So, in your legal opinion, this section of the POS is not valid?
From Exhibit "4" to the Public Offering Statement for the Declaration Of Condominium of the Disney Vacation Club at Walt Disney World Resort, A Leasehold Condominium
Dated 01/06/1992
Article XV
Compliance and Default
15.1 Costs and Attorneys' Fees. In any proceeding arising because of an alleged failure of an Owner or the Association to comply with the terms of the Condominium Documents, or the Condominium Rules and Regulations adopted pursuant to them, as they may be amended from time to time, the prevailing party shall be entitled to recover the costs of the proceeding, and recover such reasonable attorneys' fees as may be awarded by the Court, including all appeals and all proceedings to bankruptcy.
The association, not DVMC, is covered by that award-of-fees clause. The association has done nothing except transfer essentially all of its powers, including all its powers relating to home resort reservations, home resort points, and determining
point charts, to DVCMC, the managing company. By statute, DVCMC is deemed a fiduciary of the owners that can be sued by the owners. It is required to comply with the provisions of the declarations and other official documents. The owners are third party beneficiaries of any contract it has with the association including the Membership Agreement. Thus, DVCMC can be sued directly without joining the association, rendering the clause inapplicable.
Also mentioned above is the requirement to submit a dispute to non-binding arbitration "under Florida law." The Florida law that could potentially be applicable is the arbitration statute, Fl Stats §718.1255, covering disputes involving condominiums, conducted by the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation. That organization could find the particular dispute is not arbitrable under the applicable statute, and just leave the parties to a court dispute, because the nature of the dispute does not fall within the kinds of disputes it is supposed to hear. The applicable arbitrators are paid by the division not the parties.
The only other non-binding arbitration statute that could potentially apply is the one that a court can order in any civil case after it is filed, even if there is no agreement for non-binding arbitration. Under that law, unless both parties agree at the time otherwise, the arbitrator is to be picked from those who are listed with the court, must be neutral, and the maximum charge is $1500 per full day, payable half by each party, Fl Stats §44.103. What you can often end up getting in those situations are former or retired judges now working part-time as court-appointed arbitrators.