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The 191st General Court of the Commonwealth of Massachusetts

Section 42A: Resale service providers; disclosure obligations

Section 42A. (a)(1) Before engaging in resale advertising services, a resale service provider shall provide to the consumer time-share reseller: (i) a description of any fees or costs related to such services that the consumer time-share reseller, or any other person, is required to pay to the resale service provider or to any third party; and (ii) a description of when such fees or costs are due.

(2) A resale service provider may not engage in activities that would qualify the provider as a real estate broker, as defined in section 87PP of chapter 112, without being the holder of a valid and current active license in accordance with said section 87RR.

(b) In the course of offering resale advertising services, a resale advertiser shall not:

(i) state or imply that the resale advertiser will provide or assist in providing any type of direct sales or resale brokerage services other than the advertising of the consumer resale time-share for sale or rent by the consumer timeshare reseller;

(ii) state or imply to a consumer time-share reseller that the time-share has a specific resale value;

(iii) engage in any resale advertising services for compensation or valuable consideration without first obtaining a written agreement to provide such services signed by the consumer time-share reseller; provided, however, that notwithstanding any other general or special law to the contrary, the agreement shall be printed in at least 12–point type and shall contain:

(A) the name, address, telephone number and web address, if any, of the resale advertiser and a mailing address and e-mail address to which an agreement cancellation notice may be delivered at the consumer time-share reseller's election;

(B) a complete description of all resale advertising services to be provided, including, but not limited to, details regarding the publications, internet sites and other media that will be used to advertise the consumer resale time-share, the dates or time intervals for such advertising or the minimum number of times advertising will run in each specific medium, the itemized cost to the consumer time-share reseller of each resale advertising service to be provided, and a statement of the total cost to the consumer time-share reseller of all resale advertising services to be provided; and

(C) a statement printed in at least 12–point boldfaced type immediately preceding the space in the agreement provided for the consumer time-share reseller's signature in substantially the following form:

''TIME–SHARE OWNER'S RIGHT OF CANCELLATION

(Name of resale advertiser) will provide resale advertising services pursuant to this agreement. You have an unqualified right to cancel this agreement for any reason within 3 business days after the date you sign this agreement. This right to cancel may not be waived. If you decide to cancel this agreement, you must notify (name of resale advertiser) in writing of your intent to cancel. Your notice of cancellation shall be delivered in person or sent by certified or registered United States mail and sent to (resale advertiser's physical address) and shall be effective upon the date sent. Your refund will be made within 20 days after receipt of notice of cancellation or within 5 days after receipt of funds from your cleared check, whichever is later. You are not obligated to pay (name of resale advertiser) any money unless you sign this agreement and return it to (name of resale advertiser)'';

(iv) make or submit any charge to a consumer time-share reseller's credit card account, make or cause to be made any electronic transfer of consumer time-share reseller funds or collect any payment from a consumer time-share reseller in an aggregate amount totaling more than $75 in any 12–month period unless the consumer time-share reseller has been provided a copy of the terms and conditions of the agreement provided for in clause (iii) and the consumer time-share reseller has agreed to such terms and conditions by mail or electronic transmission;

(v) fail to honor a cancellation notice sent by the consumer time-share reseller within 3 days after the date the consumer time-share reseller signs the agreement for resale advertising services in compliance with subclause (C) of clause (iii); or

(vi) fail to provide a full refund of all money paid by a consumer time-share reseller within 20 days after receipt of notice of cancellation or within 5 days after receipt of funds from a cleared check, whichever is later.

(c) If a resale service provider uses an agreement for resale advertising services that fails to comply with subsection (b), the agreement shall be voidable at the option of the consumer time-share reseller for a period of 1 year after the date it is executed by the consumer time-share reseller.

(d) Notwithstanding obligations placed upon any other persons by this section, it is the duty of a resale service provider to supervise, manage and control all aspects of the offering of resale advertising services by an agent or employee of the resale service provider. A violation of this section that occurs during the offering of resale advertising services by an agent or employee of the resale service provider shall be deemed a violation by the resale service provider, as well as by the agent or employee actually committing the violation.

(e) Providing resale advertising services with respect to a consumer resale time-share in a time-share property located or offered within the commonwealth, or in a multi-location plan registered or required to be registered in the commonwealth, including acting as an agent or third-party service provider for a resale service provider, shall constitute operating, conducting, engaging in or carrying on a business or business venture in the commonwealth for the purposes of chapter 223A.

(f) Notwithstanding the civil penalty in section 4 of chapter 93A, a violation of this section brought pursuant to section 49 shall be subject to a civil penalty of not more than $15,000 for each such violation.