Multi-Site POS Revision Dated 01/19/19

[E2ME2]

Good idea, but legally I’d leave out anything suggesting ‘it is my understanding’ - that is the ammunition they need to say you understood what the wording was meant to say.

Good point, Wakey;
I would not acknowledge "understanding" that language. The point should remain that the language was not clear.

 

[AdamsMum]

If it's just a matter of a "missing" comma, can't DVD just claim "typographic error" and fix it without changing any effective date?

LAX

It's a comma that completely changes the meaning of part of the document. The English language is like that. It should have been caught by their legal department.

 

[texanlawyer]

Good point, Wakey;
I would not acknowledge "understanding" that language. The point should remain that the language was not clear.

I'd frame it differently. It's not that the language isn't clear. In fact, it's the opposite. The Multi-Site POS is unambiguously clear that if you bought your points from someone who owned them prior to 1/19/19, then the limitations regarding Riviera don't apply. If you take the position that the language is ambiguous or unclear, then it's easier for DVC to argue that a court should look to evidence outside the express language of the Multi-Site POS to interpret it, such as the notices they gave to DVC members about the change prior to 1/19/19.

 

[TexasChick123]

I'd frame it differently. It's not that the language isn't clear. In fact, it's the opposite. The Multi-Site POS is unambiguously clear that if you bought your points from someone who owned them prior to 1/19/19, then the limitations regarding Riviera don't apply. If you take the position that the language is ambiguous or unclear, then it's easier for DVC to argue that a court should look to evidence outside the express language of the Multi-Site POS to interpret it, such as the notices they gave to DVC members about the change prior to 1/19/19.

I agree. I don’t think it’s unclear. I think it clearly states what @texanlawyer says.

 

[ziravan]

It shouldn’t matter if you acknowledge that others are saying that they talked with DVC and DVC is saying that it means something else. No way that gets into Court records.

At best it’s parole (word of mouth) evidence not normally admissible in determining contract language intent. Contract must be interpreted by the four corners of what’s actually said in the written words of the contract.

It’s the same thing as saying that it doesn’t matter what the guides say, only what’s actually written in the contract. That works both ways.

And it’s not like mentioning that in a letter is going to let the cat out of the bag. No. IF this ever goes to a Court, DVC would be screaming it’s interpretation from the rooftops.

But. DVC would never let this go to Court. The first rule of playing a winning hand is actually having such a hand and the Courtroom is too late to bluff; that’s the lay down.

Why would DVC bring this to Court? DVC has a ready and cheap settlement for all but a class action suit: give an exemption to anyone who makes a fuss and tie the future availability to that exemption to a non-disclosure agreement: we’ll give you the exemption in exchange for your agreement not to discuss the terms of the settlement; if you DO go online to discuss it, we’ll revoke the agreement - and the exemption.

 

[TexasChick123]

I agree. It doesn’t matter what they want it to say or meant it to say. I never conceded that it meant what they said it meant. I maintained that it did not say that and couldn’t be interpreted that way on my phone call. I told them they needed to change the language because it was misleading if they meant something else which was clearly in contrast with the written terms. I honestly still don’t see it as they keep claiming it is written which is all that matters.

 

[crvetter]

So Riviera's POS was recorded today, thus we have access to the BVTC Resort Agreement for Riviera. The paragraph in question on this thread now reads

"Effective January 19, 2019, Club Members at all other DVC Resorts, including any future DVC Resorts, who purchase an Ownership Interest at any DVC Resort other than Riviera Resort, including at any future DVC Resort, from a third party other than directly from DVD or other seller approved by DVD, may not convert the Vacation Points related to the Ownership Interes from the other DVC Resort to DVC Vacation Points to reserve Vacation Homes at Riviera Resort through the DVC Reservation Component. Club Memebers who purchased an Ownership Interest at any DVC Resort prior to January 19, 2019, will be able to convert the Vaction Points related to the Ownership Interest from that DVC Resort to DVC Vacation Points to reserve Vacation Homes at Riviera Resort through the DVC Reservation Component."

This is from Page 108 of 120 in the recorded POS

 

[ziravan]

So Riviera's POS was recorded today, thus we have access to the BVTC Resort Agreement for Riviera. The paragraph in question on this thread now reads

"Effective January 19, 2019, Club Members at all other DVC Resorts, including any future DVC Resorts, who purchase an Ownership Interest at any DVC Resort other than Riviera Resort, including at any future DVC Resort, from a third party other than directly from DVD or other seller approved by DVD, may not convert the Vacation Points related to the Ownership Interes from the other DVC Resort to DVC Vacation Points to reserve Vacation Homes at Riviera Resort through the DVC Reservation Component. Club Memebers who purchased an Ownership Interest at any DVC Resort prior to January 19, 2019, will be able to convert the Vaction Points related to the Ownership Interest from that DVC Resort to DVC Vacation Points to reserve Vacation Homes at Riviera Resort through the DVC Reservation Component."

This is from Page 108 of 120 in the recorded POS

View attachment 384816

If I sell my AKV points, for example, the Riviera POS has no bearings on the rights of the new AKV owner.

None.

The multisite POS is how all the resorts mesh into one agreement.

And it says something else.

 

[ziravan]

Said differently, the Riviera POS is not a part of the contract that that hypothetical new AKV owner has with DVC.

The AKV - and by extension the multi site - POS is actually contractual to that new AKV owner.

The Riviera POS is an unrelated, non-contractual document.

 

[crvetter]

If I sell my AKV points, for example, the Riviera POS has no bearings on the rights of the new AKV owner.

None.

The multisite POS is how all the resorts mesh into one agreement.

And it says something else.

This is Riviera's agreement to enter the club and it is clearer language. That was my main point about posting. However, I do suspect this covers DVC (or at the very least it is their argument for not needing to) from having to honor language in a body of text that takes back seat (I was pretty sure the Multi-Site POS is treated this way) to each Resorts Membership Agreement to enter the club.

I suspect they update the Multi-Site POS just to the exact same language with no adjustments to the date since the actual Club Agreement was clear. But I'm still scheduled to talk to DVC about this language. I'm betting I just get told that the language is being updated to be consistent to Riviera's Resort Agreement to enter the club. However, where I could see arguments is could any buyer reasonably access Riviera's Club Agreement prior to today, No. So that would be my argument to DVC and likely what I will express to them. So buyers had to base decisions on just the Disclosure of BVTC in the Multi-Site POS.

Though I'm sure their rebuttal to that argument is that Riviera only officially entered the club on February 18, 2019 and no one was to buy any DVC with the assumption to access of any resorts in the club at the time of purchase.

 

[ziravan]

just in case it wasn’t clear before that DVC is reading these threads with great interest, the lawyers have been busy.

Riviera Club Membership Agreement, page 13, 7.16 Interpretation “...No provision of this agreement shall be construed against a Party because the Party provided the drafting of this agreement...”

 

[ziravan]

Riviera DVC Resort Agreement, 5.3, page 4,

“ 5.3 DVD, DVCM, and the Association acknowledge and understand that different Home Resort Priority Periods may exist at each DVC resort; provided, however, that in no event shall BVTC associate a resort as a DVC resort if such a resort has a Home Resort Priority Period of less than one (1) month.”

They absolutely intend to shorten the booking windows for resale buyers at least at Riviera. They clearly placed the language for that limitation in the new paperwork.

Makes sense really. If you’re going to force resale buyers to only be able to stay at Riviera, you can’t have them all booking at 11 months and icing out direct buyers. Inprisoning resale points at Riviera means DVC will have to allow direct purchasers a home resort advantage.

In reality, resale buyers at Riviera won’t have a “7 month window”. They’ll likely have a single window, their Home Resort Priority Period, my guess at the 8 month mark.

Direct members: 11/7
Resale purchasers: 8

 

[TexasChick123]

Riviera DVC Resort Agreement, 5.3, page 4,

“ 5.3 DVD, DVCM, and the Association acknowledge and understand that different Home Resort Priority Periods may exist at each DVC resort; provided, however, that in no event shall BVTC associate a resort as a DVC resort if such a resort has a Home Resort Priority Period of less than one (1) month.”

They absolutely intend to shorten the booking windows for resale buyers at least at Riviera. They clearly placed the language for that limitation in the new paperwork.

Makes sense really. If you’re going to force resale buyers to only be able to stay at Riviera, you can’t have them all booking at 11 months and icing out direct buyers. Inprisoning resale points at Riviera means DVC will have to allow direct purchasers a home resort advantage.

In reality, resale buyers at Riviera won’t have a “7 month window”. They’ll likely have a single window, their Home Resort Priority Period, my guess at the 8 month mark.

Direct members: 11/7
Resale purchasers: 8

Yikes. I bet you’re right about the different booking windows.

Have no fear, resale Riviera buyers, DVD will have a solution for you. For the low price of $$$, you can qualify your resale points to get the better booking window AND be able to trade into other resorts at 7 months. Just pay for the add-on package through DVD. It’s coming...

 

[crvetter]

Riviera DVC Resort Agreement, 5.3, page 4,

“ 5.3 DVD, DVCM, and the Association acknowledge and understand that different Home Resort Priority Periods may exist at each DVC resort; provided, however, that in no event shall BVTC associate a resort as a DVC resort if such a resort has a Home Resort Priority Period of less than one (1) month.”

They absolutely intend to shorten the booking windows for resale buyers at least at Riviera. They clearly placed the language for that limitation in the new paperwork.

Makes sense really. If you’re going to force resale buyers to only be able to stay at Riviera, you can’t have them all booking at 11 months and icing out direct buyers. Inprisoning resale points at Riviera means DVC will have to allow direct purchasers a home resort advantage.

In reality, resale buyers at Riviera won’t have a “7 month window”. They’ll likely have a single window, their Home Resort Priority Period, my guess at the 8 month mark.

Direct members: 11/7
Resale purchasers: 8

I think this section has little to do with different Home Resort Priority Periods within a resort. I think this language is to say that Riviera or any resort must allow their owners (direct or resale) 1 month minimum before opening up to DVC Members as whole. This exact language exists in CCV. Though I think based on the changes in the Multi-Site POS it is something they considered this just doesn't seem to be the section.

Copper Creek's Wording


Riviera's Wording

 

[drusba]

The methodology is maddening. Our POS's (declarations, etc.) all have terms that provide that resale purchasers shall have the same right as Club Members as original purchasers from DVD have. Those documents provide that all such Club Members will be able to reserve any Resorts added to the DVC Resort system. Our associations' agreements with BVTC, which runs the DVC Reservation Component, which applies to trading between the resorts at 7 months out, repeats that the club members, which include resale purchasers can reserve any other DVC Resort (currently at 7 months out). It also provides that BVTC can add new resorts to the DVC club but a requirement for doing so is for the new resort to agree to the same material terms as our agreements.

In other words, the structure of all our documents says DVD cannot do what it is currently trying to do, add a DVC Resort to the DVC Reservation Component, while restricting any resale purchasers from using the DVC Reservation Component to reserve Riviera. In other words Riviera cannot be added to the DVC Resort System with any such restrictions

Though I am still wading through things, basically all that DVD has done is create a POS for Riviera whose declarations look a lot like ours except they reserve a new right for DVD to make restrictions such as for resale purchasers. As you read the declarations, it ultimately just tells you that DVD is reserving such rights and you have to go to the DVC Membership Agreement and DVC Resort Agreement to learn those restrictions. If you go to the DVC Membership Agreement for Riviera, it also does not even state the restrictions but mainly just points out that DVD is reserving those new rights to make restrictions (that have never been reserved in any prior POS or agreements relating to existing resorts) and tells you that you have to go to DVC Resort Agreement to learn any such restrictions. It is the the DVC Resort Agreement that actually lays out the restrictions noted above. Removed from the Riviera agreement is any obligation of BVTC to require other resorts that want to join the system to have the same material terms as the prior DVC Resort Agreements.

The problems I see with the methodology include the following. Those Riviera agreements. both the DVC Membership Agreement and the DVC Resort Agreement, cannot validly create any new DVD rights to restrict resort owners of other DVC Resorts from reserving any new DVC Resort. The Riviera DVC membership Agreement and DVC Resort Agreement are signed by BVTC, DVD and the association for Riviera. The associations of all the other resorts are not parties. BVTC, DVD and the Riviera Association have no power to take away in the Riviera DVC Resort Agreement any rights of the members of the existing 14 resorts to use the DVC Reservation Component to reserve any resort that is part of the club or added to the club. Only the existing members or possibly the existing associations could do that if the members agreed. In essence, the methodology used is like three strangers to all the existing owners and resorts getting together and signing an agreement that modifies rights of those owners, Unless someone who can actually waive those rights is a valid party, the agreement should have no legal effect in doing what it is designed to do.

Moreover, BVTC has just ignored its obligations under the other DVC Resort Agreements to require any new DVC Resort to accept the same material terms as the other DVC Resort Agreements. So its signing of this new DVC Resort Agreement is a breach by BVTC of the other DVC Resort Agreements, and a probable breach of its fiduciary obligations to the members of the other resorts.

I am not necessarily saying it was impossible for DVD to come up with a way to restrict resale purchasers from reserving Riviera, e.g., perhaps it could have chosen some new exchange program while creating a DVC 2 for Riviera. In other words, it might have been possible for DVD to do what it intended to do with restrictions, but the methodolgy chosen is both a miss and a mess.

 

[crvetter]

It also provides that BVTC can add new resorts to the DVC club but a requirement for doing so is for the new resort to agree to the same material terms as our agreements.

This part is the section I find the most interesting.

Though I always relied on being a Club Member meant that we had the right to trade to different resorts. DVC is saying that while everyone (resale or direct) is a club member that isn’t guaranteeing them the right to book different resorts. I agree this idea seems counter to DVC initially because why would the concept of a club member need to exist then if not for this reason of trading through BVTC. It seems like they created a Frankenstein’s monster to get around the Club Membership attached to the Deed. So looks like the orginal DVC leadership were really looking out for it’s members in the beginning. Now the DVC leadership is looking for growth.

 

[drusba]

Mentioned above is section 5.3, Of the DVC Resort Agreement which provides:

DVD, DVCM, and the Association acknowledge and understand that different Home Resort Priority Periods may exist at each DVC resort; provided, however, that in no event shall BVTC associate a resort as a DVC resort if such a resort has a Home Resort Priority Period of less than one (1) month.

Be aware that is not new and exists in every prior DVC Resort Agreement and in different ways in the other parts of the POS. It is mainly just an acknowledgment that each home resort could have a different home resort advantage time. Currently that is four months for each resort and it can be changed to as low as one. However, it cannot really be changed at any one particular resort to allow purchasers from DVD to reserve before resale purchasers.That is because all owners of a resort are supposed to have the same first come first served rights to make reservations.

Thus, each Home resort could have a different length of home resort priority e.g., one could have 11 months to 7 and another 9 months to 7 but all owners of the particular resort need to have the same starting time for their home resort.

That language relating to different home resort periods really has little to do with the DVC Reservation Component and reserving at 7 months out. That seven month provision could be shortened or lengthened but all members of all resorts need to have the same first come first serve right as the members of other DVC Resorts in using the DVC Reservation Component. Also, there is allowance for varying from a required home resort period when the new resort first becomes available, but even then it needs to be the same for all, e.g, with past resort openings they often allowed new purchasers of the new resort a very short period, such as a month, to do reservations before owners of other resorts. That is just a usual accommodation related to when a new resort first is sold and when it opens.

In other words, I do not think we should be overly concerned about section 5.3

 

[mustinjourney]

just in case it wasn’t clear before that DVC is reading these threads with great interest, the lawyers have been busy.

Riviera Club Membership Agreement, page 13, 7.16 Interpretation “...No provision of this agreement shall be construed against a Party because the Party provided the drafting of this agreement...”

HAHAHAHAHAHA

Hey Disney lawyers! You may fool the non-lawyers, but you and I both know that clause won’t save you in court under these circumstances.

Nice try though!

XOXOXO

 

[freediverdude]

If this requirement of BVTC is true in the current contracts, that may be a much more serious legal issue than the missing comma in the POS about resales. They are trying to create new trading restrictions without creating a new club system for new resorts, which would be the proper way to do so given all the current contracts. And they may not back down from this as easily as they did the point charts.

 

[zavandor]

The methodology is maddening. Our POS's (declarations, etc.) all have terms that provide that resale purchasers shall have the same right as Club Members as original purchasers from DVD have. Those documents provide that all such Club Members will be able to reserve any Resorts added to the DVC Resort system. Our associations' agreements with BVTC, which runs the DVC Reservation Component, which applies to trading between the resorts at 7 months out, repeats that the club members, which include resale purchasers can reserve any other DVC Resort (currently at 7 months out). It also provides that BVTC can add new resorts to the DVC club but a requirement for doing so is for the new resort to agree to the same material terms as our agreements.

In other words, the structure of all our documents says DVD cannot do what it is currently trying to do, add a DVC Resort to the DVC Reservation Component, while restricting any resale purchasers from using the DVC Reservation Component to reserve Riviera. In other words Riviera cannot be added to the DVC Resort System with any such restrictions

Though I am still wading through things, basically all that DVD has done is create a POS for Riviera whose declarations look a lot like ours except they reserve a new right for DVD to make restrictions such as for resale purchasers. As you read the declarations, it ultimately just tells you that DVD is reserving such rights and you have to go to the DVC Membership Agreement and DVC Resort Agreement to learn those restrictions. If you go to the DVC Membership Agreement for Riviera, it also does not even state the restrictions but mainly just points out that DVD is reserving those new rights to make restrictions (that have never been reserved in any prior POS or agreements relating to existing resorts) and tells you that you have to go to DVC Resort Agreement to learn any such restrictions. It is the the DVC Resort Agreement that actually lays out the restrictions noted above. Removed from the Riviera agreement is any obligation of BVTC to require other resorts that want to join the system to have the same material terms as the prior DVC Resort Agreements.

The problems I see with the methodology include the following. Those Riviera agreements. both the DVC Membership Agreement and the DVC Resort Agreement, cannot validly create any new DVD rights to restrict resort owners of other DVC Resorts from reserving any new DVC Resort. The Riviera DVC membership Agreement and DVC Resort Agreement are signed by BVTC, DVD and the association for Riviera. The associations of all the other resorts are not parties. BVTC, DVD and the Riviera Association have no power to take away in the Riviera DVC Resort Agreement any rights of the members of the existing 14 resorts to use the DVC Reservation Component to reserve any resort that is part of the club or added to the club. Only the existing members or possibly the existing associations could do that if the members agreed. In essence, the methodology used is like three strangers to all the existing owners and resorts getting together and signing an agreement that modifies rights of those owners, Unless someone who can actually waive those rights is a valid party, the agreement should have no legal effect in doing what it is designed to do.

Moreover, BVTC has just ignored its obligations under the other DVC Resort Agreements to require any new DVC Resort to accept the same material terms as the other DVC Resort Agreements. So its signing of this new DVC Resort Agreement is a breach by BVTC of the other DVC Resort Agreements, and a probable breach of its fiduciary obligations to the members of the other resorts.

I am not necessarily saying it was impossible for DVD to come up with a way to restrict resale purchasers from reserving Riviera, e.g., perhaps it could have chosen some new exchange program while creating a DVC 2 for Riviera. In other words, it might have been possible for DVD to do what it intended to do with restrictions, but the methodolgy chosen is both a miss and a mess.

Thanks for writing this, very clear as all your other posts.
I guess it's time to write to Yvonne again.