Question for the legal eagles: If DVC went Non-smoking..

[Plus4206]

.... Would the members who had already purchased DVC knowing they were allowed to smoke in designated smoking units, have a legal case against DVC if DVC were to suddenly change policy & make all the resorts NS ?

There is an insanely long thread on the DVC CB that has now evolved into this discussion. I personally feel smokers would have the right to sue. This isn't like the local bar going smoke free, this is someone telling me I can't smoke in my house. I have a deeded property that I purchased knowing I would be allowed to smoke. What are my rights ?

For the record, I'm a NS.

 

[SnackyStacky]

.... Would the members who had already purchased DVC knowing they were allowed to smoke in designated smoking units, have a legal case against DVC if DVC were to suddenly change policy & make all the resorts NS ?

There is an insanely long thread on the DVC CB that has now evolved into this discussion. I personally feel smokers would have the right to sue. This isn't like the local bar going smoke free, this is someone telling me I can't smoke in my house. I have a deeded property that I purchased knowing I would be allowed to smoke. What are my rights ?

For the record, I'm a NS.

It would depend on whether or not there was a clause in the contract that the terms could be changed.

I asked my wife (who is an attorney - she's admitted in New York, not Florida - I'm not sure where DVC's parent company is headquartered). She says not to write this, but I will anyway!

Her best guess is that Disney DOES reserve the right to place restrictions on the properties. You own a SHARE in them - you don't own the property itself.

 

[Plus4206]

I have a deed that is recorded in Orange County. That doesn't sound like I own a share. I purchased X number of points. When I'm staying at my resort on points it's as if I'm "home" .... that's what they brag about.

I know DVC can make unilateral changes to the physical structures provided they keep the properties at an equal & greater value then what I purchased. They can change sofa makers, but the sofa must be of the same or greater quality.

DVC is limited in what it can do. While they can restructure the time frames of the various "seasons" , they can't increase the total number of points required per year. In other words, if they increase Dec by 3 pts a nite for a studio, they have to drop some other month by an equal number of points.

If a member states that being able to smoke in his unit was a deciding factor in his decision to purchase DVC, then I don't think they can take that right away from him without some form of compensation.

 

[what]

I find it interesting that it is even deeded. My understanding is when something is deeded, you actually own it. In this case you really don't. You own time. More of a lease. Considering it expires. Very interesting though. Why wouldn't they just designate smoking and non smoking rooms? If you mean you want to smoke on anyother piece of the property because you think you own it. I would say you are wrong. I'm sure some DVC members skinny dip on their own property but you wouldn't believe they have the same right to do it on their DVC property. Well I would hope not. You do know some people consider it unhealthy to smoke or breathe in somebody else's bad habit? They have the right to be in a smoke free environment as well. So who has more of a right?
Having been employed by Disney I understand that they really don't care. My opinion is that they haven't cared in quite along time. I could go on a rant about that. I won't because alot of people are blind when it comes to this company. They still believe in the old Disney. Good luck in your fight. I would say that you probably don't have a chance considering I'm sure lawyers will have gone over every aspect of this if they plan to do it.

 

[Plus4206]

... Currently DVC resorts have designated smoking rooms. To my knowledge there is no plan by DVC to ban smoking from all rooms. This is nothing more then " What if " thread. The thread is not advocating that smokers can smoke any where they please thru out the resort. It's only about losing the ability to smoke in ones own room AFTER they purchased the right to do so.

 

[SnackyStacky]

I have a deed that is recorded in Orange County. That doesn't sound like I own a share. I purchased X number of points. When I'm staying at my resort on points it's as if I'm "home" .... that's what they brag about.

I know DVC can make unilateral changes to the physical structures provided they keep the properties at an equal & greater value then what I purchased. They can change sofa makers, but the sofa must be of the same or greater quality.

DVC is limited in what it can do. While they can restructure the time frames of the various "seasons" , they can't increase the total number of points required per year. In other words, if they increase Dec by 3 pts a nite for a studio, they have to drop some other month by an equal number of points.

If a member states that being able to smoke in his unit was a deciding factor in his decision to purchase DVC, then I don't think they can take that right away from him without some form of compensation.

I don't know anything about real estate transactions, nor do I have your contract to read, so what I gave you was strictly my gut instinct. And like I said, I asked my wife to see if there was any different take from a legal standpoint.

But just from a common sense standpoint, you said that DVC is limited in what in can do. But your point after that statement is all about the financial end of it. You're still getting the same property. The only thing that DVC has done is make it so you can't smoke in there. That does not change the amount you were charged.

You also talk about the fact that the properties must remain at equal or greater value. Well, smoking devalues the properties. It stains walls, requiring painting, and the smell embeds itself into the fabrics of the rugs, mattresses, drapes, and other fabric covered furnishings. To a smoker that may be okay, but I gotta tell you - as a non-smoker, I'd be pretty peeved that the unit I was assigned had yellow stains on the walls and ceilings, and that it reeked. I would call that pretty devalued, and would demand it to be cleaned up.

As far as taking away the right to smoke - you would really need to go over your contract with a fine tooth comb. I honestly can't imagine that Disney didn't put a clause in there that allows them to change rules as they see fit.

... Currently DVC resorts have designated smoking rooms. To my knowledge there is no plan by DVC to ban smoking from all rooms. This is nothing more then " What if " thread. The thread is not advocating that smokers can smoke any where they please thru out the resort. It's only about losing the ability to smoke in ones own room AFTER they purchased the right to do so.

Here again, someone did NOT purchase the right to smoke. They purchased a place to stay on their vacations.

IF Disney decided to change the rules to make all DVC properties non-smoking, I can't imagine they would do that UNLESS they knew that they had the legal right to do so.

 

[crusader]

Smoking is a proven health hazard and second-hand smoke affects the health of others, including children. Therefore, losing the right to smoke inside a room also owned by non-smokers wouldn't be a violation of smokers rights.

Smokers have the right to smoke. They don't have the right to affect the health of others. Since the property is jointly deeded - there is no way you could argue they have the legal right to smoke in this manner. They'll have to do it without infringement.

 

[DancingBear]

It largely depends upon what the documents say. Yes, you have a recorded Deed, but it's not for a fee simple interest in the property; rather, the nature and scope of your interest is defined by your contract.

Even if you had a claim, what are your damages? You can resell your interest, right? So, unless the no smoking rule reduced your resale value, so what? The idiosyncratic value of the property to you is not really the standard.

 

[Plus4206]

***" Smoking is a proven health hazard and second-hand smoke affects the health of others, including children. Therefore, losing the right to smoke inside a room also owned by non-smokers wouldn't be a violation of smokers rights." ***

To my knowledge DVC doesn't put non smokers into smoking room - and vise verse. A smoking room today is a smoking room tommorrow,etc. As for 2nd hand smoke: This is a whole different debate, but I just want to throw this in here. There is still debate about the affects of 2nd hand smoke. There is no debate about 2nd hand alchohol. More innocent people have been killed by a drunk then by 2nd hand smoke. More lives have been ruined by alchohol - failed marriages, abused wives & children, lost employment - then by 2nd hand smoke. I wonder how loud the cry would be if DVC tried to ban drinking. Anyway, 'nuff of that.

***" You also talk about the fact that the properties must remain at equal or greater value. Well, smoking devalues the properties. It stains walls, requiring painting, and the smell embeds itself into the fabrics of the rugs, mattresses, drapes, and other fabric covered furnishings."***

I think the affects of a 3 yr old cause just as much damage. But that's not the point. The expense of maintaining a smoking room may be more then a NS one, but that cost was built into our dues from day one. If smoking were to end, our dues MAY go down - I doubt it - but that doesn't change the value of what I bought.

***"Here again, someone did NOT purchase the right to smoke. They purchased a place to stay on their vacations. "***

They purchased a place to stay knowing they would be allowed to smoke. That's the point I'm trying to make. Had a smoker sat down with his sales guide and been told the resort does not allow smoking, would he have bought in the first place ? Regardless of our opinion of smokers & 2nd hand smoke, a smoker still has the right to smoke in designated places, one of which was his DVC resort. Now to have DVC say "Sorry, no smoking allowed" is not fair.

***"Even if you had a claim, what are your damages? You can resell your interest, right? So, unless the no smoking rule reduced your resale value, so what?" ***

It's a reasonable assumption a smoker could sell his points & make a profit. But that wasn't the reason he chose to buy DVC. He loves Disney & wants to stay on property. He loves to smoke. He found a way to do both. That has value beyond purchase price. That's what he would be losing.

 

[SnackyStacky]

***" Smoking is a proven health hazard and second-hand smoke affects the health of others, including children. Therefore, losing the right to smoke inside a room also owned by non-smokers wouldn't be a violation of smokers rights." ***

To my knowledge DVC doesn't put non smokers into smoking room - and vise verse. A smoking room today is a smoking room tommorrow,etc. As for 2nd hand smoke: This is a whole different debate, but I just want to throw this in here. There is still debate about the affects of 2nd hand smoke. There is no debate about 2nd hand alchohol. More innocent people have been killed by a drunk then by 2nd hand smoke. More lives have been ruined by alchohol - failed marriages, abused wives & children, lost employment - then by 2nd hand smoke. I wonder how loud the cry would be if DVC tried to ban drinking. Anyway, 'nuff of that.

I think that 2nd hand drinking IS just as dangerous, if not moreso than 2nd hand smoke.

However, that bears no relevance on this discussion.

***" You also talk about the fact that the properties must remain at equal or greater value. Well, smoking devalues the properties. It stains walls, requiring painting, and the smell embeds itself into the fabrics of the rugs, mattresses, drapes, and other fabric covered furnishings."***

I think the affects of a 3 yr old cause just as much damage. But that's not the point. The expense of maintaining a smoking room may be more then a NS one, but that cost was built into our dues from day one. If smoking were to end, our dues MAY go down - I doubt it - but that doesn't change the value of what I bought.

You're absolutely right. And not being able to smoke does not change the value of what you bought.

***"Here again, someone did NOT purchase the right to smoke. They purchased a place to stay on their vacations. "***

They purchased a place to stay knowing they would be allowed to smoke. That's the point I'm trying to make. Had a smoker sat down with his sales guide and been told the resort does not allow smoking, would he have bought in the first place ? Regardless of our opinion of smokers & 2nd hand smoke, a smoker still has the right to smoke in designated places, one of which was his DVC resort. Now to have DVC say "Sorry, no smoking allowed" is not fair.

I understand your point. And in some respects I agree with it. But it doesn't matter what you and I think. It's the language that is in the CONTRACT that matters, because that's what you agreed to. You asked for legal opinions, and you can't get that until the terms of the contract regarding smoking are clearly defined. Until that information is added to this discussion, it's a simple "But that's not fair" discussion.

***"Even if you had a claim, what are your damages? You can resell your interest, right? So, unless the no smoking rule reduced your resale value, so what?" ***

It's a reasonable assumption a smoker could sell his points & make a profit. But that wasn't the reason he chose to buy DVC. He loves Disney & wants to stay on property. He loves to smoke. He found a way to do both. That has value beyond purchase price. That's what he would be losing.

I think you've missed the point. (I don't remember if that's DancingBear or Crusader - but one of those two made the point that you quoted). You would have to prove that you somehow were less off than you were before that rule was enacted.

And you're not. Because you can simply go outside and smoke. And if that doesn't suit your needs, you are not bound into that contract. If you don't like the rule change, you can simply sell your interest. So there IS no damage. It's not like they're changing the rules and not allowing you out of your contract.

 

[Horace Horsecollar]

I have a deed that is recorded in Orange County. That doesn't sound like I own a share. I purchased X number of points. When I'm staying at my resort on points it's as if I'm "home" .... that's what they brag about.

There are two main types of timeshare ownership: (1) a fee simple condominium, which you own "forever," and (2) a leasehold condominium, such as Disney Vacation Club. In either case, a legal deed can be recorded with the appropriate government entity.

As a DVC owner, you don't actually own points. You have a lease for a defined fractional share of a building or unit. The points are just the mechanism for allowing you to reserve usage of your fractional share.

Even for conventional, fee simple timeshare weeks, the deed is typically for a particuar week of a specific condo, where other owners own 49 or 50 other weeks, and one or two weeks are retained for maintenance. So those are also fractional ownerships.

There are all sorts of restrictions regarding what you can and can't do, if you look in your Condominium Rules and Regulations. Essentially, owners aren't supposed to do things that cause problems for other owners. The management entity, DVCMC, is supposed to enforce those rules.

Yes, I can see the day when it is decided that smoking inside a DVC condo is not allowed under the "Nuisances" clause, because the next occupant of the condo will suffer from the resulting smell and chemical deposits.

But that hasn't happened (yet).

In any case, a smoker is not guaranteed the "right" to smoke inside a DVC condo.

 

[Plus4206]

***" I think you've missed the point. (I don't remember if that's DancingBear or Crusader - but one of those two made the point that you quoted). You would have to prove that you somehow were less off than you were before that rule was enacted.

And you're not. Because you can simply go outside and smoke. And if that doesn't suit your needs, you are not bound into that contract. If you don't like the rule change, you can simply sell your interest. So there IS no damage. It's not like they're changing the rules and not allowing you out of your contract." ***

This almost the case I'm trying to make. I have no doubt a smoker could go through the process of selling his points. He could easily get his money back. But what was the reason he purchased in the first place ? Did he buy DVC with the intention of simply selling it back someday ? Or did he buy it because it matched all his needs perfectly. On property. Great resort. AND I'm allowed to smoke in my living room. Getting the money back is the easy part. Losing your perfect vacation location is where the hardship lies. Isn't that what they call "pain & suffering" ?

As for what our contract actually says - I don't know. I know there is wording in there about not being allowed to rent points for commercial purposes, but we all know that is ignored. I know the rules state 4 persons in a one bedroom unit, what a joke. A smoker may not be entitled to anything if DVC were to go smokeless, but it sure seems to me that he's losing something he thought he owned- the right to smoke in his "home away from home".

 

[DancingBear]

This almost the case I'm trying to make. I have no doubt a smoker could go through the process of selling his points. He could easily get his money back. But what was the reason he purchased in the first place ? Did he buy DVC with the intention of simply selling it back someday ? Or did he buy it because it matched all his needs perfectly. On property. Great resort. AND I'm allowed to smoke in my living room. Getting the money back is the easy part. Losing your perfect vacation location is where the hardship lies. Isn't that what they call "pain & suffering"?

...A smoker may not be entitled to anything if DVC were to go smokeless, but it sure seems to me that he's losing something he thought he owned- the right to smoke in his "home away from home".

First, pain and suffering is a damages concept in a tort claim (medical malpractice, slip and fall, etc.), not a contract claim. Even if you have a contract claim, the measure of your damages is getting the benefit of your bargain. You can be "made whole" by getting your money back.

 

[SnackyStacky]

***" I think you've missed the point. (I don't remember if that's DancingBear or Crusader - but one of those two made the point that you quoted). You would have to prove that you somehow were less off than you were before that rule was enacted.

And you're not. Because you can simply go outside and smoke. And if that doesn't suit your needs, you are not bound into that contract. If you don't like the rule change, you can simply sell your interest. So there IS no damage. It's not like they're changing the rules and not allowing you out of your contract." ***

This almost the case I'm trying to make. I have no doubt a smoker could go through the process of selling his points. He could easily get his money back. But what was the reason he purchased in the first place ? Did he buy DVC with the intention of simply selling it back someday ? Or did he buy it because it matched all his needs perfectly. On property. Great resort. AND I'm allowed to smoke in my living room. Getting the money back is the easy part. Losing your perfect vacation location is where the hardship lies. Isn't that what they call "pain & suffering" ?

As for what our contract actually says - I don't know. I know there is wording in there about not being allowed to rent points for commercial purposes, but we all know that is ignored. I know the rules state 4 persons in a one bedroom unit, what a joke. A smoker may not be entitled to anything if DVC were to go smokeless, but it sure seems to me that he's losing something he thought he owned- the right to smoke in his "home away from home".

You just said it yourself.

A smoker may not be entitled to anything if DVC were to go smokeless,

I said it, and DancingBear said it. The courts aren't going to care that you can't have your "perfect vacation". All that would matter to the courts is that you are exactly as you were FINANCIALLY before you entered the contract. But you don't need a court to do that because you can sell your share, recoup your investment, and seek out that perfect vacation elsewhere.

Furthermore, if you DIDN'T have the opportunity to get out of that contract (ie you weren't allowed to sell your shares), and there WAS a clause in the contract that allowed for Disney to switch to a smoke free environment, the judge would NOT let you out of your contract, and would tell you to read your contract before you sign.

So you may not know the wording, but if you're a smoker (and I think you said you weren't) that would be something you'd want to make sure was set up in your favor in the contract, or understand that you run the risk of not being able to smoke in your DVC unit.

 

[Plus4206]

Dan, don't confuse my admission that I may be wrong as conceding that you're right. I'm still not convinced. When I signed up at Blockbuster video I signed a contract that spelled out late fees. It didn't stop a class action suit from costing them millions.

All DVC members are aware of certain perks & priviledges we received when we became members. We were also told they could end at anytime. Pool hopping is a DVC priviledge. 10% discounts at various restaurants is a priviledge. Never did I see smoking listed as a priviledge.

 

[SnackyStacky]

Dan, don't confuse my admission that I may be wrong as conceding that you're right. I'm still not convinced. When I signed up at Blockbuster video I signed a contract that spelled out late fees. It didn't stop a class action suit from costing them millions.

All DVC members are aware of certain perks & priviledges we received when we became members. We were also told they could end at anytime. Pool hopping is a DVC priviledge. 10% discounts at various restaurants is a priviledge. Never did I see smoking listed as a priviledge.

I wasn't looking at this from a right or wrong perspective. The only way to see who's right and who's wrong would be to take it to the courts!

And yes, Blockbuster did have a judgement against them in that class action suit. However there were monetary damages against the plaintiffs in that case, not to mention that we are talking about a whole different ball of wax with real estate.

Disney OWNS those properties. They can sell them if they so choose. They can alter them in any way they see fit (as long, since they are in a contract with you, as they don't devalue them). AND, they can decide if they want people smoking in them or not.

I would still REALLY like to look at the contract. If there's a link to it anywhere, I would love to see it. Because until I can see specifically what the bloody thing says, there's no way that either one of us can properly argue our point of view because there's nothing to back it up.

 

[what]

Dan, don't confuse my admission that I may be wrong as conceding that you're right. I'm still not convinced. When I signed up at Blockbuster video I signed a contract that spelled out late fees. It didn't stop a class action suit from costing them millions.

Apples to oranges. Blockbuster settled and gave out coupons. Big deal, it was a win win situation for them.

You don't have right to smoke. It is that simple. Disney chooses to let you smoke at this time. They set the rules. You don't own property it is not yours to do with as you please. Don't believe me? Can you decorate it the way you please? Maybe you should throw a huge party at 2 am and see how it is your property. Then ignore them when they send security and keep on partying. Having said that do I think it is "fair" for them to change the rules? No. But as my wise grandma used to always say "life is not fair and the faster you learn that lesson the less heartbreak you will have in your life".

Just so you know you don't have the right to drink alcohol on property either. They make money on serving it and if they didn't want to make it available they wouldn't. Not that it is even an argument. Just because one thing may be worse doesn't mean the other should be ok since it is not as bad. The whole argument that 2nd hand smoke is not harmful is ludicrous. I don't need a government study to tell me that It harms me when I am in a room full of smokers. I think I can tell that on my own when my troat is killing me.

Don't get me wrong if you want to smoke go ahead. As long as they make it so that I don't pay for the same room I'm all for it.

 

[what]

I wasn't looking at this from a right or wrong perspective. The only way to see who's right and who's wrong would be to take it to the courts!

And yes, Blockbuster did have a judgement against them in that class action suit. However there were monetary damages against the plaintiffs in that case, not to mention that we are talking about a whole different ball of wax with real estate.

Disney OWNS those properties. They can sell them if they so choose. They can alter them in any way they see fit (as long, since they are in a contract with you, as they don't devalue them). AND, they can decide if they want people smoking in them or not.

I would still REALLY like to look at the contract. If there's a link to it anywhere, I would love to see it. Because until I can see specifically what the bloody thing says, there's no way that either one of us can properly argue our point of view because there's nothing to back it up.

Very very true. Real Estate is a whole other realm. It has to be in writing. No interpretation. Bottom line. Very cut and dry.

 

[Plus4206]

***"Blockbuster settled and gave out coupons. Big deal, it was a win win situation for them."***

Actually, the lawfirm handling the suit recieved something like 30 milliion in fees. Hardly a win for blockbuster.

****" The whole argument that 2nd hand smoke is not harmful is ludicrous."***

Who said it was harmless. I said there is still much debate over the short & long term affects.

***" Don't get me wrong if you want to smoke go ahead. As long as they make it so that I don't pay for the same room I'm all for it."***

Read the thread I refered to in my OT. That's all we want Disney to do. Guarantee us that when we request non-smoking we get non smoking and when a smoker asks for a smoking room he gets one.

***"You don't have right to smoke."***

What country do you live in. I have every right to smoke in designated areas.

 

[disrailfan]

If I am not mistaken, Disney is a Smoke Free Environment. You already have to smoke in designated areas. I cannot see where this would be any different with the rooms in the resort.