Does David's tell you if the renter cancels?

[Sandisw]

This is the agreement from the most recent time I rented some of my points through David's. There is certainly no language that envisages the points owner ("Member") being liable for attorney fees, but perhaps the contract has changed since then.

Renter has paid the NON REFUNDABLE balance owing of $XXXX US Dollars in full and acknowledges the ability to confirm the reservation at http://www.dvcrequest.com/check-in.asp as well as pre-registering up to 60 days in advance of the scheduled arrival date.

Renter agrees to abide by all Disney Vacation Club terms, policies and rules applicable to Disney Vacation Club members and Disney Vacation Club membership. Renter agrees to be responsible for any unpaid charges or damages to the unit rented, including all contents and improvements, Disney Vacation Club property and Disney property during his/her stay that are assessed against the Member or his membership. Any unpaid charges or damages assessed shall be reimbursed to the Member or the Intermediary or their assigned agents within 60 business days of notice to Renter. Sending a fax or e-mail copy of a Disney Vacation Club or other Walt Disney Company communication assessing the charges or damages shall satisfy notice to the Renter. Renter agrees to pay any and all charges to the Member or the Intermediary or their assigned agents for any fees or charges related to the collection of any monies owing.

This is an agreement to rent points that represent accommodations only.
There are no ticket media, transportation, meals, transfers, insurance, or other items included. Prepaid items purchased in conjunction with this reservation such as Dining Plans and Park Tickets are subject to the terms and conditions of the Disney Vacation Club and are considered outside of the scope of the rental agreement.

Renter understands there are no daily housekeeping services at Disney Vacation Club resorts, but rather Trash and Towel service. If Renter's stay is for less than eight nights, Renter will receive Trash & Towel service on day four. If Renter's stay is for eight nights or longer, The Renter will receive full cleaning service on day four, and Trash & Towel service on day eight. After that, the cycle begins again on day twelve. Day one is check-in day.

Should accommodations not be available on date of arrival due to an action or omission by the Member, including but not limited to negligence on the part of the Member and after communication with the Intermediary, suitable comparable accommodations for the same dates cannot be secured by the Member, the Renter will be due a refund limited to the amount paid which is $XXXX US Dollars.

Pets are not permitted to stay at Disney Vacation Club Resorts, except for service animals as defined by the Americans with Disabilities Act.

Documentation Requirements: If you are not an American Citizen residing in the United States of America you will be required to present a valid passport in order to enter and exit the United States of America. Citizens outside of the United States of America without a valid passport will be refused entry into the United States of America and returned to their country of origin. Entry into the United States of America may be refused even if the required information and travel documents are complete.

Living standards and practices at the destination and standards and conditions there with respect to the provision of utilities, services and accommodation may differ from those found in your resident country.

The owners contract with the broker , though, does have a line about being responsible for failure to provide it and owing restitution. The problem is since DVCM is our agent as owners, and had the power to shut down the resort, is the owner legally liable for that decision since we agreed to let them make decisions on our behalf. IMO, only a judge can truly answer that.

 

[Brianstl]

This is the agreement from the most recent time I rented some of my points through David's. There is certainly no language that envisages the points owner ("Member") being liable for attorney fees, but perhaps the contract has changed since then.

Renter has paid the NON REFUNDABLE balance owing of $XXXX US Dollars in full and acknowledges the ability to confirm the reservation at http://www.dvcrequest.com/check-in.asp as well as pre-registering up to 60 days in advance of the scheduled arrival date.

Renter agrees to abide by all Disney Vacation Club terms, policies and rules applicable to Disney Vacation Club members and Disney Vacation Club membership. Renter agrees to be responsible for any unpaid charges or damages to the unit rented, including all contents and improvements, Disney Vacation Club property and Disney property during his/her stay that are assessed against the Member or his membership. Any unpaid charges or damages assessed shall be reimbursed to the Member or the Intermediary or their assigned agents within 60 business days of notice to Renter. Sending a fax or e-mail copy of a Disney Vacation Club or other Walt Disney Company communication assessing the charges or damages shall satisfy notice to the Renter. Renter agrees to pay any and all charges to the Member or the Intermediary or their assigned agents for any fees or charges related to the collection of any monies owing.

This is an agreement to rent points that represent accommodations only.
There are no ticket media, transportation, meals, transfers, insurance, or other items included. Prepaid items purchased in conjunction with this reservation such as Dining Plans and Park Tickets are subject to the terms and conditions of the Disney Vacation Club and are considered outside of the scope of the rental agreement.

Renter understands there are no daily housekeeping services at Disney Vacation Club resorts, but rather Trash and Towel service. If Renter's stay is for less than eight nights, Renter will receive Trash & Towel service on day four. If Renter's stay is for eight nights or longer, The Renter will receive full cleaning service on day four, and Trash & Towel service on day eight. After that, the cycle begins again on day twelve. Day one is check-in day.

Should accommodations not be available on date of arrival due to an action or omission by the Member, including but not limited to negligence on the part of the Member and after communication with the Intermediary, suitable comparable accommodations for the same dates cannot be secured by the Member, the Renter will be due a refund limited to the amount paid which is $XXXX US Dollars.

Pets are not permitted to stay at Disney Vacation Club Resorts, except for service animals as defined by the Americans with Disabilities Act.

Documentation Requirements: If you are not an American Citizen residing in the United States of America you will be required to present a valid passport in order to enter and exit the United States of America. Citizens outside of the United States of America without a valid passport will be refused entry into the United States of America and returned to their country of origin. Entry into the United States of America may be refused even if the required information and travel documents are complete.

Living standards and practices at the destination and standards and conditions there with respect to the provision of utilities, services and accommodation may differ from those found in your resident country.

That is the agreement the person renting the points agrees to. There is a separate agreement for point owners. That includes this language:

1. The DVC Owner further agrees with the Intermediary to make full restitution to the Intermediary and a guest with an active reservation for any and all costs related to a cancellation of that reservation caused by or relating to the failure of the DVC Owner to honour the reservation or otherwise not comply with any obligation or responsibility of the DVC Owner under this agreement including, without limitation, any legal fees, costs and expenses associated with the collection of said costs.

 

[CraigInPA]

You think David's, a Canadian company, will sue you in a US court?

They can try a suit in Canada, but the court is unlikely to accept serving the complaint to a US resident. The cost to go after US owners would exceed any likely return. In the event of a bankruptcy (which is likely the only situation where a suit would be filed), they would probably consolidate the suits into one court, likely Orlando. That's reality.

 

[CraigInPA]

That is the agreement the person renting the points agrees to. There is a separate agreement for point owners. That includes this language:

1. The DVC Owner further agrees with the Intermediary to make full restitution to the Intermediary and a guest with an active reservation for any and all costs related to a cancellation of that reservation caused by or relating to the failure of the DVC Owner to honour the reservation or otherwise not comply with any obligation or responsibility of the DVC Owner under this agreement including, without limitation, any legal fees, costs and expenses associated with the collection of said costs.

You've just shown that your argument is meritless. The operative sentence here is "caused by or relating to the failure of the DVC Owner". The failure was not caused by the owner, but by the resort closing due to a pandemic.

The argument that dvcmc is responsible, and dvcmc represents the owners, is fallacious because it represents a type of collective liability, whereas the liability here (if any) is individual.

 

[Brianstl]

You're ignoring the fact that some, perhaps many, or even most, owners did NOT get points back in the same condition as they were rented. When banked points wereYou

You're ignoring the fact that some, perhaps many, or even most, owners did NOT get points back in the same condition as they were rented. When banked points were rented, they had a value of $14.50 to David's and the owner. When they were returned, they may have no value because they are about to expire, with no option to book another reservation with it.

Your blanket statement regarding civil and criminal judgements is so unlikely in a US court that it is laughable.

it doesn’t matter the condition of the points. The owner is the one responsible for the cancellation. DVMC acts with the authority and with the explicit legal approval of the owner when it shut down the resort.

 

[CraigInPA]

it doesn’t matter the condition of the points. The owner is the one responsible for the cancellation. DVMC acts with the authority and with the explicit legal approval of the owner when it shut down the resort.

You clearly have no understanding of the law regarding contracts, venue selection, liability, or how DVC actually works.

 

[Marionnette]

The Orange County (Florida) mayor just issued a stay in place order thru April 9th.
https://www.orlandosentinel.com/cor...0200324-2nfuihnaujc6xifbgsyiedffpe-story.html
Universal Orlando has announced that they will remain closed thru April 19th.
https://www.universalorlando.com/web/en/us/terms-of-service/operations-update
Expect an announcement soon that Disney is extending their closure as well.

 

[Brianstl]

You've just shown that your argument is meritless. The operative sentence here is "caused by or relating to the failure of the DVC Owner". The failure was not caused by the owner, but by the resort closing due to a pandemic.

The argument that dvcmc is responsible, and dvcmc represents the owners, is fallacious because it represents a type of collective liability, whereas the liability here (if any) is individual.

You've just shown that your argument is meritless. The operative sentence here is "caused by or relating to the failure of the DVC Owner". The failure was not caused by the owner, but by the resort closing due to a pandemic.

The argument that dvcmc is responsible, and dvcmc represents the owners, is fallacious because it represents a type of collective liability, whereas the liability here (if any) is individual.

“Owner’s failure to honor the reservation”. The owner had failed to honor the reservation. It doesn’t exempt the owner under any condition from having to honor the reservation.

 

[Brianstl]

You clearly have no understanding of the law regarding contracts, venue selection, liability, or how DVC actually works.

The inability to perform your obligation in a contract means you breached the contract. There is no exception in the contact for where it falls in your use year or for the reason as the owner you are unable to perform your obligations in the contract. You are unable to honor the reservation. It is as simple as that.

 

[ziravan]

The idea that the owner is an agent of DVC I don’t think would fly in any case, but especially since they aren’t making decisions on behalf of the owner. The decision is being dictated by local and state govt: a true force majeure.

The owner isn’t at fault for the cancellation, either individually or collectively.

 

[fsjking]

The idea that the owner is an agent of DVC I don’t think would fly in any case, but especially since they aren’t making decisions on behalf of the owner. The decision is being dictated by local and state govt: a true force majeure.

The owner isn’t at fault for the cancellation, either individually or collectively.

Except Disney/DVC wasn't forced to close by local or state government. I have not seen a single order for hotels or timeshares to close. They chose to close. Whether or not it was the right thing to do would be immaterial in front of a judge.

 

[CraigInPA]

The inability to perform your obligation in a contract means you breached the contract. There is no exception in the contact for where it falls in your use year or for the reason as the owner you are unable to perform your obligations in the contract. You are unable to honor the reservation. It is as simple as that.

You really want the DVC member to be responsible and bear the entire liability, but your simplistic argument is fallacious. The DVC member is shielded from liability to the member because, even though the DVC member did EVERYTHING they were required a do under the contract, a third party caused the contract to be impossible to fulfill. This is called Force Majeure. In real contracts drawn up for real companies by real attorneys, Force Majeure is covered. Sometimes the contract is dissolved as if it never existed. Sometimes the parties walk away both taking a loss. Sometimes a single party bears the entire damage. In the rather poorly written contracts posted here, there is no Force Majeure. As a result, you have to look at comparative fault and the way the rest of the contract is written.

1. The contract involves a "broker" who collects money from the renter, sends a portion to the owner, and keeps some in a kind of escrow. The broker is actually buying the product from the owner, and selling it to the renter as an intermediary, kind of a middleman who takes control of the product by nature of paying for it and then selling it to someone else.
2. The contracts (all 3 of them) were drafted by the broker. None contain a Force Majeure clause.
3. It is clear that a Force Majeure clause would have been prudent, given previous closures at DVC properties due to Hurricanes and other events.
4. The contracts say "no refunds for any reason". While one could argue that this should not apply because it is unconscionable to agree to pay for something and get nothing in return in the event that the contract could not be fulfilled, it nonetheless is in the agreement.
5. The broker strongly suggested that they obtain travel insurance in case "something happens", because there are "no refunds for any reason".

So, let's talk about comparative negligence...
Was the renter negligent in their performance of the contract? No, they paid.
Was the owner negligent in their performance of the contract? No, they secured the reservation.
Was the broker negligent in their performance of the contract? No, they got paperwork signed, sent along the reservation information, and paid the owner the deposit for the points.

So, let's talk about the damage caused to each party...
The renter has no reservation because the resort is closed. It may be impossible to obtain one when they wish to go. The renter's damage is the amount paid for the reservation.

The owner may have points that are now valueless. When they were rented, they were worth $14.50 each.

The broker was paid for their commission in full, and is still holding a final payment for the owner which may never be sent because the reservation was cancelled by DVC (perhaps wiping away the final payment requirement). There appears to be no economic loss to the broker. Any economic loss to the broker due to credit card charge backs is a potential future loss, not a direct immediate loss.

So, let's circle around to liability...
The renter knew there were no refunds, and was advised to buy "travel insurance". If the renter did buy the wrong kind of insurance, or no insurance, it is on them. One could say that they should not be given a refund (or even a new reservation) because they accepted the risks associated with renting a DVC unit. I think this is a good argument, but unlikely to succeed in court because there is greater liability to be assessed to the broker.

The owner did everything he was supposed to do, suffered an economic loss, and has no control over DVCMC, the Federal Government, the State of Florida, Orange County Florida, Reedy Creek Improvement District, the Walt Disney Company, Local or National News, or any other entity that may have directly or indirectly been involved, advocated for, or encouraged the resort to be closed. Of all three parties, the owner bears the least liability, and could suffer the greatest economic loss.

The broker failed to inform both the renter and owner that circumstances beyond either party's control may prevent the contact from being fulfilled. The broker failed to provide for the contingency of a Force Majeure event despite resort closures previously having occurred at multiple DVC properties. The broker was the purchaser and seller, and indeed is listed as intermediary in the 3 way contract (which the broker drafted and prepared). Because the broker is the buyer of the points (in a separate contract with the owner), and the seller of the reservation (purchased with the points) to the renter, and their contract is at fault, the greatest liability should be borne by the broker under the tenet that incompetent drafting of an agreement cannot be used a defense by the drafting party. i.e., because the broker should have covered every contingency, including the obvious need for a Force Majeure clause, and because they did not, they are ultimately liable for whatever happens. While it may be brutal to consider, the broker is still liable to the owner and the renter for the failure to provide the reservation.

 

[Alderbrook]

Just want to throw this out there since David’s is a company in Ontario Canada they are bound by TICO https://tico.ca/ you may want to look at the rules they have to obide by. I am Canadian renting points thru David’s in August. I have insurance. But if things aren’t back to normal by august renters have recourse with TICO Depending on the situation.

 

[Van Houten]

The owner may have points that are now valueless. When they were rented, they were worth $14.50 each.

That's the flaw in your argument. The points have no value to begin with - and DVC has already stated that they have plans to address owners with points near expiration. So in this situation, you expect the owner to come out with money in the pocket and points in the bank, while everyone else ends up being liable?

 

[Lewisc]

Just want to throw this out there since David’s is a company in Ontario Canada they are bound by TICO https://tico.ca/ you may want to look at the rules they have to obide by. I am Canadian renting points thru David’s in August. I have insurance. But if things aren’t back to normal by august renters have recourse with TICO Depending on the situation.

Interesting. Looks like there might be some money available for compensation if David's goes bankrupt.

A poster posted an email from David's, the contract isn't valid if the resort is closed. Renter is entitled to rebook or get a refund.

I suspect when the resorts open a number of renters will want to cancel for reasons not covered by most insurance. Fear of travel. Loss of income. Loss of job. Inability to get time off from work.

Sounds like many owners would pocket the money, even if the points get used and the owner doesn't suffer a loss.

 

[Yinn]

You're ignoring the fact that some, perhaps many, or even most, owners did NOT get points back in the same condition as they were rented. When banked points were rented, they had a value of $14.50 to David's and the owner. When they were returned, they may have no value because they are about to expire, with no option to book another reservation with it.

Your blanket statement regarding civil and criminal judgements is so unlikely in a US court that it is laughable.

This just reminded me of another thread on the board somewhere. “Better to bank or borrow?”

Or something to that effect. I guess we now know the official answer: Better to borrow.

 

[Matty B13]

Or something to that effect. I guess we now know the official answer: Better to borrow.

For now....... until DVC changes their policy again. I think they are going to have to come out with a change to the POS to address this event and ones like this. Right now it is pretty ugly, renters losing vacations, owners losing points, and dues being paid on points just expiring.

 

[foodiddiedoo]

I have a very dumb question. As a renter, is there any chance I could contact Aulani directly and ask them to rebook my travel dates in case David's can't/won't get around to it before my trip was supposed to begin? Or does all DVC travel modifications need to go directly through the DVC portal that I would not have the login information for my reservation?

 

[Matty B13]

I have a very dumb question. As a renter, is there any chance I could contact Aulani directly and ask them to rebook my travel dates in case David's can't/won't get around to it before my trip was supposed to begin? Or does all DVC travel modifications need to go directly through the DVC portal that I would not have the login information for my reservation?

Your reservation was made by the owner, and can only be changed by the owner. DVC won't deal with renters under any circumstance. I would try to get through to David's by phone, most owners don't have a problem modifying reservations for renters, but some do.

Hope you are able to work something out.

 

[foodiddiedoo]

Your reservation was made by the owner, and can only be changed by the owner. DVC won't deal with renters under any circumstance. I would try to get through to David's by phone, most owners don't have a problem modifying reservations for renters, but some do.

Hope you are able to work something out.

Thank you for the info. I'm very worried about contacting David's since Aulani is still "open" during that time period I'm slated to go, despite the entire island being "shut down" through April 30th. Many other resorts have already shuttered their doors through the end of April. Even if Aulani was open there's now a 14 day mandatory quarantine....can't really afford to spend 3 weeks on a one week vacation. In your opinion should I wait it out a bit longer and see if Aulani extends its closure through the end of April before attempting to call?