Commerical Use Policy Update - New Thread!

[Girlstar30]

@Sandisw when you get more clarification and if you choose to post it would you mind posting in a new thread or letting me know

There are so many long threads like this its confusing to me which one to check with your updates and I agree with your interpretations and really want to know what they come back at you with. As far as I know you're the only one pursuing the answers directly from the higher ups, we all have lots of opinions, but I need answers

 

[HyperspaceMountainPilot]

I was thinking about this on my flight home this afternoon and I wonder if we have ALL been missing the obvious. The foundational timeshare contract document for each DVC resort makes clear that points may only be used for “Personal Use” and no commercial purposes, I don’t think there’s been anybody trying to debate that— it’s all been about interpreting (and we all agree some rental rights are included in Personal Use). But NOW, every time you make or change a reservations, you check a box to agree that your reservation is solely for personal use and you further agree with their interpretation of personal use as neither regular or frequent, to wit:

You agree that any reservations made under your membership are solely for personal use and not for commercial purposes, as required by governing documents for each DVC Resort, including but not limited to the Declaration of Condominium and Membership Agreement.
DVCM reserves the right to interpret personal use and determine if reservations are booked for personal or commercial purposes in its sole discretion. Personal use may include enjoying the benefits of a DVC Membership with family or allowing use of any reserved Vacation Home to friends and family on occasion. Additionally, personal use means that the member does not regularly or frequently rent/sell reservations booked using their membership.

I wonder (assuming Disney actually decides to enforce) if they just start cancelling and/or locking out commercial renters saying “you agreed to our definition of personal use, you claimed it was for personal use, it’s clearly a violation of our terms to rent half your points year after year to randos. Her, here, and here are where you agreed to Ts&Cs, too bad, so sad, see you in court if you want a Hail Mary chance to try to get access to your points back in a year or two.”

 

[Girlstar30]

I was thinking about this on my flight home this afternoon and I wonder if we have ALL been missing the obvious. The foundational timeshare contract document for each DVC resort makes clear that points may only be used for “Personal Use” and no commercial purposes, I don’t think there’s been anybody trying to debate that— it’s all been about interpreting (and we all agree some rental rights are included in Personal Use). But NOW, every time you make or change a reservations, you check a box to agree that your reservation is solely for personal use and you further agree with their interpretation of personal use as neither regular or frequent, to wit:

You agree that any reservations made under your membership are solely for personal use and not for commercial purposes, as required by governing documents for each DVC Resort, including but not limited to the Declaration of Condominium and Membership Agreement.
DVCM reserves the right to interpret personal use and determine if reservations are booked for personal or commercial purposes in its sole discretion. Personal use may include enjoying the benefits of a DVC Membership with family or allowing use of any reserved Vacation Home to friends and family on occasion. Additionally, personal use means that the member does not regularly or frequently rent/sell reservations booked using their membership.

I wonder (assuming Disney actually decides to enforce) if they just start cancelling and/or locking out commercial renters saying “you agreed to our definition of personal use, you claimed it was for personal use, it’s clearly a violation of our terms to rent half your points year after year to randos. Her, here, and here are where you agreed to Ts&Cs, too bad, so sad, see you in court if you want a Hail Mary chance to try to get access to your points back in a year or two.”

 

[JackosinDIS]

I was thinking about this on my flight home this afternoon and I wonder if we have ALL been missing the obvious. The foundational timeshare contract document for each DVC resort makes clear that points may only be used for “Personal Use” and no commercial purposes, I don’t think there’s been anybody trying to debate that— it’s all been about interpreting (and we all agree some rental rights are included in Personal Use). But NOW, every time you make or change a reservations, you check a box to agree that your reservation is solely for personal use and you further agree with their interpretation of personal use as neither regular or frequent, to wit:

You agree that any reservations made under your membership are solely for personal use and not for commercial purposes, as required by governing documents for each DVC Resort, including but not limited to the Declaration of Condominium and Membership Agreement.
DVCM reserves the right to interpret personal use and determine if reservations are booked for personal or commercial purposes in its sole discretion. Personal use may include enjoying the benefits of a DVC Membership with family or allowing use of any reserved Vacation Home to friends and family on occasion. Additionally, personal use means that the member does not regularly or frequently rent/sell reservations booked using their membership.

I wonder (assuming Disney actually decides to enforce) if they just start cancelling and/or locking out commercial renters saying “you agreed to our definition of personal use, you claimed it was for personal use, it’s clearly a violation of our terms to rent half your points year after year to randos. Her, here, and here are where you agreed to Ts&Cs, too bad, so sad, see you in court if you want a Hail Mary chance to try to get access to your points back in a year or two.”

I think you may be right on this, and it was certainly my initial reaction when this thread first came about, although it was pointed out to me that the new Ts&C do have a clause stating that the POS clauses prevail in the event of conflict.

 

[Sandisw]

I think you may be right on this, and it was certainly my initial reaction when this thread first came about, although it was pointed out to me that the new Ts&C do have a clause stating that the POS clauses prevail in the event of conflict.

And, the statement by the board was about owners with lots of points and it’s a frequent occurrence.

The only surprise to me so far is that they still have the 2011 policy as the offical policy because some of us thought that may no longer be in play.

Those who are renting at levels that are clearly commercial, now we know DVC changed it to apply across all memberships, should easily be caught with more than 20

Now we just have to wait to see what, if any, further changes come and/or if we get reports of any enforcement.

And to see if they decide to make any rule changes for booking and modifications to impact the ability to walk.

 

[Sandisw]

To add, when I get further information, I will share whatever information makes sense to share publicly and begin a new thread if it is worth a new discussion.

 

[DonMacGregor]

I, along with many other lawyers on this thread (and it appears Disney’s lawyers, based on the MS scripts we’ve seen), think because Disney has already made clear that commercial use is prohibited in several documents, that anything that Disney “in its reasonable discretion” (a very lenient standard) believes is commercial renting can be stopped without additional written documentation spelling out every possible type of rental that is or is not commercial.

I've often wondered how the "in its reasonable discretion" language squares with the "Disney must delineate all manner and all circumstance by which a member may be in violation of the rules (rental, commercial activity, etc.), and reservations subject to cancellation" school of thought.

If one were to accept that Disney must provide an exhaustive list of reasons and circumstances, with no latitude beyond that descriptive list, then the 'in its reasonable discretion" language (which appears often, in multiple documents) would be rendered moot, because Disney would have no discretion and would be bound to that descriptive list of reasons and circumstances.

Is it the suggestion that Disney has claimed for itself a right ("reasonable discretion") in the contracts and other founding documents that they do not, in fact, enjoy?

 

[Brian Noble]

Agreed.

I understand the efforts people are making to get a crisp and precise, black-and-white definition of what is and is not allowable. But, I don't agree that Disney has to have such a definition, let alone provide it. In other words: even if they provide a definition that they claim to be using at the time it is provided, they can change it pretty much any time they want to, and do so without notice---becuase they've already provided it.

Having watched this play out eslewhere, I will be taking a risk management approach to this. I believe no rental is truly risk-free, but there are some behaviors that will add to my risk more than others.

 

[DonMacGregor]

As I've said before, I think (as a proud non-lawyer) that it is akin to DUI/DWI laws.

In most states, DUI/DWI is statutorily defined as having two prongs. The first prong is operating a motor vehicle with a blood alcohol level (BAC) greater than a specific percentage (usually .08). That one is relatively cut and dried (well, at least it has a defined threshold).

The second prong is "impaired driving", or the perception by the arresting officer that, in his determination, the driver's ability to safely operate the motor vehicle has been impaired by the ingestion of alcohol or some other substance. The officer has relatively broad (but not limitless) latitude on this, but it usually amounts to "I observed you swerving", "I observed you changing lanes without signaling", "I observed a delay pulling away from a traffic light", etc. (evidence consistent with impaired driving, that would reasonably result in probable cause), typically coupled with poor performance on a field sobriety test, bloodshot eyes, alcohol on the breath, etc. . Even your demeanor during the stop can be considered in determining if your driving is impaired. There is no definitive or exhaustive list, but it is the cumulative nature of the observations by the office that determine if the charge is filed.

A driver can be convicted on EITHER or BOTH charges.

 

[Sandisw]

At this point, all any of us can do is wait to see how DVC decides to define and enforce things beyond the offical policy in place.

And, as I mentioned, keep an eye out for changes that might address walking.

So far, the HRR is the same as when it was updated in December.

 

[lowlight]

And, as I mentioned, keep an eye out for changes that might address walking.

Was that in this thread? I can’t seem to find it.

 

[Sandisw]

Was that in this thread? I can’t seem to find it.

No, nothing has happened. I meant keep an eye out for changes in the HRR if DVC decides to do anything.

That is where they’d show up

There are ways to find it in the OCC site if updates are done but I’m not good at navigating that for document changes.

 

[achinforsomebacon]

The 2011 policy is where you will find the specifics of what DVC has adpoted as to what consitutes commerical enterprise, practice or purpose.. which is where the 20 reservations rule can be found.

It has been adopted by the board and is considered a governing document of the association, just like the HRR is an additional document outside the POS.

The POS documents of many of the resorts state that exists and you can request it if you want it. They do not publish it any longer.

It falls under some of the other documents that are available only by request…such as the property management agreement with Parks and Hotels.

They have confirmed to me that the policy I was sent is indeed still the offical policy for commercial purposes on record and thus what is in play at this time, but of course, stated rules may change in the future.

I posted one of the emails in the thread in which they stated that..

I will post it publicly when or if I have been given legal permission by DVC to do so.

They could have easily updated HRR and T and C with specifics beyond what is in the offical commerical use policy, as that policy says they can add more.

They could have actually updated the 2011 policy that is in place to include what other defintions/actions they want to be considered part of the commericual use policy. So far, they have done none of that.

All they are doing is just reminding owners when they are booking to agree it falls under the definitions of personal use.

ETA: Here is the POS clause that states the board has adpoted a policy for commerical, and that it is a record of the association. This is why the specifics of it are not included elsewhere because it is in its own governing document.

View attachment 985346

Trying to follow along with all of this. This is from the POS personal use clause from your post above:

"From time to time, to the extent that the Board determines that use is occurring that is for a commercial purpose, the Board may in its sole and absolute discretion, adopt and amend policies to provide what constitutes a commercial enterprise, practice, or purpose. The Association has adopted a policy regarding what constitutes a commercial enterprise, practice, or purpose, which policy is a record of the Association and may be reviewed upon request."

Are you saying that since the 20 reservation limit is the policy in place, they can't just start redefining what constitutes commercial use without officially updating the language to the new criteria? It's not that they can't change the definition of commercial use but that they have to make it official?

 

[Sandisw]

Trying to follow along with all of this. This is from the POS personal use clause from your post above:

"From time to time, to the extent that the Board determines that use is occurring that is for a commercial purpose, the Board may in its sole and absolute discretion, adopt and amend policies to provide what constitutes a commercial enterprise, practice, or purpose. The Association has adopted a policy regarding what constitutes a commercial enterprise, practice, or purpose, which policy is a record of the Association and may be reviewed upon request."

Are you saying that since the 20 reservation limit is the policy in place, they can't just start redefining what constitutes commercial use without officially updating the language to the new criteria? It's not that they can't change the definition of commercial use but that they have to make it official?

Per everything that has been communicated to me from DVC Management, the 2011 policy (20 reservation rule) is the only policy in play, as of today, when it comes to what "constitutes a commerical enterprise, practice or purpose".

The board, of course, reserves the right to update any policy, including this one, or rules as it sees fit.