ecwinch
TUG Member
- Joined
- Jun 6, 2005
- Messages
- 3,737
- Reaction score
- 1,124
- Location
- San Antonio
- Resorts Owned
- Marriott Harbour Point (HP), Kauai Beach Villas, Riverside Suites, WorldMark Pts (WM), Wyndham Pts
Hello moderator: would you please tell me what Fairmont Vacation Villas Consumer Protection Agreement Means? Also tell why the President,Fairmont Resort Properties LD Collin Knight witnessed this document with his Signature. My spouse and I had to go threw every item on this document from 1 to 18 and initial and then Collin Knight signed. This is how item number 9 reads. I understand that the annual maintenance fee is currently $_441 gst incl per week of ownership. Said fee shall cover maid service,utilities,insurance,taxes,refurbishing and general maintenance.Fees are subject to increases as costs increase. If you cross reference this over to my 2002 Vacation Villa Lease to Item number 9 operating costs and reserve for Refurbishing it is saying the same thing. Now what won the case for Janet Lydiatt and the Banff Rocky Resort Ltd case was the knowledge of The Judge J.T. McCarthy. He used the Fair Trading ACT of Alberta to handle this case. This is not a Condominium. “Time Share Contract” is identified under the Fair Trading ACT, “time Share Contract” means a Contract in which an individual acquires the right to us, occupy or possess real or personal property whether or not it is located in Alberta. The Time Share Regulation A.R. Came in 1999 and it replaced the Condominium ACT. Moderator please read the 2002 Vacation Villa Lease contract over and also read the Canadian Consumer Handbook over under the topic Knowing Your Options and you will see the description of a “right-to-use” Time Share. Keep in mind in my case we paid $25000.00 up front fees and used the resort, for 12 years and paid maintenance fees. Just because we did not feel the Cancellation Agreement was designed so you might not ever get released,keep in mind majority of us are seniors quoted by Service Alberta. There is nothing in my 2002 Lease Agreement that states we have to pay Special Assessments. I was at the court June 28/2017 and what I heard in the room Justice Youngs biggest concern was Albertan’s winning their cases and this would tie up the Alberta Courts for years. I almost jumped up and said Albertan’s have the right to Justice. I also feel All Canadians and Americans have the right to justice. I bet I have talked to and emailed back and forth to BC Protection and the Office of the superintendent more than most Albertan’s. What is your opinion on the upfront money that Northmont never talks about. Do you feel there should of been a forensic Audit done on this resort so 14500 Time Share owners know where the money went?
Spark1 - While I do have legal training, I am not a lawyer, and certainly am not a judge. And I certainly do not want to be a drag on the momentum of this group. But since you have asked my opinion (which you will probably soon regret ), I will offer the following:
First off, my personal opinion is certainly that the group has legitimate grievances and I empathize with the situation you find yourself in. But I also cannot help to wonder if emotion is not overcoming logic in this situation. I understand the emotion this topic can foster, especially when for 3-4 years you have one picture painted for you and at trial the court views the legal issues presented completely differently.
With that as context, here is what I found regarding the Janet Lydiatt v Banff Rocky Resort case on the issues at trial (emphasis added).
The repairs undertaken pursuant to the "special assessment fee" appeared to be properly characterized in the Agreement as part of the "Annual Use Fee" as replacement reserves - The defendant underestimated the required increase in the "Annual Use Fee" over a number of years, resulting in an insufficient replacement reserve - This did not authorize them to impose an "Annual Use Fee" that did not otherwise comply with the terms of the Agreement - The "special assessment fee" exceeded the allowable increase in "Annual Use Fee" and there was no authority within the terms of the Agreement for imposing a retroactive "Annual Use Fee".
This summary is consistent with the reasoning the trial judge used in explaining why he rejected the precedent from the Lydiatt case. And when I review the VIA, I find no mention of a cap on increases in annual use fee. Absent that key clause, the court finds it reasonable that the owners should pay for the refurbishment. You might argue that unjustly enriches Northwynd as they will receive a resort in better condition they would have originally. And while that is true, that is the nature of the contract you entered into (that the property would revert to the developer).
And while I appreciate your position that this is a timeshare and not a condo, I find that is exactly the position the court took and is frequently cited as the reasoning behind their decisions. That because this is a timeshare, you have obligations to your fellow owners, and the trustee has a duty to protect the interests of your fellow owners. The court discusses this issue at length starting with para 26 - THE NATURE OF JEKE’S INTEREST.
So while I understand that some are seeking an outcome that allows them to walk away, the court is accurately pointing out that allowing such an outcome increases the burden on your fellow owners. And placed in the position of having to balance the rights of all the timeshare owners, they find the reorganization plan originally proposed in 2013 is the best outcome in that regard. That exit options offered at that time properly balance your obligations against the rights of remaining owners. IMHO - in a more perfect world - that would have been the legal strategy your counsel would have quickly negotiated. Instead they chose the path of attempting to invalidate the contracts, and that strategy failed.
On your other two points I fail to see merit in the argument. Courts naturally have responsibility to ensure efficient use of limited judicial resources. Nothing untoward there.
Likewise on the upfront money issue, it is not talked about because Fairfield's bankruptcy extinguished any claim on that point. As with almost any claim regarding Fairfield.
Just my 2 cents. Thanks for asking.
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