Newest Ms Change!

[Dean]

Thanks for the information from the 2003 POS, but what language in the documents suggest to you that a vote would be necessary for changes to be made? The only references I can think of regarding a vote would be to replace DVC as management for the resorts or for a maintenance fee increase greater than 15% in a year. No vote was taken to make the other changes that have taken place over the years- including the one you referenced above.

I had to do a little research as I was going somewhat by memory. It suffices to say that there is plenty of legal mumbo jumbo, likely enough to keep a room full of lawyers busy for a couple of years. And realizing that courts routinely favor the little guy when corporations and ambiguity are present. Here are some quotes from various aspects of my 2001 BWV POS, My original 1994 DVC POS has essentially the same language though.

First a summary. The documents give the voting rights of an individual to a "voting representative" but gives situations where this is not OK. There is a list of situations described.

Pg 61, article XVI

DVD reserves the right to unilaterally amend this Declaration.... No amendment of this Declaration permitted to be unilaterally made by DVD shall be permitted if such amendment would prjudice or impair to any material extent the right of any Owner or any Mortgagee of record.

Page 85 Article VIII section 1 says the same thing essentially word for word.

Pg 86 section 4 says any amendment must be recorded with Orange County.

Pg 129 number 4: Voting Certificate

... DVD also agrees that it will not cast the Unit's vote in any of the follow aspects without the prior concurrence of the Cotenants who own 60% of the Ownership interests in that unit.

f. amendment of the Declaration or of the Articles or Incorporation or the ByLaws of the Association in any manner that is materially adverse to the Cotenants as a whole;...

 

[RobDoc]

Regarding amendment changes here is a quote directly 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."

It seems clear to me that DVC does have the right to make policy changes without any vote of the membership. It also appears that they have fullfilled their need to notify members with the statement made today in the Vacation Magic email. While I haven't checked the website yet, I'll assume that the same information is or will be posted there too.

No mention of any requirement to vote in the above quote from the POS and that quote also seems to be pretty devoid of any legal "mumbo jumbo" and I'm pretty sure a room full of lawyers wouldn't need too long to interpret that quote ... Unless that statement wasn't included in recent POS?

Looks like this will be interesting to follow.

 

[Dean]

Regarding amendment changes here is a quote directly 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."

It seems clear to me that DVC does have the right to make policy changes without any vote of the membership. It also appears that they have fullfilled their need to notify members with the statement made today in the Vacation Magic email. While I haven't checked the website yet, I'll assume that the same information is or will be posted there too.

No mention of any requirement to vote in the above quote from the POS and that quote also seems to be pretty devoid of any legal "mumbo jumbo" and I'm pretty sure a room full of lawyers wouldn't need too long to interpret that quote ... Unless that statement wasn't included in recent POS?

Looks like this will be interesting to follow.

You can read the entire amount for yourself, there is a lot of info around who and how various aspects can be changed, far more than either of us posted. Your quote left out the important "No amendment of this Declaration permitted to be unilaterally made by DVD shall be permitted if such amendment would prejudice or impair to any material extent the right of any Owner or any Mortgagee of record." The last quote clearly states that the voting representative can't vote in a way that "that is materially adverse to the Cotenants as a whole" without the approval of 60% of the members of each unit and I would suggest that this issue would be directly relative to that passage.

 

[JimC]

Not wanting to confuse this issue further....but I suspect there is a difference in an amendment to the provisions of the organizational documents where a vote may be required and the voting restrictions pertinent versus the operational and policy decision authority that is granted to the manager by those documents. This issue is probably construed to be within the authority granted to the manager and not subject to a vote and accordingly not subject to the voting restrictions.

I don't have access to my documents as I am in Hershey PA for the week. So I can only guess that the above may be a reasonable interpretation. I could be entirely wrong.

 

[Sammie]

and also speaks volumes to, "who REALLY has the power!"

and surely no one ever doubted that.

 

[Dean]

Not wanting to confuse this issue further....but I suspect there is a difference in an amendment to the provisions of the organizational documents where a vote may be required and the voting restrictions pertinent versus the operational and policy decision authority that is granted to the manager by those documents. This issue is probably construed to be within the authority granted to the manager and not subject to a vote and accordingly not subject to the voting restrictions.

I don't have access to my documents as I am in Hershey PA for the week. So I can only guess that the above may be a reasonable interpretation. I could be entirely wrong.

Actually the quote above related to voting specifically mentions all 3 components found in the POS.

 

[RobDoc]

... Your quote left out the important "No amendment of this Declaration permitted to be unilaterally made by DVD shall be permitted if such amendment would prejudice or impair to any material extent the right of any Owner or any Mortgagee of record." The last quote clearly states that the voting representative can't vote in a way that "that is materially adverse to the Cotenants as a whole" without the approval of 60% of the members of each unit and I would suggest that this issue would be directly relative to that passage.

So you're stating that when the original limitation of one transfer per Use Year was altered to omit the term "one transfer", that a vote was not required, but to put it back in requires a vote? I would suggest that the transfer quote in the 2003 POS may not say there is a limit of one, but neither does it state that multiple transfers are allowed. Your explanation stated: "Starting with the multi site POS that included SSR in 2003, unlimited transfers one way per use year were specified. More specifically, no limitations were included other than in OR out but not both. Seems everyone has forgotten that FACT."

Others quoted the same source, but it seems to vary from the version you provided where no mention of "unlimited transfers" was actually used:

"During a given Use Year, a Club Member may, per membership, either Transfer or receive Transfered Vacation Points, but may not both Transfer and receive Transferred Vacation Points. This quote was included in both the 2/2004 and 2/2006 POS while your unlimited transfer "quote" was from 2003- but did not include an actual quote, only a personal paraphrase.

I realize it does not state there is a limit of one transfer as in the original POS, but neither does it provide for unlimited transfers. Perhaps the 2003 POS you paraphrased was different than the quote above?

I think it may be tough to define the "change" as something "that is materially adverse to the Cotenants as a whole", thus requiring a vote of the membership, but I guess that would be for a court to decide.

Does this mean you are willing to test your theory that Disney's position would not hold up in court? That would be fun both to discuss ad nauseam and to see what happens with DVC and it's "enforcement".

 

[Dean]

So you're stating that when the original limitation of one transfer per Use Year was altered to omit the term "one transfer", that a vote was not required, but to put it back in requires a vote? I would suggest that the transfer quote in the 2003 POS may not say there is a limit of one, but neither does it state that multiple transfers are allowed. Your explanation stated: "Starting with the multi site POS that included SSR in 2003, unlimited transfers one way per use year were specified. More specifically, no limitations were included other than in OR out but not both. Seems everyone has forgotten that FACT."

Actually that is exactly what I'm saying. DVC can add to but not take away in the context of that provision. And once something is added, it fall prey to that very provision. So yes they can add but not necessarily take it back away. It seems you think that is unreasonable thinking but is is the way contracts, bylaws and the like work. Once added any portion comes under all the other applicable rules.

As for the limits vs no limits in that context, I'd disagree completely with your assertion that the wording is neutral and could be construed as meaning only one transfer. Previously the wording was specific of one in or one out so this was obviously an intentional change of language. On top of that DVC has been allowing unlimited exchanges in OR out but not both for over 3 years, thus defining the intent and definition of the rule. No reasonable person could defend they meant only one all along. But even if they did intend it to mean only one with the new wording, 3 years of implementation the other way erased any viability of that claim.

Does this mean you are willing to test your theory that Disney's position would not hold up in court? That would be fun both to discuss ad nauseam and to see what happens with DVC and it's "enforcement".

Unlikely as I've said in several posts that I really don't care that much one way or another. ASAMOF, I think it may work out to my advantage due more to the mass hysteria than the actual rules themselves. Besides, it'll me more fun discussing it with those who think with their hearts and without actually reading the legal documents.

 

[RobDoc]

We'll just have to agreee to diagree then. I find it very difficult to believe that your assertion -"Starting with the multi site POS that included SSR in 2003, unlimited transfers one way per use year were specified " - is the same as -"During a given Use Year, a Club Member may, per membership, either Transfer or receive Transfered Vacation Points, but may not both Transfer and receive Transferred Vacation Points.". I fail to see what portion of the second quote "specifies" unlimited transfers. I also disagree that this would require a vote based on the "materially adverse to the Cotenants as a whole" concept. Again though, that is for someone to test thru the courts.

I would agree that a vote would be required to shorten the 11 month priority or to increase dues more than 15% in any one year. I wouldn't expect a vote to reallocate point charts or change the non-home reservation window - even though I know many who feel they were materially compromised if either of those were changed - and I don't see how a vote would be needed to return transfers to one per year (apparently DVC doesn't see that need either and has already made the change without a vote).

 

[Dean]

Again though, that is for someone to test thru the courts.

There are many easier and cheaper ways to contest this issue than through the courts if one were so inclined. And I suspect a few people will be doing so.

 

[LakeAriel]

I haven't read this entire thread but here's my situation. A few weeks ago I transferred 2 points, no charge, to someone on these boards to which I had a common "friend". I was happy to do it, I am happy to smooth out her vacation plans. Is this new rule effective immediately? I have never transferred either way, but if I now needed to, am I at a loss for another year or more?

 

[kimberh]

If you transferred before Aug 1 stand on that. They were not enforcing this before Aug 1st. If one MS rep won't help you then get another one. We just had a similiar situation on the receiving end. We made a second call and it worked.

 

[Deb & Bill]

... If one MS rep won't help you then get another one. We just had a similiar situation on the receiving end. We made a second call and it worked.

See, this is the problem I have with MS. If you don't get what you want the first time, try, try again. It shouldn't be that way.

 

[kimberh]

See, this is the problem I have with MS. If you don't get what you want the first time, try, try again. It shouldn't be that way.

The MS rep I was dealing with on the first call was wrong. That is why the second call was made. It is a transfer per Uy and I had made sure of this on Monday. The MS rep was misinformed and would not allow what I had been told on Monday would be allowed, By a MS rep. They are the ones that need to get on the same page. The second MS rep said I was right and he had no problem. I think some have more experience than others. JMHO

 

[LIFERBABE]

I haven't read this entire thread but here's my situation. A few weeks ago I transferred 2 points, no charge, to someone on these boards to which I had a common "friend". I was happy to do it, I am happy to smooth out her vacation plans. Is this new rule effective immediately? I have never transferred either way, but if I now needed to, am I at a loss for another year or more?

From now on, if you help someone out with 2 points or any other amount, that would be your once a year allotment.
Not sure about the Aug 1, 2006 start date because I have not called MS, but future transfers will be limited to 1 per UY.

It's sad that we cannot help each other in that way anymore. Whenever I had points for rent, I always offered to help other members with the small transfers. I do understand why this had to take place, but it is still sad.

 

[colleen costello]

I was shocked to learn about the transfer "laundering" that has been going on. One time a few years ago when we were out of points we did a transfer while renting from another member. We then used the points to complete our planned trip. The whole time, however, I was carefully tracking "my points" and "his points" to make sure our trip fell within the guidelines of both. At no time in all this did anyone from Member Services EVER say "Don't sweat it Dummy; once in your account they all become YOURS" and since it was OKW we were reserving anyway, there was no real concern of "no room at the Inn."

Reading all these pages, I guess that despite less flexibility I am GLAD that Disney is trying to limit these transfers. Why should someone renting, or even an owner at a different DVC resort, have first crack at a BCV room at Christmas before ME? It makes me mad to think that I might have been turned away because MS could not tell "which points" someone was using to make a biggie reservation. WHY CAN'T MS TELL THE POINTS APART? If I was able to keep track of "my points" and "his points," why can't their computer do so? Then none of this would be such an issue!

PS: I am crossing my fingers for Poly DVC! THAT would "surprise" (and delight) the heck out of me

 

[SuzanneSLO]

The rules regarding transfers for my BWV membership purchased in 2005 is in the Home Resort Rules and Regulations. The governing document relating to amendment of thsoe Rules is the DVC Membership Agreement, which is Exhibit G ot the Declaration.

Section 7.2 states:

"DVCMC, in its sole discretion, may change the terms and conditions of this Agreement and the Home Resort Rules and Regulations. These changes may affect the Owner’s right to use, exchange and rent the Owner’s Ownership interest and impose obligations upon the use and enjoyment of the Ownership Interest and the appurtenant Club membership. Such changes may be made by DVCMC without the consent of any Club Member and may adversely affect a Club Member’s rights and benefits and increase or decrease the Club Member’s cost of ownership. Further, although DVCMC generally is required to make such changes in a manner which, in its reasonable business judgment, improves upon the quality and operation of the Vacation Ownership Plan and furthers the collective enjoyment of its benefits by the Club Members taken as a whole, such changes under some circumstances may not be to the advantage of some Club Members and could adversely affect their ability to secure reservations when and where they want them. . . ."

To me, this makes it pretty clear that I was warned that changes to the Transfer policy could be made without the consent of any DVC Members.

-- Suzanne

 

[snowbunny]

Since "big-time renters" cannot transfer in a large number of points to rent out, fewer rooms will be taken up by them, and more rooms will be available to owners.

My impression (no data to back it up) is that the big-time renters own their points and sell reservation weeks on ebay. I'm not sure we know whether or how much point transfers figure into this practice?

 

[Dean]

My impression (no data to back it up) is that the big-time renters own their points and sell reservation weeks on ebay. I'm not sure we know whether or how much point transfers figure into this practice?

Exactly, this will have almost no negative effect on those that some on this board look down on. And in the long run will actually encourage higher prices AND reserving high demand times for rental.

 

[vbalacek]

I agree with Dean and LIFERBABE.

I think this will disadvantage "using" members more than most "renting" members, and its a little sad we won't be able to help each other with small transfers.