Reasons that ROFR would take more than 30 days?

[pangyal]

Hi everyone,

We are waiting on a contract that went to ROFR exactly 30 days ago today. I've seen people posting about passing that were sent after this one. There is no bankruptcy or legal issue involved with this contract (as far as I know!). The broker emailed them yesterday, but didn't hear back. Her legal assistant called them today, and couldn't reach anyone.

My question is, under what circumstances would a contract drag past the 30 days? I know from reading through threads on here that it's really not a legal time frame, more of a guideline, but most seem to fall within the 30 days.

Has this happened to anyone else and what was the reason?

 

[supersnoop]

First, it is a legal timeframe, but nobody is willing to act on it.

Disney tends to take 27-35 days. I haven't seen any longer than that. But there really is no rhyme or reason. It doesn't make them exercising their right any more or less likely.

 

[disneynutz]

They used to process ROFR's on Tuesdays, has that changed?

Bill

 

[surran12]

The fun just starts from there. I passed ROFR on 3/24 my closing will happen next week. And from then I am told to expect another 5 weeks until I have point available to use. So I am looking at end of July to be completed and you offer was accepted on 2/18 to start this whole process. So that's 5 months from beginning to end.

 

[DisneyFirstTimer10]

My ROFR was delayed- I was notified around 21+ days that my ROFR had started over bc they were waiting on a death certificate. I was beyond frustrated at that point- but luckily didn't bail on the contract bc once we actually did pass ROFR it was smooth sailing from there (just 3 weeks behind schedule)

 

[pangyal]

They used to process ROFR's on Tuesdays, has that changed?

Bill

For our last three contracts, we heard on Wednesday, Saturday, and Monday, respectively. So I think they process them a bit more frequently now.

The broker claims that there is no reason that she can see for the delay. Ugh.

 

[Friendlyadvice2]

Did the broker list a proposed closing date in the contract that was sent to ROFR and, if so, what is it?

 

[Disneychica18]

Our contract was sent to Rofr on 4/6, we found out on 5/5 I believe that sellers had forgotten to bank points. We passed RoFr on 5/26, received closing documents 2-3 days later. We just closed on Thursday. So hoping I about 2-3 weeks we will be able to book.

 

[pangyal]

Did the broker list a proposed closing date in the contract that was sent to ROFR and, if so, what is it?

Huh. I wouldn't have thought to check if you hadn't mentioned this. There is actually no closing date proposed. It just says that both parties agree that time is of the essence and that all closing documents have to be returned within 30 days.

Could it be that they are going to sit on this for months because the broker didn't put a closing date on the contract? One of the reasons we put an offer on this was for the 2013 banked points...those are totally going to be toasted.

Is the ROFR deadline based on when they receive the request or on the closing date listed on the contract? I will be pretty peeved if it's the latter and our broker messed up by not naming a specific date.

 

[supersnoop]

Legally, you have to notify Disney of your closing date, which must be at least 30 days in the future. Disney has the right to exercise their right of first refusal until you close. But, what realistically happens is, the broker notifies Disney and Disney response with a waiver of their right in about 30 days.

 

[pangyal]

Legally, you have to notify Disney of your closing date, which must be at least 30 days in the future. Disney has the right to exercise their right of first refusal until you close. But, what realistically happens is, the broker notifies Disney and Disney response with a waiver of their right in about 30 days.

So if I'm understanding this correctly, I have to ask the broker to contact Disney and give them an estimated closing date tomorrow, otherwise this process will continue to sit? Or should I be reading that Disney could be expected to process a waiver within 30 days regardless of whether or not there is a closing date noted on the contract?

 

[Dean]

First, it is a legal timeframe, but nobody is willing to act on it.

Disney tends to take 27-35 days. I haven't seen any longer than that. But there really is no rhyme or reason. It doesn't make them exercising their right any more or less likely.

Legally, you have to notify Disney of your closing date, which must be at least 30 days in the future. Disney has the right to exercise their right of first refusal until you close. But, what realistically happens is, the broker notifies Disney and Disney response with a waiver of their right in about 30 days.

I'd love to see someone close without ROFR that was over the 30 days and see what happened, not that most likely go over. I'd also like to see someone close without recording the ROFR. It's possible DVC would hold up the transfer of ownership but not likely.

 

[Friendlyadvice2]

Huh. I wouldn't have thought to check if you hadn't mentioned this. There is actually no closing date proposed. It just says that both parties agree that time is of the essence and that all closing documents have to be returned within 30 days.

Could it be that they are going to sit on this for months because the broker didn't put a closing date on the contract? One of the reasons we put an offer on this was for the 2013 banked points...those are totally going to be toasted.

Is the ROFR deadline based on when they receive the request or on the closing date listed on the contract? I will be pretty peeved if it's the latter and our broker messed up by not naming a specific date.

I agree with Supersnoop which is why I was asking about your closing date verbiage in my previous post.

The wording you listed above is a little vague to me, but if I'm understanding it correctly, I feel it's actually better than including a proposed closing date that is 2 months out like so many of them are now doing. I typically like to see wording that includes a closing date that is exactly 30 days out or a statement saying it will close within 30 days of ROFR submission but can be extended by the closing agent if unknown circumstances present themselves. That legally locks Disney into having 30 days to respond versus the often greater than 60 days that many brokers are unknowingly yet legally giving them by listing a closing date that is 2 months out. I just went through this on a recent resale I was involved in. The broker, former DVC employees who obviously know everything about DVC, had absolutely no clue and actually tried to Disney 65 days to exercise by listing the closing date so far out.

The ROFR rule is frequently misquoted on these boards. The process is governed and spelled out in Article 13.1 of every DVC resort's Declaration of Condominium and states that a resale contract must be sent to Disney no less than 30 days prior to closing and that Disney has until the closing date to exercise their right....this is very much different than having 30 days to respond as is often stated.

I also agree with Supersnoop that typically/realistically, Disney is responding within or around 30 days. But what they have the legal right to do is often very much different and if there was an issue, a buyer with an improperly worded contract would have no legal leg to stand on.

I often wonder who is looking at the ROFR contracts at Disney anyway; is it actually an attorney or just an employee with no legal background who is told to elevate something if it's on their "hitlist"? I would not ask your broker to change anything in the contract at this point and just give it couple days to see what happens. I see no problem with them calling to check on it again. I suspect you'll hear either way in a few days.

 

[Friendlyadvice2]

I'd love to see someone close without ROFR that was over the 30 days and see what happened, not that most likely go over. I'd also like to see someone close without recording the ROFR. It's possible DVC would hold up the transfer of ownership but not likely.

It's funny you mention that Dean........as I mentioned in my post above, when I was advising my broker about changing the closing date he listed in my contract, he was quick to advise that he "claims waiver by default several times per month on day 31". I just laughed, but I did ask for an example so I could look up the deed and see if the accompanying ROFR waiver was filed also....I never got a response.

 

[Dean]

It's funny you mention that Dean........as I mentioned in my post above, when I was advising my broker about changing the closing date he listed in my contract, he was quick to advise that he "claims waiver by default several times per month on day 31". I just laughed, but I did ask for an example so I could look up the deed and see if the accompanying ROFR waiver was filed also....I never got a response.

I don't recall ever seeing an example but I doubt you'd be able to look up info online that would confirm or disclaim the issue. And in reality there's really not much reason to do so with a properly worded contract. On one hand, it'd seem a good approach for brokers would be to write stringent contracts and document receipt by DVC. However, I realize they are looking at working with Disney for years to come so being heavy handed might not be a good approach. A happy medium would be to cut it close but not too close and I'm sure they don't want to proceed without ROFR partly to avoid conflict and partly because DVC might have done their part but there was a glitch somewhere alone the way. I've always just wanted to see someone test it in this way. On a similar note related to the OKW extension, I do not believe DVC/DVD have the authority for a special assessment for this purpose and would love to have someone test them there as well. Had I still owned OKW at the time, I certainly would have.

 

[Friendlyadvice2]

I don't recall ever seeing an example but I doubt you'd be able to look up info online that would confirm or disclaim the issue. And in reality there's really not much reason to do so with a properly worded contract. On one hand, it'd seem a good approach for brokers would be to write stringent contracts and document receipt by DVC. However, I realize they are looking at working with Disney for years to come so being heavy handed might not be a good approach. A happy medium would be to cut it close but not too close and I'm sure they don't want to proceed without ROFR partly to avoid conflict and partly because DVC might have done their part but there was a glitch somewhere alone the way. I've always just wanted to see someone test it in this way. On a similar note related to the OKW extension, I do not believe DVC/DVD have the authority for a special assessment for this purpose and would love to have someone test them there as well. Had I still owned OKW at the time, I certainly would have.

In my mind, if I had the name of one of the transaction parties, I could look up the resale deed and then look for the accompanying ROFR waiver. If I did not find the waiver, that would be enough confirmation for me. Do you think I've overlooked something? Remember, my broker does this several times per month, so it shouldn't be hard to find an example!?!?

 

[Dean]

In my mind, if I had the name of one of the transaction parties, I could look up the resale deed and then look for the accompanying ROFR waiver. If I did not find the waiver, that would be enough confirmation for me. Do you think I've overlooked something? Remember, my broker does this several times per month, so it shouldn't be hard to find an example!?!?

That would lend support but not proof but also, having a ROFR recorded would not automatically discount the claim unless it referenced it in some way. You'd really need to either see the contract and dates without a ROFR, get confirmation from DVC, have the deed reference the issue or talk to the buyer directly to have enough info. We see lots of references here about closing and ROFR here across a number of brokers so if it were that routine, you'd think it would have been noted here. It's also possible it was and I don't recall or didn't see it. Of course it could be a case of DADT (don't ask, don't tell).

 

[pangyal]

I have learned so much from this thread, thanks all! Watching some of you super-experts discuss the legalities of DVC is like watching Wimbledon .

I heard back from the broker that they miraculously "found" the waiver after she contacted them again today. They claim that they sent out the notice on Thursday, but neither the broker nor the title company received this supposed email, so I guess it was just a case of someone thinking they sent something and that not being the case.