The Florida Senate

721.05  Definitions.--As used in this chapter, the term:

(1)  "Accommodation" means any apartment, condominium or cooperative unit, cabin, lodge, hotel or motel room, campground, or other private or commercial structure which is situated on real or personal property and designed for occupancy or use by one or more individuals. The term does not include an incidental benefit as defined in this section.

(2)  "Agreement for deed" means any written contract utilized in the sale of timeshare estates which provides that legal title will not be conveyed to the purchaser until the contract price has been paid in full and the terms of payment of which extend for a period in excess of 180 days after either the date of execution of the contract or completion of construction, whichever occurs later.

(3)  "Assessment" means the share of funds required for the payment of common expenses which is assessed from time to time against each purchaser by the managing entity.

(4)  "Closing" means:

(a)  For any plan selling timeshare estates, conveyance of the legal title to a timeshare period as evidenced by the delivery of a deed to the purchaser or to the clerk of the court for recording or conveyance of the equitable title to a timeshare period as evidenced by the irretrievable delivery of an agreement for deed to the clerk of the court for recording.

(b)  For any plan selling timeshare licenses, the final execution and delivery by all parties of the last document necessary for vesting in the purchaser the full rights available under the plan.

(5)  "Common expenses" means:

(a)  Those expenses properly incurred for the maintenance, operation, and repair of the accommodations or facilities, or both, constituting the timeshare plan.

(b)  Any other expenses designated as common expenses in a timeshare instrument.

(6)  "Completion of construction" means:

(a)

1.  That a certificate of occupancy has been issued for the entire building in which the timeshare unit being sold is located, or for the improvement, or that the equivalent authorization has been issued, by the governmental body having jurisdiction; or

2.  In a jurisdiction in which no certificate of occupancy or equivalent authorization is issued, that the construction, finishing, and equipping of the building or improvements according to the plans and specifications have been substantially completed; and

(b)  That all accommodations and facilities of the timeshare plan are available for use in a manner identical in all material respects to the manner portrayed by the promotional material, advertising, and public offering statements filed with the division.

(c)  Notwithstanding the provisions of paragraph (b), a seller of a timeshare plan that is not a multisite timeshare plan may portray possible accommodations or facilities to prospective purchasers in advertising material or a public offering statement filed with the division without such accommodations or facilities being available for use by purchasers so long as the advertising material or public offering statement complies with the provisions of s. 721.11(4).

(d)  Notwithstanding the provisions of paragraph (b), a developer of a timeshare plan that is not a multisite timeshare plan may portray the general geographic location of possible accommodations or facilities to prospective purchasers by disseminating oral or written statements regarding same to broadcast or print media with no obligation on the developer's part to actually construct such accommodations or facilities or to file such accommodations and facilities with the division, but only so long as such oral or written statements are not considered advertising material pursuant to s. 721.11(3)(e). For purposes of this paragraph, the term "general geographic location" means the boundaries of a state or country.

(e)  Notwithstanding the provisions of paragraph (b), a seller of a multisite timeshare plan may portray possible component sites to purchasers pursuant to s. 721.553.

(7)  "Conspicuous type" means:

(a)  Type in upper and lower case letters two point sizes larger than the largest nonconspicuous type, exclusive of headings, on the page on which it appears but in at least 10-point type; or

(b)  Where the use of 10-point type would be impractical or impossible with respect to a particular piece of written advertising material, then the division may approve the use of a different style of type or print, so long as the print remains conspicuous under the circumstances.

Where conspicuous type is required, it must be separated on all sides from other type and print. Conspicuous type may be utilized in contracts for purchase or public offering statements only where required by law or as authorized by the division.

(8)  "Contract" means any agreement conferring the rights and obligations of a timeshare plan on the purchaser.

(9)  "Developer" includes:

(a)  A "creating developer," which means any person who creates the timeshare plan;

(b)  A "successor developer," which means any person who succeeds to the interest of the persons in this subsection by sale, lease, assignment, mortgage, or other transfer, but the term includes only those persons who offer timeshare periods in the ordinary course of business; and

(c)  A "concurrent developer," which means any person acting concurrently with the persons in this subsection with the purpose of offering timeshare periods in the ordinary course of business.

(d)  The term "developer" does not include:

1.  An owner of a timeshare period who has acquired the timeshare period for his or her own use and occupancy and who later offers it for resale; provided that a rebuttable presumption shall exist that an owner who has acquired more than seven timeshare periods did not acquire them for his or her own use and occupancy;

2.  A managing entity that is not otherwise a developer of a timeshare plan in its own right and that offers timeshare periods for its own account in a timeshare plan which it manages to existing purchasers of that timeshare plan, or a managing entity which complies with the provisions of s. 721.065; or

3.  A person who is conveyed, assigned, or transferred more than seven timeshare periods from a developer in a single voluntary or involuntary transaction and who subsequently conveys, assigns, or transfers all of the timeshare periods received from the developer to a single purchaser in a single transaction.

(10)  "Division" means the Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation.

(11)  "Enrolled" means paid membership in an exchange program or membership in an exchange program evidenced by written acceptance or confirmation of membership.

(12)  "Escrow account" means an account established solely for the purposes set forth in this chapter with a financial institution located within this state.

(13)  "Escrow agent" includes only:

(a)  A savings and loan association, bank, trust company, or other financial institution, any of which must be located in this state and any of which must have a net worth in excess of $5 million;

(b)  An attorney who is a member of The Florida Bar or his or her law firm, so long as the attorney or firm has posted a fidelity bond issued by a company authorized and licensed to do business in this state as surety in the amount of $50,000;

(c)  A real estate broker who is licensed pursuant to chapter 475 or his or her brokerage firm, so long as the broker or firm has posted a fidelity bond issued by a company authorized and licensed to do business in this state as surety in the amount of $50,000; or

(d)  A title insurance agent that is licensed pursuant to s. 626.8417 or a title insurance agency that is licensed pursuant to s. 626.8418, so long as the agent or agency has posted a fidelity bond issued by a company authorized and licensed to do business in this state as surety in the amount of $50,000.

If an escrow agent is required to post a $50,000 fidelity bond pursuant to this subsection, the escrow agent shall only be required to post and maintain one such bond, regardless of the number of escrow accounts maintained by that agent for any number of developers, managing entities, or timeshare plans at any given time.

(14)  "Exchange company" means any person owning or operating, or owning and operating, an exchange program.

(15)  "Exchange program" means any method, arrangement, or procedure for the voluntary exchange of the right to use and occupy accommodations and facilities among purchasers. The term does not include the assignment of the right to use and occupy accommodations and facilities to purchasers pursuant to a particular multisite timeshare plan's reservation system. Any method, arrangement, or procedure that otherwise meets this definition, wherein the purchaser's total contractual financial obligation exceeds $3,000 per any individual, recurring timeshare period, shall be regulated as a multisite timeshare plan in accordance with part II.

(16)  "Facility" means any amenity, including any structure, furnishing, fixture, equipment, service, improvement, or real or personal property, improved or unimproved, other than the accommodation of the timeshare plan, which is made available to the purchasers of a timeshare plan. The term does not include an incidental benefit as defined in this section.

(17)  "Incidental benefit" means an accommodation, product, service, discount, or other benefit which is offered to a prospective purchaser of a timeshare plan or to a purchaser of a timeshare plan prior to the expiration of his or her initial 10-day voidability period pursuant to s. 721.10; which is not an exchange program as defined in subsection (15); and which complies with the provisions of s. 721.075. The term shall not include an offer of the use of the accommodations and facilities of the timeshare plan on a free or discounted one-time basis.

(18)  "Independent," for purposes of determining eligibility of escrow agents and trustees pursuant to s. 721.03(8), means that:

(a)  The escrow agent or trustee is not a relative, as described in s. 112.3135(1)(d), or an employee of the developer, seller, or managing entity, or of any officer, director, affiliate, or subsidiary thereof.

(b)  There is no financial relationship, other than the payment of fiduciary fees or as otherwise provided in this subsection, between the escrow agent or trustee and the developer, seller, or managing entity, or any officer, director, affiliate, or subsidiary thereof.

(c)  Compensation paid by the developer to an escrow agent or trustee for services rendered shall not be paid from funds in the escrow or trust account unless and until the developer is otherwise entitled to receive the disbursement of such funds from the escrow or trust account pursuant to this chapter.

(d)  A person shall not be disqualified to serve as an escrow agent or a trustee solely because of the following:

1.  A nonemployee, attorney-client relationship exists between the developer and the escrow agent or trustee;

2.  The escrow agent or trustee provides brokerage services as defined by chapter 475 for the developer;

3.  The escrow agent or trustee provides the developer with routine banking services which do not include construction or receivables financing or any other lending activities; or

4.  The escrow agent or trustee performs closings for the developer or seller or issues owner's or lender's title insurance commitments or policies in connection with such closings.

(19)  "Interestholder" means a developer, an owner of the underlying fee, a mortgagee, judgment creditor, or other lienor, or any other person having an interest in or lien or encumbrance against the accommodations or facilities of the timeshare plan.

(20)  "Managing entity" means the person who operates or maintains the timeshare plan pursuant to s. 721.13(1).

(21)  "Memorandum of agreement" means a written document, in recordable form, which includes the names of the purchaser and seller, a legal description of the timeshare property and timeshare period, and a description of the type of timeshare license sold by the seller.

(22)  "Offer to sell," "offer for sale," "offered for sale," or "offer" means the solicitation, advertisement, or inducement, or any other method or attempt, to encourage any person to acquire the opportunity to participate in a timeshare plan.

(23)  "One-to-one purchaser to accommodation ratio" means the ratio of the number of purchasers eligible to use the accommodations of a timeshare plan on a given day to the number of accommodations available for use within the plan on that day, such that the total number of purchasers eligible to use the accommodations of the timeshare plan during a given calendar year never exceeds the total number of accommodations available for use in the timeshare plan during that year. For purposes of calculation under this subsection, each purchaser must be counted at least once, and no individual timeshare unit may be counted more than 365 times per calendar year (or more than 366 times per leap year). A purchaser who is delinquent in the payment of timeshare plan assessments shall continue to be considered eligible to use the accommodations of the timeshare plan for purposes of this subsection notwithstanding any application of s. 721.13(6).

(24)  "Owner of the underlying fee" means any person having an interest in the real property underlying the accommodations or facilities of the timeshare plan at or subsequent to the time of creation of the timeshare plan or any person who purchases 15 or more timeshare periods for resale in the ordinary course of business.

(25)  "Owners' association" means the association made up of all purchasers of a timeshare plan who have purchased timeshare estates.

(26)  "Purchaser" means any person, other than a developer, who by means of a voluntary transfer acquires a legal or equitable interest in a timeshare plan other than as security for an obligation.

(27)  "Seller" means any developer or any other person, or any agent or employee thereof, who offers timeshare periods in the ordinary course of business. The term "seller" does not include:

(a)  An owner of a timeshare period who has acquired the timeshare period for his or her own use and occupancy and who later offers it for resale; provided that a rebuttable presumption shall exist that an owner who has acquired more than seven timeshare periods did not acquire them for his or her own use and occupancy;

(b)  A managing entity that is not otherwise a seller of a timeshare plan in its own right and that offers timeshare periods for its own account in a timeshare plan which it manages to existing purchasers of that timeshare plan, or a managing entity which complies with the provisions of s. 721.065; or

(c)  A person who is conveyed, assigned, or transferred more than seven timeshare periods from a developer in a single voluntary or involuntary transaction and who subsequently conveys, assigns, or transfers all of the timeshare periods received from the developer to a single purchaser in a single transaction.

(28)  "Timeshare estate" means a right to occupy a timeshare unit, coupled with a freehold estate or an estate for years with a future interest in a timeshare property or a specified portion thereof. The term shall also mean an interest in a condominium unit pursuant to s. 718.103(22).

(29)  "Timeshare instrument" means one or more documents, by whatever name denominated, creating or governing the operation of a timeshare plan.

(30)  "Timeshare license" means a right to occupy a timeshare unit, which right is neither coupled with a freehold interest, nor coupled with an estate for years with a future interest, in a timeshare property.

(31)  "Timeshare period" means the period or periods of time when a purchaser of a timeshare plan is afforded the opportunity to use the accommodations or facilities, or both, of a timeshare plan.

(32)  "Timeshare plan" means any arrangement, plan, scheme, or similar device, other than an exchange program, whether by membership, agreement, tenancy in common, sale, lease, deed, rental agreement, license, or right-to-use agreement or by any other means, whereby a purchaser, for consideration, receives ownership rights in or a right to use accommodations, and facilities, if any, for a period of time less than a full year during any given year, but not necessarily for consecutive years.

(33)  "Timeshare property" means one or more timeshare units subject to the same timeshare instrument, together with any other property or rights to property appurtenant to those units.

(34)  "Timeshare unit" means an accommodation of a timeshare plan which is divided into timeshare periods.

(35)  "Vacation ownership plan" means any timeshare plan consisting exclusively of timeshare estates.

(36)  "Vacation plan" or "vacation membership plan" means any timeshare plan consisting exclusively of timeshare licenses or consisting of a combination of timeshare licenses and timeshare estates.

History.--s. 1, ch. 81-172; s. 3, ch. 83-264; ss. 1, 2, ch. 84-256; s. 17, ch. 85-60; s. 25, ch. 91-103; s. 5, ch. 91-236; s. 5, ch. 91-426; s. 2, ch. 93-58; s. 240, ch. 94-218; s. 2, ch. 95-274; s. 891, ch. 97-102.