodations for substitution only to the extent that they were not reserved during the 6-month period. (f) If the managing entity of a multisite timeshare plan includes an owners' association composed of all purchasers or a corporation which owns or controls the accommodations and facilities of the plan, the board of administration of either of which is comprised of a majority of board members elected by purchasers other than the developer, and if such managing entity has the right to make substitutions pursuant to the timeshare instrument, all of the available accommodations at a given component site may undergo substitution in a given year without compliance with paragraphs (d) and (e) if a written plan of substitution provided to each purchaser has been approved by a majority of the board of administration and by a majority of all purchasers in the plan. The plan of substitution must: 1. Specifically identify the component site being replaced and the proposed substitute component site. 2. Contain information regarding prior demand for purchaser use of the component site being replaced. 3. Provide the results of a survey of purchaser attitudes regarding the component site being replaced and the proposed substitute component site. 4. Explain the practical and business reasons for effecting a total substitution within the given calendar year. 5. Provide
a plan for handling reservation requests during the substitution period
for both the component site being replaced and the proposed substitute
component site. (g) The person who is authorized by the timeshare instrument to make substitutions to the multisite timeshare plan pursuant to this subsection shall act as a fiduciary in such capacity in the best interests of the purchasers of the plan as a whole and shall adhere to the demand balancing standard set forth in s. 721.56(6) in connection with such substitutions. Substitutions that are otherwise permitted may be made only so long as a one-to-one use right to use night requirement ratio is maintained at all times. (3) DELETIONS.-- (a) Deletion by casualty.-- 1. Pursuant to s. 721.165, the timeshare instrument creating the multisite timeshare plan must provide for casualty insurance for the accommodations and facilities of the multisite timeshare plan in an amount equal to the replacement cost of such accommodations or facilities. The timeshare instrument must also provide that in the event of a casualty that results in accommodations or facilities being unavailable for use by purchasers, the managing entity shall notify all affected purchasers of such unavailability of use within 30 days after the event of casualty. 2. The timeshare instrument must also provide for the application of any insurance proceeds arising from a casualty to either the replacement or acquisition of additional similar accommodations or facilities or to the removal of purchasers from the multisite timeshare plan so that purchasers will not be competing for available accommodations on a greater than one-to-one use right to use night requirement ratio. 3. If the timeshare instrument does not provide for business interruption insurance, or if it is unavailable, or if the instrument permits the developer, the managing entity, or the purchasers to elect not to reconstruct after casualty under certain circumstances or to secure replacement accommodations or facilities in lieu of reconstruction, purchasers of the plan may temporarily compete for available accommodations on a greater than one-to-one use right to use night requirement ratio. The decision whether or not to reconstruct shall be made as promptly as possible under the circumstances. 4. Any replacement of accommodations or facilities pursuant to this paragraph shall be made upon the same basis as required for substitution as set forth in subparagraph (2)(b)2. (b) Deletion by eminent domain.-- 1. The timeshare instrument creating the multisite timeshare plan must also provide for the application of any proceeds arising from a taking under eminent domain proceedings to either the replacement or acquisition of additional similar accommodations or facilities or to the removal of purchasers from the multisite timeshare plan so that purchasers will not be competing for available accommodations on a greater than one-to-one use right to use night requirement ratio. 2. Any replacement of accommodations or facilities pursuant to this paragraph shall be made upon the same basis as required for substitution set forth in subparagraph (2)(b)2. (c) Automatic deletion.--The timeshare instrument may provide that a component site will be automatically deleted upon the expiration of its term in a timeshare plan other than a nonspecific multisite timeshare plan or as otherwise provided in the timeshare instrument. However, the timeshare instrument must also provide that in the event a component site is deleted from the plan in this manner, a sufficient number of purchasers of the plan will also be deleted so as to maintain no greater than a one-to-one use right to use night requirement ratio. (4) VIOLATIONS; PURCHASER REMEDIES.--All purchaser remedies pursuant to s. 721.21 shall be available for any violation of the provisions of this section. History.--s. 24, ch. 95-274; s. 909, ch. 97-102; s. 39, ch. 2000-302; s. 27, ch. 2004-279; s. 12, ch. 2007-75.
721.56 Management of multisite timeshare plans; reservation systems; demand balancing.-- (1) The developer as a prerequisite for approval of his or her public offering statement filing or his or her phase filing must obtain an affidavit, or other evidence satisfactory to the director of the division, from the component site managing entity containing all of the following: (a) A statement that all assessments on inventory are fully paid as required by applicable law. (b) A statement as to the amount of delinquent assessments existing at the component site, if any. (c) If required by applicable law, a statement that the latest annual audit of the component site shows that, if required, reserves are adequately maintained with respect to each component site. (d) A statement that the component site managing entity specifically acknowledges the existence of the multisite timeshare plan relating to the use of the accommodations and facilities of the component site by purchasers of the plan. (2) In the event that the developer files an affidavit or other evidence with the division pursuant to subsection (1) and subsequently determines that the status of the component site has materially changed such that any portion of the affidavit or other evidence is consequently materially changed, the developer shall immediately notify the division of the change. (3)(a) The managing entity of the multisite timeshare plan shall establish an escrow account with an escrow agent qualified pursuant to s. 721.05 and deposit into such account all payments received by the managing entity from time to time from the developer and purchasers of the plan that relate to common expenses and real estate taxes due with respect to any component site. The managing entity of the multisite timeshare plan shall not be required to escrow payments received from the developer or purchasers that relate to other plan expenses, including those pertaining to the compensation of the managing entity of the multisite timeshare plan and pertaining to the operation of the reservation system. (b) Funds may only be disbursed from the escrow account described in paragraph (a) by the escrow agent upon receipt of an affidavit from the managing entity of the multisite timeshare plan specifying the purpose for which the disbursement is requested and making reference to the budgetary source of authority for such disbursement. The escrow agent shall only disburse moneys from escrow relating to a particular component site directly to the managing entity of that component site. Real estate tax payments shall only be disbursed from the escrow account to the component site managing entity or to the appropriate tax collection authority pursuant to applicable law. (c) The escrow agent shall be entitled to rely upon the affidavit of the managing entity and shall have no obligation to independently ascertain the propriety of the requested disbursement so long as the escrow agent has no actual knowledge that the affidavit is false in any respect. (d) An escrow agent shall maintain the account called for in this section only in such a manner as to be under the direct supervision and control of the escrow agent. The escrow agent shall have a fiduciary duty to each purchaser to maintain the escrow account in accordance with good accounting principles and to release funds from escrow only in accordance with this subsection. The escrow agent shall retain all affidavits received pursuant to this subsection for a period of 5 years. Should the escrow agent receive conflicting demands for the escrowed funds, the escrow agent shall immediately notify the division of the dispute and either promptly submit the matter to arbitration or, by interpleader or otherwise, seek an adjudication of the matter by court. (e) Any managing entity or escrow agent who intentionally fails to comply with the provisions of this subsection concerning the establishment of an escrow account, deposit of funds into escrow, and withdrawal therefrom commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, or the successor thereof. The failure to establish an escrow account or to place funds therein as required in this subsection is prima facie evidence of an intentional and purposeful violation of this subsection. (f) In lieu of the escrow required by this subsection, the director of the division shall have the discretion to accept other assurances in accordance with s. 721.08, provided that such other assurances are maintained at a minimum amount equal to the total common expense assessment payments for the then-current fiscal year. (g) The provisions of this subsection shall not apply to any payments made directly to a component site managing entity by the developer or a purchaser of a multisite timeshare plan. (4) The managing entity of a multisite timeshare plan shall comply fully with the requirements of s. 721.13, subject to the provisions of s. 721.13(11) for personal property timeshare plans; however, with respect to a given component site, the managing entity of the multisite timeshare plan shall not be responsible for compliance as the managing entity of that component site unless the managing entity of the multisite timeshare plan is also the managing entity of that component site. Unless the timeshare instrument provides otherwise, the operator of the reservation system is the managing entity of a multisite timeshare plan. (5)(a)1. The reservation system is a facility of any nonspecific multisite timeshare plan. The reservation system is not a facility of any specific multisite timeshare plan, nor is it a facility of any multisite timeshare plan in which timeshare estates are offered pursuant to s. 721.57. 2. The reservation system of any multisite timeshare plan shall include any computer software and hardware employed for the purpose of enabling or facilitating the operation of the reservation system. Nothing contained in this part shall preclude a manager or management firm that is serving as managing entity of a multisite timeshare plan from providing in its contract with the purchasers or owners' association of the multisite timeshare plan or in the timeshare instrument that the manager or management firm owns the reservation system and that the managing entity shall continue to own the reservation system in the event the purchasers discharge the managing entity pursuant to s. 721.14. (b) In the event of a termination of a managing entity of a nonspecific multisite timeshare plan, which managing entity owns the reservation system, irrespective of whether the termination is voluntary or involuntary and irrespective of the cause of such termination, in addition to any other remedies available to purchasers in this part, the terminated managing entity shall, prior to such termination, establish a trust meeting the criteria set forth in this paragraph. It is the intent of the Legislature that this trust arrangement provide for an adequate period of continued operation of the reservation system of the multisite timeshare plan, during which period the new managing entity shall make provision for the acquisition of a substitute reservation system. 1. The trust shall be established with an independent trustee. Both the terminated managing entity and the new managing entity shall attempt to agree on an acceptable trustee. In the event they cannot agree on an acceptable trustee, they shall each designate a nominee, and the two nominees shall select the trustee. 2. The terminated managing entity shall take all steps necessary to enable the trustee or the trustee's designee to operate the reservation system in the same manner as provided in the timeshare instrument and the public offering statement. The trustee may, but shall not be required to, contract with the terminated managing entity for the continued operation of the reservation system. In the event the trustee elects to contract with the terminated managing entity, that managing entity shall be required to operate the reservation system and shall be entitled to payment for that service. The payment shall in no event exceed the amount previously paid to the terminated managing entity for operation of the reservation system. 3. The trust shall remain in effect for a period of no longer than 1 year following the date of termination of the managing entity. 4. Nothing contained in this subsection shall abrogate or otherwise interfere with any proprietary rights in the reservation system that have been reserved by the discharged managing entity, in its management contract or otherwise, so long as such proprietary rights are not asserted in a manner that would prevent the continued operation of the reservation system as contemplated in this subsection. (c) In the event of a termination of a managing entity of a timeshare estate or specific multisite timeshare plan, which managing entity owns the reservation system, irrespective of whether the termination is voluntary or involuntary and irrespective of the cause of such termination, in addition to any other remedies available to purchasers in this part, the terminated managing entity shall, prior to such termination, promptly transfer to each component site managing entity all relevant data contained in the reservation system with respect to that component site, including, but not limited to: 1. The names, addresses, and reservation status of component site accommodations. 2. The names and addresses of all purchasers of timeshare interests at that component site. 3. All outstanding confirmed reservations and reservation requests for that component site. 4. Such
other component site records and information as are necessary, in the
reasonable discretion of the component site managing entity, to permit the
uninterrupted operation and administration of the component site, provided
that a given component site managing entity shall not be entitled to any
information regarding other component sites or regarding the terminated
multisite timeshare plan managing entity. (6) Prior to offering the multisite timeshare plan, the developer shall create the reservation system and shall establish rules and regulations for its operation. In establishing these rules and regulations, the developer shall take into account the location and anticipated relative use demand of each component site that he or she intends to offer as a part of the plan and shall use his or her best efforts, in good faith and based upon all reasonably available evidence under the circumstances, to further the best interests of the purchasers of the plan as a whole with respect to their opportunity to use and enjoy the accommodations and facilities of the plan. The rules and regulations shall also provide for periodic adjustment or amendment of the reservation system by the managing entity from time to time in order to respond to actual purchaser use patterns and changes in purchaser use demand for the accommodations and facilities existing at that time within the plan. The person authorized to make additions and substitutions during the term of the multisite timeshare plan shall also comply with the requirements of this subsection in ascertaining the desirability of the proposed addition, substitution, adjustment, or amendment and the impact of same upon the demand for and availability of existing plan accommodations and facilities. History.--s. 12, ch. 93-58; s. 26, ch. 95-274; s. 910, ch. 97-102; s. 41, ch. 2000-302; s. 28, ch. 2004-279.
721.57 Offering of timeshare estates in multisite timeshare plans; required provisions in the timeshare instrument.-- (1) In addition to meeting all the requirements of part I, timeshare estates offered in a multisite timeshare plan must meet the requirements of subsection (2). Any offering of timeshare estates in a multisite timeshare plan that does not comply with these requirements shall be deemed to be an offering of a timeshare license. (2) The timeshare instrument of a multisite timeshare plan in which timeshare estates are offered, other than a trust meeting the requirements of s. 721.08, must contain or provide for all of the following matters: (a) The purchaser will receive a timeshare estate as defined in s. 721.05 in one of the component sites of the multisite timeshare plan. The use rights in the other component sites of the multisite timeshare plan shall be made available to the purchaser through the reservation system pursuant to the timeshare instrument. (b) In the event that the reservation system is terminated or otherwise becomes unavailable for any reason prior to the expiration of the term of the multisite timeshare plan: 1. The purchaser will be able to continue to use the accommodations and facilities of the component site in which she or he has been conveyed a timeshare estate in the manner described in the timeshare instrument for the remaining term of the timeshare estate; and 2. Any use rights in that component site which had previously been made available through the reservation system to purchasers of the multisite timeshare plan who were not offered a timeshare estate at that component site will terminate when the reservation system is terminated or otherwise becomes unavailable for any reason. History.--s. 12, ch. 93-58; s. 911, ch. 97-102; s. 29, ch. 2004-279.
721.58 Filing fee; annual fee.-- (1) The developer of the multisite timeshare plan shall pay the filing fee required by s. 721.07(4)(a); however, the maximum amount of such filing fee shall be $25,000 or the total filing fee due with respect to the timeshare units in the multisite timeshare plan that are located in this state pursuant to s. 721.07(4)(a), whichever is greater. (2) The managing entity of the multisite timeshare plan shall pay the annual fee required by s. 721.27; provided, however, that the maximum amount of such annual fee shall be $25,000 or the total annual fee due with respect to the timeshare units in the multisite timeshare plan that are located in this state calculated pursuant to s. 721.07(4)(a), whichever is greater. History.--s. 12, ch. 93-58. |