I provided before reasons why I believe both purchasers from DVD and resale purchasers must all have a right to use the DVC Reservation Component to reserve any DVC Resort, including one added to that component operated by BVTC, and thus Disney either has to remove Riviera from the Disney Vacation Club entirely or drop the stated resale restrictions. I am adding now another reason. It appears the restrictions violate Fl Stats §718.110(4).
Summarizing what I have noted before based on the BWV documents: the declarations provide: (a) that every owner and Club Member, which includes all resale purchasers, shall be entitled to use the services and benefits provided by the Disney Vacation Club; (b) the two main services and benefits provided by the Club are the Home Resort Reservation Component and the DVC Reservation Component; (c) the members have a right, after the home resort reservation priority period ends, to use the DVC Reservation Component to reserve, on a first come, first served basis, any rooms at any DVC Resort other than the one they own; (d) a DVC Resort is defined as any resort that is given the right to access the DVC Reservation Component. Club Membership is deemed an “appurtenance” to the ownership interest in the unit that is part of the real property which automatically transfers to any resale purchaser via deed. The multi-site POS also provides that all Club Members, which includes resale purchasers, have a right to use the DVC Reservation Component to reserve any DVC Resort. Finally, the DVC Resort Agreement has the association transferring to BVTC the obligation to run the DVC Reservation Component to take reservations for any DVC resort from Club Members (which includes resale purchasers) and to act in the best interests of such members when adding any new DVC Resort.
Despite the above, DVD has added Riviera to the DVC Reservation Component as a DVC Resort with the resale restrictions via a supposed DVC Resort Agreement for Riviera with BVTC that contains the new resale restrictions, even though BVTC, under the BWV (and other) DVC Resort Agreements, can add a new DVC resort only via a DVC Resort Agreement whose terms are substantially similar in all material respects to the BWV DVC Resort Agreement.
So now for a new point. It results from the appurtenance requirement. An appurtenance is, by definition in the real estate world, either a tangible real property right , e.g., ownership of all or part of the unit, or intangible right, e.g., such as an easement, right of way, or right to use something considered part of the property. Fl Stats §718.110(4), which deals with amendments to declarations for any condominium development (which includes the DVC resorts), provides:
“Unless otherwise provided in the declarations as originally recorded, no amendment may change the configuration or size of any unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the unit owner shares the common expenses of the condominium and owns the common surplus of the condominium unless the record owner of the unit and all record owners of liens on the unit join in the execution of the amendment and unless all the record owners of all other units in the same condominium approve the amendment. The acquisition of property by the association and material alterations or substantial additions to such property or the common elements by the association in accordance with s. 718.111 (7) or s. 718.113, and amendments providing for the transfer of use rights in limited common elements pursuant to s. 718.106 (2)(b) shall not be deemed to constitute a material alteration or modification of the appurtenances to the units. A declaration recorded after April 1, 1992, may not require the approval of less than a majority of total voting interests of the condominium for amendments under this subsection, unless otherwise required by a governmental entity.”
Thus, it provides that there can be no amendment to the declarations that materially alters or modifies an appurtenance absent a unanimous vote of all the owners of the condominium resort.
Case law on this section has also determined some issues. The statute means no material alterations to appurtenances can be done except as provided in this section, i.e., it requires an amendment to the declarations and a unaminous vote of the owners to change any appurtenance rights, and the association cannot claim it can rely on some other modification provision in a different document to make the change, see Tower House Condo. Assoc. v. Millman, 410 So. 2d 926 (3d Dis.1981)(association could not use appropriations provisions in by-laws to determine that purchase of an appurtenance could be made). Moreover, the “unless otherwise provided in the declarations” language does not include having a general right to modify the declarations. The specific right to modify the appurtenances must be stated in the declarations to permit anything less than that unanimous vote. Wellington Property Management, Inc. v. Parc Corniche Condominium Assoc., 755 So. 2d 824 (5th Dist.2000). Also, an appurtenance can include the right to use facilities not owned by the association or its members. And when the declarations made membership in a recreational facility an appurtenance to the real estate interest, the recreational facilities could not be materially changed absent compliance with this statute’s unaminous vote requirement. Downey v. Jungle Den Villas Recreation Assoc., 525 So.2d 438 (5th Dist. 1988).
In other words, DVD may have some real statutory problems with what it has done. (Note that the other statutes noted in this statute are not relevant to the DVC appurtenance issue -- §§718.111(7), and 718.113, deals with an exception for the association’s purchase of real property and dealing with condemned property;§718.113 deals with alterations of common elements if the association has specific provisions in the declarations allowing it to modify common elements, and 718.106(2) (b) deals with transferring limited common elements (those used only by specified owners).
. Now that does actually sound a little fun.
