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Recent Destination Club News

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Read the Cervantes/Priest Vs ER lawsuit today-it is being done Pro Se by the member. Appears she is a lawyer by training as is her spouse-who actually has a pretty nifty resume/credentials. They appear to be one of the first joiners on ER ($295K & $18K a year in dues for 60 nights). They're crying foul over their dues going up to the $995 a night level over the next couple of years.

Interesting case. Thanks for pointing that out CM.

Amended complaint is linked here.

http://webaccess.sftc.org/Scripts/M...,-AEXCLUSIVE RESORTS CLUB MANAGEMENT\, LLC,-A

Probably the best written plaintiff's complaint that I've seen in a suit against a DC. ER is trying to get this into arbitration. If successful, we probably won't find out the result. Again, the lesson to be learned from this case is be careful what you sign (I actually find it interesting that a lawyer signed it, particularly one this good (although in fairness, she says ER wouldn't negotiate the contractual terms)).

IMO, you can basically boil it down to can dues be raised above the cap that is specifically provided or can ER unilaterally amend the contract, disregarding the specific cap that is provided. Typically, the specific trumps the general in a contract, but I've clearly not looked at the law on that point.

I thought this part of the complaint was interesting:

"11. Prior to the execution of the Agreement, Exclusive Resorts discussed its business plan with Plaintiff Priest. Defendants represented that Exclusive Resorts' business would be operated on a "for-profit" basis, that Exclusive Resorts was soliciting Membership Fees with the intention of using those fees to invest in and develop a portfolio of high-end vacation properties, and that Exclusive Resorts' business model would assure its ability to repay Plaintiffs' Membership Deposit. Exclusive Resorts further stated that it expected Plaintiffs' annual dues, along with the higher annual dues of Club members who were subsequently to join, to cover the physical operating costs of such properties. Defendants specifically told Plaintiff Priest that neither Membership Fees nor dues were to be used to pay property taxes or investment expenses, which costs were to be covered by the long-term investment returns."

I've not heard that depiction of the model yet.
 

ClubsRDead

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If anything has been proven on this board (or the prior one) it's that AKRC members are a loyal following, which is admirable.

I ask the question(s) about the "equity" model merely base on postings and statements others make. If as a member one has the feeling of safety and security with the club, and is confident of their "equity" in it, based on members owning the houses, that works for me. Obviously that's not the case where I am. I would think it somewhat relevant how the purchase was done, but if a AKRC member (currently) doesn't, that is their prerogative.

What I don't understand, and perhaps you can explain, is how the equity distribution would work in the event of a wind down? AK has recently stated that with the inventory they have, they could handle another 50 or so members without affecting availability. Do you feel this is the case? (Asking AKRC posters here). If more members did join, but additional assets were not acquired, would that not deplete your equity?

Kage, to your comment above, I have no "argument." I merely responded to your thoughts that a 100% non-refundable membership deposit model has merit. I don't see how. You gave a couple examples of riders and options and upgrade scenario's, from a historical perspective - but I still don't see how and merely posed several of those as being illogical alternatives in todays economic climate.

Whether a "model" has merit or not isn't really the issue. The adoption or acceptance of the model is what ultimately is important because there would be no club without it.

I think there's some 400 members involved in a lawsuit now that joined AK / TH under the premise that they would get their money back. That's maybe 10% of the DC membership base feeling "wronged." To find a group similar in size that would pay under the auspice of absolutely getting nothing back, I believe, would be very difficult. But, I could be wrong. That's why I said I'd like to see a structured proposal for how something like this would work, a "conceptual vision," for lack of a better phrase - vs just saying "ER once did this, or UE did that." In my mind, they didn't do much more than manipulate their members to adjust for their overspending in services and inflated management costs (not to mention debt loads).
 

Kagehitokiri2

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:rolleyes:

your posts read better than PerryM's but your behavior is often the same. if only posting a business plan is constructive, why dont you do it? at least PerryM claims to have done so on his registration-required website.

another thing i mentioned earlier, belvedere @ karma kandara, is presumably under construction / being delivered.

http://webaccess.sftc.org/Scripts/M...,-AEXCLUSIVE RESORTS CLUB MANAGEMENT\, LLC,-A

Probably the best written plaintiff's complaint that I've seen in a suit against a DC.

Defendants specifically told Plaintiff Priest that neither Membership Fees nor dues were to be used to pay property taxes or investment expenses, which costs were to be covered by the long-term investment returns."
"The Club reserves the right to terminate this Membership Plan or any or all of the Dues Categories. In the event the membershp Plan is terminated or any Dues Category is terminated (a "Membership Plan Termination'), the Club shall promptly cause repayment of any Membership Fee paid by the affected Club Members and any Annual Dues paid within the preceding twelve (12) months. In the event of a Membership Plan Termination, no new membership plans may be offered by the Club without making such membership plans available to Club Members affected by a Membership Plan Termination in the preceding twelve (12) months at economic terms equivalent to or better than the terms such members enjoyed prior to the Membership Plan Termination."
...
"[a]ny amendment shall, automatically and without action of the Club Members, be binding on all Club Members."
...
acquisitions and/or other investment vehicles or releases for properties located at Miraval in Tuscon, Arizona, at Peninsula Papagayo in Costa Rica, and at Kapalua Bay in Maui, Hawaii, were not conducted at arms-length.
...
allege that Exclusive Resorts has used Membership Dues and/or Membership Deposits to pay property taxes, contrary to express agreements and representations to Plaintiff Priest.
...
Section 2 of the Application for Membership defines "Dues Categories" (which Exclusive Resorts claims they have not changed) as identical to "Dues Structures" (which the e-mail acknowledges have been changed).
who says lawyers dont have a sense of humor >
Under defendants' arguments, Exclusive Resorts could increase daily usage fees to rates of one million dollars per day, ten million dollars per day, or even one hundred million dollars per day, and Plaintiffs would have no choice but to pay those fees and any failure to pay the increase daily usage fees would by defendants' arguments, put Plaintiffs in breach of the Agreement.

the main doc i got cuts off at page 19, but so far >

- 2X breach of contract
- breach of the implied covenant of good faith and fair dealing
- fraud

lawyers background >
both have worked for Wilson Sonsini et al (Priest became partner in 1995)
both attended Stanford Law, Priest attended Princeton for undergrad

dues increase cap changed from CPI + 2.5% to $150 per day. why bother setting a cap if they can change at will?
 
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PerryM

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:rolleyes:

your posts read better than PerryM's but your behavior is often the same. if only posting a business plan is constructive, why dont you do it? at least PerryM claims to have done so on his registration-required website.

another thing i mentioned earlier, belvedere @ karma kandara, is presumably under construction / being delivered.

who says lawyers dont have a sense of humor >

the main doc i got cuts off at page 19, but so far >

- 2X breach of contract
- breach of the implied covenant of good faith and fair dealing
- fraud

lawyers background >
both have worked for Wilson Sonsini et al (Priest became partner in 1995)
both attended Stanford Law, Priest attended Princeton for undergrad

dues increase cap changed from CPI + 2.5% to $150 per day. why bother setting a cap if they can change at will?

www.perrym.com

No registration needed - just reading skills.
 
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If anything has been proven on this board (or the prior one) it's that AKRC members are a loyal following, which is admirable.

I ask the question(s) about the "equity" model merely base on postings and statements others make. If as a member one has the feeling of safety and security with the club, and is confident of their "equity" in it, based on members owning the houses, that works for me. Obviously that's not the case where I am. I would think it somewhat relevant how the purchase was done, but if a AKRC member (currently) doesn't, that is their prerogative.

What I don't understand, and perhaps you can explain, is how the equity distribution would work in the event of a wind down? AK has recently stated that with the inventory they have, they could handle another 50 or so members without affecting availability. Do you feel this is the case? (Asking AKRC posters here). If more members did join, but additional assets were not acquired, would that not deplete your equity?

I do think AKRC members are pretty loyal. I spoke with a good 10-20 members at the member meeting, and it was a happy lot, and I've certainly got no complaints.

Good questions, CRD. If the members voted to wind down the club (by a supermajority if IIRC (rather than continue on)), the proceeds of the member's entity are distributed solely among the members based on the type of membership purchased.

A&K has told members that they can add additional members while staying under the targeted occupancy (67% IIRC) (not that it won't effect availability). I'm sure it has an impact on availability, but it's still good. I know they sold something like 50-60 one-week trials last year, and I personally didn't notice a difference. If they added 50 regular members (with a few weeks a piece), it would probably be more noticable. From what I understand, the occupancy max. is supposed to be better than other major clubs, but I've not independently run the numbers.

If new members are added, they are one of two types of members: (i) non-equity trial members who get no equity stake, because they've added no equity and (ii) new equity members that have put in capital contributions which are used to redeem resigning members (on the 1 in: 1 out basis) or is added to the capital account for the club for the purchase of real estate (not for operations). Accordingly, the addition of new members wouldn't dilute the equity, because they have no access to equity (i.e., trial members), added equity to the club or replaced another member, depending on the situation.
 

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i think their point was that if AK is adding members but not properties, to increase utilization, then members will have less of a share in those properties?
 

NeilGoBlue

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When AK adds deposit paying members, the money goes into an escrow account. When the account reaches the 'price' of a house, the house is then transferred into member owned entity. So, the members own the entity and the 'escrow' account. Therefore when new members join, there is no 'dilution' in a wind down scenario.
 

Kagehitokiri2

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but if they are not at peak utilization/ratio/etc doesnt that mean that members currently have a larger share?
 

Chicagomark

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Please clarify?

So A&K/Fortress the parent builds a house to the clubs specific satisfaction, and they will get paid for it when enough money hits escrow, correct?

What price are the members paying? A&K's cost of building, current market value, developer cost? Cost Plus 20% plus the cost of carrying? If A&K has to carry the house for 2 years-they're being compensated for carrying it for 2 years, correct? If so, at what interest rate? If their cost to build is in excess of the current market-what price do members pay? Market or cost?
 

Kagehitokiri2

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if fortress owns RE developers/etc they dont use them for AK do they?

only ER has that.

when Q members asked this about AK, i recall QuintessMichael saying Q and AK were similar. unfortunately cant pull it up.
 

NeilGoBlue

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but if they are not at peak utilization/ratio/etc doesnt that mean that members currently have a larger share?

No, because if there is over capacity, that means that AK bought the house ahead of having money in escrow, and the member owned club doesn't actually own that house. AK will almost always have a few houses they buy in advance of members...
 

NeilGoBlue

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So A&K/Fortress the parent builds a house to the clubs specific satisfaction, and they will get paid for it when enough money hits escrow, correct?

What price are the members paying? A&K's cost of building, current market value, developer cost? Cost Plus 20% plus the cost of carrying? If A&K has to carry the house for 2 years-they're being compensated for carrying it for 2 years, correct? If so, at what interest rate? If their cost to build is in excess of the current market-what price do members pay? Market or cost?

My understanding, (TT please correct me if I'm wrong), is that the property is transferred 'at cost'. "At cost' means actual cost, with no carrying cost. There is no profit in it for AK. And they don't charge any interest. (i'm going to double check, but I think it's correct)
 

Kagehitokiri2

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gotcha NeilGoBlue. and yeah, TarheelTraveler has said that every time this comes up.
 
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ClubsRDead

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:rolleyes:

your posts read better than PerryM's but your behavior is often the same. if only posting a business plan is constructive, why dont you do it?

If you're referring to me - then I will answer you. Because I didn't propose a "no refund membership deposit plan/club." In fact, myself and others have said on here that it won't fly. I actually have said maybe you're right, but how, and you gave examples not consistent with running a club. So - it's your concept - if you say it will work, all the power to you. I just don't see how, nor would I join. Therefore, the answer is - if you proposed it (and you did) add something of substance to how it will work rather than say what others did, often totally unrelated, in the past.

FYI - I don't know PerryM, so can't comment there. Nor until you made reference to the name had I ever heard of him.

The posts below all of that are informative and intuitive. And, members of AKRC are adding what I consider useful information and insight. Thank you. I will read and re-read tomorrow and comment accordingly, not that anyone cares. I've just had a few tonight (it is an Irish holiday, of sorts) and don't want to misinterpret more than I normally get accused of.
 

ClubsRDead

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i think their point was that if AK is adding members but not properties, to increase utilization, then members will have less of a share in those properties?

This is exactly my point.

AKRC today claims around 145 memberships, I think (but again you experts can confirm) that is all "equity" members, all of us knowing that about 130 or so of them came from the acquisition. The other 15 or so, who cares - I suspect there were sweetheart deals involved.

If they also have say 75 "trial" members, so be it. The #'s really don't matter.

What matters is that if XX # of members own YY # of homes valued at $XYZ, but the XX # of members aren't fully utilizing capacity, then the club sells BBB more memberships. Doesn't the equity that the XX # of members currently have decrease? It should, assuming that the dollars paid by the latter members are "equity" memberships also. Or, does the last guy in basically own as much as the first guy in? Doesn't seem fair, does it? One rides out the tides, pays dues over the years (to travel, of course) and awaits the depreciation. The last guy in gets less, right?

Similar of course the the last members to join TH. They didn't get the opportunity to travel some 100 days / year like others, so their "economic loss" is higher.

Thus - the genesis of the AK lawsuit, whereby proving "economic loss" will be of primary importance. One might have paid $400k, but if they travelled 800 days (purely an example) over time, what was their ADR vs what they might have paid elsewhere, ie what is their "loss?"
 

wilkes591

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My understanding, (TT please correct me if I'm wrong), is that the property is transferred 'at cost'. "At cost' means actual cost, with no carrying cost. There is no profit in it for AK. And they don't charge any interest. (i'm going to double check, but I think it's correct)

What company in there right mind would build a house and give it to an unrelated company "At Cost". If that's the case then CRD is correct about the relationship between AK/Fortress.

All the builders I have ever dealt with built house with the idea of making a profit. I know that profit does not happen very much in the DC industry, so the idea of a club with equity is to good to be true.

But please if it is to good to be true, then it is not true! No offense meant to AK members, I just can not see one unrelated company giving members high end custom homes at cost. Builders always have a very high mark up on high end custom construction. Currently the cost of building high end house exceeds the existing high end home market. What does the club do in market such as this one? Not that they are adding anyway.

The equity model might work in the typical RE market, the problem is what happens in a deflationary housing market. How do you get members when everyone know home values are decreasing and might continue to decrease for years.

If economic conditions in the housing market continue it will be very hard for all clubs to survive. Nothing we did not already know.
 

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Power to the people...

To all you DC members out there this is an ideal time to create a DC Members' Association. Forget the DCs themselves and form an association and set your own guidelines for DCs and invite DCs to participate, and those that conform to your guidelines get your seal of approval.

It's sad to see all of you hanging around a timeshare oriented website mumbling about this and that about DCs. The timeshare owners here could care less. I do, since I still like the concept of a DC but I just know that all those fast talking hucksters that gave birth to the DC industry are hatching schemes in their basements as we talk. If you don't do something about this you will be bemoaning the state of affairs years from now - it will be just the old status quo which you have grown accustomed to.

Look at some of the power this website has to ARDA which is developer oriented - they know of this site. Granted the developers ignore TUG since we are intelligent about timeshares and pose the greatest threat to them. Same with DC's - they flourished with lots of folks who had "pocket change" to blow on schemes they were not knowledgeable about.

So start a website, hold elections, and steer the DC industry away from the awful mess it created by having hucksters run the industry. No one is going to do this for you but yourselves.

This is a great time to do this and get some great press to help you...
 
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What matters is that if XX # of members own YY # of homes valued at $XYZ, but the XX # of members aren't fully utilizing capacity, then the club sells BBB more memberships. Doesn't the equity that the XX # of members currently have decrease? It should, assuming that the dollars paid by the latter members are "equity" memberships also. Or, does the last guy in basically own as much as the first guy in? Doesn't seem fair, does it? One rides out the tides, pays dues over the years (to travel, of course) and awaits the depreciation. The last guy in gets less, right?

The only ones that get equity are the ones that put in equity. The level of membership one buys determines the equity if there was a wind down. The price of the membership does fluctuate up and down. Currently the memberships are marked down, which one could say is a fair reflection of the market (my house is certainly not worth as much either), but nonetheless does result in a some equity dilution to the extent that new members are being added versus replacing resigning members. However, to A&K's credit (for whatever reason, they never get credit for doing anything right on these boards despite the purely ridiculous antics of other clubs), they've significantly reduced their commission, so that the equity going in is much less of a reduction. Now I'm sure they did that in anticipation of some members saying why are you reducing the price of memberships, but the way I look at it, you've got to have your head in the sand to think that your house, vacation house, timeshare, fractional, whatever is worth the same as it was two or three years ago.

The same question has come up about other equity clubs. I remember the criticism about EE was that they don't mark up or down the value of the portfolio for purposes of buying into the fund. I can maybe see that argument better in the investment context like EE, but it's not like we're dealing with mutual funds here either.

To the point about never getting credit for doing the decent thing, unlike a lot of other clubs that seem to escape criticism, A&K doesn't have a development arm that buys houses, marks them up 20-40% and then sells them to the club. Of course, with other clubs, that (at least in the past) has not been disclosed to members. In contrast, A&K simply buys from a builder, furnishes it, and sells it at cost to the member's club. It's not a way of making money. Until the member's club has the money to buy the property, the member's club gets to use the property but accordingly does pay for the utilities, HOA fees, destination host, etc. Of course, the house could lose value in the interim or it could increase in value in the interim. Of course, the criticism from the boards will be doesn't that mean members are overpaying for houses now. Sure (although in reality it's academic, because the member's club is not buying any houses now), but members are underpaying in normal times when appreciation has ranged from 2-5%.

Non-equity clubs were designed around appreciating housing markets. The club owner's incentive to own the club was the appreciation and the tax benefits from the depreciation, and if the club thrived maybe then from the enterprise value of the club down the road. The problem with non-equity clubs is that with the housing market getting crushed, appreciation in the portfolio became less and less of a likely reality, and their other investments were also getting crushed, so the losses were of no tax benefit either (no gains to offset), so why put more money into a money losing business. Hence, the shut down or retooling of a number of non-equity DCs.

An equity club is analagous to buying a vacation property. If the value goes up, it's our portfolio that is increasing in value. Conversely, if the value goes down, it's our portfolio that is decreasing in value. The value of the portfolio nonetheless has no effect on my vacation enjoyment of the portfolio. Just like the value of a timeshare or fractional doesn't effect the vacation enjoyment of the property. However, it surely has some tangential effect on the value of my membership, again just like the value of a timeshare or fractional.

The concerns for an equity club are a good bit different than those of a non-equity club. If the equity club sponsor like RC, A&K, EE or whomever can't sell memberships, they may decide to get out of the business, so the real risk is in losing your sponsor. You still own the real estate and can continue on, but you end up needing to do something like M Private Residences did, which is hiring their own management.
 
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To all you DC members out there this is an ideal time to create a DC Members' Association. Forget the DCs themselves and form an association and set your own guidelines for DCs and invite DCs to participate, and those that conform to your guidelines get your seal of approval.

I don't often agree with PerryM, but that does make a lot of sense. If people expended half the energy that they do trying to find some fault in some competing club's model on trying to actually improve the industry as a whole (or even just their own club), we might actually get somewhere. Members individually have very little pull, but as a group, it's a much different story IMO.
 

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I don't often agree with PerryM, but that does make a lot of sense. If people expended half the energy that they do trying to find some fault in some competing club's model on trying to actually improve the industry as a whole (or even just their own club), we might actually get somewhere. Members individually have very little pull, but as a group, it's a much different story IMO.

I don't often agree with him either, but I do this time!

At the very least it should be pretty easy to replicate the DC4MS under a new name.

I nominate Tarheel as President of the DC Members Assn. and Kage as Webmaster... and while we're at it, I'll nominate 3DH as social director.
 
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I don't often agree with him either, but I do this time!

At the very least it should be pretty easy to replicate the DC4MS under a new name.

I nominate Tarheel as President of the DC Members Assn. and Kage as Webmaster... and while we're at it, I'll nominate 3DH as social director.

I think I probably need the cocktails associated with being social director more.:D

Separately, there had been some talk offline with starting a new DC4MS if it doesn't reappear. Any one have any idea if it's coming back or know what happened? I've heard rumors from various folks but would love to hear from someone in the know. If it's legally related as most suspect, I'd be willing to chip in for the legal defense fund. It's not like he was making any money off of the site.
 

Kagehitokiri2

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the only point of nonrefundable is to have committed members only. random thought - could do "surprise" (not mentioned before joining) "dividends" after property sales.

that got me onto another track. a fund club that is perpetual. could make deposits here nonrefundable too. (could be transferable.) instead of selling all properties simultaneously after x time, you sell regularly. and every time you sell, the entire amount is divided by # of members, and members can either withdraw or "reinvest."

also a thought for hotel/resort-managed properties - as long as they are reasonably upscale, clubs could let the hotel/resort upsell same-day or last-minute.
 

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Now I'm sure they did that in anticipation of some members saying why are you reducing the price of memberships

Didn't their price reduction have to do with a couple things - 1) obviously stimulate sales, 2) a moderate reflection of what the marketplace is for resort real estate (assuming they are in the mode of buying any, and more importantly, 3) a trigger point for legacy members wanting to redeem.

There was some chatter about BH and CR members having a window of time to redeem out at their "then XX % of market value." Not sure if you can confirm that or not. Would seem if you had some redemption trigger that lowering the prices would be the best way to stop that run on the bank effect, and based on market conditions, one would be even more justified in doing so.

Are AKRC members who came from the acquisition actually wanting to redeem? I wouldn't think many were.
 
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Didn't their price reduction have to do with a couple things - 1) obviously stimulate sales, 2) a moderate reflection of what the marketplace is for resort real estate (assuming they are in the mode of buying any, and more importantly, 3) a trigger point for legacy members wanting to redeem.

I believe that is a fair characterization.

There was some chatter about BH and CR members having a window of time to redeem out at their "then XX % of market value." Not sure if you can confirm that or not. Would seem if you had some redemption trigger that lowering the prices would be the best way to stop that run on the bank effect, and based on market conditions, one would be even more justified in doing so.

CR members could redeem their memberships starting at the end of last year. Not sure about the BH members. There is no deadline for doing so, so legacy members are free to do so at any point going forward. In either case, I believe it's based on the current selling price of the memberships.

Are AKRC members who came from the acquisition actually wanting to redeem? I wouldn't think many were.

I don't think very many at all are redeeming, and to the extent that there are, the 1 in: 1 out is providing a pretty short wait. Of course, the disadvantage to that for existing members is you're not adding houses as long as you've got someone wanting to redeem.
 
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