§ 44-3-172 - Contents of public offering statement - Georgia Statutes

O.C.G.A. 44-3-172 (2010)
44-3-172. Contents of public offering statement

(a) A public offering statement must be provided to each purchaser of a time-share interval. Prospective purchasers receiving a copy of the public offering statement shall sign a statement acknowledging receipt of the public offering statement and such receipt shall be kept at the principal office of the developer for three years from the date of receipt.

(1) The public offering statement must contain or fully and accurately disclose the following information:

(A) The name of the developer, the principal address of the developer, the address of the time-share intervals offered in the statement, and a description of the developer's ownership interest in the time-share project;

(B) The nature of the interest in the time-share interval being offered whether it involves real property ownership, leasehold interest, right to use or occupy the facility, or some other interest being offered;

(C) A general description of the units including, without limitation, the developer's contemplated schedule of commencement and completion of all buildings, units, and amenities or, if completed, a statement that they have been completed;

(D) As to all units offered by the developer in the same time-share project:

(i) The types and number of units;

(ii) Identification of units that are subject to time-share intervals; and

(iii) The estimated number of units that may become subject to time-share intervals;

(E) A brief description of the project;

(F) Any current budget or a projected budget for the time-share intervals for one year after the date of the first transfer to a purchaser. The budget must include, without limitation:

(i) A statement of the amount or a statement that there is no amount included in the budget as a reserve for repairs and replacement;

(ii) The projected common expense liability, if any, by category of the expenditures for the time-share intervals;

(iii) The projected common expense liability for all time-share intervals; and

(iv) A statement of any services not reflected in the budget that the developer provides or expenses that he or she pays;

(G) Any initial or special fee for the use of the unit or amenities due from the purchaser at closing together with a description of the purpose and method of calculating the fee;

(H) A description of any liens, defects, or encumbrances on or affecting the title to the time-share intervals;

(I) A description of any financing offered by the developer;

(J) A statement of any pending actions material to the time-share intervals of which a developer has actual knowledge;

(K) Any restraints on alienation of any number or portion of any time-share intervals;

(L) A description of the insurance coverage or a statement that there is no insurance coverage provided for the benefit of time-share interval owners including specific statements on the amount of comprehensive general liability insurance and extended coverage casualty insurance;

(M) Any current or expected fees or charges to be paid by time-share interval owners for the use of any facilities related to the property;

(N) Whether financial arrangements have been provided for and with whom financial arrangements have been made for the completion of all promised or proposed improvements and the proposed date of completion;

(O) The extent to which a time-share unit may become subject to a tax or other lien arising out of claims against other owners of the same unit;

(P) A conspicuous statement on the cover page as follows:
"YOU MAY CANCEL WITHOUT PENALTY OR OBLIGATION ANY SALES AGREEMENT WHICH YOU HAVE SIGNED FOR THE PURCHASE OR LEASE OF A TIME-SHARE INTERVAL WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING ANY SALES AGREEMENT AND RECEIVE A REFUND. IF THIS PUBLIC OFFERING STATEMENT WAS NOT GIVEN TO YOU BEFORE YOU SIGNED ANY SALES AGREEMENT, YOU MAY CANCEL THE SALES AGREEMENT WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER YOUR RECEIPT OF THIS PUBLIC OFFERING STATEMENT AND RECEIVE A REFUND. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL. IF YOU DECIDE TO CANCEL A SALES AGREEMENT, YOU MUST NOTIFY THE DEVELOPER IN WRITING WITHIN THE CANCELLATION PERIOD OF YOUR INTENT TO CANCEL BY SENDING NOTICE BY CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, TO (insert the name and address of the developer or the developer's agent). YOUR NOTICE WILL BE EFFECTIVE ON THE DATE YOU MAIL IT.";

(Q) When a time-share use is offered, a conspicuous statement as follows:
"YOU MAY CANCEL ANY SALES AGREEMENT WHICH YOU HAVE SIGNED FOR THE PURCHASE OF A TIME-SHARE USE AT ANY TIME THE FACILITY IS NOT MADE AVAILABLE FOR USE ACCORDING TO AGREED UPON TERMS. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL.";

(R) A schedule for refunding any funds due the purchaser if the time-share project is not completed or if the purchaser exercises cancellation rights;

(S) The name and address of the escrow agent;

(T) A conspicuous statement as follows:
"ANY QUESTIONS ABOUT THE LEGAL ASPECTS OF THE PURCHASE OR LEASE OF A TIME-SHARE INTERVAL SHOULD BE REFERRED TO AN ATTORNEY.";

(U) A conspicuous statement on the cover page as follows:
"PURCHASER SHOULD READ THIS DOCUMENT BEFORE SIGNING ANYTHING.";
(V)(i) Except as otherwise provided in division (ii) of this subparagraph, a conspicuous statement as follows:
"THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE SUPERIOR COURT OF THE COUNTY WHEREIN THE PROPERTY IS LOCATED."

(ii) If the time-share project is located outside this state, then the conspicuous statement must read as follows:
"THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE APPROPRIATE LAND RECORDS OF THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED."; and

(W) A description of the exact procedure that will be used by the developer for closing sales of time-share intervals including, but not limited to, the procedures for conveying title to the time-share intervals, the procedures for delivery and recording of deeds, and the procedures for disbursing funds held by the escrow agent.

(2) If the owners of time-share intervals are offered an opportunity to become members of or to participate in any program for the exchange of occupancy rights among themselves or with the owners of time-share intervals of other time-share projects, or both, the public offering statement or a supplement delivered therewith must fully and accurately disclose the following information:

(A) The name and address of the exchange company;

(B) The names of all officers, directors, and shareholders owning 5 percent or more of the outstanding stock of the exchange company;

(C) Whether the exchange company or any of its officers or directors has any legal or beneficial interest in any developer or managing agent for any time-share project participating in the exchange program and, if so, the name and location of the time-share project and the nature of the interest;

(D) Unless the exchange company is also the developer or an affiliate, a statement that the purchaser's contract with the exchange company is a contract separate and distinct from the sales agreement;

(E) Whether the purchaser's participation in the exchange program is dependent upon the continued affiliation of the time-share project with the exchange program;

(F) Whether the purchaser's membership or participation, or both, in the exchange program is voluntary or mandatory;

(G) A complete and accurate description of the terms and conditions of the purchaser's contractual relationship with the exchange company and the procedure by which changes thereto may be made;

(H) A complete and accurate description of the procedure to qualify for and effectuate exchanges;

(I) A complete and accurate description of all limitations, restrictions, or priorities employed in the operation of the exchange program, including, but not limited to, limitations on exchanges based on seasonableness, unit size, or levels of occupancy, expressed in a conspicuous statement, and, in the event that such limitations, restrictions, or priorities are not uniformly applied by the exchange program, a clear description of the manner in which they are applied;

(J) Whether exchanges are arranged on a space-available basis and whether any guarantees of fulfillment of specific requests for exchanges are made by the exchange program;

(K) Whether and under what circumstances an owner, in dealing with the exchange company, may lose the use and occupancy of such owner's time-share interval in any properly applied for exchange without such owner being provided with substitute accommodations by the exchange company;

(L) The fees or range of fees for participation by owners in the exchange program, a statement whether any such fees may be altered by the exchange company, and the circumstances under which alterations may be made;

(M) The name and address of the site of each time-share property, accommodation, or facility which is participating in the exchange program;

(N) The number of units in each property participating in the exchange program which are available for occupancy and which qualify for participation in the exchange program, expressed within the following numerical groupings: 1-5, 6-10, 11-20, 21-50, and 51 and over;

(O) The number of owners with respect to each time-share project or other property which are eligible to participate in the exchange program expressed within the following numerical groupings: 1-100, 101-249, 250-499, 500-999, and 1,000 and over, and a statement of the criteria used to determine those owners who are currently eligible to participate in the exchange program;

(P) The disposition made by the exchange company of time-share intervals deposited with the exchange program by owners eligible to participate in the exchange program and not used by the exchange company in effecting exchanges;

(Q) The following information, which, except as provided in subparagraph (S) of this paragraph, shall be independently audited by a certified public accountant or accounting firm in accordance with the standards of the Accounting Standards Board of the American Institute of Certified Public Accountants and included in the public offering statement for each year no later than July 1 of the succeeding year, beginning no later than July 1, 1983:

(i) The number of owners eligible to participate in the exchange program. Such number shall disclose the relationship between the exchange company and owners as being either fee-paying or gratuitous in nature;

(ii) The number of time-share properties, accommodations, or facilities eligible to participate in the exchange program categorized by those having a contractual relationship between the developer or the association and the exchange company and those having solely a contractual relationship between the exchange company and owners directly;

(iii) The percentage of confirmed exchanges, which shall be the number of exchanges confirmed by the exchange company divided by the number of exchanges properly applied for, together with a complete and accurate statement of the criteria used to determine whether an exchange request was properly applied for;

(iv) The number of time-share intervals for which the exchange company has an outstanding obligation to provide an exchange to an owner who relinquished a time-share interval during the year in exchange for a time-share interval in any future year; and

(v) The number of exchanges confirmed by the exchange company during the year;

(R) A conspicuous statement to the effect that the percentage described in division (iii) of subparagraph (Q) of this paragraph is a summary of the exchange requests entered with the exchange company in the period reported and that the percentage does not indicate a purchaser's or owner's probabilities of being confirmed to any specific choice or range of choices, since availability at individual locations may vary; and

(S) The information required by this paragraph shall be accurate as of a date which is not more than 30 days prior to the date on which the information is delivered to the purchaser, except that the information required by subparagraphs (B), (C), (M), (N), (O), and (Q) of this paragraph shall be provided as of December 31 of the year preceding the year in which the information is delivered, except for information delivered within the first 180 days of any calendar year which shall be provided as of December 31 of the year preceding the year in which the information is delivered. All references in this Code section to the word "year" shall mean calendar year;

(3) A multilocation developer shall include in the public offering statement or a supplement delivered therewith the following information:

(A) A complete and accurate description of the procedure to qualify for and effectuate use rights in time-share units in the multilocation plan;

(B) A complete and accurate description of all limitations, restrictions, or priorities employed in the operation of the multilocation plan, including, but not limited to, a conspicuous statement of limitations on reservations, use or entitlement rights based on seasonableness, unit size, levels of occupancy or class of owner, and, in the event that such limitations, restrictions, or priorities are not uniformly applied by the multilocation plan, a clear description of the manner in which they are applied;

(C) Whether use is arranged on a space-available basis and whether any guarantees of fulfillment of specific requests for use are made by the multilocation developer;

(D) The name and address of the site of each time-share property included in the multilocation plan;

(E) The number of time-share units in each time-share property which are available for occupancy and, with respect to each such time-share unit, the interest, such as fee ownership, leasehold, or option to purchase, which the multilocation developer has therein; a statement of all relevant terms of the multilocation developer's interest if such interest is less than fee ownership; and whether the time-share unit may be withdrawn from the multilocation plan;

(F) The following information, which, except as provided in subparagraph (H) of this paragraph, shall be independently audited by a certified public accountant or accounting firm in accordance with the standards of the Accounting Standards Board of the American Institute of Certified Public Accountants and included in the public offering statement for each year on or before July 1 of the succeeding year beginning no later than July 1, 1983:

(i) The number of owners in the multilocation plan;

(ii) For each time-share property in the multilocation plan, the number of properly made requests for use of time-share units in such time-share property; and

(iii) For each time-share property, the percentage of owners who properly requested use of a time-share unit in such time-share property who received the right to use a time-share unit in such time-share property;

(G) A conspicuous statement to the effect that the percentages described in subparagraph (F) of this paragraph do not indicate a purchaser's or owner's probabilities of being able to use any time-share unit since availability at individual locations may vary; and

(H) The information required by this paragraph shall be provided as of a date which is no more than 30 days prior to the date on which the information is delivered to the purchaser, except that the information required by subparagraphs (D), (E), and (F) of this paragraph shall be provided as of December 31 of the year preceding the year in which the information is delivered, except for information delivered within the first 180 days of any calendar year which shall be provided as of December 31 of the year preceding the year in which the information is delivered.

(b) In the event an exchange company offers an exchange program directly to the purchaser or owner, the exchange company shall deliver to each purchaser or owner, prior to the execution of any contract between the purchaser or owner and the company offering the exchange program, the information set forth in paragraph (2) of subsection (a) of this Code section. The requirements of paragraph (2) of subsection (a) of this Code section shall not apply to any renewal of a contract between an owner and an exchange company.

(c) Each exchange company offering an exchange program to purchasers in this state must include the statement set forth in subparagraph (a)(2)(R) of this Code section on all promotional brochures, pamphlets, advertisements, or other materials disseminated by the exchange company which also contain the percentage of confirmed exchanges described in division (a)(2)(Q)(iii) of this Code section.