Friday, November 22, 2013

Timeshare Scams

Some of the most common misrepresentations made to buyers and purchasers of timeshares mirror the Prohibited Practices in the South Carolina Timeshare Act.

SC Code Section 27-32-110(3): "misrepresent the amount of time or period of time the accommodations and facilities are available to a purchaser." It is important to ensure that the terms in the purchase documentation accurately reflects your understanding of how often you will be able to use your timeshare, which is usually understood in weeks or points, as well as when your timeshare is available for use, be it in a certain season of the year and annually or only once every other or every three years. It may be that you are informed of Developer Weeks that are available, and it is important that you confirm those terms in your purchase documentation.

SC Code Section 27-32-110(4): "misrepresent or deceptively represent the location of the offered accommodations and facilities." If the timeshare developer from which you are purchasing your timeshare sells timeshares for multiple timeshare resorts, you may be mislead to believe that you are purchasing at one resort and receive an interest in another resort. It is essential to confirm your understanding by carefully reading the purchase documents and to not rely upon the oral representations of your timeshare salesperson.

SC Code Section 27-32-110(5): "misrepresent the size, nature, extent, qualities, or characteristics of the offered accommodations and facilities." You may be informed that you will have access to a three-bedroom timeshare unit, but your paperwork will only reflect a two-bedroom unit. Those terms should be included in your purchase contract and should be reviewed and understood by you before signing any contract.

SC Code Section 27-32-110(6): "misrepresent the nature or extent of services incident to the accommodations and facilities." As detailed in another blog, you must be provided with a fully completed copy of your contract at the time of purchase. Ensure that your contract includes all of the benefits and perks described by your timeshare salesperson. Those benefits may be described as free golf for life, so many years, or so many rounds; the timeshare salesperson's promise to rent out your timeshare and send you a check; that you may profit from your timeshare and that your timeshare is an investment; use of beach houses and jets; and all sorts of attractive things.

SC Code Section 27-32-110(7): "make misleading or deceptive representations with respect to the contents of the contract or the purchaser's rights, privileges, or benefits under it." The theme here is to read your contract thoroughly, do not allow time pressures and other pressures to cause you to sign the contracts presented to you with reading and understanding them thoroughly. And it is absolutely essential to require that everything be in writing and included in your contract and that there be no side agreements or understandings otherwise.

SC Code Section 27-32-110(8): "fail to honor and comply with all provisions of the contract with the purchaser." Unfortunately, this provision is often of little assistance to victims of timeshare fraud, as the most common scenario involves oral misrepresentations that do not conform with the actual terms of the timeshare contained in the purchase documents. The actual terms contained within the purchase documents themselves are often complied with, though they are not the terms that the buyer or purchaser understood when making the purchase.

SC Code Section 27-32-110(9): "misrepresent the conditions under which a purchaser may exchange his rights to an accommodation in one location for rights to an accommodation in another location." If it is represented to you that you may exchange your timeshare or use your points in any way other than what is documented and understood thoroughly by you, beware. Claims for having special trading power for purchasing a certain timeshare or owning a timeshare in a certain area may be misleading and inaccurate. The timeshare points systems can often be very complicated with numerous conditions and requirements.

SC Code Section 27-32-110(10): "include in a contract a provision purporting to waive a right or benefit provided for purchasers pursuant to this chapter, or seek or solicit such a waiver during the effective period of these rules." Although a timeshare company cannot prevent you from standing up for your rights under the South Carolina Timeshare Act, it can compel you to submit your claim to arbitration as opposed to having a public hearing in the Public Court to be heard by a jury of your peers. Some would say that an arbitration clause contained in an adhesion contract in such an industry highly regulated in making representations about its timeshares to the public is unconscionable in and of itself, and that, whether such a provision should ever be included in a timeshare contract under any circumstance should be reviewed in a transparent way and public forum to ensure the regulation of the timeshare industry.

SC Code Section 27-32-110(11): "do any other act of fraud, misrepresentation, or failure to make a disclosure of a material fact." Ensure that you have the opportunity to review the contracts in detail and understand them before signing. If a timeshare salesperson is using tactics such as some binding, a staple or clip, or other methods to obscure terms of the contract, beware. A general search on Google, RipoffReport.com, and RedWeek.com reveals countless tales of fraud and misrepresentation by timeshare salespeople to buyers and purchasers.

Thursday, November 21, 2013

Grounds for Divorce in South Carolina

Divorce in South Carolina requires a legal process and Order signed by a Judge and filed with the Clerk of Court. However, no formal process is required to become married. People may be married by common law if they hold themselves out to others to be married and meet certain other requirements.

Before any individual may seek a divorce in South Carolina, they must have been a resident of South Carolina for at least one year, or both parties must have been residents of South Carolina for at least three months. Jurisdiction is determined by statute. Venue is normally in the County in which the Defendant resides, though it may be in the County in which the Plaintiff resides.

South Carolina does not recognize some well-known grounds for divorce in other states or as you may hear in the media, such as psychological cruelty and irreconcilable differences. The sole non-fault ground recognized in South Carolina, living separately and apart for one year, does not allow parties to immediately obtain a divorce upon an agreement or disagreement of the parties.

However, South Carolina does recognize four fault grounds such that the parties are not required to live separately and apart for one year before obtaining a divorce. The four fault grounds are abandonment for one year, habitual drunkenness or drug abuse, physical cruelty, and adultery. It is the burden of the party seeking to obtain a divorce based upon one of these four fault grounds to prove the grounds for divorce.

Most commonly, divorces are obtained upon living separately and apart continuously for one year. In the meantime, parties often obtain a Temporary Order either out of necessity, to protect their rights, or any of many other reasons. Otherwise, the most commonly pursued appears to be adultery. Obtaining a divorce upon the grounds of adultery requires that certain elements be met, namely opportunity and inclination to commit the same. This is a subjective standard, and ultimately a Judge will decide if adultery has been proven.

If you do not have grounds for divorce, other relief may be available to you through the Family Court. The Beaufort County Courthouse is located at 102 Ribaut Road, Beaufort, South Carolina 29926, and the Jasper County Courthouse is located at 265 Russell Street, Ridgeland, South Carolina 29936.

Tuesday, November 5, 2013

Litigation with Property Owners Associations

As a general practice litigation attorney on Hilton Head Island, over the years I have represented litigants on seemingly every side of disputes dealing with Property Owners Associations (POAs), also known as Homeowners Associations (HOAs). These POAs are perhaps best understood as a mandatory, community-wide organization that is governed by a Master Deed, and is run by a small group of community leaders, a Board of Directors, that includes a President, Vice-President, Treasurer, and Secretary.

The POAs, through their Boards of Directors, are responsible for the ownership and maintenance of all common areas of their communities, including parks and paths, as well as community infrastructure, including drainage-systems, signage, and offices, as well as the community's security needs, which may be handled by a private contractor. The cost for such community maintenance is estimated, budgeted, and then evenly divided among all community members, who pay regular annual dues to provide for such needs, as well as special assessments to provide for any additional community needs. The Board of Directors typically exercises its authority for necessary decision making during regularly scheduled meetings, which are open to all members and of which a written record is typically made.

Typical litigation relating to POAs concerns the collection of association dues, foreclosure of association liens, enforcement of association rules and regulations, elections of directors, levying of special assessments, amendments to Master Deeds, creations of easements, and resolving property-line disputes. In dealing with the POAs, members typically may request POA maintenance services, POA information, enforcement of rules and regulations, and accounting of POA finances. In dealing with members POAs typically require the payment of dues, exterior home and yard maintenance, prior approval of exterior construction, and public conduct and behavior in accordance with community standards.

Of course, these are general principles concerning POAs and common issues relating to them. Because every situation is unique, please give me a call for advice as to your particular case.

-Joseph DuBois