Legal Question in Real Estate Law in California
timeshare cancellation
Under intense sales pressure and no experience of timeshare practices, we bought a timeshare in Cabo San Lucas Mexico based on the resort's sales team's verbal assurance that we had 30 days to cancel a contract, minus a non-refundable $1580 deposit. Upon our return, we contacted their U.S. custodian company based in California who indicated there was no such cancellation period and that we were beyond a 5 day , no-penalty cancellation period which we were not informed of by the sales team (despite us asking), but written in fine print on the back of a single page of the multitude of papers given us. We want a full refund of the downpayment and immediate cancellation of the contract since we were given fraudulent (verbal) information on which we made the purchase. The custodian stated we can opt out of the contract by signing a ''voluntary surrender'' letter, but that we would not get any refund of the down payment. Is there such a thing as this ''voluntary surrender'' letter? I am very suspicious since we trusted the sales team to give us accurate info, but now find ourselves in this unpleasant situation. We don't want to rest in this letter, only to hear from a collections agency later. What legal forms should I ask for?
2 Answers from Attorneys
Re: timeshare cancellation
Feel free to call me or our CA member firm contact to discuss this more fully. It would probably take about 15 to go over what we need to know and we would look into this a bit and get back to you.
NanceGroup.com
Re: timeshare cancellation
The fraud committed in Mexico is very possibly not chargeable in California, Illinois or elsewhere in the English-speaking world, unless perhaps you have enormous resources to commit to establishing that Baja California Sur is a "forum non conveniens" and you can effect service of process on the individual salespeople or determine exactly to whom they reported. Probably enough layers of agency to get the true promoters off the hook. In any case, verbal representations are hard to prove; if you could find the individuals, they would plausibly deny ever having mentioned a 30-day right of rescission. Further, you might be stuck with a presumption that you read the entire written contract, although if California law applied that presumption might be rebutted by the 5-day clause being in fine print.
As to the "voluntary surrender" letter, whatever they call it is not so important as what it actually says. If is says they won't come after you for a balance due, it's probably safe enough. Indeed, I think the timeshare would have a very hard, to impossible, job of collecting a further dime from you. I can't say so for sure, not having read the contract, but it's a pretty general principle of contract law that after breach of a contract the non-breaching party must mitigate its damages and cannot sue for the full contract price, but at most their unavoidable loss after they have taken reasonable steps to re-sell the property or goods. There may be even tougher laws applicable that would treat the forfeit of your deposit as liquidated damages.
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