Federal Act Governing the Acquisition of Time Share Estate in Immovable Property (Teilzeitnutzungsgesetz – TNG) (NR: GP XX RV 574 AB 586 p. 64. BR: 5388 AB 5394 p. 623.) (CELEX no.: 394L0047)
Scope Section 1. (1) This Federal Act shall apply to contracts under which a consumer acquires a time share estate from an entrepreneur (Section 1 of the Consumer Protection Act KSchG). (2) This Act shall be without prejudice to any regulations which are more favourable for the purchaser. If any agreement provides for derogations from the provisions of this Federal Act which are to the purchaser’s detriment such derogations shall be ineffective. Definitions Section 2. (1) The time share estate shall mean the right in rem and right in personam, granted for at least three years, to use a unit recurrently for a limited period (time share estate). The right may be granted for a specified unit or in the form of an option to recurrently choose one unit (either always the same or different ones) from among several units subject to general assignment guidelines. (2) The time share contract shall mean a contract governing the purchase of a time share estate for a total consideration, regardless of the legal form chosen for the purchase and the estate, the seller’s legal structure, any participatory interest in the seller on the part of the purchaser, and the legal relations affecting the unit (time share contract). (3) The unit shall mean a residence, or a building which serves residential or hostelry purposes, or a part thereof. Information Brochure Section 3. (1) The seller shall supply to any person who requests information on the units offered or who obtains more in-depth advertising material within the scope of direct advertising measures (such as promotional events) an information brochure which shall contain:– 1. especially important information, i.e. a) seller’s name and domicile or seat; name and domicile or seat of the owner of the units, and seller’s legal position vis-à-vis the units; b) a detailed description of the offered time share estate and the prerequisites required for its acquisition and exercise under the law of the states in which the units are located; including a statement to what extent such prerequisites have not yet been fulfilled; c) where the time share estate concerns a specified unit, a detailed description of the unit, its location, its appointments and its state of repair, the year in which the unit was built, and estate-related services (such as room service), if any, which shall be available to the purchaser; d) in the case of units under construction, the state of progress of construction works and works regarding utility facilities such as gas, electricity, water and telephone connections and the expected date of completion; e) the total compensation for purchasing the time share estate; expected expenditures to be borne by the purchaser with regard to consumption-independent costs for supply and disposal, costs for maintaining the unit, for using estate-related and other services, and for using common facilities; maintenance and repair reserves, if any, and their amount; the principles (such as the assessed values or allocation key) of computing current costs to be paid by the purchaser for using the unit (including, without limitation, taxes, fees and cost of operating, maintaining and managing the property); f) a notice regarding the right of cancellation under Section 6 and its prerequisites with regard to time and form, stating the name and address of the person who receives the
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notice of cancellation, and the type and amount of any costs to be refunded in the event of cancellation pursuant to Section 6 (4); g) a note regarding the right of cancellation under Sections 8 and 9 and its prerequisites with regard to time and form; and h) information on whether the purchaser is entitled to participate in a system of exchanging or transferring the time share estate; how the exchange or transfer operates in such a system in the specific case; whether the system is operated by the seller or any third party which shall be named and designated in detail; and the cost involved when the seller or third party organises the exchange or transfer; other information, i.e.: a) supply and disposal facilities (such as gas, electricity, water and telephone connections and garbage disposal) and other services (such as maintenance) which will be available to the purchaser, and the conditions for their use; b) common facilities (such as swimming pool or sauna) which will be available to the purchaser, and the conditions for their use; c) principles of operating, maintaining and managing the units; d) in the case of units under construction and provided that the time share estate refers to a specified unit, the name and address of the responsible construction authority, the file number of the building permit and information on whether and, if so, what collateral is granted for the proper completion of the unit and for repayment of advance payments in the event that the unit is not completed; and e) information on whether and, if so, what restrictions are foreseen for transferring the time share estate among living persons or by succession, and on whether and, if so, what special payments shall have to be paid in such case.
(2) All advertising for a time share estate shall contain a reference to the information brochure specified in Para 1 above and information on where to obtain the said brochure. Form and Minimum Content of Time Share Contracts Section 4. (1) A time share contract shall be made in writing and in the language specified in Section 5 (1). Only the purchaser shall be entitled to plead invalidity of the time share contract due to use of another language; this right shall expire two years after commencement of the contract relationship. (2) Upon signature of a time share contract, the data referred to in Section 3 (1) shall become integral parts of the contract, except when the contractual parts expressly provide for changes with reference to the derogation. (3) In addition to the contractual parts referred to in Para 2 above, the time share deed shall contain: 1. especially important information, i.e.: a) the extent to which the purchaser shall be entitled to use the time share estate in a recurring manner, to be expressed by a period of time or other scale; b) the time as of which the time share estate may be first used; c) the period of the time share estate, either indefinite or defined by a contractual term and expiry date; and d) the time and place of signature of the deed by each contracting party; 2. other information , i.e.: a) the name and address of the purchaser, and b) a promise by the seller that in purchasing the time share estate the purchaser shall not incur any other costs, commitments or other encumbrances than those specified in the contract. (4) The seller shall deliver to the purchaser an (executed) copy of the deed.
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Contractual Language Section 5. (1) When the purchaser is a national of a member state of the EEA Agreement or has his/her residence in such a state, the time share contract shall be drawn up, at his/her choice, in the language of or in any of the official languages of the EEA member states spoken in his/her home state or state of residence. (2) Para 1 above shall apply analogously to the information brochure referred to in Section 3. (3) If the deed has not been drawn up in the language or any of the official languages of the EEA member states spoken in the contractual state in which the unit is located, then the purchaser shall be given a certified translation of the deed in such language. Right of Cancellation Section 6. (1) The purchaser shall be entitled to cancel, within two weeks, the time share contract or any binding agreement to conclude such contract. The time limit shall commence upon delivery of the deed. (2) In the event that the deed does not contain any one or more of the especially important information as provided for in Section 3 (1) 1 and Section 4 (3) 1, the two-week time limit shall commence only after delivery of a supplementary deed which contains all the missing information, but not later than three months after delivery of a deed that contains at least the note of the right of cancellation pursuant to Section 3 (1) 1 f) and g), Section 4 (2). (3) No cancellation shall be effective except when made in writing; it shall be sufficient to deliver the written notice by a fax copy. It shall be furthermore sufficient for the purchaser to return the deed delivered to the purchaser with an endorsement stating in clear terms that the purchaser refuses to accept that the contract has been brought about or maintained. The cancellation shall be deemed to have been made in good time when the notice is sent within the time limit. If the seller violates the duty under Section 3 (1) 1 f) to provide the purchaser with the name and address of the person to which the cancellation must be directed, then the notice of cancellation as outlined may be directed to the seller’s representative who has participated in the contractual negotiations. (4) If the purchaser cancels the contract, he/she shall refund to the seller the dues paid by the seller in connection with the contract and the costs of certification of signatures and/or certified translation of the deed which may have been necessary and which were borne by the seller, provided that an express reference to this effect has been made in the deed pursuant to Section 3 (1) 1 f) and Section 4 (2). Section 4 of the Consumer Protection Act shall apply, except that the seller shall not be entitled to a reasonable payment for the use of the unit or to a refund of the cost for its use (Section 3 (1) 1 e)). If the delivered deed is incomplete within the meaning of Para 2 above, the seller shall not be entitled to any refund of costs. Acceptance of Payments by the Purchaser Section 7. (1) The payments agreed with the purchaser shall not become due and payable for two weeks after delivery of the deed concerning the time share contract; the seller shall neither demand nor accept such payments before their due date. In the event that the delivered deed is incomplete within the meaning of Section 6 (2), the two-week waiting period shall commence only upon delivery of a supplementary deed which contains all the missing information, but not later than three months after delivery of a deed that contains at least the note of the right of cancellation pursuant to Section 3 (1) 1 f) and g), Section 4 (2). (2) The purchaser shall be entitled to claim repayment of all payments accepted by the seller contrary to Para 1 above. The seller shall pay interest on amounts accepted as of the day of payment at a rate of 6% above the applicable base rate. Payments Made by Loan Section 8. (1) If the money to be paid by the purchaser on the basis of the time share contract is financed partly or wholly by a loan granted by the seller, any cancellation of the time share contract made by the purchaser under Section 6 shall be similarly applicable to the loan agreement, with the
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effect that while each party shall refund to the other any performance received, claims against the purchaser for payment of interest and costs shall be excluded. The purchaser shall refund to the seller the dues paid by the seller in connection with the loan and the costs of certification of signatures which may have been necessary and which were borne by the seller, provided that an express reference to this effect has been made in the loan agreement. The seller shall not be entitled to claim payment of other costs from the purchaser. If the delivered deed concerning the time share contract is incomplete within the meaning of Section 6 (2), the seller shall not be entitled to any refund of costs of the loan. (2) If the money to be paid by the purchaser on the basis of the time share contract is financed partly or wholly by a loan granted by a third party and if the time share contract and loan agreement constitute an economic unit for the seller and the third party (Section 18 of the Consumer Protection Act), then both the purchaser and the third party may cancel the loan agreement based on the cancellation of the time share contract made under Section 6, within three months of sending the notice of cancellation of the time share contract. With regard to the form and timeliness of the cancellation, the first to third sentences of Section 6 (3) shall apply analogously. The notice of cancellation may be directed to the third party’s representative who has participated in the contractual negotiations. (3) In the event that the loan agreement is cancelled pursuant to Para 2 above, each party shall refund to the other any performance received; claims against the purchaser for payment of interest shall, however, be excluded. The purchaser shall refund to the third party the dues paid by the third party in connection with the contract and the costs of certification of signatures which may have been necessary and which were borne by the third party, provided that an express reference to this effect has been made in the loan agreement. The third party shall not be entitled to claim payment of other costs from the purchaser. If the delivered deed concerning the time share contract is incomplete within the meaning of Section 6 (2), the third party shall not be entitled to any refund of costs. Associated Agreements Section 9. (1) If an agreement made with a third party, which concerns the use or exploitation of the time share estate and which is not an integral part of the time share contract within the meaning of Section 2 (2), and the time share contract constitute an economic unit for the seller and the third party (Section 18 of the Consumer Protection Act), then both the purchaser and the third party may, based on cancellation of the time share contract made under Section 6, cancel the connected agreement within three months of the date on which the notice of cancellation was sent. With regard to the form and timeliness of the cancellation, the first to third sentences of Section 6 (3) shall apply analogously. The notice of cancellation may be directed to the third party’s representative who has participated in the contractual negotiations. (2) In the event that the associated agreement is cancelled, each party shall refund to the other any performance received; claims against the purchaser for payment of interest shall, however, be excluded. The purchaser shall refund to the third party the dues paid by the third party in connection with the contract and the costs of certification of signatures which may have been necessary and which were borne by the third party, provided that an express reference to this effect has been made in the loan agreement. The third party shall not be entitled to claim payment of other costs from the purchaser. If the delivered deed concerning the time share contract is incomplete within the meaning of Section 6 (2), the third party shall not be entitled to any refund of costs. Collateralisation by Registration in the Land Register Section 10. (1) In order to collateralise the time share estates in the units of a specific time share facility granted to the purchasers in the time share contracts, it shall be possible, upon the trustee’s application, to have the obligation to operate the time share facility entered in the land register with regard to the property on which the facility is located in favour of a lawyer (a partnership of lawyers) or a notary acting as trustee of the purchasers. Only the trustee shall be authorised to make dispositions with regard to this charge on land. (2) In order to collateralise any claims of repayment by the purchasers of time share estates in a property, it shall be possible, upon the trustee’s application, to have a lien entered in the land register
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with regard to the property in favour of a lawyer (a partnership of lawyers) or a notary acting as trustee of the purchasers. Only the trustee shall be authorised to make dispositions with regard to or to realise such a lien. The lien may be for a maximum amount up to which coverage is given. (3) Registration of any title under Paras 1 or 2 above shall require a statement of consent by the owner of the property and a confirmation by the seller that the applicant has been appointed as trustee. (4) The trustee shall enter each purchaser in a list of persons entitled to time share estates in the property, shall inform the owner of such entry and shall deliver to the purchaser a confirmation of entry in the list. (5) In the event that the trustee is prevented from performing his/her task for a long period, the district court in whose precinct the property is located shall, upon application of the seller or any purchaser, appoint another trustee for all matters except contentious matters when the time share contract has made no provision for such matter and the parties to the time share contract are unable to agree on another trustee within a reasonable period of time. International Time Share Contracts Section 11. (1) If at least one of the units covered by a time share contract is located in an EEA member state, then the time share contract, the loan agreement pursuant to Section 8 and any associated agreement pursuant to Section 9 shall be governed by the law of that state in which the purchaser has his/her habitual residence, provided that the contract has been made in connection with an activity engaged in in this state and directed towards entering into such contracts by the seller, the third party or any persons used by them for this purpose; if this choice of law does not lead to the law of an EEA member state, then the law of that EEA member state shall apply in which the unit is located. This shall not apply if the law of an EEA member state applies anyway because of the parties’ choice or other rules of private international law. (2) Notwithstanding any law applicable under Para 1 above or under other rules of private international law to a time share contract, a loan agreement under Section 8 or an associated agreement pursuant to Section 9, the purchaser shall enjoy the rights under Sections 6, 7 (2), 8 and 9 when the contract has been brought about in connection with an activity engaged in in Austria and directed towards entering into such contracts by the seller, the third party or any persons used by them for this purpose. Penal Provisions Section 12. (1) Any seller who:– 1. contrary to Section 3 (1) fails to deliver an information brochure of the content described in the said paragraph and in the language chosen by the purchaser under Section 5 (1) and (2); 2. contrary to Section 4 (4) fails to deliver to the purchaser an (executed) copy of the deed of the content described in Section 4 (3) and in the language chosen under Section 5 (1); 3. contrary to Section 5 (3) fails to deliver to the purchaser a certified translation of the deed in the language chosen under Section 5 (3), shall be deemed to have committed an administrative offence, except when the deed constitutes an offence punishable by the court, and shall be punished by a fine of up to € 1,450. (2) Any seller who, contrary to Section 7 (1), agrees to, demands or accepts payments, shall be deemed to have committed an administrative offence, except when the deed constitutes an offence punishable by the court, and shall be punished by a fine of up to € 7,260. Entry into Force Section 13. (1) This Federal Act shall enter into force on 1 April 1997. It shall not be applied to any time share contracts signed before its effective date. (2) Sections 7, 12 and 13 as amended in the Federal Act of Federal Law Gazette I no. 98/2001 shall enter into force on 1 January 2002. Section 12 as amended therein shall apply to any punishable acts committed after 31 December 2001.
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Enforcement Section 14. This Federal Act shall be enforced by: 1. the Federal Chancellor by mutual consent with the Federal Minister of Justice with regard to Section 12, 2. the Federal Minister of Justice with regard to all other provisions.
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