55-362 - Definitions.
§ 55-362. Definitions.
When used in this chapter, or in a time-share instrument, unless the contextrequires a different meaning:
"Additional land" has the meaning ascribed to it in subsection C of §55-367;
"Alternative purchase" means anything valued in excess of $100 which isoffered to a potential purchaser by the developer during the developer'ssales presentation and which is purchased by such potential purchaser formore than $100, even though the purchaser did not purchase a time-share. Analternative purchase is not a time-share. A membership camping contract asdefined in § 59.1-313 is not an alternative purchase. An alternative purchaseshall be registered with the Board unless it is otherwise registered as atravel service under the Virginia Travel Club Act (§ 59-445 et seq.), andshall include, without limitation, vacation packages (howsoever denominated)and exit programs (howsoever denominated);
"Association" means the association organized under the provisions of §55-368;
"Board" means the Common Interest Community Board, an agency within themeaning of the Administrative Process Act (§ 2.2-4000 et seq.);
"Board of directors" means an executive and administrative entity, bywhatever name denominated, designated in a time-share estate projectinstrument as the governing body of the time-share estate owners' association;
"Common elements" means the real estate, improvements thereon, and thepersonalty situate within the time-share project that are subject to thetime-share program. "Common elements" shall not include the units and thetime-shares;
"Consumer documents" means the aggregate of the following documents: thereverter deed, note, and the deed of trust. A consumer document shall bedeemed one of the consumer documents;
"Contract," "sales contract," "purchase contract," "contract ofpurchase" or "contract to purchase" shall be interchangeable throughoutthis chapter and shall mean any legally binding instrument executed by thedeveloper and a purchaser whereby the developer is obligated to sell and thepurchaser is obligated to purchase either a time-share and its incidentalbenefits or an alternative purchase registered under this chapter;
"Conversion time-share project" means a real estate improvement, whichprior to the disposition of any time-share, was wholly or partially occupiedby persons as their permanent residence or on a transient pay-as-you-go basisother than those who have contracted for the purchase of a time-share andthose who occupy with the consent of such purchasers;
"Deed" means the instrument by which title to a time-share estate istransferred from one person to another person;
"Deed of trust" means the instrument conveying the time-share estate thatis given as security for the payment of the note;
"Default" means either a failure to have made any payment in full and ontime or a violation of a performance obligation required by a consumerdocument for a period of no less than 60 days;
"Developer" means any person or group of persons acting in concert who (i)offers to dispose of a time-share or its or their interest in a time-shareunit for which there has not been a previous disposition or (ii) applies forregistration of the time-share program;
"Developer control period" has the meaning ascribed to it in § 55-369;
"Development right" means any right reserved by the developer to createadditional units which may be dedicated to the time-share program;
"Dispose" or "disposition" means a transfer of a legal or equitableinterest in a time-share, other than a transfer or release of security for adebt;
"Exchange agent" or "exchange company" means a person or persons whoexchange or offer to exchange time-shares in an exchange program with othertime-shares;
"Exchange program" means any opportunity or procedure for the assignment orexchange of time-shares among owners in other time-share programs asevidenced by a past or present written agreement executed between an exchangecompany and the developer or the time-share estate association; however, an"exchange program" shall not be either an incidental benefit or anopportunity or procedure whereby a time-share owner can exchange histime-share for another time-share within either the same time-share oranother time-share project owned in part by the developer;
"Guest" means a person who is on the project, additional land ordevelopment at the request of an owner, developer, association or managingagent, or a person otherwise legally entitled to be thereon. A guestincludes, without limitation, family members of owners, time-share exchangeparticipants, merchants, purveyors, vendors and employees thereof, and of thedeveloper and association;
"Incidental benefit" means anything valued in excess of $100 provided bythe developer that is acquired by a purchaser upon acquisition of atime-share and includes without limitation exchange rights, travel insurance,bonus weeks, upgrade entitlements, travel coupons, referral awards, and golfand tennis packages. An incidental benefit is not a time-share or an exchangeprogram. An incidental benefit shall not be registered with the Board;
"Inherent risks of project activity" mean those dangers or conditions thatare an integral part of a project activity, including certain hazards, suchas surface and subsurface conditions; natural conditions of land, vegetation,and waters; the behavior of wild or domestic animals; and ordinary dangers ofstructures or equipment ordinarily used in association or time-shareoperations. Inherent risks of project activity also include the potential ofa participant to act in a negligent manner that may contribute to injury tothe participant or others, including failing to follow instructions given bythe project professional or failing to exercise reasonable caution whileengaging in the project activity;
"Lien holder" means either a person who holds an interest in an encumbrancethat is not released of record as to a purchaser or such person's successorin interest who acquires title to the time-share project at foreclosure or bydeed in lieu of foreclosure, or other instrument however denominated;
"Managing agent" means a person who undertakes the duties,responsibilities, and obligations of the management of a time-share project;
"Managing entity" means the managing agent or, if there is no managingagent, the time-share owners' association in a time-share estate project andthe developer in a time-share use project;
"Material change" means a change in any information or document disclosedin or attached to the public offering statement which renders inaccurate,incomplete or misleading any information or document in such a way as toaffect substantially a purchaser's rights or obligations, but shall notinclude a change (i) in the real estate tax assessment or rate, utilitycharges or deposits, maintenance fees, association dues, assessments, specialassessments or any recurring time-share expense item provided the change ismade known (a) immediately to the prospective purchaser by a written addendumin the public offering statement and (b) to the Board by filing with thedeveloper's annual report copies of the updated changes occurring over theimmediately preceding 12 months; (ii) which is an aspect or result of theorderly development of the time-share project in accordance with thetime-share instrument; (iii) resulting from new, updated, or amendedinformation contained in the annual report prepared and distributed pursuantto § 55-370.1; (iv) correcting spelling, grammar, omissions or other similarerrors not affecting the substance of the public offering statement; or (v)occurring in the issuance of an exchange company's updated annual report ordisclosure document, provided upon its receipt by the developer, it shall bedistributed in lieu of all others in order to satisfy § 55-374;
"Note" means the instrument that evidences the debt occasioned by thedeferred purchase of a time-share;
"Offering" or "offer" means any act to sell, solicit, induce, oradvertise, which originates in this Commonwealth, whether by radio,television, telephone, newspaper, magazine, or mail, whereby a person isgiven an opportunity to acquire a time-share;
"Participant" means any person, other than a project professional, whoengages in a project activity;
"Person" means one or more natural persons, corporations, partnerships,associations, trustees of a trust, limited liability companies, otherentities, or any combination thereof capable of holding title to realproperty;
"Possibility of reverter" means a provision contained in a reverter deedwhereby the time-share estate automatically reverts or transfers back to thedeveloper upon satisfaction of the requirements imposed by § 55-376.1;
"Product" means each time-share and its incidental benefits and allalternative purchases that are registered with the Board pursuant to thischapter;
"Project" means the same as the term "time-share project";
"Project activity" means any activity carried out or conducted on a commonelement, within a time-share unit or elsewhere in the project, additionalland or development, that allows owners, their guests, and members of thegeneral public to view, observe, participate or enjoy activities, includingswimming pools, spas, sporting venues, and cultural, historical orharvest-your-own activities, other amenities and events, or naturalactivities and attractions for recreational, entertainment, educational orsocial purposes. An activity is a project activity whether or not theparticipant paid to participate in the activity;
"Project instrument" means any recorded documents, by whatever namedenominated, which create the time-share project and program and which maycontain restrictions or covenants regulating the use, occupancy, ordisposition of time-shares in a project;
"Project professional" means any person who is engaged in the business ofproviding one or more project activities, whether or not for compensation.For the purposes of this definition, the developer, association, and managingentity shall each be deemed a project professional;
"Public offering statement" means the statement required by § 55-374;
"Purchaser" means any person other than a developer or lender who owns oracquires a product, or who otherwise enters into a contract for the purchaseof a product;
"Reverter deed" means the deed from developer to a grantee that contains apossibility of reverter;
"Sales person" means a person who sells or offers to sell time-shareinterests in a time-share program;
"Situs" means the place outside the Commonwealth where a developer'stime-share project is located;
"Situs Time-Share Act" means the Act, howsoever denominated, that regulatesthe offering, disposition, and sale of time-shares applicable to the propertyoutside the Commonwealth where the time-share project is located;
"Time-share" or "timeshare" means either a time-share estate or atime-share use plus its incidental benefits;
"Time-share estate" means a right to occupy a unit or any of several unitsduring five or more separated time periods over a period of at least fiveyears, including renewal options, coupled with a freehold estate or an estatefor years in a time-share project or a specified portion thereof;
"Time-share estate occupancy expense" has the meaning ascribed to it in §55-369;
"Time-share estate subject to reverter" means a time-share estate (i)entitling the holder thereof to occupy units not more than four weeks in anyone year period; and (ii) for which the down payment is not more than 20percent of the total purchase price of the time-share estate;
"Time-share expense" means (i) expenditures, fees, charges, or liabilitiesincurred with respect to the operation, maintenance, administration orinsuring of the time-shares, units, and common elements comprising the entiretime-share project, whether or not incurred for the repair, renovation,upgrade, refurbishing or capital improvements; and (ii) any allocations ofreserves;
"Time-share instrument" means any document, however denominated, whichcreates the time-share project and program, and which may containrestrictions or covenants regulating the use, occupancy, or disposition oftime-shares in a project;
"Time-share owner" or "owner" means a person who is an owner or co-ownerof a time-share other than as security for an obligation;
"Time-share program" or "program" means any arrangement of time-shares inone or more time-share projects whereby the use, occupancy, or possession ofreal property has been made subject to either a time-share estate ortime-share use in which such use, occupancy, or possession circulates amongowners of the time-shares according to a fixed or floating time schedule on aperiodic basis occurring over any period of time in excess of five years;
"Time-share project" means all of the real property subject to a time-shareprogram created by the execution of a time-share instrument;
"Time-share unit" or "unit" means the real property or real propertyimprovement in a project which is divided into time-shares and designated forseparate occupancy and use; and
"Time-share use" means a right to occupy a time-share unit or any ofseveral time-share units during five or more separated time periods over aperiod of at least five years, including renewal options, not coupled with afreehold estate or an estate for years in a time-share project or a specifiedportion thereof. "Time-share use" shall not mean a right to use which issubject to a first-come, first-served, space-available basis as might existin a country club, motel, hotel, health spa, campground, or membership orresort facility.
(1981, c. 462; 1985, c. 517; 1986, c. 359; 1991, c. 704; 1994, c. 580; 1998,c. 460; 2001, c. 543; 2004, c. 143; 2007, c. 267; 2008, cc. 376, 851, 871.)