Section 721.05, Florida Statutes 2009
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, cruise ship cabin, houseboat or other vessel, recreational or other motor vehicle, or any private or commercial structure which is real or personal property and designed for overnight occupancy 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) "Agreement for transfer" means any written contract utilized in the sale of personal property timeshare interests which provides that legal title will not be transferred 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.
(4) "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.
(5) "Closing" means:
(a) For any plan selling timeshare estates, conveyance of the legal or beneficial title to a timeshare estate as evidenced by the delivery of a deed for conveyance of legal title, or other instrument for conveyance of beneficial title, to the purchaser or to the clerk of the court for recording or conveyance of the equitable title to a timeshare estate 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 or personal property timeshare interests, 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.
(6) "Common expenses" means:
(a) Those expenses, fees, or taxes properly incurred for the maintenance, operation, and repair of the accommodations or facilities, or both, constituting the timeshare plan.
(b) Any other expenses, fees, or taxes designated as common expenses in a timeshare instrument.
(c) Any past due and uncollected ad valorem taxes assessed against a timeshare development pursuant to s. 192.037.
(7) "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;
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; or
3. With respect to personal property timeshare plans, that all accommodations have been manufactured or built and acquired or leased by the developer, owners' association, managing entity, trustee, or other person for the use of purchasers as set forth in the timeshare instrument; 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 filed public offering statements.
(8) "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, a different style of type or print may be used, 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.
(9) "Contract" means any agreement conferring the rights and obligations of a timeshare plan on the purchaser.
(10) "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 interests 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 interests in the ordinary course of business.
(d) The term "developer" does not include:
1. An owner of a timeshare interest who has acquired the timeshare interest 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 interests did not acquire them for his or her own use and occupancy;
2. A managing entity, not otherwise a developer, that offers, or engages a third party to offer on its behalf, timeshare interests in a timeshare plan which it manages, provided that such offer complies with the provisions of s. 721.065;
3. A person who owns or is conveyed, assigned, or transferred more than seven timeshare interests and who subsequently conveys, assigns, or transfers all acquired timeshare interests to a single purchaser in a single transaction, which transaction may occur in stages; or
4. A person who has acquired or has the right to acquire more than seven timeshare interests from a developer or other interestholder in connection with a loan, securitization, conduit, or similar financing arrangement transaction and who subsequently arranges for all or a portion of the timeshare interests to be offered by one or more developers in the ordinary course of business on their own behalves or on behalf of such person.
(e) A successor or concurrent developer shall be exempt from any liability inuring to a predecessor or concurrent developer of the same timeshare plan, except as provided in s. 721.15(7), provided that this exemption shall not apply to any of the successor or concurrent developer's responsibilities, duties, or liabilities with respect to the timeshare plan that accrue after the date the successor or concurrent developer became a successor or concurrent developer, and provided that such transfer does not constitute a fraudulent transfer. In addition to other provisions of law, a transfer by a predecessor developer to a successor or concurrent developer shall be deemed fraudulent if the predecessor developer made the transfer:
1. With actual intent to hinder, delay, or defraud any purchaser or the division; or
2. To a person that would constitute an insider under s. 726.102(7).
The provisions of this paragraph shall not be construed to relieve any successor or concurrent developer from the obligation to comply with the provisions of any applicable timeshare instrument.
(11) "Division" means the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation.
(12) "Enrolled" means paid membership in an exchange program or membership in an exchange program evidenced by written acceptance or confirmation of membership.
(13) "Escrow account" means an account established solely for the purposes set forth in this chapter with a financial institution located within this state.
(14) "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;
(c) A real estate broker who is licensed pursuant to chapter 475 or his or her brokerage firm; or
(d) A title insurance agent that is licensed pursuant to s. 626.8417, a title insurance agency that is licensed pursuant to s. 626.8418, or a title insurer authorized to transact business in this state pursuant to s. 624.401.
(15) "Exchange company" means any person owning or operating, or owning and operating, an exchange program.
(16) "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.
(17) "Facility" means any permanent amenity, including any structure, furnishing, fixture, equipment, service, improvement, or real or personal property, improved or unimproved, other than an 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.
(18) "Filed public offering statement" means a public offering statement that has been filed with the division pursuant to s. 721.07(5) or s. 721.55.
(19) "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 (16); 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.
(20) "Independent," for purposes of determining eligibility of escrow agents and trustees pursuant to s. 721.03(7), 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.
(21) "Interestholder" means a developer, an owner of the underlying fee or owner of the underlying personal property, 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.
(22) "Managing entity" means the person who operates or maintains the timeshare plan pursuant to s. 721.13(1).
(23) "Memorandum of agreement" means a written document, in a form sufficient to permit the document to be recorded or otherwise filed in the appropriate public records and to provide constructive notice of its contents under applicable law, which includes the names of the seller and the purchasers, a legal description of the timeshare property or other sufficient description for a personal property timeshare plan, and all timeshare interests to be included in such document, and a description of the type of timeshare interest sold by the seller.
(24) "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.
(25) "One-to-one use right to use night requirement ratio" means that the sum of the nights that owners are entitled to use in a given 12-month period shall not exceed the number of nights available for use by those owners during the same 12-month period. No individual timeshare unit may be counted as providing more than 365 use nights per 12-month period or more than 366 use nights per 12-month period that includes February 29. The use rights of each owner shall be counted without regard to whether the owner's use rights have been suspended for failure to pay assessments or otherwise.
(26) "Owner of the underlying fee" or "owner of the underlying personal property" means any person having an interest in the real property or personal property comprising or underlying the accommodations or facilities of a timeshare plan at or subsequent to the time of creation of the timeshare plan.
(27) "Owners' association" means an association made up of all owners of timeshare interests in a timeshare plan, including developers and purchasers of such timeshare plan.
(28) "Personal property timeshare interest" means a right to occupy an accommodation located on or in or comprised of personal property that is not permanently affixed to real property, whether or not coupled with a beneficial or ownership interest in the accommodations or personal property.
(29) "Public offering statement" means the written materials describing a single-site timeshare plan or a multisite timeshare plan, including a text and any exhibits attached thereto as required by ss. 721.07, 721.55, and 721.551. The term "public offering statement" shall refer to both a filed public offering statement and a purchaser public offering statement.
(30) "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.
(31) "Purchaser public offering statement" means that portion of the filed public offering statement which must be delivered to purchasers pursuant to s. 721.07(6) or s. 721.551.
(32) "Regulated short-term product" means a contractual right, offered by the seller, to use accommodations of a timeshare plan or other accommodations, provided that:
(a) The agreement to purchase the short-term right to use is executed in this state on the same day that the prospective purchaser receives an offer to acquire an interest in a timeshare plan and does not execute a purchase contract, after attending a sales presentation; and
(b) The acquisition of the right to use includes an agreement that all or a portion of the consideration paid by the prospective purchaser for the right to use will be applied to or credited against the price of a future purchase of a timeshare interest, or that the cost of a future purchase of a timeshare interest will be fixed or locked in at a specified price.
(33) "Seller" means any developer or any other person, or any agent or employee thereof, who offers timeshare interests in the ordinary course of business. The term "seller" does not include:
(a) An owner of a timeshare interest who has acquired the timeshare interest 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 interests did not acquire them for his or her own use and occupancy;
(b) A managing entity, not otherwise a seller, that offers, or engages a third party to offer on its behalf, timeshare interests in a timeshare plan which it manages, provided that such offer complies with the provisions of s. 721.065;
(c) A person who owns or is conveyed, assigned, or transferred more than seven timeshare interests and who subsequently conveys, assigns, or transfers all acquired timeshare interests to a single purchaser in a single transaction, which transaction may occur in stages; or
(d) A person who has acquired or has the right to acquire more than seven timeshare interests from a developer or other interestholder in connection with a loan, securitization, conduit, or similar financing arrangement and who subsequently arranges for all or a portion of the timeshare interests to be offered by one or more developers in the ordinary course of business on their own behalves or on behalf of such person.
(34) "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, an interest in a cooperative unit pursuant to s. 719.103, or an interest in a trust that complies in all respects with the provisions of s. 721.08(2)(c)4., provided that the trust does not contain any personal property timeshare interests. A timeshare estate is a parcel of real property under the laws of this state.
(35) "Timeshare instrument" means one or more documents, by whatever name denominated, creating or governing the operation of a timeshare plan.
(36) "Timeshare interest" means a timeshare estate, a personal property timeshare interest, or a timeshare license.
(37) "Timeshare license" means a right to occupy a timeshare unit, which right is not a personal property timeshare interest or a timeshare estate.
(38) "Timeshare period" means the period or periods of time when a purchaser of a timeshare interest is afforded the opportunity to use the accommodations of a timeshare plan.
(39) "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. The term "timeshare plan" includes:
(a) A "personal property timeshare plan," which means a timeshare plan in which the accommodations are comprised of personal property that is not permanently affixed to real property; and
(b) A "real property timeshare plan," which means a timeshare plan in which the accommodations of the timeshare plan are comprised of or permanently affixed to real property.
(40) "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 timeshare units. Notwithstanding anything to the contrary contained in chapter 718 or chapter 719, the timeshare instrument for a timeshare condominium or cooperative may designate personal property, contractual rights, affiliation agreements of component sites of vacation clubs, exchange companies, or reservation systems, or any other agreements or personal property, as common elements or limited common elements of the timeshare condominium or cooperative.
(41) "Timeshare unit" means an accommodation of a timeshare plan which is divided into timeshare periods. Any timeshare unit in which a door or doors connecting two or more separate rooms are capable of being locked to create two or more private dwellings shall only constitute one timeshare unit for purposes of this chapter, unless the timeshare instrument provides that timeshare interests may be separately conveyed in such locked-off portions.
(42) "Lead dealer" means any person who sells or otherwise provides a resale service provider or any other person with personal contact information for five or more owners of timeshare interests. In the event a lead dealer is not a natural person, the term shall also include the natural person providing personal contact information to a resale service provider or other person on behalf of the lead dealer entity. The term does not include developers, managing entities, or exchange companies to the extent they provide others with personal contact information about owners of timeshare interests in their own timeshare plans or members of their own exchange programs. The term does not include persons providing personal contact information that is not designed specifically or primarily to identify owners of timeshare interests even though the information provided may include five or more owners of timeshare interests.
(43) "Personal contact information" means any information that can be used to contact the owner of a specific timeshare interest, including, but not limited to, the owner's name, address, telephone number, and e-mail address.
(44) "Resale service provider" means any person who uses unsolicited telemarketing, direct mail, or e-mail in connection with the offering of resale brokerage or resale advertising services to owners of timeshare interests. The term does not include developers, managing entities, or exchange companies to the extent they offer resale brokerage or resale advertising services to owners of timeshare interests in their own timeshare plans or members of their own exchange programs.
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; s. 2, ch. 98-36; s. 17, ch. 98-322; s. 9, ch. 2000-302; s. 3, ch. 2004-279; s. 2, ch. 2007-75; s. 65, ch. 2008-240; s. 7, ch. 2009-133.