New rule enforcement on points

[keishashadow]

First of all, I find it shocking that ANYONE would buy real estate in a condominium association/timeshare without seeing a copy of the covenants and rules/regulations (though you are certainly not the only person who has done so). IMHO, that is not very responsible (though a lot of people apparently have done so) or prudent. Second of all, if one does not know when or what the change was, then I would gently suggest that that disqualifies one from commenting on any change that might or might not have occurred. BTW, there has not been any POS that explicitly states that one can make more than one transfer in one direction in a year (that has only been inferred by a few people who saw a lot in a minor language change and apparently play lawyers on television

) and there has apparently been no POS that has ever allowed transfers in two directions in one year.

...not only "anyone" but, a realtor too

; who knows that she is NOT a lawyer, nor qualified to interpret anything but standard contracts.

Call me naive, trusting a product that a blue chip company has been selling for 15 years as legit/valid/prudent (certainly prefer it over being termed irresponsible - even if I'm in good company)

Of course I read the sales agreement & deed before signing on the palm trees

Truly didn't care about restrictive covenants, etc. - don't care what color draperies are in the windows, more interested in max annual cap on dues.

BTW, when i purchased (spring of '05) I was told by original DVC guide that transfers were permitted (up to the max. amount of yearly points); along with banking & borrowing to allow 3 years' usage of maximum points. Various TS reps & posters on this board seconded the motion.

I like to call myself an owner, but IMO it's truly more of a long-term lease of usage rights.

 

[Dean]

BTW, there has not been any POS that explicitly states that one can make more than one transfer in one direction in a year (that has only been inferred by a few people who saw a lot in a minor language change and apparently play lawyers on television ) and there has apparently been no POS that has ever allowed transfers in two directions in one year.

Actually that is only partly true. The documents changed from specifically stating one in/one out to not addressing the issue. Not only that, DVC enforced the rule as multiple in OR multiple OUT. THESE are the facts. Besides, I've been told by DVC management that this was specifically the case the the reason it was changed back was essentially what we've discussed here. As for the lawyer remark, I resent it wink or not, since I know it is aimed at me and not really intended in jest.

 

[Sammie]

Did the POS really change or did the enforcement change.

Does anyone have a printed copy of the change or is it an urban rumor?

I mean I not saying it did not happen but did they really change the POS or did they simply not enforce the POS and therefore it became to be accepted.

Surely one of us has a copy of then.

 

[Dean]

Did the POS really change or did the enforcement change.

Actually it did change and the appropriate allowances by MS changed at the same time. The wording also changed July, 2006 to say "per club member or club membership". While I'd interpret as an attempt to prevent multiple owners of one contract or multiple contracts under one master from having one per rather than one total. I don't think one would be able to argue that it could be limited to one total with multiple but unrelated contracts but I'm sure someone will.

Just conjecture on my part mind you but I'm not sure DVC intended to make the change they did back in 2002/2003. My suspicion is that they only intended to change in such a way to allow transferred points to be banked but that the new wording did not support the position of one in/one out which would have been required for them to limit transfers and they decided to stick with it. And now they have changed the wording back more like it was previously.

 

[OneMoreTry]

....Second of all, if one does not know when or what the change was, then I would gently suggest that that disqualifies one from commenting on any change that might or might not have occurred....

I will be glad to stick to general principles then, like the ones I intended to make in my 2 posts above, and not comment about specifics of any change.

I would disagree. Anytime you give flexibility, you create chaos. The appropriate supervisor can always override where appropriate regardless. Personally I don't see where anyone's personal situation should enter in to enforcement of a system with over 100K members. Call me cold if you want but anytime you introduce this type of "flexibility", you create the potential for chaos.

Dean, I am such a softy I know . I get in trouble one this one all the time at home AND work. So I have to agree with this comment. I won't call you cold. I just won't make any reservations during the last 4 months of my use year.

 

[Doctor P]

Actually that is only partly true. The documents changed from specifically stating one in/one out to not addressing the issue. Not only that, DVC enforced the rule as multiple in OR multiple OUT. THESE are the facts. Besides, I've been told by DVC management that this was specifically the case the the reason it was changed back was essentially what we've discussed here. As for the lawyer remark, I resent it wink or not, since I know it is aimed at me and not really intended in jest.

Again, there has never been POS language to allow multiple transfers in or out. Enforcement or not, you well know that the only binding statements or policies are those that are in the POS (as you correctly remind us often in various threads). Furthermore, if there was a change made, the original change was to loosen--if there was a problem with changing the POS, I would suggest that THAT was the problem and that, in fact, they may have been called on this issue and changed it back as a result. As to the lawyer comment, you are far from the only person who has played lawyer on this issue and the comment was not intended to be aimed at a single person. Furthermore, those of us whose professional training and certification exams included contract and real estate law (but I am not a lawyer, nor have I ever played one on TV--just on stage) perhaps are the ones who should be concerned, or resentful, of those who provide legal interpretations that are seemingly only based on what they hope to be the case rather than sound foundations.

 

[Longhairbear]

I belong to an HOA ( home owners association), A few times the BOD ( board of directors) have changed bylaws, rules etc. and made other decisions that the general membership would have no knowledge of unless they attended the actual meetings when these motions are voted on. One can get copies of the meeting minutes, and then become informed on changes. However changes affect all in the membership, no matter what rules were in place at the time of purchase, and supersede previous rules.
I am sure that is the case with DVC. Perhaps we are allowed to request the minutes of meetings where the transfer of points was discussed,altered, reinstated, or that the BOD realized the omission of points transfers from the 2006 contract wording. Meeting minutes may also clear up the one membership, or multiple contract confusion.

 

[Dean]

Perhaps we are allowed to request the minutes of meetings where the transfer of points was discussed,altered, reinstated, or that the BOD realized the omission of points transfers from the 2006 contract wording. Meeting minutes may also clear up the one membership, or multiple contract confusion.

We are allowed and FL law requires it as an option. I have done so personally and as of last week, am the only person ever to do so. But DVC works differently. DVC's stance is that these don't have to follow the due process and can be changed on a whim. The annual meeting is actually the only meeting of the BOD. There is no formal meetings otherwise and no other "vote". I'm not sure this is technically legal or within the rules but I'll have to contemplate it and review the info more before I can formulate a definite opinion.

 

[Dean]

Again, there has never been POS language to allow multiple transfers in or out. Enforcement or not, you well know that the only binding statements or policies are those that are in the POS (as you correctly remind us often in various threads). Furthermore, if there was a change made, the original change was to loosen--if there was a problem with changing the POS, I would suggest that THAT was the problem and that, in fact, they may have been called on this issue and changed it back as a result. As to the lawyer comment, you are far from the only person who has played lawyer on this issue and the comment was not intended to be aimed at a single person. Furthermore, those of us whose professional training and certification exams included contract and real estate law (but I am not a lawyer, nor have I ever played one on TV--just on stage) perhaps are the ones who should be concerned, or resentful, of those who provide legal interpretations that are seemingly only based on what they hope to be the case rather than sound foundations.

Your first sentence is blatantly false. There has never been language that spelled out multiple transfers but for the POS to prevent them, they would have to be wording that allowed the restriction. From the 2003 to Feb, 2006 multi sit POS, there was none. And you are well aware that during that time DVC allowed multiple transfers in ONE direction specifically defining their interpretation. As for your denial of intent of your remarks, I don't believe you. And I would suggest that I personally have more experience and training in FL statues and Timeshare law than those you suggest are qualified for what it's worth, regardless it's still just my opinion.

 

[Doctor P]

Your first sentence is blatantly false. There has never been language that spelled out multiple transfers but for the POS to prevent them, they would have to be wording that allowed the restriction. From the 2003 to Feb, 2006 multi sit POS, there was none. And you are well aware that during that time DVC allowed multiple transfers in ONE direction specifically defining their interpretation. As for your denial of intent of your remarks, I don't believe you. And I would suggest that I personally have more experience and training in FL statues and Timeshare law than those you suggest are qualified for what it's worth, regardless it's still just my opinion.

Dean, you know that I respect your knowledge of timeshares (and specifically FL timeshares) and am still very appreciative of the advice you have provided publicly and privately to members of this board including me. If there are statutes or administrative rules that support your position, please cite them. I don't think they exist and/or would not be interpreted in the fashion you have presented, but would be appreciative of being educated and corrected by any hard facts you can provide.

 

[Dean]

Dean, you know that I respect your knowledge of timeshares (and specifically FL timeshares) and am still very appreciative of the advice you have provided publicly and privately to members of this board including me. If there are statutes or administrative rules that support your position, please cite them. I don't think they exist and/or would not be interpreted in the fashion you have presented, but would be appreciative of being educated and corrected by any hard facts you can provide.

What specifically do you want to know or discuss. The specifics of the old wording has been posted already and clearly does not preclude one in or one out. Do you question that DVC allowed multiple transfers in OR out but not both? I'll state again that for DVC to preclude multiple transfers, they'd have to have specific wording in the POS materials to do so and it was not there, you can disagree if you want but I don't see how. Here is the change as it comes from the DVC documentation. Underlined means new and crossed out means old but I didn't know how to do crossed out with the tags so I substituted Bold for the eliminated wording instead.

During a given use year, only one (1) Transfer per Membership, either as Transferee or Transferor, will be permitted. a Club member may, per membership, either Transfer or receive Transferred Vacation Points, but may not both Transfer and receive Transferred Vacation Points.

Other changes include.

• Wording where if there are multiple owners and there is a disagreement, the word of the principle contact is final.
• The 15 days to rescend is decreased to the 10 days required by FL law.
• Check in is officially changed to after 4 and check out before 11.
• Holding account points were clarified to be restricted to reserve and stay during the last 60 days of the use year. It's a little confusing but I think they're trying to say they can be used in the last 60 days to include but not be limited to DVC resorts.
• The II contract was extended through 31 July on paper but has again been extended or so I'm told.

Changes to the single site POS included

• For the buyer to pay the recording costs and doc stamps including the mortgage recording.

 

[Doctor P]

I'll state again that for DVC to preclude multiple transfers, they'd have to have specific wording in the POS materials to do so...

This is a legal statement. I want the statute or administrative regulation that requires this.

 

[Dean]

This is a legal statement. I want the statute or administrative regulation that requires this.

My interpretation of contract law as it applies to Timeshare POS and frankly the same principle applies to FL statues as I've had confirmed by several state of FL lawyers whose job is to review and recommend about rule and law changes to the Statues and underlying rule promulgation, you can take it for what it's worth or ignore it if you chose. I'll ask again, do you deny that DVC allowed multiple transfers?

 

[Longhairbear]

We are allowed and FL law requires it as an option. I have done so personally and as of last week, am the only person ever to do so. But DVC works differently. DVC's stance is that these don't have to follow the due process and can be changed on a whim. The annual meeting is actually the only meeting of the BOD. There is no formal meetings otherwise and no other "vote". I'm not sure this is technically legal or within the rules but I'll have to contemplate it and review the info more before I can formulate a definite opinion.

Sounds good, please post more about it if the minutes reflect any new info.
I am only familiar with CA law regarding condo assoc., and I have no knowledge of how timeshare laws might affect things.

 

[Doctor P]

My interpretation of contract law as it applies to Timeshare POS and frankly the same principle applies to FL statues as I've had confirmed by several state of FL lawyers whose job is to review and recommend about rule and law changes to the Statues and underlying rule promulgation, you can take it for what it's worth or ignore it if you chose. I'll ask again, do you deny that DVC allowed multiple transfers?

This is a non-answer that I will, indeed, choose to ignore and encourage others to do the same. What it appears that you have done is taken some general principles of contract and/or timeshare law (e.g., statute of frauds, interpretation of material clauses, definition of material clauses, amendments to declarations) and then warped them to try to fit this situation. While I may be wrong about this, one cannot judge unless the particular statutes, case law, or administrative rules are cited so that we can assess the application to the case at hand.

 

[childsplay]

I'll state again that for DVC to preclude multiple transfers, they'd have to have specific wording in the POS materials to do so and it was not there, you can disagree if you want but I don't see how.

Dean if this is true, and I'm more than willing to accept your interpretation, then what should/can we do about it? I'm not sure arguing with a MS costomer services rep is the proper approach or even a manager...it seems to me it will just be a back and forth kind of thing of me saying you can't limit my transfers and them saying they can

Is there some other way to approach this?

 

[RobDoc]

I'll state again that for DVC to preclude multiple transfers, they'd have to have specific wording in the POS materials to do so and it was not there, you can disagree if you want but I don't see how. Here is the change as it comes from the DVC documentation. Underlined means new and crossed out means old but I didn't know how to do crossed out with the tags so I substituted Bold for the eliminated wording instead.

During a given use year, only one (1) Transfer per Membership, either as Transferee or Transferor, will be permitted. a Club member may, per membership, either Transfer or receive Transferred Vacation Points, but may not both Transfer and receive Transferred Vacation Points.

It seems that it's a moot point at this time since, as quoted above, the POS has already been changed - as is the right of DVC. Unless there is argument about the DVC's right to make changes - this is a return to language similar to what it was from 1991 until 2003. I have quoted the POS where DVC does have that right and has done so over the years for things like making transfers, banking transferred points, allowing transfer of Holding Account points, allowing transfer of Reservation Points, reallocation of point charts and other changes.

I view this as the fact DVC has the right and responsibility to maintain a balanced opportunity for members to make reservations. At times it may be necessary to make policy changes which would expand or limit transactions involving our points in order to keep the desired balance in the system. Dean has also suggested, in the past at least, that some changes will probably need to be made as 2042 nears in order to maintain this same balance - possibly limiting banking and borrowing for a period of time as 2041/42 nears. I would agree and view such change the same as the recent changes already mentioned - well within the scope of responsibility held by DVC.

As for what would need to be done about the changes already made, owners do have the ability to replace DVC as management of their resorts. That action would certainly change the entire look of our ownership (it would eliminate using other resorts within the system, no more transfers and very likely much higher dues as the new management would need to negotiate with Disney for services provided - like transportation, laundry, etc.).

Be careful what you ask for ...

 

[childsplay]

It seems that it's a moot point at this time since, as quoted above, the POS has already been changed - as is the right of DVC. Unless there is argument about the DVC's right to make changes - this is a return to language similar to what it was from 1991 until 2003. I have quoted the POS where DVC does have that right and has done so over the years for things like making transfers, banking transferred points, allowing transfer of Holding Account points, allowing transfer of Reservation Points, reallocation of point charts and other changes.

I have been trying to follow this discussion, and perhaps I misunderstand, but I think the bolded part of your response Doc is what it boils down to...do they have the right to unilaterally impose this change. Honestly, I have no idea. I am willing to accept whatever the conventional and collective wisdom of my esteemed DIS collegues is. And I certainly would not advocate the replacement of DVC as the managing entity.

 

[RobDoc]

I have been trying to follow this discussion, and perhaps I misunderstand, but I think the bolded part of your response Doc is what it boils down to...do they have the right to unilaterally impose this change. Honestly, I have no idea. I am willing to accept whatever the conventional and collective wisdom of my esteemed DIS collegues is. And I certainly would not advocate the replacement of DVC as the managing entity.

From the POS:

"3. Amendments: DVCMC reserves the right to amend these rules and regulations, in its sole, absolute, and unfettered discretion. These changes may effect a club member's right to use, exchange and rent the club member's ownership interest and impose obligations upon the use and enjoyment of his or her ownership interest and the appurtenant club membership. Club members will be notified of any such changes through member services publications. Current publications supercede prior publications with respect to the terms and conditions of these rules and regulations."

I'll let you decide what that means, but nowhere in the POS or other documents have I seen any requirement for approval by members for any administrative decisions by DVC - with the exception if DVC wants to raise annual fees more than 15% in one year and if the owners wish to remove DVC as managing entity. As I stated above, DVC has exercised this discretion a number of times in the past - including this summer.

If anyone knows of any language providing the ability of the owners to exercise voting control over decisions made by DVC, please provide the quote from the POS.

 

[Dean]

This is a non-answer that I will, indeed, choose to ignore and encourage others to do the same. What it appears that you have done is taken some general principles of contract and/or timeshare law (e.g., statute of frauds, interpretation of material clauses, definition of material clauses, amendments to declarations) and then warped them to try to fit this situation. While I may be wrong about this, one cannot judge unless the particular statutes, case law, or administrative rules are cited so that we can assess the application to the case at hand.

Ingore it if you want. Eventually you have to have some givens to discuss any issue and IMO, this is one of them. I don't feel the need to convince you but if you want to check it out I'd suggest several possible sources. These would include DVC's legal department, DBPR here in Tallahassee specifically the lawyer who deals with sections 718-721 and case law as it involves timeshare POS, By-Laws, Articles of Incorporation, Declaration of Condominium, and FL statutes as a start.

On a previous thread I gave a complete overview on how statues and similar rules sets are interpreted. And since you've failed to respond to 2 direct questions regarding whether DVC allowed multiple transfers, I'll assume your agreement that they did. I'm guessing there are only the 4 of us left which is a shame. Sorry to have gotten into such a back and forth.