The list of frequently asked questions (FAQ) of category ‘before you join Anfi’ and ‘after you have joined Anfi’ are taken from the former website of The Association of European Anfi Members’ Clubs and should be answered by Anfi in writing if you plan to buy weeks there. Answers you may also find on this web site.
FAQ about claims with illegal contracts
The Spanish law 42/1998, coming into force 5th January 1999, demands that all contracts after this date should have a maximum duration of 50 years beginning at that date or after the date of building the timeshare resort (not the date of signing the contract). This is the recent interpretation of the Spanish Supreme Court spring 2015. The law is not clearly written and was misinterpreted by the whole timeshare industry including Anfi in ‘good faith’ to allow (now illegal) in-perpetuity contracts.
The law knows only fixed weeks that can be exchanged on an annual basis and must have in the contract a reference to the timeshare subject (apartment number and week). This means that so called floating weeks must have also such a reference.
Contracts are also illegal if the purchase price has been paid within the 10 or 14 days cooling-off period after signing the contract.
Not at all. The contract is not per se illegal but only if a court declares it as illegal.
The contracts are null and void and the two partners who have signed the contract have to exchange back the goods / services they have received: Anfi becomes the week back and the claimant up to the double of the purchase price (reduced by the years used over 50 years) if he had paid within three month after signing the contract, including (in same cases up to now) the maintenance fee.
Reimbursement of the legal cost is only possible if the claimant wins the case ‘full’. Otherwise only the legal interest of the pay back money are payed since lodging the legal action.
(1) A first instance court decided that illegal in-perpetuity contracts are not illegal in the transition period of two years after the law came into force 6th January 1999.
(2) There was a judgement of the Supreme Court in November 2017 where pay back of maintenance fee was dismissed (otherwise it would be a free holiday).
There are to groups. One group can for various private reasons not enjoy their using right anymore and does not accept that there is no buyback program with fair prices. The other group has made from their point of view bad experience with Anfi Sales (including Anfi Vacation Club and Customer Service) and feel that they have not got what they have been promised. This two groups take the ‘opportunity’ to leave Anfi with money paid back.
The vast majority of members are happy with their using right but some may in future also take this opportunity.
Legally not. They have a resell program only for fixed weeks in a timewise lengthy process and low pay back prices with no guaranty at all that the weeks are sold again.
By the end of 2014, all Resort Development Organisation (RDO) members, where Anfi is member too, were required to have some form of an self-regulating exit programme in place, and any deserving cases – for example due to death of one owner or ill health or old age – had to be dealt with swiftly and sympathetically.
Anfi does not look for any out of court agreement with the claimant and appeals any judgement in favour of the claimant up to the high court (second instance). After more than 30 defeats at the Supreme Court appealing to it makes no sense anymore. The aim is to make claims as time consuming (up to two years and more) and costly as possible. For the same reason they demand also that the claimant should appear at court in person. But since they lose in almost all cases this backfires and is costly for them too.
If or not the claimant demands maintenance fees back Anfi demands much higher hotel costs back (“the holiday cannot be free”).
The new constitutions restrict the contract duration to rolling 50 year periods without cost for the next period. New contracts based on this comply with the law. If old contracts can still be declared as illegal at court is a legal question not answered yet. Some think that the contract is between two partners and cannot be changed by a new constitution with the majority of only those who have voted. Other think that the new constitution overrides the contract because the free of cost rolling 50 year periods are in practical terms the same as the unlimited duration of using rights.
They could create a ‘real’ resell & repurchase program. Members who consider to make a claim or have already started to make a claim would get a fair price for their weeks. Maybe the program would be for all members. With that Anfi can only go so far as the financial situation allows it. Bankruptcy of Anfi is neither in the interest of Anfi nor members.
Hard to tell. Normally another owner would take over the resort granting the contracts of existing members based on the law, but the legal problem would still exist. A further problem may be that the bank accounts of the resort for maintenance fee and reserves are owned by Anfi Sales as a credit to them. If there is no new owner all is lost.
Law 42, 1998, Article 1, paragraph 2 says: “… However, it is allowed that the same real estate complex be subject at the same time to a timeshare rights system and to any other kind of tourist operation, provided that the timeshare rights relate to specific accommodation units, for specific periods.”
This means that the club cannot be turned completely into a hotel but mixed use is possible granting the user rights of existing contracts. A hotel affords enhanced services not existing yet. It is possible but not sure that Anfi will do it because there are many pros and cons.
FAQ about new contracts
Since 2018 Anfi has new contract forms for replacement contracts of illegal floating week contracts and new membership contracts. New are the consequences of non-payment and nullity of contracts. Former floating weeks can become fixed weeks which can be exchanged.
Timeshare is completely different to a holiday in a hotel. It is a long-term using right (up to 50 years) of an assigned apartment and week in a non-profit club regulated by the EU timeshare law. The using right may be exchanged on a yearly basis.
The club member has to pay the purchase price (“entrance fee”) and the yearly maintenance fee. The maintenance fee includes the administration, all expenses and what goes into the replacement font. It is payed on a non-profit bases, that means the member pays only the cost.
Non-payment of maintenance fee is a pivotal breach of contract. If the member fails to pay the outstanding amount after an announced deadline of 30 days, the member has to pay 1.5 % interest per month. If the fee is not settled after one year the contract is dissolved. Anfi can then sell the weeks again with regularly prices.
The same is true for non-payment of outstanding amounts of the purchase price. In this case the already paid amount is withhold (not payed back).
If the member cancels the contract or declares it as nullity, or if the contract is declared as nullity in any other way including declaring it null and void by court decision the member must pay retrospectively much higher “hotel cost” instead of the maintenance fee for all used weeks in the past.
This “hotel cost” range in 2018 from 298.00 € to 500.00 € per night in low season to 373.00 € to 625.00 € per night in high season dependig of the size of the apartment.
It’s not the same but the results are the same.
If a member takes Anfi to court to have his illegal contract (unlimited contract duration and / or floating weeks without assignment of certain apartment and week) declared as null and void with demanding purchase price and maybe maintenance fee back, Anfi counters with a claim to pay “hotel prices” for used weeks over the years. Up to now there is no court sentence about this and it may go up to the Supreme Court.
The new contract makes no difference between the consequences of non-payment of maintenance fee (cancellation, dissolving the contract) and nullity (declaring the contract as null and void by court). In both cases the premature ending of the long term contract is seen as a breach of contract.
The EU timeshare law says nothing about this.
The timeshare contract and the exchange contracts are separated.
The member can join AVC (Anfi Vacation Club) as week or point member and / or join the so called Anfi Flex Program. With the AVC he can exchange weeks internally over all clubs of Anfi or externally over RCI.
With the so called Anfi Flex Program he can exchange his weeks up to 5 years in his home club (where the weeks belong to). If not cancelled by the member the program is automatically renewed by further 5 years.
If AVC is terminated the member falls back to the Anfi Flex Program if he is member of it too. Otherwise he can use his fixed weeks. If he terminates the Anfi Flex Program he can use his fixed weeks.
Whereas within AVC the member can decide on a yearly basis to exchange or not (use his own fixed weeks) he must exchange within the Anfi Flex Program 5 years before he can use his own weeks at termination.
The assigned fixed weeks of displacement contracts may not be temporally consecutive and so of disadvantage for fixed use.
First the member can take Anfi to court to check if the contract non-payment clause is valid with the law. This may take years …
If Anfi succeeds at court the consequences of non-payment may also apply to old contracts.
Further the member can try to sell his weeks on the private resale market (with low price or just give them away) or let Anfi try to sell them paying back a modest price (Anfi sells them regularly with full price). In both cases there is no guaranty if this works.
Anfi has the right to refuse. Before a resale Anfi has to be notified about a planed resale and can buy the weeks based on the same conditions.