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Old 02-18-2013, 09:22 AM   #16
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Originally Posted by chalee94 View Post
since the language says "the developer", does that section apply to resellers? i know it would apply to direct purchases from DVD, since they are the developer...but i'm a little surprised that an individual seller is subject to the same rule...
Good question.

I am not a lawyer and unused to the language used in writing statues.

That said, I do think the law applies to all sellers. Here is something from 721.17:

(4) That the transferee will fully honor all rights of timeshare purchasers to cancel their contracts and receive appropriate refunds.

And something from 721.21:

Purchasers’ remedies.—An action for damages or for injunctive or declaratory relief for a violation of this chapter may be brought by any purchaser or owners’ association against the developer, a seller, an escrow agent, or the managing entity. The prevailing party in any such action, or in any action in which the purchaser claims a right of voidability based upon either a closing before the expiration of the cancellation period or an amendment which materially alters or modifies the offering in a manner adverse to the purchaser, may be entitled to reasonable attorney’s fees. Relief under this section does not exclude other remedies provided by law.

If there is a lawyer who posts here that is experienced in timeshare law, maybe she or he will provide an opinion.

I really do think it is wrong to offer on more than one contract at a time unless one is fully prepared to buy all that are accepted.
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Old 02-18-2013, 08:18 PM   #17
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Originally Posted by chalee94 View Post
since the language says "the developer", does that section apply to resellers? i know it would apply to direct purchases from DVD, since they are the developer...but i'm a little surprised that an individual seller is subject to the same rule...
FL statues 721 specifically defines an individual as not a developer.

Quote:
(d) The term “developer” does not include:
1. An owner of a timeshare interest who has acquired the timeshare interest for his or her own use and occupancy and who later offers it for resale; provided that a rebuttable presumption shall exist that an owner who has acquired more than seven timeshare interests did not acquire them for his or her own use and occupancy;
Quote:
(45) “Consumer resale timeshare interest” means:
(a) A timeshare interest owned by a purchaser;
(b) One or more reserved occupancy rights relating to a timeshare interest owned by a purchaser; or
(c) One or more reserved occupancy rights relating to, or arranged through, an exchange program in which a purchaser is a member.
The cancellation info does not specify anyone that it does not apply to, it simply references the purchaser.
Quote:
721.10 Cancellation.—
(1) A purchaser has the right to cancel the contract until midnight of the 10th calendar day following whichever of the following days occurs later:
(a) The execution date; or
(b) The day on which the purchaser received the last of all documents required to be provided to him or her, including the notice required by s. 721.07(2)(d)2., if applicable.
This right of cancellation may not be waived by any purchaser or by any other person on behalf of the purchaser. Furthermore, no closing may occur until the cancellation period of the timeshare purchaser has expired. Any attempt to obtain a waiver of the cancellation right of the timeshare purchaser, or to hold a closing prior to the expiration of the cancellation period, is unlawful and such closing is voidable at the option of the purchaser for a period of 1 year after the expiration of the cancellation period. However, nothing in this section precludes the execution of documents in advance of closing for delivery after expiration of the cancellation period.
I know there used to be a provision that specified that this info covered private sellers as well but scanning through I can't see that right now.
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Old 02-19-2013, 12:32 AM   #18
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It has been a few years since I purchased my resale contract so maybe things have changed but I was not asked for a deposit until after my offer was accepted by the seller. The steps in the process from my (the buyer's) perspective went something like this:
  • Buyer makes an offer, broker presents it to the seller
  • Seller accepts
  • Broker emails sales contract to buyer
  • Buyer signs and returns the sales contract along with a deposit
  • Wait for ROFR...
  • Buyer receives closing documents
  • Buyer signs and returns closing docs along with final payment
So, at least in my case, until the seller accepted my offer I was not asked to send in any money. That made sense to me because the seller might decide to refuse the offer, in which case the broker would have to send my money right back.
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Old 02-19-2013, 10:59 AM   #19
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Originally Posted by JimMIA View Post
Generally, with an offer you are required to submit a deposit.
I've dealt with all three of the major brokers and ended up buying through 2 of them. None of them ever required a deposit with the offer. The deposit was always required once the seller and buyer had signed and completed the contract.

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Bottom line: I would never make any offer I was not willing to finalize.
I agree with you here. I've had multiple offers in at the same time and have let my broker know that I would be buying all of them if the offers were accepted.
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Old 02-19-2013, 11:59 AM   #20
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Originally Posted by JimMIA View Post
Charles has nailed the key question to answer in this kind of a scenario.

Generally, with an offer you are required to submit a deposit.

Three things are required for a legally-binding contract: an offer, an acceptance, and "consideration," which means something of value changing hands. Your deposit is the consideration. That means if your offer, accompanied by a deposit, is accepted, you have entered into a binding contract.

If you make multiple offers, and get multiple acceptances, you could lose multiple deposits if you decide not to go through with all the transactions.

Also -- and I've had this happen when I was selling -- if the prospective seller realizes you are making multiple offers, they may not take you seriously.

I had a prospective buyer like that. They were not serious, were wasting my time and the brokers, so I treated them accordingly. I did not even bother to respond to their offer.

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Bottom line: I would never make any offer I was not willing to finalize.
Like Doug said, this isn't exactly the case. An accepted offer is the precursor to the broker issuing contracts. The deposit is provided at the time you sign the contract, and that is where it become subject to forfeiture should you decide to back out (after the 10 day recision period has expired. This clause does apply to resale purchasers.) Up until that point, your money is not at risk; all you have to lose is your credibility.

But again I agree, I would not make an offer if I didn't intend to buy.

Quick question, Jim, how could you be sure that the buyer in your case wasn't serious? Like Doug, I have made multiple offers at the same time with the intent of following through with any and all accepted offers. So I'm wondering what gave you as a seller the impression that your prospective buyer wasn't serious.
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Old 02-19-2013, 12:12 PM   #21
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IMO this is one of the very few areas where the applicable laws/rules and ethics diverge in timesharing. Unless one qualifies in some way and is up front about the multiple offers, I see it as unethical to do so. Just like I see it as unethical to cancel an offer or contract if a better one comes along. Past threads on this subject have suggested that many don't see it that way.
I agree with you here. Just because you are technically allowed to do something does not mean you should. The assumption is that sellers and buyers are negotiating in good faith. To negotiate for a contract that you do not have the intention of buying contradicts this belief.

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I would hope that resale brokers would require a deposit before submitting an offer to the seller. If the offer is accepted and later withdrawn, the deposit would then be forfeited. Most real estate transactions are conducted in this manner to prevent insincere offers.

I'd stick with one offer (with a deposit) if you are serious about a purchase. If I were a seller, I'd make sure a deposit has been made before even considering an offer.

Good luck!
While I agree it could eliminate some potential problems to require a deposit prior to making an offer, I think that the paperwork it would create for the brokers would be prohibitive and making the deposit nonrefundable challenges Florida real estate contract law.

But I agree, timeshare transactions are different than typical real estate transactions. When I bought my house, I had to write a 1% deposit check just to make the offer, or else I would not have been taken seriously. Unfortunately, timeshare resales are a little looser, which creates the opportunity for prospective buyers who are not negotiating in good faith to operate.

I think that the best way to prevent this from happening is for the brokers themselves to vet their buyers. Just such a case was discussed in another thread where the prospective buyer backed out of multiple offers.
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Old 02-19-2013, 12:32 PM   #22
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Originally Posted by ELMC View Post
...
While I agree it could eliminate some potential problems to require a deposit prior to making an offer, I think that the paperwork it would create for the brokers would be prohibitive and making the deposit nonrefundable challenges Florida real estate contract law.
I disagree that any such paperwork would prohibitive for a real estate broker as that is part of their responsibility in dealing with real estate transactions. As for the non-refundable deposit conflicting with FL law - my understanding is that there is a 10 day rescision period, after which the deposit is non-refundable (without approval by the seller) already in the law so there should not be any conflict for provisions not included in the accepted offer.
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Old 02-19-2013, 12:43 PM   #23
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Originally Posted by WebmasterDoc View Post
I disagree that any such paperwork would prohibitive for a real estate broker as that is part of their responsibility in dealing with real estate transactions.
Fair point.


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Originally Posted by WebmasterDoc View Post
As for the non-refundable deposit conflicting with FL law - my understanding is that there is a 10 day rescision period, after which the deposit is non-refundable (without approval by the seller) already in the law so there should not be any conflict for provisions not included in the accepted offer.
We share the same understanding about the 10 day recision period and the fact that the deposit is refundable should one decide to cancel within this time. So how could there be a non refundable deposit in the event that a buyer withdraws their offer? I don't think I'm understanding the point you're trying to make.
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Old 02-19-2013, 01:11 PM   #24
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Originally Posted by andy117 View Post
We've been looking at getting into DVC, when making an offer will the major sites let you put in multiple offers at the same time? We're looking for something in the neighborhood of 200 points, not too picky about which resort.
I put in several offers (on different contracts) advertised by the same broker in the past with no problem. I would typically submit my offers in my order of preference and with the "first offer accepted wins" philosphy for contracts at the same resort.

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Old 02-19-2013, 01:23 PM   #25
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Fair point.


We share the same understanding about the 10 day recision period and the fact that the deposit is refundable should one decide to cancel within this time. So how could there be a non refundable deposit in the event that a buyer withdraws their offer? I don't think I'm understanding the point you're trying to make.
From the recent threads about making and withdrawing offers, it is apparent to me that many buyers have no skin in the game and seem to be rather flippant about making real estate offers. FL law provides a 10 day rescision to allow a buyer to cancel the transaction for any reason - after which time there would be no refund of any earnest money deposit. Until 10 days, the deposit is 100% refundable. Perhaps if buyers had placed a deposit, they would at least have $$$ tied up in the transaction and might not be so eager to withdraw and move on whenever the grass looks a little greener on another listing.

I also have little patience with sellers who list their property, accept an offer and later withdraw from contracts and I feel that the buyers should be more proactive about pursuing their legal rights in those cases too - but again, if they have not paid any earnest money they have lost little except some time.

IMO, it is up to the brokers to act in a professional manner. Certainly, when making a direct purchase from Disney, none of these things ever occur. Deposits are expected and made during the offer period and returned if the 10-day rescision is invoked. By not expecting a deposit until an offer has been accepted, they have invited these situations where buyers withdraw after a couple of days and move on. I have no problem when buyers put a deadline for a response on an offer (or when sellers do the same thing on a counter-offer) - and that also fulfills a legal responsibility to void the offer after that time. The seller can accept or counter by that deadline and the buyer is released from responsibility once the deadline passes. The brokers also have the responsibility to follow up on these deadlines.

It seems that for some reason, some DCV resale brokers have they own permutation of the way real estate transactions are handled. I have purchased and sold non-DVC timeshares in WI, GA, IN, and SC and have always made earnest deposits for these purchases and only responded to offers where an earnest deposit had been made. The system always worked well in these cases.

If it is too much trouble for DVC resale brokers to use earnest money deposits as a routine component of their listings, perhaps any chaos from these issues is deserved.

YMMV.
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Old 02-19-2013, 02:14 PM   #26
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I also have little patience with sellers who list their property, accept an offer and later withdraw from contracts and I feel that the buyers should be more proactive about pursuing their legal rights in those cases too - but again, if they have not paid any earnest money they have lost little except some time.
I had a few sellers back out after I had signed and paid a deposit. In addition to the time I lost, I also lost the exchange rate on my deposit going from Canadian to US funds, then getting the refund and going from US back to Canadian funds. Not a huge amount, but still a real cost to me. The bigger loser is the DVC broker who is out their commission because the seller changed their mind. My broker definitely made it sound like this does happen occasionally and that it really isn't worth their effort to make the seller hold to the agreement. So while the law can be on your side, the cost to have it enforced could easily be more than it is worth.

Buying resale can still be a great deal if you are willing to put in the work and have the time.
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Old 02-19-2013, 02:23 PM   #27
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From the recent threads about making and withdrawing offers, it is apparent to me that many buyers have no skin in the game and seem to be rather flippant about making real estate offers. FL law provides a 10 day rescision to allow a buyer to cancel the transaction for any reason - after which time there would be no refund of any earnest money deposit. Until 10 days, the deposit is 100% refundable. Perhaps if buyers had placed a deposit, they would at least have $$$ tied up in the transaction and might not be so eager to withdraw and move on whenever the grass looks a little greener on another listing.

I also have little patience with sellers who list their property, accept an offer and later withdraw from contracts and I feel that the buyers should be more proactive about pursuing their legal rights in those cases too - but again, if they have not paid any earnest money they have lost little except some time.

IMO, it is up to the brokers to act in a professional manner. Certainly, when making a direct purchase from Disney, none of these things ever occur. Deposits are expected and made during the offer period and returned if the 10-day rescision is invoked. By not expecting a deposit until an offer has been accepted, they have invited these situations where buyers withdraw after a couple of days and move on. I have no problem when buyers put a deadline for a response on an offer (or when sellers do the same thing on a counter-offer) - and that also fulfills a legal responsibility to void the offer after that time. The seller can accept or counter by that deadline and the buyer is released from responsibility once the deadline passes. The brokers also have the responsibility to follow up on these deadlines.

It seems that for some reason, some DCV resale brokers have they own permutation of the way real estate transactions are handled. I have purchased and sold non-DVC timeshares in WI, GA, IN, and SC and have always made earnest deposits for these purchases and only responded to offers where an earnest deposit had been made. The system always worked well in these cases.

If it is too much trouble for DVC resale brokers to use earnest money deposits as a routine component of their listings, perhaps any chaos from these issues is deserved.

YMMV.
Thanks for clarifying, and I do agree with your points. The 10 day rule is meant to act as a shield to protect buyers, but all too often prospective buyers use it as a sword to cavalierly make offers that they have no intention of following through on. I do agree that having to put down a deposit might act as a deterrent, but unfortunately in this case there is no real way to legislate in a way that completely eliminates bad behavior. The best case scenario is to simply make it inconvenient to do so.
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Old 02-19-2013, 03:00 PM   #28
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But I agree, timeshare transactions are different than typical real estate transactions. When I bought my house, I had to write a 1% deposit check just to make the offer, or else I would not have been taken seriously. Unfortunately, timeshare resales are a little looser, which creates the opportunity for prospective buyers who are not negotiating in good faith to operate.
In every real estate transaction I've dealt with the broker usually (but not always) asked for a check to hold but it was never deposited until contracts were signed and escrow was opened. Really there's nothing else they can do so the check is just a display but nothing binding until all contracts are completed - and really any contingencies removed if those are written in. Even then I've had title agents email to verify if we're a go and they should deposit the check several days after contracts were finished.

While to some people sending a deposit would be giving and would be received as a show of commitment to other people it doesn't matter a bit and they will still cancel if they find something different because they can.

Regarding multiple offers I don't think it's appropriate unless you are willing to purchase all. If not then at the very least place a time limit on the offer and if that is exceeded then move on to another. With the subtle variations in resale between resorts, length of contracts, points available, use years etc. I also would not try to find a broker that would generically make offers on contracts for me. I would locate specific contracts and tailor my offers to them until a mutual agreement was made with a seller.
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Old 02-19-2013, 03:31 PM   #29
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In every real estate transaction I've dealt with the broker usually (but not always) asked for a check to hold but it was never deposited until contracts were signed and escrow was opened. Really there's nothing else they can do so the check is just a display but nothing binding until all contracts are completed - and really any contingencies removed if those are written in. Even then I've had title agents email to verify if we're a go and they should deposit the check several days after contracts were finished.

While to some people sending a deposit would be giving and would be received as a show of commitment to other people it doesn't matter a bit and they will still cancel if they find something different because they can.

Regarding multiple offers I don't think it's appropriate unless you are willing to purchase all. If not then at the very least place a time limit on the offer and if that is exceeded then move on to another. With the subtle variations in resale between resorts, length of contracts, points available, use years etc. I also would not try to find a broker that would generically make offers on contracts for me. I would locate specific contracts and tailor my offers to them until a mutual agreement was made with a seller.
Very true. But I think that there are those who are just kicking tires who would not want to write a check (or give a credit card number) regardless of whether or not they could cancel. So this extra step would at least eliminate part of the problem.
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Old 02-19-2013, 05:31 PM   #30
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In every real estate transaction I've dealt with the broker usually (but not always) asked for a check to hold but it was never deposited until contracts were signed and escrow was opened. Really there's nothing else they can do so the check is just a display but nothing binding until all contracts are completed - and really any contingencies removed if those are written in. Even then I've had title agents email to verify if we're a go and they should deposit the check several days after contracts were finished.

While to some people sending a deposit would be giving and would be received as a show of commitment to other people it doesn't matter a bit and they will still cancel if they find something different because they can.

Regarding multiple offers I don't think it's appropriate unless you are willing to purchase all. If not then at the very least place a time limit on the offer and if that is exceeded then move on to another. With the subtle variations in resale between resorts, length of contracts, points available, use years etc. I also would not try to find a broker that would generically make offers on contracts for me. I would locate specific contracts and tailor my offers to them until a mutual agreement was made with a seller.
Timeshares are a little different that regular RE. My understanding is that a deposit is generally expected with a written offer but not with a verbal offer though I'm sure it varies at times.
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