An overdue positive move

Until a few years ago timeshare in Malta was not regulated. Those operating in the timeshare industry were very much their own regulators. Regrettably, self-regulation in Malta has never really been much of a success except perhaps in one or two instances. Self-regulation in timeshare was not one of the success stories in the realm of self-regulation.

The need for some form of regulation by the government was long in coming. Periodically mention of some intervention by the government was made, however, until 2000 nothing actually materialised by way of regulation at law. What prompted some definitive action then was primarily due to the commitment of the Maltese government to comply with the EU acquis - and more specifically to the Timeshare Directive. In fact, in 2000 the Protection of Buyers in Contracts for Time Sharing of Immovable Property Regulations were enacted.

In substance, these regulations provided some minimum protection to buyers of timeshare by requiring, among other things, that sellers provide certain essential information during the different phases of sale and, notably, that buyers can withdraw or cancel a timeshare contract within 10 days from the signing of the contract without giving any reason.

These regulations, while a first positive step, failed however to address what was and, to some extent still remains, one of the main causes of complaint relating to timeshare in Malta - the objectionable marketing tactics used by certain so-called sales representatives in selling timeshare.

I recall reading an editorial in The Times entitled "Harassment by timeshare touts" precisely calling for remedial action to put a stop to such practices. The government had, in fact, a few months after this editorial was published, enacted regulations implementing the EU timeshare directive, failing however to specifically deal in any way with the harassment problem.

Now, thanks to the recent enactment of the Timeshare Promotion (Licensing of OPC Representatives) Regulations, it appears that the powers-that-be, to their merit - even if somewhat late in day - have finally decided to take a firm stand and put an end to practices that have, over the years, served to give a bad name to the industry as a whole.

The scope of the Timeshare Promotion Regulations is to regulate the activities of what are popularly known in timeshare as OPC (outside promotional contact) representatives. These regulations expressly state that no person can act as an OPC representative if he/she does not have a valid licence issued by the Malta Tourism Authority (MTA). In order to be issued with such a licence, a person as a minimum requires a police conduct certificate or an attestation as to his/her conduct by his/her employee.

The licences are issued for a year and have to be renewed annually.

The MTA may also impose in any licence such conditions as it may consider appropriate. One mandatory condition specifically required in the regulations is the wearing by OPC representatives of an "identity document in a clearly visible manner". Failure to do so is an offence. I sincerely hope, for the sake of the unsuspecting "buyer", that this particular norm will be strictly observed.

The most important norm in these regulations is the prohibition on OPC representatives to act "in any manner or make any representation" to any prospective buyer which is misleading or deceptive or involves a failure to disclose information which should in the circumstances be given.

The regulations also expressly prohibit the use of force, harassment, coercion or undue influence or pressure on a prospective buyer.

At first glance it seems that these regulations do go some way in dealing with unfair practices in the promotion of timeshare. At this stage it is perhaps premature to comment in depth.

The penalties appear to be quite all-encompassing even if the maximum fines seem to be somewhat on the low side.

Notably, the regulations empower the MTA to refuse to renew a licence if the applicant has acted in breach of the regulations and actually empower the MTA to suspend or withdraw forthwith any licence issued under the regulations if it considers that the offence is sufficiently serious to merit such a measure.

One additional measure worth considering, which does not appear to be catered for, is to make the OPC representative personally liable for the refund of any money that a potential buyer may have paid as a result of the exercise of some form of excessive pressure etc in breach of these regulations.