A. If a purchaser is offered the opportunity to subscribe to an exchange program, the developer shall, except as provided in Subsection C of this section, deliver to the purchaser, prior to the execution of the sales contract or any contract between the purchaser and the exchange company, at least the following information regarding such exchange program:
(1) the name and address of the exchange company;
(2) the names of all officers, directors and share holders owning five percent or more of the outstanding stock of the exchange company;
(3) 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;
(4) unless the exchange company is also the developer, a statement that the purchaser's contract with the exchange company is a contract separate and distinct from the sales contract;
(5) whether the purchaser's participation in the exchange program is dependent upon the continued affiliation of the time share project with the exchange program;
(6) whether the purchaser's membership or participation, or both, in the exchange program is voluntary or mandatory;
(7) 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;
(8) a complete and accurate description of the procedure to qualify for and effectuate exchanges;
(9) a complete and accurate description, expressed in boldfaced type, of all limitations, restrictions or priorities employed in the operation of the exchange program, including but not limited to limitations on exchanges based on seasonality, unit size or levels of occupancy 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;
(10) 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;
(11) whether and under what circumstances an owner, in dealing with the exchange company, may lose the use and occupancy of his time share in any properly applied-for exchange without substitute accommodations being provided or arranged for by the exchange company;
(12) the expenses, fees or range of fees for participation by owners in the exchange program, whether any such fees may be altered by the exchange company and the circumstances under which alterations may be made;
(13) the name and address of the site of each time share project or other property which is participating in the exchange program;
(14) the number of units in each project or other property participating in the exchange program which are available for occupancy and 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;
(15) 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 the criteria used to determine those owners who are currently eligible to participate in the exchange program;
(16) the disposition made by the exchange company of time shares deposited with the exchange program by owners eligible to participate in the exchange program and not used by the exchange company in effecting exchanges;
(17) the following information which, except as provided in Subparagraph (b) of this paragraph, shall be independently audited by a certified public accountant in accordance with the standards of the accounting standards board of the American institute of certified public accountants and reported for each year no later than July 1 of the succeeding year:
(a) the number of owners enrolled in the exchange program and the relationship between the exchange company and owners as being either fee paying or gratuitous in nature;
(b) the number of time share projects or other properties eligible to participate in the exchange program indicating 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;
(c) 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;
(d) the number of time shares or other intervals for which the exchange company has an outstanding obligation to provide an exchange to an owner who relinquished a time share or interval during the year in exchange for a time share or interval in any future year; and
(e) the number of exchanges confirmed by the exchange company during the year; and
(18) a statement in boldfaced type to the effect that the percentage described in Subparagraph (c) of Paragraph (17) of this subsection is a summary of the exchanges properly applied for in the period reported and that the percentage does not indicate the likelihood of confirmation of a purchaser's specific choice or range of choices, since availability at individual locations may vary.
The developer shall obtain the purchaser's written certification of receipt of the information required by this subsection.
B. The information required by Paragraphs (2), (3), (13), (14), (15) and (17) of Subsection A of this section shall be accurate as of December 31 of the year preceding the year in which the information is delivered, except for information delivered within the first one hundred eighty days of any calendar year which shall be accurate as of December 31 of the year two years preceding the year in which the information is delivered to the purchaser. The remaining information required by Subsection A of this section shall be accurate as of a date which is no more than thirty days prior to the date on which the information is delivered to the purchaser.
C. In the event an exchange company offers an exchange program directly to the purchaser, the exchange company shall deliver to each purchaser, concurrently with the offering and prior to the execution of any contract between the purchaser and the exchange company, the information set forth in Subsection A of this section. The requirements of this subsection shall not apply to any renewal of a contract between a purchaser and an exchange company.
D. All promotional brochures, pamphlets, advertisements or other materials disseminated by the exchange company to purchasers in this state which contain the percentage of confirmed exchanges described in Subparagraph (c) of Paragraph (17) of Subsection A of this section must include the statement set forth in Paragraph (18) of Subsection A of this section.
History: Laws 1986, ch. 97, ยง 9.
Structure New Mexico Statutes
Section 47-11-1 - Short title.
Section 47-11-2 - Definitions.
Section 47-11-3 - Time shares deemed real estate; partition.
Section 47-11-4 - Disclosure statement.
Section 47-11-5 - Purchaser's right to cancel; escrow; violation.
Section 47-11-7 - Time share proxy.
Section 47-11-8 - Exchange programs.
Section 47-11-9 - Service of process on exchange company.
Section 47-11-10 - Securities laws apply.
Section 47-11-11.2 - Disciplinary action by commission.