§514E-1 - Definitions. - Hawaii Statutes

     §514E-1  Definitions.  As used in this chapter, unless the context otherwise requires:

     "Acquisition agent" means any person, other than a developer or sales agent, who, for compensation, solicits or encourages others to attend a time share sales presentation or to contact a time share sales agent or developer; provided that this term shall not include individuals who perform the stated activities and are employed by or in contract with:

     (1)  A real estate broker who is licensed under chapter 467; or

     (2)  An acquisition agent registered pursuant to section 514E-10.

     "Association" means the time share owners association.

     "Blanket lien" means any mortgage, deed of trust, option to purchase, master lease, vendor's lien or interest under a contract or agreement of sale, or any other lien or encumbrance that (i) affects more than one time share interest either directly or by reason of affecting an entire time share unit or the property upon which the time share unit to be used by the purchasers is located, and (ii) secures or evidences the obligation to pay money or to sell or convey the property and that authorizes, permits, or requires the foreclosure and sale or other defeasance of the property affected; provided that for the purpose of this chapter, the following shall not be considered blanket liens:

     (1)  The lien of current real property taxes;

     (2)  Taxes and assessments levied by public authority and that are not yet due and payable;

     (3)  A lien for common expenses under chapter 514A or 514B or a lien on an individual time share unit for similar expenses in favor of a homeowners or community association;

     (4)  An apartment lease or condominium conveyance document conveying or demising a single condominium apartment or unit or a lease of a single cooperative apartment; and

     (5)  Any lien for costs or trustee's fees charged by a trustee holding title to time share units pursuant to a trust created under section 514E-19; provided that the costs or trustee's fees are not yet due and payable.

     "Commission" means the real estate commission established under section 467-3.

     "Developer" means any person that creates a time sharing plan or is in the business of selling time share units.  "Developer" does not include:

     (1)  A person who has acquired one or more time share interests for the person's own use and occupancy and later offers the time share interest for resale; provided that a rebuttable presumption shall exist that an owner who has acquired more than twelve time share interests did not acquire them for the owner's own use and occupancy;

     (2)  An association not otherwise a developer, that offers for sale, through its plan manager or a third party, time share interests transferred to the association through foreclosure, conveyance in lieu of foreclosure, cancellation for non-payment of assessments, or gratuitous transfer; and

     (3)  A licensed real estate broker who owns time share interests in a time share plan and who offers one or more of the time share interests for resale if:

         (A)  The time share interests are in a registered or previously registered time share plan and were not acquired from a developer who, during the six month period prior to conveying the time share interests to the real estate broker, was actively engaged in offering or selling the time share interests through advertising, promotional, or marketing efforts, whether within or outside the time share project itself, excluding public auctions pursuant to a foreclosure sale;

         (B)  The licensed real estate broker complies with all laws and rules applicable to resale time share interests and resale agents, excluding any registration provision requiring confirmation that the time share interests were purchased for the person's own occupancy;

         (C)  The licensed real estate broker has not used, offered, submitted, or incorporated the time share interests as part of another time share plan that would otherwise be subject to chapter 514E; and

         (D)  The licensed real estate broker owns at any one time not more than twelve time share interests in the particular time share plan.

     "Director" means the director of commerce and consumer affairs.

     "Exchange agent" means a person who operates an exchange program.

     "Exchange program" means a plan or program in which the owners or holders of time share interests in a time share plan may exchange occupancy rights among themselves or with the owners or holders of time share interests in other time share plans or with the owner or holders of units in other projects.

     "Master development" means a real estate development that consists of more than one project, including but not limited to a planned community association subject to chapter 421J with one or more sub-associations.

     "Negotiable instrument" means any check, draft, bill of exchange, certificate of deposit, note, and any other document which is an "instrument" within the meaning of article 3 of chapter 490, including instruments subject to said article pursuant to section 490:3-805.

     "Nondisturbance agreement" means an instrument by which the holder of a blanket lien agrees that its rights in the property shall be subordinate to the rights of owners.  Every nondisturbance agreement shall contain a covenant by the lienholder that the lienholder, its successors, and anyone who acquires the property through the blanket lien shall not use, or cause or permit the property to be used in a manner which prevents the owners from using the time share units in the manner contemplated by the time share plan.  The lienholder's agreement not to disturb an owner may require as a continuing condition that the owner perform all obligations and make all payments due under any purchase money contract and, if the time share interest or unit is held as a leasehold, under the lease.

     "Notice of time share plan" means an instrument executed by the holder of the legal and equitable title to the fee or long- term leasehold interest in a time share unit, and which provides notice of the existence of the time share plan and of rights of owners.  The notice of time share plan must identify the use period for each time share interest and the name of the initial purchaser thereof.  If the time share unit is located outside the State, the notice shall be contained in a declaration of covenants, conditions, and restrictions which provide that the notice shall, as a matter of covenant, have the effects described in section 514E-21.  The declaration of covenants, conditions, and restrictions must be prepared so as to (i) constitute a covenant running with and an equitable servitude upon the time share units for the duration of the time share plan, and (ii) have the effects described in section 514E-21.

     "One-to-one use-right to use-night requirement" means that the sum of the nights which owners are entitled to use in a given year shall not exceed the number of nights available for use by those owners during that year.

     "Owner" means any person who owns a time share interest; provided, however, that to the extent and for such purposes as are provided in any agreement of sale, the vendee under such agreement of sale shall be considered the owner of the time share interest.

     "Person" includes an individual, partnership, joint venture, corporation, association, business, trust, or any organized group of persons or legal entities, or any combination thereof.

     "Plan manager" means a person who undertakes the duties, responsibilities, and obligations of managing a time share plan.

     "Project" means:

     (1)  An individual condominium project;

     (2)  Two or more contiguous condominium projects that have been merged and for administrative purposes operate as a single condominium project;

     (3)  An individual cooperative housing project;

     (4)  An individual subdivision of single-family homes subject to one or more project instruments; or

     (5)  An individual subdivision of townhomes subject to one or more project instruments.

          "Project" does not include a master development.

     "Project instrument" means one or more documents, including any amendments to the documents, by whatever name denominated, containing restrictions or covenants regulating the use or occupancy of a project.

     "Purchase money contract" means any note, negotiable instrument, agreement of sale, installment sales contract, or other contract which evidences or embodies a debt arising from a purchase money loan made to a purchaser by the developer or a creditor (i) who is affiliated with the developer by common control, contract, or business arrangement, or (ii) to whom the developer referred the purchaser.

     "Purchaser" means any person who has contracted to acquire a time share interest.

     "Purchaser money lien" means a lien on a time share interest that is:

     (1)  Taken or retained by the developer to secure payment by the purchaser of a time share interest of all or part of its price; or

     (2)  Given by a purchaser to a person who provides financing to the purchaser to enable the purchaser to buy the time share interest.

The rights of a seller of a time share interest under an agreement of sale shall be considered a purchase money lien for the purpose of this section.

     "Record, recorded, etc." means to record in accordance with chapter 502, or to register in accordance with chapter 501.

     "Sales agent" means a person who sells or offers to sell for compensation a time share interest in a time share plan, except a person who acquired a time share interest for the person's own occupancy and later offers it for resale.

     "Time share instrument" means one or more documents, by whatever name denominated, creating or regulating any time share plan.

     "Time share interest" means any interest in a time share unit or plan which entitles the owner or holder thereof to the use, occupancy or possession of a time share unit on a periodically recurring basis.

     "Time share plan" means any plan or program in which the use, occupancy, or possession of one or more time share units circulates among various persons for less than a sixty-day period in any year, for any occupant.  The term time share plan shall include both time share ownership plans and time share use plans, as follows:

     (1)  "Time share ownership plan" means any arrangement whether by tenancy in common, sale, deed or by other means, whereby the purchaser receives an ownership interest and the right to use the property for a specific or discernible period by temporal division.

     (2)  "Time share use plan" means any arrangement, excluding normal hotel operations, whether by membership agreement, lease, rental agreement, license, use agreement, security or other means, whereby the purchaser receives a right to use accommodations or facilities, or both, in a time share unit for a specific or discernible period by temporal division, but does not receive an ownership interest.

     "Time share unit" means the actual and promised accommodations, and related facilities, which are the subject of a time share plan.

     "Transient vacation rentals" means rentals in a multi-unit building to visitors over the course of one or more years, with the duration of occupancy less than thirty days for the transient occupant.

     "Unit owner" means the holder of the fee of a unit not used as a time share unit; except that if the fee is encumbered by a lease of at least five years duration, then the person entitled to possession shall be deemed to be the unit owner. [L 1980, c 186, pt of §1; am L 1981, c 81, §§2, 3; am L 1982, c 186, §6 and c 204, §8; am L 1983, c 124, §17; gen ch 1985; am L 1992, c 202, §177; am L 1997, c 372, §2; am L 2001, c 17, §1; am L 2004, c 164, §21; am L 2005, c 83, §2; ree L 2006, c 38, §26; am L 2008, c 28, §15]

 

Note

 

  Section 490:3-805 referred to in the definition of "negotiable instrument" is repealed.