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Alice H
Alice H, Solicitor/Partner
Category: Law
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Experience:  Partner in national law firm
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Can a timeshare company, the resort being in Spain and the

Customer Question

Can a timeshare company, the resort being in Spain and the offices in the Isle of Man, use the English courts to enforce payment of maintenance fees? The original documents were drawn up in the Isle of Man.
Submitted: 3 years ago.
Category: Law
Expert:  Alice H replied 3 years ago.
My name is Alex Hughes and I am a Solicitor based in London. I'm happy to help with your question today.

The time share agreement is your best source of information. If the agreement states that English Law is applicable for disputes then English Courts will have jurisdiction.

Also in some situations even if English Law doesn't prevail, proceedings issued in one jurisdiction can be served outside the jurisdiction. It really depends on the agreement, the nature of the enforcement action and whether there is an agreement between two jurisdictions to enforce each others court decisions.

Customer: replied 3 years ago.


Thank you, Alex, for your prompt and informative reply. This sent us back to the original agreement and the paperwork we received when we bought the timeshare. The "Management Agreement" is the last section of the Members' Handbook.


 


The final two sections of this read as follows:


 


"The Founder Members and the Management Company irrevocably:


 


"(i) submit to the exclusive jurisdiction of the Courts of the Isle of Man; and


 


"(ii) consent to service of process by mail or any other manner permitted by the Laws in force in the Isle of Man.


 


"This agreement shall be governed and construed in accordance with the Laws of the Isle of Man."


 


Because of what we consider to be unreasonable treatment by the resort and also fearful that the agreement commits us and our heirs to the agreement until, I think, 2068 (I'll be 124 years old and my wife 120), we have tried to sell the timeshare with no success and no prospect of success. For the past two years we have withheld payment of the management fees and now owe, the debt collection company tells us, something over £1200.


 


I can't see us being extradited to the Isle of Man (yes you can smile here), so any action would be in the English Court. Is it possible that they could succeed?


 


They have made an offer to release us from the ownership if we pay the full amount owing, but I am very unwilling to pay them anything. If we did decide to pay, it would be solely for my wife's peace of mind. For myself, I would be more than willing to attend the Court hearing with the aim of naming them vexatious litigants and claiming expenses from them. What do you advise?

Expert:  Alice H replied 3 years ago.
Thanks for the additional information. I can't comment on the fairness of the agreement without seeing the entire document.

However, on the issue of jurisdiction I can confirm that although the Isle of Man has a separate legal system to England and Wales there is a reciprocal agreement in place so that judgments from Manx can be enforced in England and vice versa.

As this is a civil matter not criminal you cannot be extradited to Manx. Worst case scenario is that if the case is decided against you then any judgement issued in Manx could be enforced against you in England e.g. bailiffs, charging order on property, attachment of earnings etc.

I can see the point about the reasonableness of paying £1,200 - it is, of course, a matter for you. But as to the best option you have to weigh up the time and money involved in defending the claim and paying the sum (you could offer a little less) to male the whole thing go away.

I am happy to discuss the issues further but please do remember to rate my answers so that I am credited for my time.

Alex
Customer: replied 3 years ago.


Thanks again Alex.


 


Just one last point, please. So far, any legal action taken against non-payers has been attempted in the English courts. We have read of three cases which have been thrown out for reasons of jurisdiction, but also hints that any such rejection could depend on the judge.


 


Does this change your advice in any way?


 


We look forward to your answer with great interest.


 


Best wishes,


 


Bernard

Expert:  Alice H replied 3 years ago.
Hello Bernard

Without reading the cases and understanding the reasoning behind the court's decision, it would be difficult for me to comment. I'd be shooting in the dark I'm afraid. But if you were able to identify the cases then I could certainly have a look at them for you.

Alex

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