Dear Editor,
With interest I read your article on the Supreme Court judgment in the Alegria timeshare case, in which Lexwell represents the timeshare owners (in the Supreme Court appeal assisted by Bart van der Wiel, as correctly mentioned in your article):
https://www.thedailyherald.sx/index.php/islands/timeshare-case-referred-back-to-court-of-appeals-for-re-judgment. In reading your synopsis, especially when coupled with HBN’s press release that you quote at the end of the article, we believe an important part of the judgment remains unmentioned. After the following two paragraphs, the Supreme Court’s (important) conclusion and final decision is missing:
In its judgment, the Supreme Court ruled that the rights and obligations of the former lessor in the lease agreements between Endless Vacation and the timeshare owners have not passed to Alegría under Article 7:226 of the Civil Code. “After all, it was the bank as creditor and not Endless Vacation as landlord who transferred the business rights on the rented property to Alegría,” the High Court stated.
The Supreme Court also found insufficient grounds to anticipate the workings of the draft Timeshare Ordinance. “Where the draft Timeshare Ordinance provides a rule that protects the timeshare taker, regardless of whether the selling or transferring party is the contracting party of the timeshare taker, this deviates strongly from the applicable law, while it is also unclear whether, and if so when, the Timeshare Ordinance will be established and come into effect,” the High Court stated.
We believe an additional paragraph, along the following lines, would complete the synopsis:
The Supreme Court furthermore ruled that Alegria may be obligated to comply with the former lessor’s obligations based on tort or good faith, if the specific, extraordinary circumstances warrant so. The Court of Appeals had ruled that such extraordinary circumstances did exist, however, did not sufficiently motivate that decision, according to the Supreme Court. The Court’s decision only relied on the fact that Alegria was aware of the timeshare agreements when it purchased the resort at the auction, which is insufficient to carry its conclusion. The Supreme Court adds that there may be other circumstances that can carry that conclusion and, therefore, refers the matter back to the Court of Appeals for a new ruling on this matter. Thus, a final outcome of the case is still to be awaited.
This is in essence what the Supreme Court considers in paragraph 3.8 of its judgment and what HBN (conveniently) leaves out in its press release.
Femke Jansen
Lexwell Attorneys at Law
