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Festiva/Atrium Litigation information
I've been asked to post the Atrium leaseholders side of the Atrium/Festiva contract dispute. I have attached a letter we send to Atrium owners, it trys to explain fully what has transpired over the past 2 years. At this time we have filed our response in the Sint Maarten courts to the Festiva suit against 3 owners to change the conditions of our lease/contract. We have at this time 450 owners in our litigation group, this group at this time has 3 injunction petitions before the Sint Maarten court as there are no provisions in Sint Maarten for a class action suit. The first two injunction petitions were settled in 2007 by agreements with Atrium to honor our existing contracts, Festiva has violated thse agreements two times and we have brought these injunctions back before the court. The third injunction petition includes the new owners that have joined the proceedings. All three injunctions are before the court. At this time the court is in recess for the month of July.
Any Atrium owner interested in joining the litigation please contact me. Rowiep@aol.com Rowie Percoco
Dear Fellow Atrium Leaseholder,
This letter is to try and inform you of a new organization that 370 current Atrium leaseholders have formed to protect your current Atrium lease against changes proposed by the new owners of the Atrium Resorts NV, Festiva Resorts. This new organization is called The Atrium Resort Lessees of Sint Maarten a Non Profit Foundation, its objective is: “The objective of the Foundation is to promote, preserve and defend the terms and conditions of the leaseholder’s contract with the Atrium Resort NV; to organize current and future leaseholders agreeing to maintain the current leaseholder agreement.”
We invite you to join this organization, as an Atrium Leaseholder you have a vested interest in maintaining your lease as written and sold to you by the Atrium Resorts NV.
If you are not familiar with the current situation regarding the dispute concerning our lease this letter will try to bring you up to date so that you may make an educated decision about defending your current lease terms and conditions. We will give a brief history, what we are defending, what our motives are and what we expect for the future.
History:
As you know Festiva Resorts purchased the Atrium Resort NV in October 2005. With this purchase they assumed all lease contracts, the remaining unsold inventory and the physical building and contents. They also assumed all management responsibilities and liabilities.
In October of 2006 they informed all the leaseholders of the implementation of a Special Assessment of two times the maintenance fee and 10% increase in the maintenance fees. This increase in the maintenance fees and special assessment were in violation of the terms and conditions of the leaseholder agreement.
In November 2006 a group of lessees retained an attorney in Sint Maarten to dispute the violations of the lease agreements. From that point over 370 leaseholders have joined the litigation. We have two agreements with Atrium Resorts NV/Festiva Resorts pertaining to Atrium Resorts NV honoring the existing lease agreements.
In April of 2007 Festiva/Atrium billed all Atrium leaseholders a reduced special assessment. In this letter by Festiva/Atrium, statements were made that a plan was made between and by an appointed advisory board of four leaseholders and Festiva management and a reduced assessment plus the 10% increase in maintenance fees would be implemented for 2007. This letter also stated future assessments would be needed and Festiva made a mistake by trying to bill the assessment all at one time
In December 2007 Atrium Resorts NV filed suit in Sint Maarten court against a represented group of 3 Atrium leaseholders a suit to change the terms of the current lease. In this suit Festiva/Atrium is asking the court to abolish all reference to the increase in maintenance fees control by the use of the CPI of the NA as agreed to by the parties in the lease agreement, Article 9. Festiva/Atrium claims this clause is unacceptable and asks the court to set aside this clause and permit Festiva/Atrium to “always annually raise the maintenance fee contribution in the future subject to real figures and that the presented increase in fees be checked firstly by an independent accountant”. They also have requested the court to require the “summoned party” to pay the 10% increase in maintenance fees and special assessment of two (2) times the annual maintenance fee.
Festiva/Atrium wishes to be released from the restrictions in Article 9, Limitation of increases in maintenance fees to the CPI of the NA, and they want the court to strike this Article from the existing contract.
Our Motives:
The motive first and foremost is to protect the contract. As in many cases we purchased our unit with a 99 year lease. In our minds the contract was written to preserve our vacation in a stable, safe and secure manner. It is a contract that protects both the owner of Atrium NV and the leassee’s. It was presented as one of the best on the island. After the preservation of our lease/contract we can then move on as a group and discuss what is in the best interest of the Atrium Resort. In 2000 Atrium NV, owned by Simon Mcauley, hired Festiva Resorts to sell and market the same contracts that Festiva Resorts is now trying to change through the Sint Maarten court. Many of you purchased your units under the ownership of Simon Mcauley and sales of Festiva Resorts.
Expectations:
We expect Festiva Resorts/Atrium NV to honor the contract’s they assumed and sold when they purchased the business. We expect Atrium NV to adhere to said lease/contract and maintain the Atrium resort in the manner stated in the lease/contract. Under the terms and conditions of the lease maintenance fee increases are limited to the annual increase in the CPI of the Netherlands Antilles. We expect to utilize the remaining years left on our lease/contracts as specified under the terms and conditions of said contract.
What does this mean to you, an Atrium Leaseholder:
If the court finds in favor of Festiva/Atrium your contract and all Atrium leaseholder contracts will be subject to this ruling. Festiva/Atrium at its whim may and will raise your maintenance fee each and every year subject to a budget with the only control on spending “firstly checked by an independent accountant”. You will be subject to any and all expenses of operations at the Atrium in the past and in the future. You will also be subject to any and all Special Assessments requested by Festiva/Atrium and subject to legal interest until said Assessments are paid in full. You will be subject to any and all changes as promulgated by Festiva resorts.
As members of the Foundation we can as one entity defend the terms and conditions of the existing lease/contract. The Foundation will provide the members legal representation and advise and assist the members. Your and our goal will be to defend the terms and conditions of the lease and maintain the Atrium in the condition as prescribed in said lease/contract.
The Foundation is registered with the Government of Sint Maarten and the constitution is available for you to review.
Why should you join the litigation group?
You have, as we all have, about 80 years remaining on your existing lease. If the current owners of the Atrium Resort NV continue to raise maintenance fees and charge special assessments at will, your lease will be worthless in a very short period of time and the expense of owning your lease will be prohibitive. The previous owner of the Atrium maintained the resort with the funds covered under the current contract. Every leaseholder desires the Atrium Resort to be maintained as per the agreement in place. We all realize conditions change and additional funds may be needed for specific purposes. What cannot change are the terms and conditions of the lease as endorsed by the parties. The lease must be upheld in court as it was endorsed. Festiva bought the Atrium Resort NV after five years of being the selling agent of this same contract to many of you. Under it’s ”due Diligence” Festiva Resorts must have discounted the purchase of the resort due to the “deficit” listed in the 1997-2005 financial reports. The leaseholder cannot be responsible for bad business decisions and Festiva Resorts must abide by the lease as it accepted all terms and conditions upon acquiring said leases.
All we need for you to join the Foundation is an email request that you want to join the Foundation and support the litigation to preserve your Atrium lease. Please include your name, address, phone, unit number and week in your email. You can also write to me with the same request but we prefer to use email as it is cost effective and easier to keep record as we have to forward everything to the attorney in Sint Maarten.
My email is rowiep@aol.com. Please email me if you require additional information or a copy of either the Festiva suit or the Foundation constitution. Our mailing address is: Rowie Percoco, Atrium Fund, 7138 Westmoreland Dr. Sarasota, FL 34243 Phone 941-360-3336 We also have information on our website: www.atriumowners.com
This is a very important decision to make. A large group of leaseholders have already decided to maintain the terms and conditions of their lease. Many of you did not know of the litigation efforts or heard stories about the litigation that are certainly out of context. It has been very difficult to contact the leaseholders as Festiva has refused to provide any lists of owners to anyone. Please contact me if you care about maintaining your lease/contract so that we may continue to enjoy our vacation experience at the Atrium Resort as sold to us by the Atrium Resort.
Sincerely,
Rowie Percoco, Lead Litigant
I've been asked to post the Atrium leaseholders side of the Atrium/Festiva contract dispute. I have attached a letter we send to Atrium owners, it trys to explain fully what has transpired over the past 2 years. At this time we have filed our response in the Sint Maarten courts to the Festiva suit against 3 owners to change the conditions of our lease/contract. We have at this time 450 owners in our litigation group, this group at this time has 3 injunction petitions before the Sint Maarten court as there are no provisions in Sint Maarten for a class action suit. The first two injunction petitions were settled in 2007 by agreements with Atrium to honor our existing contracts, Festiva has violated thse agreements two times and we have brought these injunctions back before the court. The third injunction petition includes the new owners that have joined the proceedings. All three injunctions are before the court. At this time the court is in recess for the month of July.
Any Atrium owner interested in joining the litigation please contact me. Rowiep@aol.com Rowie Percoco
Dear Fellow Atrium Leaseholder,
This letter is to try and inform you of a new organization that 370 current Atrium leaseholders have formed to protect your current Atrium lease against changes proposed by the new owners of the Atrium Resorts NV, Festiva Resorts. This new organization is called The Atrium Resort Lessees of Sint Maarten a Non Profit Foundation, its objective is: “The objective of the Foundation is to promote, preserve and defend the terms and conditions of the leaseholder’s contract with the Atrium Resort NV; to organize current and future leaseholders agreeing to maintain the current leaseholder agreement.”
We invite you to join this organization, as an Atrium Leaseholder you have a vested interest in maintaining your lease as written and sold to you by the Atrium Resorts NV.
If you are not familiar with the current situation regarding the dispute concerning our lease this letter will try to bring you up to date so that you may make an educated decision about defending your current lease terms and conditions. We will give a brief history, what we are defending, what our motives are and what we expect for the future.
History:
As you know Festiva Resorts purchased the Atrium Resort NV in October 2005. With this purchase they assumed all lease contracts, the remaining unsold inventory and the physical building and contents. They also assumed all management responsibilities and liabilities.
In October of 2006 they informed all the leaseholders of the implementation of a Special Assessment of two times the maintenance fee and 10% increase in the maintenance fees. This increase in the maintenance fees and special assessment were in violation of the terms and conditions of the leaseholder agreement.
In November 2006 a group of lessees retained an attorney in Sint Maarten to dispute the violations of the lease agreements. From that point over 370 leaseholders have joined the litigation. We have two agreements with Atrium Resorts NV/Festiva Resorts pertaining to Atrium Resorts NV honoring the existing lease agreements.
In April of 2007 Festiva/Atrium billed all Atrium leaseholders a reduced special assessment. In this letter by Festiva/Atrium, statements were made that a plan was made between and by an appointed advisory board of four leaseholders and Festiva management and a reduced assessment plus the 10% increase in maintenance fees would be implemented for 2007. This letter also stated future assessments would be needed and Festiva made a mistake by trying to bill the assessment all at one time
In December 2007 Atrium Resorts NV filed suit in Sint Maarten court against a represented group of 3 Atrium leaseholders a suit to change the terms of the current lease. In this suit Festiva/Atrium is asking the court to abolish all reference to the increase in maintenance fees control by the use of the CPI of the NA as agreed to by the parties in the lease agreement, Article 9. Festiva/Atrium claims this clause is unacceptable and asks the court to set aside this clause and permit Festiva/Atrium to “always annually raise the maintenance fee contribution in the future subject to real figures and that the presented increase in fees be checked firstly by an independent accountant”. They also have requested the court to require the “summoned party” to pay the 10% increase in maintenance fees and special assessment of two (2) times the annual maintenance fee.
Festiva/Atrium wishes to be released from the restrictions in Article 9, Limitation of increases in maintenance fees to the CPI of the NA, and they want the court to strike this Article from the existing contract.
Our Motives:
The motive first and foremost is to protect the contract. As in many cases we purchased our unit with a 99 year lease. In our minds the contract was written to preserve our vacation in a stable, safe and secure manner. It is a contract that protects both the owner of Atrium NV and the leassee’s. It was presented as one of the best on the island. After the preservation of our lease/contract we can then move on as a group and discuss what is in the best interest of the Atrium Resort. In 2000 Atrium NV, owned by Simon Mcauley, hired Festiva Resorts to sell and market the same contracts that Festiva Resorts is now trying to change through the Sint Maarten court. Many of you purchased your units under the ownership of Simon Mcauley and sales of Festiva Resorts.
Expectations:
We expect Festiva Resorts/Atrium NV to honor the contract’s they assumed and sold when they purchased the business. We expect Atrium NV to adhere to said lease/contract and maintain the Atrium resort in the manner stated in the lease/contract. Under the terms and conditions of the lease maintenance fee increases are limited to the annual increase in the CPI of the Netherlands Antilles. We expect to utilize the remaining years left on our lease/contracts as specified under the terms and conditions of said contract.
What does this mean to you, an Atrium Leaseholder:
If the court finds in favor of Festiva/Atrium your contract and all Atrium leaseholder contracts will be subject to this ruling. Festiva/Atrium at its whim may and will raise your maintenance fee each and every year subject to a budget with the only control on spending “firstly checked by an independent accountant”. You will be subject to any and all expenses of operations at the Atrium in the past and in the future. You will also be subject to any and all Special Assessments requested by Festiva/Atrium and subject to legal interest until said Assessments are paid in full. You will be subject to any and all changes as promulgated by Festiva resorts.
As members of the Foundation we can as one entity defend the terms and conditions of the existing lease/contract. The Foundation will provide the members legal representation and advise and assist the members. Your and our goal will be to defend the terms and conditions of the lease and maintain the Atrium in the condition as prescribed in said lease/contract.
The Foundation is registered with the Government of Sint Maarten and the constitution is available for you to review.
Why should you join the litigation group?
You have, as we all have, about 80 years remaining on your existing lease. If the current owners of the Atrium Resort NV continue to raise maintenance fees and charge special assessments at will, your lease will be worthless in a very short period of time and the expense of owning your lease will be prohibitive. The previous owner of the Atrium maintained the resort with the funds covered under the current contract. Every leaseholder desires the Atrium Resort to be maintained as per the agreement in place. We all realize conditions change and additional funds may be needed for specific purposes. What cannot change are the terms and conditions of the lease as endorsed by the parties. The lease must be upheld in court as it was endorsed. Festiva bought the Atrium Resort NV after five years of being the selling agent of this same contract to many of you. Under it’s ”due Diligence” Festiva Resorts must have discounted the purchase of the resort due to the “deficit” listed in the 1997-2005 financial reports. The leaseholder cannot be responsible for bad business decisions and Festiva Resorts must abide by the lease as it accepted all terms and conditions upon acquiring said leases.
All we need for you to join the Foundation is an email request that you want to join the Foundation and support the litigation to preserve your Atrium lease. Please include your name, address, phone, unit number and week in your email. You can also write to me with the same request but we prefer to use email as it is cost effective and easier to keep record as we have to forward everything to the attorney in Sint Maarten.
My email is rowiep@aol.com. Please email me if you require additional information or a copy of either the Festiva suit or the Foundation constitution. Our mailing address is: Rowie Percoco, Atrium Fund, 7138 Westmoreland Dr. Sarasota, FL 34243 Phone 941-360-3336 We also have information on our website: www.atriumowners.com
This is a very important decision to make. A large group of leaseholders have already decided to maintain the terms and conditions of their lease. Many of you did not know of the litigation efforts or heard stories about the litigation that are certainly out of context. It has been very difficult to contact the leaseholders as Festiva has refused to provide any lists of owners to anyone. Please contact me if you care about maintaining your lease/contract so that we may continue to enjoy our vacation experience at the Atrium Resort as sold to us by the Atrium Resort.
Sincerely,
Rowie Percoco, Lead Litigant
