Commerce, Real Estate

Rule R162-57a

Timeshare and Camp Resort Rules

Notice of Proposed Rule

(Amendment)

DAR File No.: 37076
Filed: 11/27/2012 01:08:43 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule amendment is to eliminate extraneous definitions, simplify project registration procedures for out-of-state projects, and clarify unprofessional conduct by adding internal references.

Summary of the rule or change:

This amendment eliminates the definition of "marketing of interests" and replaces any reference to "marketing" with the term "advertising," "offering," or "selling," as appropriate, throughout. This amendment also adds, in Section R162-57a-5, that an entity that advertises, offers, or sells properties situated outside of Utah for which the entity does not hold fee title may now provide a title opinion from a title insurer licensed where the property is situated. Previously, an entity was only able to provide an opinion letter from an independent, third party attorney, actively licensed to practice in the jurisdiction where the property is situated. Finally, Section R162-57a-13 adds a reference to Subsection R162-57a-11(2)(b)(i) to clarify that it is unprofessional conduct to fail to provide the complete property report as further described in the referenced section.

State statutory or constitutional authorization for this rule:

• Section 57-18-3

Anticipated cost or savings to:

the state budget:

This rule filing removes moot language and clarifies existing provisions. The state budget will not be affected.

local governments:

Local governments are not required to comply with or enforce the timeshare administrative rules. This filing will have no fiscal impact on local governments.

small businesses:

This rule filing is for clarification only. It does not impose any new requirements or procedures on small businesses. Therefore, no fiscal impact is anticipated.

persons other than small businesses, businesses, or local governmental entities:

This rule filing is for clarification only. It does not impose any new requirements or procedures on affected persons. Therefore, no fiscal impact is anticipated.

Compliance costs for affected persons:

This rule filing is for clarification only. It will allow affected entities to more easily provide proof that they are legally entitled to use property. No fiscal impact is anticipated.

Comments by the department head on the fiscal impact the rule may have on businesses:

The proposed amendments eliminate a defined term and, instead, make use of terms that are defined in statute. They also clarify registration requirements for developments located outside of Utah and add an internal reference to clarify when a failure to provide disclosure documents would be considered unprofessional conduct. Where the amendments are for clarification only, no fiscal impact to businesses is anticipated.

Francine Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Real Estate
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Mike Palumbo at the above address, by phone at 801-530-6654, by FAX at , or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/15/2013

This rule may become effective on:

02/01/2013

Authorized by:

Jonathan Stewart, Director

R162. Commerce, Real Estate.

R162-57a. Timeshare and Camp Resort Rules.

R162-57a-2. Definitions.

(1) "Affiliation" means an employment or independent contractor relationship between a salesperson and a developer.

(2) "Amendment" means a change to an original registration as to information submitted pursuant to Subsection R162-57a-5(3)(j)-(y).

(3) "Annual report" means information submitted to the division in order to renew a project registration, including the following:

(a) the number of intervals, memberships, or other interests sold since the registration was issued or last renewed;

(b) the total number of intervals, memberships, or other interests sold since the date of initial registration;

(c) the number of intervals, memberships, or other interests reacquired by foreclosure or similar proceeding that had previously been reported as sold;

(d) the total number of registered but unsold intervals, memberships, or other interests as of the date of the annual report; and

(e) the total number of intervals, memberships, or other interests that have been registered.

(4) The acronym "ATR" means ARELLO Timeshare Registry, which is the online database system through which developers may register projects with the division.

(5) "Business day" means a day other than a:

(a) Saturday;

(b) Sunday; or

(c) state or federal holiday.

(6) "Common promotional plan" means a plan whereby multiple timeshare or camp resort interests, whether in the same location or not, are advertised and/or offered for disposition without the ownership of the interests being differentiated or distinguished.

(7) "Common facilities" means areas and amenities within a project to which all purchasers share an equal right of access and use.

(8) "Consolidation" means the registration of additional interests in a project for which the director has previously issued a registration.

(9) "Day" means calendar day unless specified as "business day."

(10) "Direct sales presentation" means a meeting in which a salesperson provides information about project(s) or interest(s) to one or more prospective purchasers.

(11) "Entity" means:

(a) a corporation;

(b) a limited liability company;

(c) a partnership;

(d) a company;

(e) an association;

(f) a joint venture;

(g) a business trust;

(h) a trust; or

(i) another organization.

(12) "Expired registration" means a project or salesperson registration that may not be used to [market]advertise, offer, or sell interests because the holder of the registration failed to renew it by or before the expiration date.

[ (13) "Marketing of interests" means implementing a common promotional plan through:

(a) print media;

(b) direct mailings;

(c) television, radio, or Internet advertising;

(d) in-person communication;

(e) sales presentations; or

(f) any other method of contacting a prospective purchaser.

] [(14)](13) "Notice of defect" means a written communication from the director informing an applicant that the applicant must submit additional information to clarify, complete, or correct an application for:

(a) registration;

(b) consolidation; or

(c) renewal.

[(15)](14) "Person" means an individual or an entity.

[(16)](15) "Personal information" means data that may be used to identify or contact a prospective purchaser, including:

(a) name;

(b) home or business address;

(c) home, business, or cell telephone number; and

(d) e-mail address.

[(17)](16) "Prospective purchaser" means a person who:

(a) attends a sales presentation;

(b) communicates with a developer or salesperson in order to obtain information about a project;

(c) provides personal information to a developer or salesperson; or

(d) is solicited by a developer or salesperson through any type of [marketing]advertisement.

[(18)](17) "Property report" means a document that includes:

(a) disclosures required pursuant to Section 57-19-11;

(b) a cover sheet as generated and provided by the division; and

(c) a receipt generated by the division.

[(19)](18) "Public offering statement" has the same meaning as "property report."

[(20)](19) "Registration" means:

(a) as to a project, division approval of the project as being suitable for the advertisement, offering, and sale[marketing] of interests; and

(b) as to a salesperson, division approval for the salesperson to engage in the advertisement, offering, and sale[marketing] of interests.

[(21)](20) "Reinstatement period" means a 30-day period following the expiration of registration during which a person may reinstate an expired registration by submitting all required renewal materials and paying applicable fees.

[(22)](21) The acronym "RELMS" means Real Estate License Management System, which is the online forum through which registered salespersons may submit forms and information to the division.

[(23)](22) "Renewal" means extending a registration for an additional period on or before the date the registration expires.

[(24)](23) "Supplement" means a change in the information submitted pursuant to Subsection R162-57a-5(3)(a)-(i).

[(25)](24) "Temporary permit" means authorization from the division for a developer to engage in the [marketing]advertisement, offering, and sale of interests for a period not to exceed 30 days.

 

R162-57a-5. Project Registration.

(1) Registration required.

(a) A person may not engage in the [marketing]advertisement, offering, or sale of interests unless:

(i) the project is properly registered with the division pursuant to Section 57-19 et seq. and these rules; and

(ii) each individual who will engage in [marketing]offering or selling interests is registered as salesperson pursuant to Section 57-19 et seq. and these rules.

(b)(i) A project is not considered registered until the developer seeking registration obtains from the division:

(A) a complete property report, approved by the division; and

(B) an order of registration.

(ii) A salesperson is not considered registered until the individual receives a registration from the division.

(c) Absent the issuance of a property report or registration, acceptance by the division of a registration fee does not authorize a person to engage in the [marketing]advertisement, offering, or sale of interests.

(2) Registration procedure. A developer shall submit all information required under Subsection (3) to the division:

(a) through the ATR; or

(b) if the developer obtains advance permission from the division, directly to the division.

(3) Required Information. A developer shall submit to the division:

(a) property report pursuant to Section 57-19-11 and Subsection R162-57a-11;

(b) as to each officer, partner, director, and owner of the developer:

(i) as applicable, documentation of any disciplinary or adverse licensing action taken against a professional license held by the individual in any jurisdiction;

(ii)(A) a statement of the type and extent of any financial interest the individual has in the project; and

(B) an explanation of any options the individual may exercise to acquire additional financial interest in the project;

(iii) as applicable, court records from any criminal proceeding taken against the individual in any jurisdiction, regardless of whether the proceeding was resolved by:

(A) conviction;

(B) plea in abeyance;

(C) diversion agreement;

(D) sentence of confinement; or

(E) dismissal; and

(iv) as applicable, documentation of any bankruptcy filing by:

(A) the individual; or

(B) an entity in which the individual has held:

(I) an ownership interest; or

(II) a position as a manager, officer, or director;

(c) evidence that the developer is registered in good standing with the Utah Division of Corporations;

(d) corporate resolution naming a resident agent to act on behalf of the developer;

(e) copy of the current articles of incorporation or other instrument creating the developer entity;

(f) copy of the current bylaws of the developer entity;

(g)(i) states or jurisdictions in which the developer has filed an application for registration or similar document;

(ii) copy of the property report or other disclosure document required to be given to purchasers by any jurisdiction in which the project is registered or the developer is otherwise authorized to [market]advertise, offer, or sell interests;

(iii) full documentation of any adverse order, judgment, or decree entered in connection with the project by any regulatory authority in any jurisdiction;

(h) name of any salesperson who will [market]offer or sell interests in the project;

(i) name of the individual who will be responsible for directly supervising the salesperson(s) [marketing]offering or selling interests in the project;

(j) legal description of the property upon which the project is located;

(k) statement, generated or updated within the 30-day period preceding the date of application, of the condition of the title to the property upon which the project is located, including encumbrances;

(l)(i) copy of any instrument by which the developer acquired interest in the project; or

(ii) if the developer does not hold fee title to the property, evidence that the developer is legally entitled to use the property, as follows:

(A) if the property is situated within Utah:

(I) a title opinion from a title insurer licensed in Utah; or

(II) an opinion letter from an independent, third party attorney actively licensed in Utah;

(B) if the property is situated outside of Utah[,]:

(I) a title opinion from a title insurer licensed where the property is situated; or

(II) an opinion letter from an independent, third party attorney who is actively licensed to practice in the jurisdiction where the property is situated; and

(C) if the property is located in a jurisdiction such as a foreign country where property title opinions are issued by parties other than title companies and attorneys, other evidence of title as specified and approved by the director;

(m) copy of any instrument creating a lien, easement, restriction, or other encumbrance affecting the project, including any recording data, but redacted as to the consideration paid upon acquisition of the project;

(n) statement of the zoning and other governmental regulations affecting the use of the project;

(o) existing and proposed taxes or special assessments that affect the project;

(p)(i) copies of the instruments that will be delivered to a purchaser to evidence the purchaser's interest in the project; and

(ii) copies of the contracts and other agreements that a purchaser will be required to agree to or sign;

(q) topograhic map and accompanying statement describing the general topography and physical characteristics of the project, including:

(i) terrain;

(ii) soil conditions;

(iii) flood control; and

(iv) climate;

(r) copy of any:

(i) recorded declaration of condominium;

(ii) recorded covenants, conditions, and restrictions (CCRs); and

(iii) instrument governing the project and incorporating all covenants of the grantor or lessor;

(s) copy of any plan to create an association for project owners;

(t) narrative description of the promotional plan for the disposition of the project;

(u) statement disclosing any inducement that will be offered in connection with the [marketing]advertisement, offering, or sale of interests in the project;

(v) map showing:

(i) the location of the interests and other improvements on the property;

(ii) the relation of the project to existing streets, roads, and other off-site improvements; and

(iii) the relation of the project to factors that might negatively impact the quiet enjoyment of an interest;

(w)(i) statement of improvements and amenities to be installed that have not been completed;

(ii) schedule for completion;

(iii) evidence that the developer has obtained all necessary permits; and

(iv) if the city or county in which the property is located does not require means of assurance that all improvements and amenities referred to in the application will be completed, copies of:

(A) escrow or trust agreements;

(B) performance bonds; or

(C) other documentation to evidence that adequate financing is available and arrangements have been made for the installation of all streets, sewers, electricity, gas, water, telephone, drainage, and other improvements;

(x)(i) provisions for maintenance to both existing and planned improvements and amenities; and

(ii) estimated cost of such maintenance to purchasers;

(y) description of any corrective work that must be performed on or relating to the project before particular interests are suitable for use;

(z) completed application as required by the division; and

(aa) a nonrefundable registration fee.

(4) The director may waive production of an item required pursuant to Subsection (3) if the developer shows that the item is not necessary to fulfill the purposes of Section 56-19 et seq.

(5) Consolidation.

(a) An application for consolidation shall be prepared and submitted in the same format as an application for initial registration.

(b) Where there is no change in the information submitted by the developer for the initial registration, the documents required by Subsection (3) may be incorporated by reference to documents on file with the division.

(c) An incomplete application for consolidation shall be treated as provided in Subsection (6).

(d) New inventory added to a project through consolidation is subject to inspection by the division.

(6) Notice of defect.

(a) If an application is incomplete, or otherwise fails to comply with Section 57-19 et seq. or these rules, the director shall send a notice of defect to the developer or the developer's legal representative specifying:

(i) what additional information is required to cure the defect; and

(ii) the deadline by which the division must receive the additional information.

(b) After receipt of a notice of defect, the developer may not offer units to the public:

(i) until the defect is cured and a registration obtained; or

(ii) without obtaining a temporary permit pursuant to Section 57-19-6(3) and Subsection (8).

(c)(i) If the additional information is not received by the division by the deadline specified in the notice of defect, the director may deny the registration.

(ii) An order of denial may be appealed pursuant to Section 57-19-17.

(7) Standards for approval.

(a) The director may not approve an application for registration of a project unless:

(i) the documents submitted pursuant to Subsection (3) meet the requirements of Section 57-19 et seq. and these rules; and

(ii) the developer demonstrates the ability to convey or cause to be conveyed the interests offered for disposition.

(b) The division may not issue a project registration to a developer that has an officer, partner, director, or owner who has:

(i) been prosecuted for a felony that resulted in a:

(A) conviction within the five-year period preceding the date of application;

(B) plea agreement within the five-year period preceding the date of application; or

(C) jail or prison release date falling within the five-year period preceding the date of application; or

(ii) been prosecuted for a misdemeanor involving fraud, misrepresentation, theft, or dishonesty that resulted in a:

(A) conviction within the three-year period preceding the date of application; or

(B) jail or prison release date falling within the three-year period preceding the date of application.

(c) If the director determines that a registration application and supporting documentation meet the criteria for registration, the division shall issue:

(i) an order of registration designating the form of the property report that the developer is required to provide to a prospective purchaser pursuant to Section 57-19-11;

(ii) a property report cover sheet, which the developer shall attach to the property report as its first page; and

(iii) a receipt for property report, which the developer shall attach to the property report as its last page.

(8) Temporary permit.

(a) To apply for a temporary permit, a person shall:

(i) make application by submitting a written request to the director;

(ii) comply with Section 57-19-6(3); and

(iii) pay all fees required for registration.

(b) A temporary permit issued by the director is valid for a period of 30 days from the date of issue.

(c) A temporary permit may not be renewed.

(9) Notification of changes.

(a) A developer whose project is registered under Section 57-19 et seq. shall report to the division within 10 business days any change in:

(i) the developer's contact information;

(ii) the disclosures required under Section 57-19-11;

(iii) the information provided under this Subsection (3), including changes in salespersons employed or contracted to [market]advertise, offer, or sell interests in the project;

(iv)(A) the bankruptcy of an entity controlled or owned by the developer that engages in the [marketing]advertisement, offering, or sale of interests; and

(B) if the developer is an individual, the filing of a personal bankruptcy;

(v) the suspension, revocation, surrender, cancellation, or denial or a professional license or professional registration issued to the developer, whether the license or registration is issued by this state or another jurisdiction;

(vi) the entry of a cease and desist order, a temporary or permanent injunction, or a regulatory action:

(A) against the developer by a court or a government agency; and

(B) based on:

(I) conduct or a practice involving the [marketing]advertisement, offering, or sale of interests; or

(II) conduct involving fraud, misrepresentation, or deceit; and

(vii) a finding of fraud, misrepresentation, or deceit entered against the developer in a judicial or administrative proceeding instituted by a purchaser and arising out of or relating to:

(A) the advertising or sale of an interest;

(B) disclosures required under Section 57-19-11; or

(C) rescission rights.

(b) If a deadline for notification falls on a day when the division is closed for business, the deadline shall be extended to the next business day.

(10) Amendment and supplement to initial registration.

(a) To submit an amendment to a registration, a developer shall:

(i) complete an amendment filing through the ATR; or

(ii) obtain prior permission from the division to submit the information by mail.

(b) To submit a supplement to a registration, a developer shall:

(i) complete a courtesy filing through the ATR; or

(ii) obtain prior permission from the division to submit the information by mail.

(c) Pursuant to Section 57-19-8(4), the certification of a class in a class-action lawsuit against a developer on the basis of the developer's advertising, selling, or managing a project or interest requires the filing of an amendment.

 

R162-57a-13. Unprofessional Conduct.

(1) Developer.

(a) Affirmative duties. A developer or an individual designated by the developer shall:

(i) actively supervise project salesperson(s) to ensure compliance with Section 57-19 et seq. and these rules;

(ii) provide the complete property report to each prospective purchaser pursuant to Subsection R162-57a-11(2)(b)(i);

(iii) obtain a signed receipt for property report from a prospective purchaser prior to:

(A) executing a purchase agreement; or

(B) receiving any item of value toward the purchase of an interest; and

(iv)(A) clearly inform a purchaser of the purchaser's right to rescind the agreement if, during the rescission period mandated by Section 57-19-12, the purchaser expresses a desire to terminate a contract or agreement entered into by the purchaser; and

(B) ensure compliance with this Subsection (iv)(A) by:

(I) all subsidiaries of the developer;

(II) all persons affiliated with the developer; and

(III) all persons affiliated with a subsidiary of the developer.

(b) Prohibited conduct. A developer is subject to discipline if the developer or an affiliated person:

(i) makes a misrepresentation or material omission in a document submitted to the division; or

(ii) fails to comply with an order of the division.

(2) Salesperson. A salesperson shall comply with:

(a) Section 57-19 et seq.;

(b) these rules; and

(c) this Subsection (1)(a)(ii)-(iv).

 

KEY: timeshare, camp resort, registration, professional conduct

Date of Enactment or Last Substantive Amendment: [August 21, 2012]2013

Authorizing, and Implemented or Interpreted Law: 57-19-3; 57-19-5 through 57-19-26