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EC directive on timesharing: one more reason to invest in Italy
by Federico Regaldo
A large amount of timeshares have been sold across national borders and too often the purchaser had no chance but to rely on the
good faith or financial soundness of the property developer. With EC Directive 94/47, of 26 October 1994, to the purchaser that
will invest its money in an Italian timeshare will be given an high degree of protection: several obligations to provide information,
the duty to let a cooling-off period and a ban of penalties eventually attached to the rescission thereinafter derived integrate a
system that already gives the defence consequent upon a direct ownership basis.
Most part of Italian timeshares are indeed structured on the co-ownership, laid down in article 1100 and following of the civil
code. Although the use of an instrument older than the concept of timesharing can pose some theoretical problem (Italian civil
code is dated 1942, while the first Italian timeshare plans were set down during the '70), the courts have solved most of them.
Italian law offers therefore a great protection of the consumer, once acquired the right of property (in rem), because of the
guarantees against the insolvency of the building company, the facilities in realising capital gains and the possibilities to exercise
large checks on the management and to react to abuses committed by other timeshares purchasers or third parties.
Moreover, the presence of the notary gives further guarantees, like the absence of encumbrances other than that declared and the
respondence to the town-planning.
The recent EC Directive aims to protect the timeshare purchaser before its willingness is coming to an agreement, so improving the
shield already conferred by Italian law and limited, as we have just seen, to the phase extending after the acquisition of the right of
property.
EC Directive 94/47 will be applicable to timesharing during 3 years or more and conferring the right to use a real estate (only for
habitation purposes) for 1 week or more par year. Under the Directive, the agreement has to mention a large number of
information as, for example, the legal status of the developer and nature of the right sold, a description of the estate or a detailed
project of the building, enclosing the warranties upon the effective achievement or the reimbursement of the sums already
deposited in case of failure. Further information has to be given upon the common facilities, the charges for the maintenance and
time and procedure for exerting the right of rescission.
On this subject, it has to be pointed out that a cooling-off period of 10 days from the signing of the agreement has to be always
observed, while a longer period of 3 months is established for the case of failure to provide the most important information;
furthermore, in the former case, the purchaser is obliged to return the fees strictly connected to the signing and the rescission of the
agreement only, while, in the latter, no charge is due.
Unfortunately, the time-limit for the implementation of the Directive on timesharing by the member States will expire only in April
1997 and, according to the case law of the European Court of Justice, there will be no way to rely upon it sooner. Finally, the
Directive 94/47, as well as Italian civil code, does not prevent the purchaser from the risk due to the bankruptcy of the developer
in the time elapsing between the signing of the preliminary agreement and that one of the definitive.
For these reasons, caution is still recommended.