The General Directorate of Public Registries and Notaries holds a dissenting view from that of the Supreme Court on the maximum duration of systems in existence before the 1998 Timeshare Act

RDO has furnished us with a Report dated 9 February 2016 which was issued by the General Directorate of Public Registries and Notaries at the request of the Ombudsman of the Canary Islands.

We believe that the interpretation reflected in this report is more in line with the spirit, the rationale and the mandatory provisions of the Rotational Enjoyment of Real Property for Tourism Purposes Act 42/1998 (LAT 42/1998).

It is important to stress that this Act was in fact developed within the General Directorate of Public Registries and Notaries. This Act incorporated the prescriptions of the 1994 Timeshare Directive, but it was also intended to respect the rights in existence before its enactment, albeit demanding the owners and/or promoters of this kind of touristic operation to have the pre-existing system registered, whether transformed into a system of in-rem or leasehold rights of rotational enjoyment or preserving its own pre-existing legal nature, whether subject to Spanish or to non-Spanish law, and whether its maximum duration was 50 years or more, or even indefinite if this was expressly declared in the Deed.

REPORT ON CURRENT SITUATION OF RIGHTS OF ROTATIONAL ENJOYMENT OF REAL PROPERTY CREATED BEFORE THE COMING INTO FORCE OF THE ACT OF 15 DECEMBER 1998

   (Click on the originals images-pages below for the Spanish version)

Informe DGRN 1-page-001

Following a request filed with the General Register of the Ministry of Justice on 16 December 2015, this report has been issued by this General Directorate with regard to a query made by the Canary Islands’ Ombudsman concerning the current situation of the rights of rotational enjoyment of real property created before the coming into force of the Act of 15 December 1998.

THE ASSISTANT DEPUTY DIRECTOR,

Elena Imedio Marugán

Informe DGRN 1-page-002

Sec. 3ª R. 1833/2015-10.4

REPORT ON CURRENT SITUATION OF RIGHTS OF ROTATIONAL ENJOYMENT OF REAL PROPERTY CREATED BEFORE THE COMING INTO FORCE OF THE ACT OF 15 DECEMBER 1998

            The report requested on the instruction of the Ombudsman of the Canary Islands focuses on the current situation of those rights of rotational enjoyment of real property which were created before the coming into force of the Timeshare Act of 15 December 1998.

            This request has been prompted by various Judgements of our Supreme Court (specifically the Judgements rendered on 15 January and 16 July 2015 by the Civil Chamber) which declare the nullity of certain contracts relating to rights of enjoyment –which had been created before the enactment of the aforementioned rule-, the execution date of such contracts being later than said coming into force.

            Both cases involved rights relating to occupation periods which were still owned by the promoter of the scheme.

            The Supreme Court, similarly in both cases, resolved the matter as follows:

“SEVENTH LEGAL GROUND

 I.- Act 42/1998 of 15 December regulated the different formulas enabling the transfer of the right to use an accommodation unit during a period of time each year, which had been known as multi-ownership despite the fact that, as stated in the Rationale, they involved a temporal division of the right to use a real property.

 In addition to implementing Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 –regarding protection to the purchasers in relation to certain aspects of contracts of acquisition of the right to use real property on a timeshare basis-, the legislator intended to provide the institution with a full set of regulations, for which purpose they considered of utmost importance to decide whether any of the formulas created by the principle of free will should be admitted or only the system regulated by Law was admissible and any other system should be therefore left out. And they chose a middle path by imposing a detailed regulation of the right in rem over somebody else’s property and admitting the seasonal leasehold variation so that, outside this alternative, the legislator considered that the transaction had been made in circumvention of law and, also, that the fraudulent legal transaction was to be rendered null and void –article 1, paragraph 7-.

 Of particular importance for the regulation established in the Act was the duration of the scheme, determined by article 3, paragraph 1, as lasting three to fifty years – “[…] from the date of registration of the legal scheme or from the date of registration of the completion of works where the scheme has been created in respect of a property under construction”-.

  This rule is supplemented by the second transitional provision, in which the legislator addressed the effects of the new regulation on the so-called “pre-existing schemes”, imposing the mandatory adaptation of the latter to its provisions within two years –paragraph 1 -.

Indeed, after imposing such an adaptation to the new scheme, also in relation to time – “without prejudice to that set forth in the last preceding paragraph, all pre-existing schemes…..

Informe DGRN 2-page-001

….will have a maximum duration of fifty years as from the coming into force of this Act […]” – , paragraph 3 of said transitional rule permitted the possibility of formulating, in the Deed of Adaptation, an “[…] express declaration of continuance for an indefinite or a specific period of time”.

 This latter alternative, informed by a wish to respect the rights already acquired, was chosen by Anfi Sales, SL, insofar as it expressly declared in the Deed of Adaptation that its pre-existing scheme would continue to have an indefinite duration.

 However, the appellant’s interpretation of the aforementioned paragraph 3 of the second transitional provision, on which it bases its argument, does not respect the sense which arises out of the systematic connection thereof to paragraph 2 of the transitional rule itself, whose content the former respects in any event – “without prejudice to that set forth in the last preceding paragraph […]” – and according to which every owner – also, therefore, the now appellant – who, after the Deed of Adaptation, wanted to “market the occupation periods not yet transferred as rights of rotational enjoyment”, should constitute “the scheme in respect of the periods available with the requirements established in this Act”, including the temporal requirement stablished in article 3, paragraph 1.

 The Appellant, claiming the applicability of a rule which did not provide sufficient coverage, failed to do this and, therefore, by marketing the occupation periods not yet transferred when the new Act was already in force without respecting the timeframe established in the rule of said article, it breached the article, as declared by the Appeal Court by virtue of a correct interpretation of the set of regulations (Supreme Court Judgement of 15 January 2015).

 Therefore, what our high court wanted to point out is that, while contracts entered into before the 1998 Act may continue to have the duration thereby agreed, including an indefinite duration (provided that this has been expressly established in the Deed of Adaptation), all contracts entered into after the coming into force of the rule must be subject to the temporal limits laid down therein (namely, a maximum duration of 50 years).

In other words, only those rights relating to occupation periods constituted in favour of third-party purchasers, not promoters of the scheme, whose contracts were entered into before the coming into force of the Act of 15 December 1998, are protected with an eventual indefinite duration.

The transitional provision applied in the aforementioned rulings is that contained in the Second Transitional Provision of Act 42/1998 of 15 December, which literally states as follows:

 

            “Second – Pre-existing Schemes

 

  1. Pre-existing schemes relating to rights involving the use of one or more properties, constructed or under construction, during a defined or definable period of the year, the establishment of which is recorded in any form recognised by law, must be adapted to the provisions of this Act within a period of two years.

             If the pre-existing scheme is registered, the Registrar may be asked to provide the non-binding report referred to in Article 355 of the Mortgage Regulations concerning the manner in which the adaptation is to be effected.

Informe DGRN 2-page-002

 At the end of the two years, any holder of an in-rem or personal right relating to the use of one or more properties during a defined or definable period of the year may apply to the Courts for the enforcement of the adaptation described in this provision.

  1. For such an adaptation it will be necessary, in any event, to execute a regulatory deed fulfilling those requirements of Article 5 which are compatible with the nature of the scheme and to have it registered at the Land Registry, solely for public record purposes and fully respecting the rights acquired. Of the contracts to which the said Article refers, only those which are in existence at the time of the adaptation must be incorporated. The deed must be executed by the sole owner of the property.

             If the pre-existing scheme was established in such a way that the holders of the rights are owners of undivided shares in the property which confer on them the right to enjoy a defined occupation period, the deed of adaptation must be executed by the President of the Community of Owners following a resolution passed by a simple majority of those attending the General Meeting to be called for that purpose.

 In the deed of adaptation, the sole owner of the property must describe the pre-existing scheme and declare that the rights to be conveyed in the future will be of the nature derived from that scheme and identical to those already transferred. If the owner wishes to market as rotational enjoyment rights the occupation periods which have not yet been transferred, they must also establish the scheme in respect of those unallocated periods subject to the requirements of this Act, albeit the scheme will not need to be established for the whole property but only in respect of those occupation periods which have not yet been transferred. If the Owner wishes to convert the whole scheme into a scheme of rotational enjoyment rights, as regulated by the Act, they may do so in accordance with all the requirements contained herein, albeit maintaining the duration of the pre-existing scheme, even if such a duration is indefinite.

  1. Without prejudice to the provisions of the last preceding paragraph, all pre-existing schemes will have a maximum duration of fifty years from the coming into effect of this Act unless their duration is shorter or the deed of adaptation contains an express statement that they are to continue for an indefinite period or for a specific period of time.”

             In a wider sense, the provisions on transitional regulations contained in our Civil Code (whose interpretative value may in no event be called into question) included the basic rule of non-retroactivity, along the same lines as article 2 of the same body of laws and article 9 of the Spanish Constitution, guarantor of legal certainty and non-retroactivity of penalty provisions which are not favourable to, or restrictive of, individual rights.

Our Code on transitional provisions sets forth that:

“Any variation introduced by this Code which is detrimental to rights acquired under the preceding civil legislation will not have retroactive effect.

 

First transitional provision

 The legislation which preceded the Code shall govern those rights which, according to said preceding legislation, arise from actions performed under its regime, even if these are regulated differently or fail to be recognised by the new Code. However, where a right is declared for the first time in the Code, it will take effect immediately irrespective of whether or not the fact from which it arose was verified under the preceding legislation, provided that it is not detrimental to another acquired right of the same origin.

Informe DGRN 3-page-001

Second transitional provision

 Acts and contracts executed under the preceding legislation which are valid according to it shall take full effect in accordance thereto, with the limitations established in these rules. (…) but the revocation or modification of such acts or of any clause contained therein may only be verified, after the coming into force of the Code, by executing a Will in accordance with it.”

 The literal wording of the rules analysed clearly shows the establishment of a non-retroactivity system whereby the rights, acts and contracts created before the publication of the rule were fully protected and regulated by the preceding regulations.

In this sense, despite being reiterative, it is relevant to point out that the Second Transitional Provision of the 15 December 1998 Act states as follows:

Pre-existing schemes must be adapted, within two years, to the provisions of this Act. For such an adaptation it will be necessary, in any event, to execute a regulatory deed fulfilling those requirements of Article 5 which are compatible with the nature of the scheme and to have it registered at the Land Registry, solely for public record purposes and fully respecting the rights acquired.

            In the deed of adaptation, the sole owner of the property must describe the pre-existing scheme and declare that the rights to be conveyed in the future will be of the nature derived from that scheme and identical to those already transferred.

If the owner wishes to market as rotational enjoyment rights the occupation periods which have not yet been transferred, they must also establish the scheme in respect of those unallocated periods subject to the requirements of this Act, albeit the scheme will not need to be established for the whole property but only in respect of those occupation periods which have not yet been transferred.

 If the Owner wishes to convert the whole scheme into a scheme of rotational enjoyment rights, as regulated by the Act, they may do so in accordance with all the requirements contained herein, albeit maintaining the duration of the pre-existing scheme, even if such a duration is indefinite.

 Without prejudice to the provisions of the last preceding paragraph, all pre-existing schemes will have a maximum duration of fifty years from the coming into effect of this Act unless their duration is shorter or the deed of adaptation contains an express statement that they are to continue for an indefinite period or for a specific period of time.”

 This provision, therefore, demands that pre-existing schemes be duly adapted to the new Act (mainly in the sense of clarifying the nature of the right created), but it allows a subjection to certain conditions of the preceding scheme including, without a doubt, the possibility of indefinite duration. And such an indefinite duration can apply both to occupation periods created and transferred and to those not yet transferred.

Also, executing the deed of adaptation entails, by virtue of mandatory rule no. 3 of article 5.1 of the 1998 Act, that the deed must reflect the occupation periods which exist in relation to each unit, including both those transferred and those still in possession of the promoter of the scheme. In addition, the Second Transitional Provision of the aforementioned special Act itself allows both the possibility of configuring a right of rotational enjoyment in respect of the unsold occupation periods and the conversion of all the existing rights (sold or…..

Informe DGRN 3-page-002

….unsold) for a full subjection thereof to the rule, albeit allowing it to maintain the duration of the pre-existing scheme, even if indefinite. It does not seem logical to allow the promoter to configure all the occupation periods under the new scheme (not under a mere adaptation) and maintain the indefinite duration of the scheme while, at the same time, the situation of the as yet unsold periods (although already created as such occupation periods before its coming into force) may not be configured under the new Act preserving its indefinite duration.

Additionally, and included in this report for its interpretative value as aforesaid, it is worth pointing out that the rules of the Civil Code on transitional law acknowledge the validity and ulterior applicability of all rights, acts and contracts executed before its coming into force, which means that, in a case like this, where the right of the promoter of the scheme had already been created on configuring –before the 1998 Act– the units and the occupation periods or rights relating to them, the publication of the new rule should not impair or alter such legal situations already created or the effects which the latter may have.

Therefore, the conclusion to be drawn is that our high court has differentiated between occupation periods already marketed (which are allowed to maintain their indefinite nature) and those not transferred, whose indefinite duration they regard as a breach of the 50-year temporal limitation, which infraction is acknowledged as deserving to be rendered null and void under article 6 of our Civil Code. This argument, therefore, differs from the sense which, in this directorate’s view, is intended by the 15 December 1998 Act for the purposes of adaptation of pre-existing schemes to its substantive provisions.

It is not reasonable that the whole system of enjoyment should be allowed to be converted to the new Act (where marketed and unsold periods coexist) and maintain the indefinite duration of all its occupation periods while, in the event that only the periods not marketed are directly regulated by the new Act, their duration is limited to 50 years. The rotational system, in both cases, existed before the coming into force of the rule, and it involves a number of rights in favour of the promoter (all of them included and defined in the deed of adaptation imposed by the transitional rule and registered with the Land Registry) to which the rule is applied retroactively, without respecting their indefinite duration.

Transferring the occupation periods already configured to a third party may not be considered to constitute the event which allows a differentiation between indefinite and limited duration periods, as the promoter’s right has, without a doubt, come into existence, and its configuration took place before the coming into force of the Act, not to mention that some of the paragraphs of the Second Transitional Provision of the 1998 Act are thereby fully voided.

Madrid, 8th February 2016.

THE DIRECTOR GENERAL

Francisco Javier Gómez Gálligo

Lizarza AbogadosS.L.P.U.

Marbella, 9th March 2016

EL TIEMPO COMPARTIDO, CLAVE DE FUTURO PARA EL NEGOCIO HOTELERO

ICONO MEDIO ESPAÑA

 

  SEMINARIO EN TENERIFE

 

 

JORNADAS INFORMATIVAS “EL TIEMPO COMPARTIDO, CLAVE DE FUTURO PARA EL NEGOCIO HOTELERO”

El próximo jueves 21 de mayo de 10:00 a 13:00 horas, ASHOTEL y RDO España celebrarán en el Hotel SANTA BARBARA GOLF AND OCEAN CLUB, una interesante jornada informativa dirigida a inversores, empresarios y profesionales del sector hotelero canario.

 ASHOTEL y la Patronal de Tiempo Compartido, RDO España, entienden que el Tiempo Compartido se postula con fuerza como una alternativa viable para los negocios hoteleros tradicionales, ya que les ofrece la posibilidad de fidelizar al cliente y desestacionalizar su actividad, mejorando sus ingresos y cifras de ocupación en temporada baja.

Las ponencias serán impartidas por expertos en la gestión, explotación y comercialización de complejos de Tiempo Compartido.

La participación es gratuita, previa inscripción. Fecha límite para inscribirse: lunes 18 de mayo.

Inscripción Online

Descargar Programa

RDO:THE EUROPEAN TIMESHARE INDUSTRY 2013 – Market Characteristics Report

201411141921_0002201411141943_0001PAGINA 3PAGINA 4PAGINA 5PAGINA 6PAGINA 7PAGINA 8
PAGINA 9PAGINA 10PAGINA 11PAGINA 12PAGINA 13PAGINA 14
DELIVERED BY RESORT DEVELOPMENT ORGANISATION (RDO)

THE MARKET RESEARCH GROUP -FERN BARROW – TALBOT CAMPUSPOOLE – DORSET BH12 5BB  – U.K.T- +44 (0)1202 961377 – e. mrg@bournemouth.ac.uk

 

 

SEPTEMBER: A very good month***** SETIEMBRE: Un gran mes

ICONO PEQUEÑA BRITANICA

With 6.5 million tourists in all and a 4.7% year-on-year growth, Spain has once again hit an all-time high in international arrivals in the month of September compared with the same month in previous years.
The absolute growth in number of tourists (294 thousand) was due to positive variations in most markets, especially Russia, the Nordic countries and the UK.

TOURIST ARRIVALS IN SEPTEMBER 2013 BY COUNTRY: 1st. – United Kingdom: 1.7 million   – 2nd. – Germany: 1.2 million    3rd. – France: 812 thousand  and  Other countries: 2,788 thousand – TOTAL 6,500 thousand.

boton bamder esp. pequeño

Con un total de 6,5 millones de turistas internacionales y un crecimiento interanual del 4,7%, España vuelve a registrar un nuevo máximo histórico en las llegadas internacionales en un mes de septiembre con respecto al mismo mes de años previos.- Este mes, el crecimiento absoluto de turistas (294 mil) se debió a variaciones positivas en la mayoría de mercados, especialmente en Rusia, países nórdicos y Reino Unido.

 ENTRADA DE TURISTAS EN SEPTIEMBRE 2013 POR PAÍSES: Reino Unido: 1,7  millones – Alemania: 1,2 millones – Francia: 812 mil – Demás países: 2.788 mil – TOTAL 6.500 mil

Source: ITE – http://www.iet.tourspain.es   Fuente:  ITE  – www.iet.tourspain.es

TOURIST MOVEMENT ACROSS SPANISH BORDERS

(DATA FOR THE MONTH OF APRIL 2013).

4.6 million international tourists in total visited Spain in April, 3.1% more than during the same month in 2012. This figure is the result of an excellent response to the existing demand and represents the best figure for this month over the last five years. The better part of such an increase corresponds to tourists from United Kingdom and the Nordic countries.

 Of special note once more is the Russian market with a 45.5% increase during this month.

14 million tourists visited Spain during the first four months of this year, a 2.5% increase over the same period in 2012. France and the Nordic countries lead such an increase.

This four-month period (January to April 2013) will see a higher number of arrivals than the previous four years.

 SOURCE MARKETS

United Kingdom is the market which made the highest contribution in April to the growth of international tourism in Spain, with 68 million arrivals more and its third consecutive month on the up.

France, second source market during the month, grew by 2.2% with the Comunidad Valenciana as the main recipient of the increased flow of tourists.

Germany fell by 4.7% this month after growing for two consecutive months.

The Nordic countries continued the strong increase of the preceding months with a 14.1% growth.

Italy put an end this month to the preceding months’ decreases and experienced a 2.1% growth. Comunidad de Madrid was the destination that saw the largest increase.

Data Source: Trend note for April 2013 issued by FRONTUR (Spanish Ministry of Tourism).

MOVIMIENTOS TURISTICOS EN FRONTERAS DE ESPAÑA

DATOS POSITIVOS DEL MES DE ABRIL DE 2013

 Durante el mes de abril visitaron España un total de 4,6 millones de turistas internacionales, un 3,1% más que en el mismo mes de 2012. Este resultado es fruto de una excelente respuesta de la demanda, y se alcanza la mejor cifra de los últimos 5 años para este mismo mes.

Reino Unido y los países nórdicos concentraron la mayor parte del ascenso.

El mercado ruso vuelve a despuntar este mes con un notable crecimiento del 45,4%.

En los cuatro primeros meses del año, España fue visitada por 14 millones de turistas, cifra un 2,5% superior a la alcanzada en el mismo periodo de 2012. Francia y los países nórdicos lideran esta subida.

 Este cuatrimestre (de enero a abril de 2013) acumula un número de llegadas más alto que en los 4 años anteriores

 MERCADOS EMISORES

Reino Unido ha sido en abril el mercado que más ha contribuido al crecimiento de los turistas internacionales en España, con 68 mil llegadas más, acumulando tres meses sucesivos de avances.

Francia, segundo mercado emisor del mes, creció un 2,2%, siendo la Comunidad Valenciana la principal receptora de este mayor flujo de turistas.

 Alemania retrocedió este mes un -4,7%, tras dos meses sucesivos de avances.

Los países nórdicos continuaron con los fuertes crecimientos de los meses de atrás, protagonizando un avance del 14,1%.

Italia rompió este mes con los descensos de los meses anteriores, registrando un crecimiento del 2,1%. La Comunidad de Madrid fue el destino que más se incrementó.

Fuente de datos:  Nota de coyuntura de abril de 2013 de FRONTUR (Ministerio de Turísmo de España).

RUEDA DE PRENSA CONJUNTA PATRONATO DE TURISMO DE LA COSTA DEL SOL, ASOCIACIÓN DE EMPRESARIOS DE HOTELES Y APARTAMENTOS TURÍSTICOS Y RDO-ESPAÑA

DE izquiera a derecha: Sr. Aranda (Gerente Ahecos), Sr. Zapico (RCI), Sra. Suero (Interval Internacional) Sr. Bernal (Gerente Patronato de Turismo) y F.J. Lizarza (Lizarza Abogados

DE izquiera a derecha: Sr. Aranda (Gerente Ahecos), Sr. Zapico (RCI), Sra. Suero (Interval Internacional) Sr. Bernal (Gerente Patronato de Turismo) y F.J. Lizarza (Lizarza Abogados)

El pasado día 16 de mayo se celebró en la sede del Patronato de Turismo de la Costa del Sol una reunión a las que asistieron el Gerente de dicho Patronato Sr. Bernal, el Gerente de la Asociación de Empresarios de Hoteles y Apartamentos Turísticos de la Costa del Sol Sr. Aranda, y por parte de RDO España sus Vicepresidentes Sr. Lizarza y Sr. Zapico y la Gerente Sra. Rodriguez con motivo de la incorporación como miembro del Patronato de la organización empresarial europea RDO a través de su Capítulo español. Tras la reunión se celebró una rueda de prensa conjunta a la que asistieron los principales medios de comunicación de la Costa del Sol y Málaga (TV, radio, prensa escrita y agencias de noticia de ámbito nacional). Dicha amplia cobertura y difusión por lo que se adjuntan recortes d prensa y enlaces a los medio digitales que ha recogido estas noticias.

EUROPA-PRESS 16.05.13

http://m.europapress.es/andalucia/malaga-00356/noticia-mas-800000-turistas-eligen-alojamientos-tiempo-compartido-costa-sol-veranear-20130516153940.html

ANAQUEL DE PRENSA 

Anaquel de Prensa RDO España 130520

DIARIO.SUR

http://www.diariosur.es/20130516/local/turismo/complejos-tiempo-compartido-generan-201305161406.html

FINANZAS.COM

http://www.finanzas.com/noticias/empresas/20130516/complejos-tiempo-compartido-generan-2322811.html

LA OPINION 17.05.13                       SUR 17.05.13

ANUNCIO PREVIO DE LA DIPUTACIÓN DE MÁLAGA

http://www.malaga.es/buscar/?cod=3201&com1_fc=0&com1_md3_

ADAPTATION OF PRE-EXISTING TIMESHARE SYSTEMS AND THE NEW SPANISH ACT 4/2012 OF 6th JULY.

1.- The second transitory provision of the former Spanish Act of 1998 on Timeshare or Rotational Enjoyment (Act 42/1998 of 15th December) established the obligation for all timeshare systems in existence prior to its coming into force to be adapted to its own provisions “insofar as such an adaptation is consistent with the legal nature of the rights previously created”.

 The way in which the verb “to adapt” was used in this Act was, in my view, inevitably confusing as to the legal implications of such an obligation. If the first meaning of the verb to adapt in Spanish is to “accommodate, adjust to something else”, we  have to conclude that any pre-existing system should by virtue of the said adaptation have accommodated its legal structure to the new right of “rotational enjoyment”.

 However, such an adaptation, which in a literal sense involved changing the nature of the pre-existing right into the new right of “rotational enjoyment” created ex novo by the Act itself, was only one of the possibilities which the word adaptation includes, as it also included the possibility of:

 –          not changing anything with regard to the legal nature of the pre-existing right albeit an obligation existed to “make it public” by execution of a public deed which should explain the kind of right involved, the legal nature which the said right preserved and an express choice for its duration to continue to be the same for which it had been originally created or shorter. Such a deed of adaptation was then registered at the Land Registry, to which all interested parties have public access, thus providing the protection before third parties which such a registration involves according to Spanish Law; or

–          adopting a mixed solution: to adapt some rights (generally those not yet marketed) to the new legal definition and simply make the pre-existing system public with regard to those already marketed.

 The deadline for such an adaptation to be carried out was TWO YEARS from the coming into force of the Act. Nothing prevented the adaptation from being carried out after the said deadline, provided that evidence of its pre-existence was furnished by any means admitted in Law, albeit this involved the imposition of legal sanctions including the possibility of demanding adaptation through the Courts (final paragraph of 2nd Transitory Provision).

 Experience regarding such a mandatory “adaptation” tells us that only in very few cases were pre-existing systems adapted and therefore changed from a legal point of view into the new rights of “rotational enjoyment”. The same experience leads us to conclude that the adaptation merely consisted of giving public status to the nature and rules of the pre-existing legal system by way of a public deed and that, in most cases, a decision was made to “expressly maintain” its original duration, whether it was over 50 years or indefinite in the case of a Club membership which had been established without any time limitation or it related to multi-ownership or to full ownership by shares of a unit which, by definition, is a perpetual right.

F. Lizarza

 2.- The new Act 4/2012, whereby Directive 2008/122/EC was incorporated into Spanish Law, also has a transitory provision which contemplates numerous rules and different possibilities for adaptation, which in this sense entailed a continuation of the possibilities offered or, where applicable, demanded, by the former Act 42/1998.

 But what Act 42/1997 contemplated as an obligation is only an option in the new Act 4/2012 and, while there were three adaptation rules in the former (adaptation as the transformation of a pre-existing right into a right of “rotational enjoyment” defined by Spanish Law, as the mere publication of the pre-existing right without altering its legal nature or as a combination of the two, i.e. with the transformation of the non-marketed rights and the mere publication of those already marketed), the regulations currently in force offer a wider range which, in summary and stressing the fact that this is the undersigned’s interpretation of the current regulations, is as follows:

  • The rights which existed prior to Act 42/1998 (and, therefore, the legal scheme by which they were created) and were by the transformation of their very nature adapted to the rights of rotational enjoyment (whether they were limited rights in rem or leasehold rights) may, if considered suitable, be adapted again to any of the modalities recognised by the new Act 4/2012.
  1. Similarly, the pre-existing rights which were merely made public can be so published again, if considered suitable (as this is not mandatory as aforesaid), in order to be adapted to any one of the said modalities.
  2. Special mention should be made to the possibility similarly to adapt to the new Act 4/2012 the contracts and legal systems which, although in existence before the 1998 Act, were never adapted to Act 42/1998, although a time limitation is established on the duration of these rights whereby their lifetime may not exceed that established as non-adaptation penalty in the former Act, i.e. their lifetime may not be in excess of fifty years from the date on which the said rule came into force (5th January 1999) even if they had been originally constituted for a longer period or their duration was indefinite.

 It is interesting at this point to analyse what will happen after the elapse of the maximum 50-year period with the legal systems which existed  before, and were never adapted to, Act 42/1998, even if only in respect of the two majority systems – i.e. the personal rights system subject to non-Spanish Law called Club/Trustee and the functional community of property system subject to Spanish Law called “multi-ownership”.

 My view is that, in the first case, the Club (and, therefore, the system) must be dissolved or liquidated unless an extension thereof is agreed by its members, although this would not be binding on the dissenting members who may always choose to leave the Club, obviously also in this case with the possibility of the relevant civil sanctions being applied.

 In the second case, the functional multi-ownership community would be terminated by operation of Law and it would become an ordinary community of property, which would entail the application of the regulation provided for by the Civil Code whereby the allocation of annual occupation periods inherent in each owner’s undivided share would disappear. It is questionable whether each member would be entitled to a preferential right of purchase in the event that any owner decided to transfer their share, or that each member would be entitled to apply for the division of the communal thing (if capable of being divided) or the sale thereof for the proceeds to be distributed in proportion to the share owned by each member, as this would be a functional community which is characterised by the purpose of the property. I understand that, on the basis of this interpretation, such rights of division (which on the other hand is physically impossible) or pre-emption would not apply, but this is open to debate.

 From the foregoing and the literal wording of the Sole Transitory Provision of Act 4/2012 can be inferred that all systems in existence before the enactment of the new Act 4/2012 can be adapted to it, whether by its mere publication or by transforming its very legal nature “in any one of the forms” recognised by the said Act.

 Therefore, in order to study the content of the adaptation to the new Act where the legal nature of the pre-existing right is transformed, the various forms of adaptation admitted by the said Act need to be specified.

 The modalities expressly admitted in Title II of the Act are obviously two: the limited right in rem of rotational enjoyment defined by Spanish Law and the personal-leasehold right of rotational enjoyment.

 But also, in my opinion, Section 23.8 recognises the validity of any other contractual modality of creation of personal rights or rights of an associative nature with the same objective scope, constituted under and on the terms provided for by the regulations of the EU and, particularly, in accordance with the Rome I Regulation, i.e. personal rights subject to non-Spanish Law.

This rule, therefore, would indicate that voluntary adaptation to Act 4/2012 of systems constituted before its coming into force (whether or not before the 1998 Act) may transform the pre-existing system in one of the following ways:

 –          Personal right in rem systems, whether or not subject to Spanish Law, in existence before the enactment of Act 42/1998, or personal right systems subject to non-Spanish Law constituted before or after the said Act under the 1980 Rome Convention (and, where applicable, the EU Regulation ROME I), can be transformed into legally-defined right of rotational enjoyment systems, of an in-rem or a leasehold nature, but may in no event become personal rights subject to Spanish Law (due to their lack of legal recognition) which, on the other hand, seems incomprehensible.

  • Thus, the predominant pre-existing Club-Trustee system or any other system created under international rules may be transformed into a right of rotational enjoyment system as defined by Spanish Law, in the form of a limited right in rem or seasonal leasehold, or into any other kind of legal system subject to non-Spanish law if so allowed by the latter.
  • It is more questionable to determine whether the system that was usual in Spain before the 1998 Act (i.e. multi-ownership or functional community), in existence before Act 42/1998, can be adapted following the same transformation as aforesaid, that is, even becoming a personal right subject to non-Spanish law. I understand that it cannot as, owing to its in-rem nature, the Spanish rule applies (lex rei sitae – law of the place where the property is situated) and neither 1980’s Rome Convention nor the Rome I Regulation are applicable.

 –          The right in rem of rotational enjoyment defined by Spanish Law, whether created as a new right following the coming into force of Act 42/1998 or by modification of existing rights in accordance with the latter, may also be transformed into the personal-leasehold right of rotational enjoyment defined by Law, and vice versa.

 But such legally-defined rights of rotational enjoyment, where they are of a personal nature, may also be changed into any “personal” right subject to non-Spanish law. The most controversial issue will be the position of those who dissent from such an agreement or fail to attend: The rules and regulations of the modified system will apply in any event.

 I am aware that my interpretation of the latter possibility, which I believe the legal regulation allows, may not be shared, but I must stress that its literal wording does allow it as there is no express or tacit prohibition to do so and, more importantly, there does not seem to be any valid reason to prohibit it.

 –          There is one final possibility, i.e. adapting the “marketed” rights only to the extent that they are made public or not to making them public at all while the legal nature of the “non-marketed” rights is transformed in the manner allowed by the former Act 42/1998. The latter Act having been repealed, there is no specific legal coverage to do this, but I consider that it is not in contravention of any law either.

 All of the above, as has been pointed out, is without prejudice to the mandatory observance of the legal regulations applicable to each system and of its own rules in passing the transformation resolutions and without prejudice to the limits set by the respect of the rights acquired by each holder of a specific right.

Francsco J. Lizarza

NORMATIVA COMUNITARIA Y LEY ESPAÑOLA DE APROVECHAMIENTO POR TURNO

 Artículo doctrinal de José Manuel Hernández Antolín

Aunque hace ya  más de un año que se incorporó en ley española la Directiva 2008/112/CE de Aprovechamiento por Turno. Recientemente se publicó  un extenso artículo del Registrador de la Propiedad excedente y Notario Sr. Hernández Antolín en el Libro denominado “Estudios de Derecho Civil en Homenaje al Profesor Joaquín José Ram Albesa”, con el título “El Estado Actual de la Legislación sobre el Derecho de Aprovechamiento por Turno: Directiva Comunitaria y Futura Norma Interna”.

Estimamos que en un documento de consulta muy importante para conocer la génesis de la actual Ley 4/12 de 6 de julio de 2012 de Aprovechamiento por Turno de Bienes Inmuebles de Uso Turístico.

Además disponemos de la versión actualizada por el propio Sr. Hernández Antolín tras culminar el proceso legislativo de la citada Ley con su promulgación.

Ambos textos puede ser consultados en

www.lizarza.com/repertorio  –     entradas días 2012.08.08 y 2013.10.05