Ways to avoid the resort entity exercising its Right Of First Refusal

[andre10056]

I've finally decided to sell my Hyatt Windward Pointe timeshare. And I've identified an interested buyer.

Arguably, it makes no difference to the seller (namely me) if the seller buys or the resort entity buys. The money I would receive would be the same. But it does make a difference to me. I don't want Hyatt using my timeshare to victimize some newbie and selling it for tens of thousands of dollars.

So what things might be done to make it less likely that Hyatt (or any resort entity) might NOT exercise its right of first refusal? I've read such things in the past from posters on facebook saying "contact me and I'll tell you how I do it so that the resort never exercises its ROFR". But I wasn't selling before so I never asked.

Now I am. Feel free to private message me if you'd rather not share your methodology with the world.

 

[Beefnot]

I dunno, you could bundle it with some other thing of value like an old car (with terms that it must be physically retrieved by buyer within X days of close of sale) or, say, another worthless non-Hyatt timeshare. Also, maybe you write that explicitly into the sale agreement that Hyatt will have XX days (whatever is Hyatt's ROFR timeline right) to exercise ROFR. Maybe discuss with an attorney. If you have a prepaid legal service through your job, would be free..

 

[davidvel]

I dunno, you could bundle it with some other thing of value like an old car (with terms that it must be physically retrieved by buyer within X days of close of sale) or, say, another worthless non-Hyatt timeshare. Also, maybe you write that explicitly into the sale agreement that Hyatt will have XX days (whatever is Hyatt's ROFR timeline right) to exercise ROFR. Maybe discuss with an attorney. If you have a prepaid legal service through your job, would be free..

You cannot do this. Courts have consistently found that such attempts are artifices to avoid the clear deeded ROFR right, and such terms would be stricken. It also would alert Hyatt of the clear attempt to subvert its ROFR right. They might decide it is worth it to make an example and sue the seller for fraud.

 

[davidvel]

I've finally decided to sell my Hyatt Windward Pointe timeshare. And I've identified an interested buyer.

Arguably, it makes no difference to the seller (namely me) if the seller buys or the resort entity buys. The money I would receive would be the same. But it does make a difference to me. I don't want Hyatt using my timeshare to victimize some newbie and selling it for tens of thousands of dollars.

So what things might be done to make it less likely that Hyatt (or any resort entity) might NOT exercise its right of first refusal? I've read such things in the past from posters on facebook saying "contact me and I'll tell you how I do it so that the resort never exercises its ROFR". But I wasn't selling before so I never asked.

Now I am. Feel free to private message me if you'd rather not share your methodology with the world.

There is no real legitimate legal way to "avoid" ROFR. There are many fraudulent ways though.

The most important thing is to include all valid forms of consideration in the purchase ROFR amount. For example, have the seller pay any required escrow, title, rofr, transfer costs and then lump those expenses into a single purchase price.

 

[andre10056]

There is no real legitimate legal way to "avoid" ROFR. There are many fraudulent ways though.

The most important thing is to include all valid forms of consideration in the purchase ROFR amount. For example, have the seller pay any required escrow, title, rofr, transfer costs and then lump those expenses into a single purchase price.

So let's assume that there's a $650 resort transfer fee which the Buyer will be paying, that $650 should be added to the purchase price as if it were coming my way? Or would that $650 be listed elsewhere as fees that the Buyer has agreed to pay? Or would the contract be written such that I, as seller, would pay all those fees but the purchase price would compensate me for them?

 

[Beefnot]

You cannot do this. Courts have consistently found that such attempts are artifices to avoid the clear deeded ROFR right, and such terms would be stricken. It also would alert Hyatt of the clear attempt to subvert its ROFR right. They might decide it is worth it to make an example and sue the seller for fraud.

It may well not fly and could be invalidated, but I don't see how it would be fraud though if the terms are legitimate. If I am selling two actual items, that is plainly not fraud.

 

[chapjim]

I've finally decided to sell my Hyatt Windward Pointe timeshare. And I've identified an interested buyer.

Arguably, it makes no difference to the seller (namely me) if the seller buys or the resort entity buys. The money I would receive would be the same. But it does make a difference to me. I don't want Hyatt using my timeshare to victimize some newbie and selling it for tens of thousands of dollars.

So what things might be done to make it less likely that Hyatt (or any resort entity) might NOT exercise its right of first refusal? I've read such things in the past from posters on facebook saying "contact me and I'll tell you how I do it so that the resort never exercises its ROFR". But I wasn't selling before so I never asked.

Now I am. Feel free to private message me if you'd rather not share your methodology with the world.

I've never understood this line of reasoning. You want to rid yourself of the timeshare yet you want to assert a continuing interest in it.

 

[andre10056]

I've never understood this line of reasoning. You want to rid yourself of the timeshare yet you want to assert a continuing interest in it.

Don't want to be a party to an innocent person becoming a victim of fraud.

 

[chapjim]

Don't want to be a party to an innocent person becoming a victim of fraud.

You're not.

 

[davidvel]

So let's assume that there's a $650 resort transfer fee which the Buyer will be paying, that $650 should be added to the purchase price as if it were coming my way? Or would that $650 be listed elsewhere as fees that the Buyer has agreed to pay? Or would the contract be written such that I, as seller, would pay all those fees but the purchase price would compensate me for them?

Yes, this: "Or would the contract be written such that I, as seller, would pay all those fees but the purchase price would compensate me for them?"

 

[davidvel]

It may well not fly and could be invalidated, but I don't see how it would be fraud though if the terms are legitimate. If I am selling two actual items, that is plainly not fraud.

Key words "If the terms are legitimate." As if some legitimate arms length buyer is going to be willing to take "an old car (with terms that it must be physically retrieved by buyer within X days of close of sale) or, say, another worthless non-Hyatt timeshare." Like that kind of legitimate?

As they say (cleaned up version), "If my aunt had , she'd be my uncle." But she does not.

 

[Beefnot]

Key words "If the terms are legitimate." As if some legitimate arms length buyer is going to be willing to take "an old car (with terms that it must be physically retrieved by buyer within X days of close of sale) or, say, another worthless non-Hyatt timeshare." Like that kind of legitimate?

As they say (cleaned up version), "If my aunt had , she'd be my uncle." But she does not.

Yes, if they parties intend to honor the agreement, then the terms are legitimate. More precisely, if there is no legitimate basis by which the terms can be demonstrated to be illegitimate, then there would be no legal basis for a fraud claim before the fact. After the fact, that is another story if the parties did not honor the agreement, the resort/developer could have a demonstrable claim that fraud was committed and that they were harmed as a result of that fraud.

 

[dioxide45]

Based on previously reported incidents, the developer will determine a cash value to whatever "other consideration" is included in the contract to determine the ROFR value.

 

[dioxide45]

Yes, if they parties intend to honor the agreement, then the terms are legitimate. More precisely, if there is no legitimate basis by which the terms can be demonstrated to be illegitimate, then there would be no legal basis for a fraud claim before the fact. After the fact, that is another story if the parties did not honor the agreement, the resort/developer could have a demonstrable claim that fraud was committed and that they were harmed as a result of that fraud.

The problem seems to be that you are providing advice without actually knowing what is legal and what isn't as you've advised the OP to consult with an attorney anyway.

 

[davidvel]

Yes, if they parties intend to honor the agreement, then the terms are legitimate. More precisely, if there is no legitimate basis by which the terms can be demonstrated to be illegitimate, then there would be no legal basis for a fraud claim before the fact. After the fact, that is another story if the parties did not honor the agreement, the resort/developer could have a demonstrable claim that fraud was committed and that they were harmed as a result of that fraud.

That is my whole point. No chance the terms in your example are legitimate. (If they were different and reasonably could be expected to be considered part of the purchase of the timeshare a different story.)

I guess we are basically saying the same thing, with the exception that I don't think any a buyer would agree and intend to follow through with the acceptance of some old junker as part of a timeshare purchase. Same with accepting the albatross of a crappy timeshare with MF obligations.

 

[Beefnot]

The problem seems to be that you are providing advice without actually knowing what is legal and what isn't as you've advised the OP to consult with an attorney anyway.

That is not a problem at all. The problem would be providing advice as if I actually knew what is legal and what isn't as if they shouldn't consult with an attorney anyway.

While I cannot asset with any degree of confidence what is legally valid or enforceable in the realm of timeshares, as I clearly representer, I can, however, state with a high degree of confidence what does or not constitutes fraud.

 

[Beefnot]

That is my whole point. No chance the terms in your example are legitimate. (If they were different and reasonably could be expected to be considered part of the purchase of the timeshare a different story.)

I guess we are basically saying the same thing, with the exception that I don't think any a buyer would agree and intend to follow through with the acceptance of some old junker as part of a timeshare purchase. Same with accepting the albatross of a crappy timeshare with MF obligations.

There is entirely a chance of them being legitimate, at least as it constitutes any reasonable defense against fraud. And it's the deal is reasonable enough, I would take your crappy timeshare or beater of a car off your hands if I could get the timeshare I wanted for way less than market than the hassle of the crap Would have to take with it. And because someone could credibly make that argument, there is no way that a resort/developer would bother themselves with a fraud lawsuit unless they had evidence to make a case otherwise. They might quite readily move to invalidated the sale, which they may have solid footing to do, but they would never attempt to sue for fraud before the fact.

 

[TheTimeTraveler]

Maybe you should try what I do when I purchase so that it won't be taken in the ROFR process.

I tell the sellers I will purchase now, but won't physically take possession for two years. I bought a week in 2024 but have no access to using it until 2026. The contract spelled out that the seller would pay the maintenance fees and use it in 2024 and 2025, and then I would be responsible for those fees and use beginning in 2026.

Marriott didn't want to touch this type of arrangement and they let it sail through the ROFR process. Luck? Who knows!

FYI: Most buyers aren't willing to wait for two years but I have no issue with it if it gets me what I want and it's done legally.










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