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