Walking away from time share comes with risks

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DEAR BENNY: I have read your articles regarding time shares, but I still feel at a loss as to how unload it.

It is completely paid, with the maintenance fees paid every other year. I have offered it on Craigslist but still no bites.

I visited a licensed real estate broker, and he has the same problem trying to sell his time share. What would be the worst-case scenario if I don’t continue to pay the maintenance fees?

I don’t mind losing this time share, and I would like to know if doing this will affect my credit. Can I “abandon” the time share? Do I try another real estate broker? – Pat

DEAR PAT: If this were your principal home and you wanted to walk away from your mortgage, I would say “absolutely no.”

That is, in my opinion, the worst thing you can do. Your lender will sue you, or foreclose upon you, in order to be able to have the title to sell the property to someone else. And unless you are in one of the 12 states whose laws do not permit lenders to go after the deficiency, the lender will look to you for the balance of the moneys.

Having said that, however, I am having second thoughts about walking away from a time share. It is true that the same consequences can apply: Your credit will be impacted, and you may be hit with a lawsuit for the deficiency. More significantly, the Internal Revenue Service may hit you with what we call “phantom income,” namely, a tax on the money that was canceled in the transaction.

But, having studied this situation carefully – and having received numerous letters from readers with the same problem – I am almost reluctantly prepared to say give it up.

However, before you do that, you should talk with a representative with authority at your time share community. I have heard of consumers who just had to sign a simple agreement, pay a nominal fee and were able to walk away.

You should also talk with a financial adviser before taking that step. You have to go into the transaction (actually get out of it) with your eyes wide open as to the tax and legal consequences of your action.

DEAR BENNY: I own a lot in a subdivision on the West Coast.

There are approximately 20 to 25 undeveloped lots and 725 lots with homes built. Those of us who have undeveloped lots pay the same homeowners association fees as those with homes on them.

Is this customary or are there examples of HOAs that charge lower fees if there is no home on the lot? – Pamela

DEAR PAMELA: I do not know the answer to your question, but perhaps one of my readers can assist.

However, the fee that you pay should have been spelled out in the legal documents that you received at settlement. In fact, many states have laws requiring sellers – both developers as well as resellers – to provide disclosure about the association in advance and giving the potential buyer a set number of days to cancel the transaction if they are not satisfied after reviewing the documents.

I agree that at first blush it makes no sense to pay the same HOA fee for a vacant lot as you would for a house on a lot. But how is the fee used? If it is only to pay for expenses relating to the lot itself – and not the house – then perhaps equality makes sense. For example, maintenance of the common roads. While you could argue that homeowners use the roads more than lot owners, the opposite argument is that the roads are for everyone’s use and everyone should pay their fair – and equal – share.

But look in your legal documents. Perhaps you are paying too much.

KASS is a practicing attorney in Washington, D.C., and Maryland. Questions for this column can be submitted to [email protected].