[emphasis added]
Cannot is a strong word. I don't know if there is precedent in Florida law defining "commercial purpose" in a way that definitively excludes all of those situations. I'm also fairly sure that there is language in the POS that allows Disney in its "sole and unfettered discretion" to interpret many things, and this is probably one of them. Even if it is not, Disney has the benefit of the "first move" in this game, and can make (and impose!) its determination on the owners it believes are in the wrong. It is then up to those owners to fight it or change.
The other timeshare systems that have been down this road (and there are a couple, with Wyndham being the most notable example) have found this strategy to be very successful. The ownership at large generally applauds these moves, because (a) most owners don't rent and (b) it's pretty easy to decide that renters are the Big Bad when it comes to availability, even when it is not true.
For example, Wyndham owners have been complaining about "megarenters" for as long as I've been an owner there. Wyndham's current definition of commercial use (appears to) include the following in at least some cases: a pattern of advertising for renters one did not previously know or have a relationship with, using images that Wyndham has copyright on in such advertisements even once, putting guests on more than some threshold of reservations (measured by # of reservations and/or points used), among others. When Wyndham decides an owner has violated the commercial use clause, they send a letter telling the owner they are in violation, and to refrain from using a guest certificate for the next 90 days. An owner that violates that has their account suspended.
A garden variety owner just stops renting for a while, and cuts back on the renting they do after that. As far as the developer is concerned, that's a win. They don't need to stop it, they just need to slow it down enough. But an owner who really is doing this as a side hustle is in a bind. That's because their maintenance fee payments are not suspended, and if they've been depending on rental revenue to make their payments, well....
The Wyndham owners who've been public about this over on TUG have all gotten out of the game, and sold off or deeded back the "rental" portion of what they own. A few have decided to "take Wydnham on" to which the rest of us mostly say: Good luck, and God bless.
Disney has in at least some cases followed the lead of other timeshare systems when it comes to program "refinements" (see: resale restrictions). Will they here? Who knows. But if even a non-trivial minority of DVC owners start to view confirmed reservations offered for rent as the Big Bad, Disney very well might. And, there's already rumbling to that effect when people see all those near-park studios during Fall Frenzy, reserved during the Home Resort period, on the various confirmed reservations for rent lists.
The actual commercial purpose provision provides a meaning that says that it cannot preclude things defined as personal use (which actually includes rentals), and then says that a commercial purpose is "a pattern of rental activity or other occupancy by an Owner that the Association, in its reasonable discretion, could conclude constitutes a commercial enterprise or practice." So yes, there is some discretion. However, DVC itself, likely because its lawyers told it that it could go no further in 2007, possibly because a "commercial enterprise" appears in numerous statutes that apply to persons or entities in the business of making money, adopted the 20-reservation rule as its applied meaning for the clause, i.e., DVC has publicly already conceded that the rule cannot just disallow rentals, including those done for profit. Violation requires an accumulation of rentals to show a main purpose of having points is to make profits.
DVC does not have and cannot have the Wyndham megarenter problem, which involved members owning a huge number of points (at least in one case 8,000,000) and making huge profits out of the many reservations those members made for hard to get rooms at hard to get times. Wyndham apparently had no limit to the number of points a member could own.
DVC has always had a strict limit to total points a member can own, originally 2,000 for one resort and 5,000 total, currently 4,000/8,000, and that total cannot be exceeded by an owner's combining with other "Ownership Interests," such as purchasing different memberships or having separate memberships for husband and wife. See "Public Offering Statement Text" even in the POS from the 1990's that appears before the Declarations. That combined ownership limit also applies to a member having any association with other members who can make reservations, such as by becoming an associate member on another's membership, or setting up corporations or other entities designed to have members join ownership interests to make reservations, see the current Home Resort Rules and Regultations, sec. II.1. If DVC learned of any situationn where an owner, or combination of owners, controlled a huge amount of points beyond the current 4,000/8,000 maximum to make reservations, DVC could shut those owners down. That was an actual problem in the mid-2,000s when DVC adopted the 20 reservation rule, because members were circumventing the total maximum points rule, including by a member getting a huge numbers of transfers into the member' s account because, at the time, a member could take in an unlimited number of transfers in any given use year, and the member could gain control of lots of points by becoming an associate member with many other memberships. Besides the 20 reservation rule, at the time DVC adopted two other rules, changing the transfer limit to only one per use year, in or out, and limiting one's associate memberships to four.
Moreover, other than the limits described above, DVC already has an allowed method to deal with the problem of having an excess number of reservation requests for hard to get rooms at hard to get times, which method it actually used in the 1990's for Dec 23 through Dec 31. DVC can set up a Special Season Preference List (SSPL). for the applicable resorts and time periods. See Home Resort Rules and Regulations, sec. II.10. For the given resort and time period, the usual 11/7 reservation rule would not be followed. Members who want reservations for during the time specified would submit their reservation requests long before the 11-month window opens, and then before 11-months out, reservations would be confirmed with members on the list in the order that they made the requests. Thereafter, 11/7 reservations would be filled only in the event the rooms did not fill through the SSPL or cancellations were later made. The SSPL also rectifies any possible excess renter problem because a member is allowed to request only one reservation on the SSPL.
