Buy ‘tourist property’, fall back only for vacation, lawyer points out the weakness that investors often make

Own travel property or own vacation?

A typical dispute case was filed by the People’s Court of Ho Chi Minh City. The trial in Nha Trang (Khanh Hoa) was chosen by the Council of Judges of the Supreme People’s Court as the case law. The civil lawsuit disputes the vacation ownership contract between the plaintiff, Ms. Nguyen Thi Long T. and Mr. Nguyen Hoang S. (plaintiff), the defendant is V.

Specifically, Ms. Nguyen Thi Long T. and Mr. Nguyen Hoang S. sued V. Tourist Resort Co., Ltd. at the People’s Court of Nha Trang city with the content: Request the Court to declare the vacation ownership contract No. PBRC -S-064621 dated February 26, 2017 is invalid and requires V. Tourist Area Co., Ltd. to refund Ms. Nguyen Thi Long T. and Mr. Nguyen Hoang S. the paid amount of VND 300,488,000.

Previously, on February 26, 2017, Ms. T. and Mr. S. entered into a vacation ownership contract No. PBRC-S-064621 with V Tourist Area Co., Ltd. Accordingly, the value of the period ownership contract vacation is 388.110,000 VND.

According to the plaintiff, at the time of entering into the contract, due to time constraints, Ms. T and Mr. S. did not read the contract carefully. On April 26, 2017, after receiving an email from V. Tourist Resort Co., Ltd., Ms. T and Mr. S. carefully reviewed the signed contract and found that there were terms of the contract. reasonable, so they actively proposed to terminate the contract, but was not accepted, and they filed a lawsuit to the People’s Court of Nha Trang City.

The plaintiff argued that, when entering into the contract, the marketing staff of V. Tourist Resort Limited Company did not give the plaintiff reasonable time to study the contract’s content, which was a violation of Article 17 of the Law. Protect the interests of consumers.

However, the panel said that spending time researching the contract is a consumer’s right, and the plaintiff’s failure to use this right is considered a waiver of his or her rights. The fact that the plaintiff voluntarily entered into the contract was real and at the trial, the plaintiff’s representative still affirmed that the conclusion of the contract was completely voluntary. Therefore, the trial court did not accept the plaintiff’s request.

The contract type “own vacation” is a new business model that has appeared in Vietnam in recent years.

The panel’s argument was that “the subject matter of the vacation ownership contract is the ownership of the vacation, not the ownership of the tourist property. Accordingly, the Court determined the contract the plaintiff and the defendant had signed together as “a service contract in the field of tourism”.

The trial panel said that this contract is not synonymous with real estate ownership. Ownership of real estate remains under the investor, which is V. Tourist Area Co., Ltd. during the period of being granted a valid license.

According to lawyer Nguyen Thi Kim Thanh, Lawlink Vietnam Law Co., Ltd., due to the nature of the provision of vacation ownership is considered “a service in the field of tourism”, so the business of buying, selling/exchanging vacation, entering into a vacation ownership agreement is not a “real estate business”, and is not subject to the constraints or conditions of the real estate business. The law governing vacation property contract transactions is primarily civil law.

This case has been selected by the Supreme People’s Court as Case Case No. 42/2021/AL (approved on February 23, 2021 and announced on March 12, 2021), on the right to choose the Court to settle the case. consumer disputes in the case of a model contract with an arbitration agreement.

Accordingly, the above vacation ownership contract belongs to the type of prepared contract offered by the service provider, which stipulates the arbitration agreement, now the consumer plaintiff does not agree to choose an arbitration and requires Nha Trang City People’s Court’s request to settle is in accordance with Article 38 of the Law on Protection of Consumer Rights, Article 17 of the Law on Commercial Arbitration and the guidance in Clause 5, Article 4 of Resolution No. 01/20I4/NQ-HDTP dated 20/02 March 2014 of the Council of Judges of the Supreme People’s Court.

Therefore, the People’s Court of Nha Trang City to accept and settle the dispute is within its competence according to Clause 3, Article 26, Clause 1, Article 35 of the Civil Procedure Code and is still within the statute of limitations for initiating lawsuits specified in Article 429 of the Civil Code. 2015 Civil Procedure Code, Article 184 of the Civil Procedure Code.

What should investors do to avoid losses?

Also according to lawyer Nguyen Thi Kim Thanh, before signing, the buyer must be careful, read carefully the content of the contract, compare the information in the contract with the advertisement and should ask the investor to send the contract to Read first and then arrange the signing. When you have voluntarily signed, you must accept the binding of the contract, with no other exceptions unless the parties reach an agreement to amend the contract.

According to the lawyer, in the context that disputes from this type of service provision arise quite commonly, the dissemination of judgments and case precedents from this dispute is a positive impact on the market, clearly shaping the market. a clearer picture of the nature of the holiday business, helping consumers to properly understand the activity and its governing legal basis.

For consumers, it is necessary to be more careful with product advertisements, now it is possible to understand that the object of the transaction is “the right to rest” rather than “tourist real estate”, so it will be carefully considered. carefully before making a decision.

For business organizations, there is a basis to promptly review and adjust business activities to both have products and services that are attractive to consumers, while also ensuring compliance with the law and improving reputation. of businesses, and through that, regain consumer confidence in this type of service.

“The case law and the judgment containing the precedents as analyzed will have certain impacts on the holiday property business market in Vietnam, contributing to creating a safer, more transparent business environment, guiding the to a more balance for the parties in the contract of ownership of the holiday,” said lawyer Nguyen Thi Kim Thanh.

According to Tuan Nguyen