It's my understanding that Disney controls the board of the homeowners association (Buena Vista Trading Company). Presumably, they have the authority to submit revisions to the POS. For example:
View attachment 836306
And:
View attachment 836314
It looks like this revision from 3/2022 made changes that affect all DVC properties.
I'm assuming we signed something somewhere that allows the board to revise the POS, as the board sees fit. This includes the terms governing commercial use.
Perhaps I am missing something but unless the contract we sign says something different, it seems that Disney can change the POS, and these changes can affect all DVC properties, not just the new ones.
Anyone who lives in a community with a homeowners association might have encountered this sort of thing in the past. For example, the terms of the one I live in were modified several years back to expressly forbid rentals.
I'm just trying to understand why Disney cannot change the POS, given the contracts we signed when we purchased DVC.
Buena Vista Trading Company is not the homeowners association of the resorts. It is the company that is deemed to control the DVC Reservation Component, i.e., the portion of the computer system used by members to make reservations at 7-months out for DVC Resorts they do not own. It also handles DVC trade-outs when members trade-out to non-DVC resorts, and owners of non-DVC timeshares trade into DVC. The homeowners association is the Palmetto Trust Association, Inc.
The form you include is a common form filed with the Florida Division of Condominiums,Timeshares,and Mobile Homes designed simply to provide updates on general information concerning the applicable timeshares such as identities of officers and directors, number of resorts, number of rooms, and number of members.
Under the POS documents, there are a number of terms which expressly provide that DVD has the discretion, without member approval, to change the terms, e.g., it has the discretion to change the current 11/7 month reservation schedules to different numbers but must always maintain at least a one month difference between the home resort and non-owned resort reservation times.
However, there is no such discretionary change clause attached to the terms relating to the members' right to rent rooms. There is also a specific clause in the POS that declares that DVD is not permitted to make any amendment that "would prejudice or impair to any material extent the rights of any owner." E.g., BWV Declarations 16.2. Florida law considers the right to rent to be a material right and the belief by many that DVD can make any changes it wants to make is not correct.
Moreover, the DVC resorts are all condominium resorts (other than the new CFW), and condominium law requires an actual vote of the members to amend the declarations to add any new terms that could decrease the number of times a member could rent or alter the duration of any such rentals, And even if you do such a vote and the changes are approved, all members who have voted against the changes are immune from any such changes. Fl. Stat. §731.110(13).
The pre-Riviera DVC Resort Agreements provide that any future DVC Resort Agreement entered into by BVTC has to be "substantially similar in all material respects" to those DVC Resort Agreements. And BVTC does not have any discretion to unilaterally change any of those prior DVC Resort Agreements. The only discretionary right changes granted to BVTC are: (a) it can terminate the DVC Resort Agreement if it determines that DVD, DVCM, or the association are not operating or maintaining the applicable resort consistent with the high standards of quality and customer service followed by BVTC for all DVC Resorts; (b) it can delete a DVC Resort from the group of DVC Resorts if the government takes the property via eminent domain, or the property is destroyed and cannot be repaired, and BVTC has the discretion to determine if the repairs are adequate enough to allow the resort to continue as a DVC Resort. In other words, BVTC has no discretionary right when creating a new DVC Resort, to ignore the requirement that the new DVC Resort Agreement must be "substantially similar in all material respects" to those prior DVC Resort Agreements.
Also, the Personal Use definition in the prior POS's did not give the association any power to further define what commercial purpose means in that definition. The first sentence you emphasized in your post above says nothing about rentals, it is addressing actual use of the rooms and recreational facilities for a commercial purpose, and notes the sentence does not apply to the "personal use" of the rooms and the term "personal use" itself expressly includes the right to rent and allows the lessees to occuppy the rooms."
The only sentence that deals with the right to rent is the second sentence you emphasize which adds a meaning to "Commercial Purpose" that it would otherwise not have, by stating it can include a pattern of rental activity which the board can "reasonably" conclude constitutes a "commercial enterprise" or activity. That sentence does not give the association any right to change the terms provided. It simply makes the association the entity that can determine whether a member is engaging in such improper conduct but any decision it makes must be reasonable (i.e., the member can challenge whether the association has made a reasonably correct decision). And what the pattern has to show is that member is acting as a commercial enterprise, a legal term that means being in the "business" of doing something. In other words, the association does not, for example, have the power to determine that just doing three or four rentals or rentals done to offset dues are a violation of the commercial purpose clause.
The problem with the new terms is that the association, DVCM, and BVTC are all given absolute power to determine the issue, including what a "pattern" of improper rentals are. Moreover, one should review the CFW Declarations, section 12.1. "Personal Use" in the Declarations is no longer defined as including use by lessees of the member, and the section declares any use or activity that "does not constitute personal use
or constitutes commercial use is expressly prohibited." And a finding of commercial use requires no more than a finding of a "pattern of rental activity"
or "frequent occupancy by others of reserved Vacation Homes, other than the Owner or the Owner's family." These are not "clarity" of prior rules. These are new rules that essentially say any "frequent" (an undefined term that the DVD entities have the sole power to dertermine what it means) reservations you make that are not for yourself or family can automatically be determined to be improper.
Moreover, there is even another reason that BVTC itself should have no right to decide rental issues. That is because the CFW Declarations declare that the "sole determiner" of any of those rental issues shall be the "Association, through the Board, or the Management Company." Declarations §12.1.4. And the only named Management Company is DVCM, id. §1.24. In essence, the controlling Declarations contradict the DVC Resort Agreement, and there should be no such terms in the DVC Resort Agreement.