This responds to a number of posts above and sets out why I believe it is improper for
DVC to shift points from one room category to another. I have made these points before. Most of this refers to BWV documents but other resort POS dcouments have the same or similar provisions, including Riviera.
Many assume that because DVC has made some changes in the last 8 years to raise points for a room category while lowering for a different room category, e.g. the treehouses, therefore DVC must have a right to do it. That is an incorrect assumption. The reason DVC has gotten away with such changes is not because they were necessarily legally proper. The fact is no one challenged them, and thus no decision was made as to whether they were legally proper changes. Noteworthy is that when DVC tried to raise studios and 1BRs year-round, while lowering other rooms in the initially issued 2020
point charts, members mounted a challenge, and DVC caved in and withdrew those point charts.
The modern DVD/DVC, with its attempt to change the 2020 point charts, its repeated actions to take away the rights and privileges of resale purchasers, and its sales program that has effectively resulted in the oversell of studios, has shown itself to be anti-member. It would be a mistake for members to support DVC’s belief that it can move points from one room size to another, because what the modern DVC would likely do is make changes like those set out in the initial 2020
points charts. If members assert DVC should focus on differences in room size demand rather than seasonal demand for making changes, what you are likely to get from the modern DVC is a lowering of points for bungalows at Poly, cabins and GVs at CCV, GV’s and 2BRs at SSR, GV’s and 2BRs at AKV, and 2BRs at BRV and VGF, which will be offset by significant increases in points needed for studios, i.e., yes, the modern DVC will likely make the 1BRs more in line with the studios, but not by lowering the points needed for 1BRs but instead by raising the points needed for studios.
Many assume that DVC can do whatever it wants unless there is a clear and unequivocal provision in the POS that prohibits it. That is not how legal cases usually work in such situations. “Big company” Disney drafted all the POS documents and, when purchasing, the “little guy” members had no ability to negotiate different language. In subsequent legal disputes depending on the meaning of terms in the POS, that would usually mean Disney wins if its alleged meaning of the POS terms is the only reasonable one, but if there is any ambiguity in the language, and the argument for applicable meaning made by the members is also reasonable, the members should win. Moreover, the applicable rules are even worse for DVC if the DVC entity authorized to do something on an issue is deemed by law to be a fiduciary when deciding it, which is applicable to DVCM, the management company authorized to make home resort
point chart changes. In cases involving a fiduciary as the defendant, the burden of proving that the plaintiff-members position on the issues is wrong, and of accepting DVCM’s argument that its interpretation is the only reasonable one, would be shifted to DVCM, requiring it to essentially disprove the plaintiff’s case to win.
DVCM's power to change point charts is set out in the DVC Membership Agreement. Nowhere in that document is it stated that changes can be made based on room-size demand differences. That Agreement initially provides the general rule that total points required to reserve all rooms during all days of the use year must always be equal. The agreement then provides:
1. DVCM has the power to raise or lower the points needed for “any given Use Day in a Vacation Home” ( a term defined as a room such as a studio) due to “fluctuations in Use Day demand.” Note how it says nothing about a power to change points to correct fluctuations in room-size demand among different-sized Vacation Homes.
2. It then states that “any increase or decrease in the Home Resort Vacation Point reservation requirement for a given Use Day pursuant to DVCM’s right to make this Home Resort Vacation Point adjustment must be offset by a corresponding decrease or increase for
another Use Day or Days.” (Emphais added.) That must be referring to the same Vacation Home (such as a studio) as the prior paragraph. If moving points from one room size to another was contemplated, that “another Use Day” phrase would not be in the document.
3.The agreement also provides that the total number of points applicable to a unit (usually a combination of rooms) cannot be changed due to such reallocations, which also shows that the total annual applicable to a particular sized room must remain the same, e.g., BWV has units that actually consist of only dedicated studios.
4. Then there are the maximum reallocation provisions, which state that a maximum reallocation of points could potentially occur, meaning every day of the year for a particular room size could cost the same points, but it provides a guaranteed number for reserving each given room size for a night if such occurred, e.g., in BWV 15 points for a standard view studio, 18 for a preferred view, etc. higher numbers for larger rooms. Moreover, to participate in an external exchange program, which requires a member to provide a week to get a week in return, the agreement provides weekly totals of points needed to be paid for every week of the year if there is a maximum reallocation, e.g., 210 points for a BWV standard view 1BR. Those total weekly points are stated to be 7 times the guaranteed daily number provided in the prior paragraph for a maximum reallocation. Thus, total points for the year of a given vacation home, such as a standard view 1BR, need to remain the same. Otherwise, all the maximum reallocation provisions would be incorrect, e.g., raise or lower total annual points applicable to a !BR would result in making that 210 point per week requirement for a BWV standard view 1BR upon a maximum reallocation, false, and one should not assume DVD intended to provide false information in the maximum reallocation provisions in the agreement.
Also of importance is Exhibit A to the Master Cotenancy Agreement, entitled Real Estate Interest and Point Formulation, which describes the method to be used by DVCM to determine total points for the year applicable to a Vacation Home, and , in particular, points out that a major factor for determining how many total points apply to a Vacation home for the year depends on its square footage, meaning total points for the year for any particular vacation home had to vary from those for a larger vacation home by a constant factor that is consistent with the different sizes of those rooms. Thus, it is another provision that indicates DVCM cannot be moving points from one-sized vacation home to another.
Added to the above are: (a) oral statements made at time of sale, particularly involving the earlier resorts, that point changes would occur only to meet changes in seasonal demand and if points were raised for one season they would be lowered by an equal amount for the same room in another season; (b) written representations provided at the time of sale, called a Product Understanding Checklist (or similar) which give DVD’s own summary of the major terms of the POS. Particularly during the sales of earlier resorts, such as BWV, that checklist clearly limited such point-shifting to doing those that address changes in “seasonal demand,” not room-size demand. A copy of one such document is attached.
The above points also reflect how DVC cannot raise the studio and 1BR premium. That clearly cannot be done when the resort also has dedicated studios and 1BRs, but even absent that, the provisions of the membership agreement, including on maximum reallocation, should prevent it.
