The Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010

Made: 11th December 2010

Laid before Parliament: 15th December 2010

Coming into force: 23rd February 2011

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to consumer protection.

The Secretary of State makes these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972.

PART 1 — GENERAL

Citation and Commencement

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• (1) These Regulations may be cited as the Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010.

• (2) They come into force on 23rd February 2011.

Interpretation

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• (1) In these Regulations—

• “ancillary contract”, in relation to a timeshare contract or long-term holiday product contract, has the meaning given in regulation 22(6);

• “consumer” has the meaning given in regulation 11;

• “enforcement authority” has the meaning given in regulation 32(1);

• “exchange contract” has the meaning given in regulation 10(1);

• “holiday accommodation contract” has the meaning given in regulation 4;

• “key information”, in relation to a regulated contract, has the meaning given in regulation 12(3);

• “long-term holiday product contract” has the meaning given in regulation 8;

• “regulated contract” has the meaning given in regulation 3;

• “related credit agreement”, in relation to a regulated contract, has the meaning given in regulation 23(4);

• “resale contract” has the meaning given in regulation 9;

• “standard information form” has the meaning given in regulation 13(2);

• “timeshare contract” has the meaning given in regulation 7(1);

• “timeshare exchange system” has the meaning given in regulation 10(2);

• “trader” has the meaning given in regulation 11.

PART 2 — KEY DEFINITIONS

Regulated contract

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A “regulated contract” means a contract which—

• (a) is a holiday accommodation contract (see regulation 4) to which these Regulations apply (see regulation 5), but

• (b) is not an excluded arrangement (see regulation 6).

Holiday accommodation contracts

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• (1) A “holiday accommodation contract” means—

• (a) a timeshare contract,

• (b) a long-term holiday product contract,

• (c) a resale contract, or

• (d) an exchange contract.

• (2) See regulations 7 to 10 for definitions of these types of contract.

Holiday accommodation contracts to which these Regulations apply

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• (1) These Regulations apply to a holiday accommodation contract which falls within any of paragraphs (2) to (4).

• (2) A holiday accommodation contract falls within this paragraph if it is to any extent governed by the law of—

• (a) the United Kingdom, or

• (b) a part of the United Kingdom.

• (3) A holiday accommodation contract falls within this paragraph if—

• (a) it is to any extent governed by the law of a third country,

• (b) the relevant accommodation is in immovable property situated in the United Kingdom or an EEA State, and

• (c) the parties to the contract are to any extent subject to the jurisdiction of a court in the United Kingdom in relation to the contract.

• (4) A holiday accommodation contract falls within this paragraph if—

• (a) it is to any extent governed by the law of a third country,

• (b) it is not directly related to immovable property,

• (c) the trader carries on commercial or professional activities in the United Kingdom or by any means directs such activities to the United Kingdom, and

• (d) the contract falls within the scope of those activities.

• (5) In this regulation—

• (a) “relevant accommodation” means—

• (i) the accommodation which is the subject of the contract, or

• (ii) in a case where a pool of accommodation is the subject of the contract, some or all of the accommodation in that pool;

• (b) “third country” means a country other than the United Kingdom.

Excluded arrangements

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• (1) An “excluded arrangement” is an arrangement to which any of the following paragraphs apply.

• (2) This paragraph applies to multiple reservations of accommodation to the extent that they do not imply rights and obligations beyond those arising from the separate reservations.

• (3) This paragraph applies to a lease agreement which provides for a single continuous period of occupation.

• (4) This paragraph applies to a loyalty scheme, operating within a group of hotels, which provides consumers with discounts on future stays at hotels within the group where—

• (a) no consideration is payable in respect of membership of the scheme, and

• (b) consideration payable by consumers for accommodation at hotels within the group is not payable primarily for the purpose of obtaining discounts or other benefits in respect of accommodation.

• (5) This paragraph applies to a contract of insurance where the effecting or carrying out of such a contract constitutes a regulated activity for the purposes of the Financial Services and Markets Act 2000 .

Timeshare contracts

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• (1) A “timeshare contract” means a contract between a trader and a consumer—

• (a) under which the consumer, for consideration, acquires the right to use overnight accommodation for more than one period of occupation, and

• (b) which has a duration of more than one year, or contains provision allowing for the contract to be renewed or extended so that it has a duration of more than one year.

• (2) The reference to “accommodation” in paragraph (1) includes a reference to accommodation within a pool of accommodation.

Long-term holiday product contracts

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A “long-term holiday product contract” means a contract between a trader and a consumer—

• (a) the main effect of which is that the consumer, for consideration, acquires the right to obtain discounts or other benefits in respect of accommodation, and

• (b) which has a duration of more than one year, or contains provision allowing for the contract to be renewed or extended so that it has a duration of more than one year,

Resale contracts

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A “resale contract” means a contract between a trader and a consumer under which the trader, for consideration, assists the consumer in buying or selling rights under a timeshare contract or under a long-term holiday product contract.

Exchange contracts

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• (1) An “exchange contract” means a contract between—

• (a) a consumer who is also party to a timeshare contract, and

• (b) a trader,

“Consumer” and “trader”

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• (1) In these Regulations—

• “consumer” means an individual who is not acting for the purposes of a trade, business, craft or profession;

• “trader” means—a person acting for purposes relating to that person's trade, business, craft or profession, oranyone acting in the name of, or on behalf of, a person falling within paragraph (a).

• (2) Any reference in these Regulations to a consumer or trader in relation to a regulated contract, means—

• (a) in the case of a contract which has been entered into, the consumer or trader who is party to the contract, or

• (b) in the case of a proposed contract, the consumer and trader who will be parties to the contract, once it is entered into.

PART 3 — PRE-CONTRACTUAL MATTERS

Key information

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• (1) Before entering into a regulated contract, the trader must—

• (a) give the consumer the key information in relation to the contract, and

• (b) ensure that the information meets the requirements of this regulation.

• (2) The trader must comply with paragraph (1) in good time before entering into the contract.

• (3) The “key information” in relation to a contract means—

• (a) the information required by Part 1 of the standard information form (see regulation 13(2)),

• (b) the information set out in Part 2 of that form, and

• (c) any additional information required by Part 3 of that form.

• (4) The information must be—

• (a) clear, comprehensible and accurate, and

• (b) sufficient to enable the consumer to make an informed decision about whether or not to enter into the contract.

• (5) The information must be provided—

• (a) in the standard information form, completed in accordance with regulation 13(1),

• (b) in writing,

• (c) free of charge, and

• (d) in a manner which is easily accessible to the consumer.

• (6) The information must be provided in English and may, in addition, be provided in another language.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) A trader who contravenes paragraph (5) of this regulation commits an offence.

Completing the standard information form

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• (1) The standard information form must be completed as follows—

• (a) the information required by Part 1 of the form must be inserted in the appropriate places (without deleting the existing text in that Part),

• (b) Part 2 of the form must not be amended, and

• (c) the information required by Part 3 of the form must be inserted in the appropriate places in accordance with any applicable notes (which may then be deleted).

• (2) The “standard information form” means the form set out in—

• (a) Schedule 1, in the case of a timeshare contract;

• (b) Schedule 2, in the case of a long-term holiday product contract;

• (c) Schedule 3, in the case of a resale contract; and

• (d) Schedule 4, in the case of an exchange contract.

Marketing and sales

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• (1) Any advertising related to a regulated contract must indicate how the key information in relation to the contract can be obtained.

• (2) A trader must not offer an opportunity to enter into a regulated contract to a consumer at a promotion or sales event unless—

• (a) the invitation to the event clearly indicates the commercial purpose and nature of the event, and

• (b) the key information in relation to the proposed regulated contract is made available to the consumer for the duration of the event.

• (3) A trader must not market or sell a proposed timeshare contract or long-term holiday product contract as an investment if the proposed contract would be a regulated contract.

• (4) The references to key information in this regulation are references to key information which meets the requirements of regulations 12(4) to (7).

• (5) A trader who contravenes paragraph (3) commits an offence.

PART 4 — REGULATED CONTRACT: FORMALITIES

Form of contract

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• (1) A trader must not enter into a regulated contract unless the contract complies with the requirements of this regulation.

• (2) The contract must be in writing and include—

• (a) the identity, place of residence and signature of each of the parties;

• (b) the date and place of conclusion of the contract.

• (3) The contract must set out the key information in relation to the contract which is required under regulation 12.

• (4) That key information must be set out—

• (a) as terms of the contract, and

• (b) with no changes, other than permitted changes.

• (5) “Permitted changes” means changes to the key information which were communicated to the consumer in writing before the conclusion of the contract and which—

• (a) were expressly agreed between the trader and the consumer, or

• (b) resulted from unusual and unforeseeable circumstances beyond the trader's control, the consequences of which could not have been avoided even if all due care had been exercised.

• (6) Any permitted changes must be expressly mentioned in the contract.

• (7) The contract must include the standard withdrawal form set out in Schedule 5.

• (8) If a trader contravenes paragraph (1)—

• (a) the trader commits an offence, and

• (b) the contract is unenforceable against the consumer.

Obligations of trader

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• (1) Before entering into a regulated contract a trader must draw the attention of the consumer to the following matters—

• (a) the right of withdrawal under the contract (see regulation 20),

• (b) the length of the withdrawal period (see regulation 21), and

• (c) the prohibition on advance consideration during the withdrawal period (see regulation 25).

• (2) Before entering into a regulated contract a trader must obtain the signature of the consumer in relation to each section of the contract dealing with those matters.

• (3) When a trader and consumer enter into a regulated contract, the trader must provide the consumer with a copy of the contract at the time the contract is concluded.

• (4) If a trader fails to comply with any of paragraphs (1) to (3) —

• (a) the trader commits an offence, and

• (b) the contract is unenforceable against the consumer.

Language of the contract

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• (1) A trader must not enter into a regulated contract unless it complies with the requirements of this regulation, so far as applicable.

• (2) The contract must be drawn up in English and may, in addition, be drawn up in another language.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) If a trader fails to draw up the contract in English the contract is unenforceable against the consumer.

Translation of contract

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• (1) This regulation applies to a regulated contract if—

• (a) it is a timeshare contract, and

• (b) the subject of the contract is a single item of specific immovable property situated in an EEA State.

• (2) The trader must not enter into the contract unless the trader has provided the consumer with a certified translation of the contract in the language, or one of the languages, of that State.

• (3) The language of the translation must be an official language of an EEA State.

• (4) Paragraphs (2) and (3) do not apply if the contract is drawn up in a language in which the translation is required or permitted to be made.

• (5) A trader who contravenes paragraphs (2) or (3) of this regulation commits an offence.

• (6) A “certified translation” means a translation which is certified to be accurate by a person authorised to make or verify translations for the purposes of court proceedings.

Conflict with contractual terms

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A term contained in a regulated contract is void to the extent that it purports to allow the consumer to waive the rights conferred on them by these Regulations.

PART 5 — TERMINATION OF REGULATED CONTRACTS

Rights of withdrawal

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• (1) A consumer may withdraw from a regulated contract by giving the trader written notice of withdrawal during the withdrawal period.

• (2) For the purposes of paragraph (1), written notice is to be regarded as having been given by the consumer at the time it is sent.

• (3) The consumer does not have to give any reason for the withdrawal.

• (4) The consumer may use the standard withdrawal form included in the contract under regulation 15(7) as the notice of withdrawal.

The withdrawal period

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• (1) The withdrawal period for a regulated contract—

• (a) begins on the start date, and

• (b) ends on the date which is 14 days after the start date, subject to the following provisions.

• (2) The start date is the later of—

• (a) the date of conclusion of the contract;

• (b) the date on which the consumer receives a copy of the contract.

• (3) Paragraph (4) applies if a standard withdrawal form is not included in the contract in accordance with regulation 15(7).

• (4) The withdrawal period ends—

• (a) on the date which is one year and 14 days after the start date, or

• (b) in a case where the standard withdrawal form is provided to the consumer within the period of one year beginning on the start date, on the date which is 14 days after the day on which the consumer receives the form.

• (5) Paragraph (6) applies if the key information in relation to the contract is not provided to the consumer in accordance with the requirements in regulation 12(4) to (7).

• (6) The withdrawal period ends—

• (a) on the date which is three months and 14 days after the start date, or

• (b) in a case where the key information in relation to the contract is provided to the consumer within the period of three months beginning on the start date in accordance with the requirements in regulation 12(4) to (7), on the date which is 14 days after the day on which the consumer receives the information.

• (7) In a case where both paragraphs (4) and (6) apply, the withdrawal period ends on the later of the dates determined by those paragraphs.

• (8) Paragraph (9) applies in a case where a timeshare contract and a related exchange contract are offered to the consumer at the same time.

• (9) The withdrawal period for both contracts is to be the one which would apply to the timeshare contract under this regulation.

• (10) For the purposes of paragraph (8), an exchange contract is related to a timeshare contract if the exchange contract allows the consumer to give other persons access to benefits under the timeshare contract under a timeshare exchange system (see regulation 10(2)).