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The 191st General Court of the Commonwealth of Massachusetts

Section 56: Transfer of interest; time-share services agreements; transfer services; penalties; prohibitions

Section 56. (a) In the course of offering time-share transfer services, no time-share transfer service provider shall:

(i) engage in any time-share transfer services for consideration, or the expectation of receiving consideration, without first obtaining a written time-share transfer services agreement signed by the consumer time-share reseller that complies with this section;

(ii) fail to provide both the consumer time-share reseller and the escrow agent required by subsection (c) with an executed copy of the resale transfer agreement;

(iii) fail to comply with the requirements of subsections (b) and (c); or

(iv) fail to fulfill its obligations under the time-share transfer agreement.

(b) Each time-share transfer services agreement shall contain:

(i) the name, physical address, telephone number and website address, if any, of the time-share transfer service provider and any other agent or third party who will provide the time-share transfer services on behalf of the time-share transfer service provider;

(ii) the name, physical address, telephone number and email address of the escrow agent, if applicable, that will be used to hold funds or other property pursuant to subsection (c);

(iii) a complete description of the time-share transfer services;

(iv) the duration of the contract for time-share transfer services expressed in days, weeks, months or years;

(v) a description of fees, costs, or other consideration to be paid to the time-share transfer services provider and any other agent or third party, including, but not limited to, commissions that are paid upon the transfer of a time-share;

(vi) a statement that all fees, costs or other compensation paid to a time-share transfer services provider shall be placed in escrow prior to the delivery to the consumer time-share reseller of written notice of the full performance of the time-share transfer services agreement and written evidence that all promised time-share transfer services have been performed, including, but not limited to, delivery to both the consumer time-share reseller and the managing entity a copy of the recorded instrument or other legal document evidencing the transfer of ownership of or legal title to the consumer resale time-share to the transferee, accompanied by the full name, address and other known contact information for the transferee; and

(vii) a statement in substantially the following form in conspicuous type immediately preceding the space in the time-share transfer services agreement provided for the consumer time-share reseller's signature:

''YOUR RIGHT OF CANCELLATION

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 time-share transfer services provider) 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 (time-share transfer services provider's mailing 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 time-share transfer services provider) any money unless you sign this contract and return it to (name of time-share transfer services provider).

Before signing this agreement, you should carefully review your original time-share purchase agreement and other project documents to determine whether there are any restrictions or special conditions applicable to the resale or rental of your time-share.''

(c)(1) All funds or other property which is received from or on behalf of a consumer time-share reseller pursuant to a time-share transfer services agreement shall be placed in escrow in the commonwealth, in an account designated solely for such purposes and maintained by an escrow agent which is either a licensed title insurance company, an attorney, a licensed real estate broker or an institution whose accounts are insured by a governmental agency. Fees, costs or other compensation that is due or that will be paid to the time-share transfer services provider under the time-share transfer services agreement shall be held in such escrow account until the time-share transfer services provider fully complies with all of its obligations under the time-share transfer services agreement and under this subsection.

(2) The funds or other property required to be escrowed pursuant to this subsection shall only be released from escrow as follows:

(i) to a time-share transfer services provider upon the presentation of an affidavit by such time-share transfer services provider to the escrow agent that all promised time-share transfer services have been performed, including notification to the consumer time-share reseller that the escrow funds are being requested to be released from escrow and delivery to both the consumer time-share reseller and the managing entity, or if a manager does not exist, the association, a copy of the recorded instrument or other legal document evidencing the transfer of ownership or of legal title to the time-share to the transferee.

(ii) to a managing entity to pay any time-share expenses, transfer fees or other money owed with respect to the consumer resale time-share set forth in the certificate provided for in section 42 or to pay a governmental agency, including, but not limited to, the registry of deeds or registry district of the land court, for the purpose of completing and perfecting the transfer; provided, however, that a managing entity shall accept any funds remitted to it by an escrow agent pursuant to this clause; or

(iii) to the consumer time-share reseller:

(A) upon written request to the escrow agent in the event the time-share transfer services provider fails to provide the time-share transfer services in the written agreement required by subsection (b);

(B) upon written request to the escrow agent in the event the consumer time-share reseller exercises its 3 day right of rescission in clause (vii) of subsection (b); or

(C) upon the mutual written agreement between the time-share transfer services provider and the consumer time-share reseller.

(3) The escrow agent shall retain all time-share transfer services agreements, escrow account records and affidavits received pursuant to this subsection for 3 years.

(d) Providing time-share transfer 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 offered in the commonwealth, including acting as an agent or third-party service provider for a time-share transfer services provider, shall constitute operating, conducting, engaging in or carrying on a business or business venture in the commonwealth for the purposes of chapter 223A.

(e) No person shall participate in a plan or scheme to transfer a consumer resale time-share to a transferee that the person knows or reasonably should have known does not have the ability, means or intent to pay all time-share expenses and taxes associated with the consumer resale time-share.

(f) Notwithstanding the civil penalty provided for 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.

(g) Subsections (a) to (c), inclusive, shall not apply to:

(i) a resale broker who offers time-share transfer services to a consumer time-share reseller, so long as the resale broker is licensed under the laws of the commonwealth and complies in all respects with applicable laws and regulations; or

(ii) an attorney licensed to practice law in the commonwealth and in good standing, a title insurer or agent of the title insurer licensed under the laws of the commonwealth and in good standing or a licensed title agent in good standing, who offers time-share transfer services to a consumer time-share reseller, so long as the total consideration paid by the consumer time-share reseller to such person does not exceed $600 exclusive of any time-share expenses, transfer fees or monies owed with respect to the time-share as set forth in the certificate provided for in subsection (a) of section 42, and exclusive of any fees owed to a governmental agency, including, but not limited to, the registry of deeds or registry district of the land court, to complete and perfect the time-share resale transfer.

(h) This section shall not apply to the transfer of ownership of a consumer resale time-share from a consumer time-share reseller to the developer or managing entity of that time-share property or to a consumer time-share reseller who transferred 5 or fewer time-shares in the previous 12 months.