New rule enforcement on points

[Dean]

There are definitions in both Florida law and administrative rules of what constitutes "commercial activity" in real estate. There are also definitions in federal law and regulations.

Care to post a reference?

 

[Doctor P]

Care to post a reference?

Just Google it. The Florida references are all over the place, so they aren't in one place. If I have time later today, I will do it again and post a couple references (maybe even in a few minutes, I am in the middle of something).

 

[Doctor P]

Here is just a brief list, some more on specific point than others. However, there are a lot more out there that the links cannot be copied for (they are in protected PDF files--in particular, there is a section of Florida administrative code that defines commercial activity as it relates to access to universities that appears to be on point for what we are talking about; there is another section that refers to commercial activity and defines it with reference to residential property and the homestead exemption).

http://floridaassetprotection.blogs.com/alperlaw/2005/05/is_commercial_a.html

http://www.law.cornell.edu/supct/html/98-149.ZD.html

http://www.questia.com/PM.qst?a=o&se=gglsc&d=5000613286&er=deny

http://www.questia.com/PM.qst;jsessionid=FMPdBnYn9l1t0hJgrFk21ck1rZT1XKVLL5pWjX5gtnyf1b4h2Jhm!-153488171?a=o&d=5000661353

http://www.lincolninst.edu/pubs/pub-detail.asp?id=830

http://a257.g.akamaitech.net/7/257/...cess.gpo.gov/cfr_2004/octqtr/50cfr222.102.htm

http://myfloridalegal.com/ago.nsf/Opinions/93EE202F4F1980CB85256E62005663CE

 

[Dean]

Here is just a brief list, some more on specific point than others. However, there are a lot more out there that the links cannot be copied for (they are in protected PDF files--in particular, there is a section of Florida administrative code that defines commercial activity as it relates to access to universities that appears to be on point for what we are talking about; there is another section that refers to commercial activity and defines it with reference to residential property and the homestead exemption).

http://floridaassetprotection.blogs.com/alperlaw/2005/05/is_commercial_a.html

http://www.law.cornell.edu/supct/html/98-149.ZD.html

http://www.questia.com/PM.qst?a=o&se=gglsc&d=5000613286&er=deny

http://www.questia.com/PM.qst;jsessionid=FMPdBnYn9l1t0hJgrFk21ck1rZT1XKVLL5pWjX5gtnyf1b4h2Jhm!-153488171?a=o&d=5000661353

http://www.lincolninst.edu/pubs/pub-detail.asp?id=830

http://a257.g.akamaitech.net/7/257/...cess.gpo.gov/cfr_2004/octqtr/50cfr222.102.htm

http://myfloridalegal.com/ago.nsf/Opinions/93EE202F4F1980CB85256E62005663CE

Just scanning through the ones where the linked worked (all but one), I didn't see anything specific to rentals in general, FL or otherwise and certainly nothing applicable to the discussion in question.

 

[Doctor P]

Just scanning through the ones where the linked worked (all but one), I didn't see anything specific to rentals in general, FL or otherwise and certainly nothing applicable to the discussion in question.

That's actually an irrelevant point, I think. The definition of commercial activity is what is at issue, and courts look to case law and other statutory definitions when deciding points that are not necessarily explicit in statutes or regs related to a particular point. You said there were no definitions. There are definitions, and I didn't even look for the federal ones in this search. Furthermore, the issue of commercial activity related to homestead is certainly on point with respect to rental activity and actually refers to rental activity in its discussion. I'm not going to argue about the definitions or their interpretation--my only point is that such definitions exist and, with a CURSORY and uneducated (referring to myself as uneducated) search of the Internet, several can be discerned.

 

[Dean]

That's actually an irrelevant point, I think. The definition of commercial activity is what is at issue, and courts look to case law and other statutory definitions when deciding points that are not necessarily explicit in statutes or regs related to a particular point. You said there were no definitions. There are definitions, and I didn't even look for the federal ones in this search. Furthermore, the issue of commercial activity related to homestead is certainly on point with respect to rental activity and actually refers to rental activity in its discussion. I'm not going to argue about the definitions or their interpretation--my only point is that such definitions exist and, with a CURSORY and uneducated (referring to myself as uneducated) search of the Internet, several can be discerned.

I've actually read through the Real Estate statues and done a number of web searches. I've found nothing I think is applicable other than references to back to DIS. All I can find on "commercial rental" has to do with the definition and issues of commercial property and only then is the rental/lease question an issue. And nothing even then to the test of what's commercial and what's not from a rental/lease standpoint. This would not apply in this situation in ANY way. I could fine nothing, so far, that would apply to the rental issue itself as the issue of question. In DVC's standpoint it's the rental activity that's the question, not the property type. I know there is case law that applies, I just haven't been able to find anything applicable. I know there was an action related to condominium in FL where the developer or association was doing weekly rentals and wanted to limit owners to long term rentals (? a month minimum) that was found in favor of the owners to say that the rules applied equally but I haven't been able to find it either.

But I did find this:

The Florida legislature took up the court’s invitation in the form of a recent amendment to the Condominium Act that reads as follows: “Any amendment restricting owners’ rights relating to the rental of units applies only to unit owners who consent to the amendment and unit owners who purchase their units after the effective date of that amendment.”

In essence, the legislature overruled the Florida Supreme Court’s decision in Woodside Village by providing protection for owners who bought prior to the date the association instituted leasing restrictions. There is one caveat: Any pre-existing owner who votes in favor of the leasing restriction will be bound by the restriction.

If you presently own a condominium in Florida and the governing documents are amended in the future to prohibit leasing, you can rest assured that you will still have the right to lease out your unit, whether or not you are leasing it out at the time of the amendment. However, if you vote for the restriction, then you can be prevented from leasing out the unit in the future. You should still review all condominium documents prior to purchasing a unit to fully understand any restrictions that may be put on leases, such as association approval, term limitations, and review and approval fees, as well as any other conditions that may affect your ownership and enjoyment rights.

 

[Doctor P]

I believe you are on the wrong track, Dean. The issue is what constitutes a commercial activity. We all agree that rental is allowed. What is not allowed is commercial activity. The question is how you differentiate between rentals that constitute commercial activity and those that do not. I maintain that there are legal foundations upon which that distinction can be made. Furthermore, your second quote is not germane to this situation because all owners DID consent to the commercial activity restriction as it has been in the POS since the beginning I believe. This is not an amendment situation I don't believe.

 

[Dean]

I believe you are on the wrong track, Dean. The issue is what constitutes a commercial activity. We all agree that rental is allowed. What is not allowed is commercial activity. The question is how you differentiate between rentals that constitute commercial activity and those that do not. I maintain that there are legal foundations upon which that distinction can be made. Furthermore, your second quote is not germane to this situation because all owners DID consent to the commercial activity restriction as it has been in the POS since the beginning I believe. This is not an amendment situation I don't believe.

I added the quote because I thought it was interesting but also because I believe it is applicable in part. The legislative change is specific to condo's but would freeze them at the level of limitation in place at the time they bought. Something that gave the option to limit it further later would not be applicable unless they voted in favor of it as I read that issue. It may or may not be directly related to our discussion but I believe it is at least peripherally so.

I think we're in the ballpark so let me just spell out how I see it and we can see where we stand. The only issues in the POS directly related to this issue are the vague information we've reference many times directly addressing "commercial activity" but not defining it. The only other reference that I think is truly applicable is that DVC states in the POS that in an effort to limit for personal use, they have restricted single resort ownership to 2000 points and total ownership to 5000 points. In a sense, that could be construed as a definition and I think is a defendable position. But assuming it's not enough, for DVC to enforce this clause there will have to be a specific definition that is reproducible and definable and that they can inform members on going forward. Further, profit itself would not enter into the equation for many reasons but most practically because DVC would not consistently have the information. Thus any attempt to define this issue would have to be based on something like the number of points or total reservations rented or similar. Something where the actual rentals themselves defined the issue. IMO, it'd also have to be pretty lenient given that the guides have consistently stressed the rental options and they'd have to make it easily defendable. Even then, other condo and related case law would come into bearing and there's likely a lot applicable to this area that none of us know about. I do not believe, as many seem to, that simply having the current wording gives them free reign for any and all options and interpretations.

 

[bessjlj]

Apologies please if I missed this in the thread discussing the transfer of points in a use year.

I understand that you can only transfer points "out" one time in a use year. Does that mean that you are still allowed to transfer ponts "in" one time as well? Or is it that irrespective of what type of transfer is conducted..."in" or "out" that you are limited to one transfer in a use year?

Thanks!

 

[rinkwide]

This discussion reminds me of the time I sat next to Stephen Hawking and Carl Sagan and they happened to be arguing a discrepancy in the space-time continuum.

 

[Chuck S]

Apologies please if I missed this in the thread discussing the transfer of points in a use year.

I understand that you can only transfer points "out" one time in a use year. Does that mean that you are still allowed to transfer ponts "in" one time as well? Or is it that irrespective of what type of transfer is conducted..."in" or "out" that you are limited to one transfer in a use year?

Thanks!

You are limited to ONE transfer, not one in and one out...one period.

 

[Dean]

Apologies please if I missed this in the thread discussing the transfer of points in a use year.

I understand that you can only transfer points "out" one time in a use year. Does that mean that you are still allowed to transfer ponts "in" one time as well? Or is it that irrespective of what type of transfer is conducted..."in" or "out" that you are limited to one transfer in a use year?

Thanks!

The rule has changed back to what it was in 2002 and prior. One in OR one out per USE YEAR per master contract.

 

[TCPluto]

This discussion reminds me of the time I sat next to Stephen Hawking and Carl Sagan and they happened to be arguing a discrepancy in the space-time continuum.

No kidding!!

 

[granmanh603]

No kidding!!

Ditto on that. Was thinking the same thing.

 

[OneMoreTry]

This discussion reminds me of the time I sat next to Stephen Hawking and Carl Sagan and they happened to be arguing a discrepancy in the space-time continuum.

Except that they seemed to find meaninglessness in something actually full of meaning.



Bassackwards from this.