Any contract detailing the rights of an individual to use one or more property in Spain during a specific or specifiable period during the year is covered under this law, wherever and whenever the place and date of contracting.
Timeshare rights are those which give to the holder the right to use and enjoy an independent dwelling, with exclusive character, for a specific period of time within the year. It includes the necessary furniture for this use and any complementary services & facilities. It is regulated in Spain by a Law dated 1998.
The Spanish regulation considers timeshare as a type of seasonal rental. Crucially, the holder of timeshare rights does not acquire ownership rights, but the right to use the property for a specific period of time only. The duration of these rights is not indefinite; the developers of these type of complexes need to specify the period for the enjoyment of these rights which s always should be between 3-50 years. Outright ownership of the property remains the developers.
Because the developer retains ownership, they can always sell ownership rights with the limitations derived from the existence of the other persons use and enjoyment rights on the sold unit, which will remain for the contracted period.
Provision 1.4 of Law 42/1998 prohibited the denomination of those rights as multiownership” or any other way containing the word ownership”, owner or “property”.
For this reason, any contract signed in Spain containing the word ownership or property” (propiedad) is null and void and you have the right to a refund of any money paid, plus legal interest.
In Spain, the description that was finally chosen, as most appropriate, descriptive and loyal to Law is “derecho de aprovechamiento por turno”, which literally means right to use and enjoyment in shifts”
Publicity or promotion of these type of developments can never contain the word “propiedad”(property or ownership)
The timeshare scheme can only be formed in a building, property or set of them which are architecturally individual or separated. All independent units included in it, should be subject to the scheme. The building must have at least 10 units.
The same building can be subject at times to different tourist operations, provided that the rights of timeshare accommodations fall on concrete and specific periods and units.
The annual use/enjoyment period can never be less than 7 continuous days. In every case, within the same scheme, shifts should all have the same length. The units will also be reserved for repairs, cleaning or other common purposes for a period of time which shall not be inferior to seven days for each unit subject to the regime.
Main characteristics of timeshare rights in Spain are:
It is a limited ownership right (enjoyment): two or more different people hold rights on the same property (the owners and the holders of enjoyment rights).
It is immediate, as, in shifts, it gives to its holder a direct enjoyment of the property.
It is entered in the Land Registry, which gives to its holder a complete legal safety within the Spanish legal system. Obviously timeshare rights need to be transmitted by Notary deeds for their entry into the Land Registry.
It can be transmitted to others either in life or by death. They are part of the property trade.
Together with desisting from or cancelling the timeshare contract, possibilities that are subject to a shorter deadline, there is the possibility, initially sine die (without deadline) to apply for the nullity of the contract.
In what cases?
When timeshare rights are transmitted disregarding the imperative Law which regulates them.
When the transmission of timeshare rights are made before the scheme is actually constituted
When there is a lack of veracity of information provided to the buyer.
The action for the refund of amounts linked to the nullity has a 15 years deadline.
There are numerous precedents in Spanish Courts for the nullity and refund of money if you were sold under the term “propiedad” (property).
The important issue of adaptation
From January 1999 any preexisting timeshare regime needs to adapt to this Law. If this has not happened, any holder of timeshare rights will be able to request a Judge to compel the developer to do so.
Adaptation will always require a Notary deed and proper registration in the Land Registry.
Adaptation will respect the nature of rights which were transmitted by virtue of the old private contract. If ownership was transmitted, this is how it will have to be registered after approval of a simple majority of Community of owners.
All old contracts will have a time limit of 50 years unless parties have agreed otherwise or parties mutually or freely agree in the adaptation deed on a different definitive or non-definitive period.
If the owner of the development does not comply with the obligation of adapting the regime to this new regulation, the holder of timeshare rights will have rights to cancel the contract with effective devolution of amounts and compensation of damages.