Marriott Exercises ROFR on a Gift

[Sapper]

As I stated in another thread, a major (if not the main) purpose of ROFR is to push people too retail. They do that by creating confusion and frustration among other things.

For all states I am aware of to put terms in the contract that are not the actual terms and for the purpose of misleading related to ROFR would be a violation of state law. Therefore to make a side deal for the purpose of bypassing ROFR is both illegal and dishonest.

If person A sells property to person B for a sum of money. Then person B gifts the same sum of money back to person A as a separate transaction. The two transactions are legal.

 

[Saintsfanfl]

I would think in this instance, the seller/giftor could refuse to complete the transaction and then submit another contract with a higher consideration attached. Language could be added that if the contract passes ROFR and is not taken by MVC that buyer will be entitled to a rebate, 30 days after closing/settlement.

I like your thinking. The rebate back to the buyer is spelled out and not hidden or under the table. Marriott wouldn't like it and perhaps they could contest it but I doub't they would spend the effort. They have thousands more to move onto.

 

[SteelerGal]

I would think in this instance, the seller/giftor could refuse to complete the transaction and then submit another contract with a higher consideration attached. Language could be added that if the contract passes ROFR and is not taken by MVC that buyer will be entitled to a rebate, 30 days after closing/settlement.

I like this as well.

 

[Dean]

If person A sells property to person B for a sum of money. Then person B gifts the same sum of money back to person A as a separate transaction. The two transactions are legal.

Not if it's for the purpose of bypassing ROFR or if one is continent on the other. Can it be done, yes in all likelihood, I know it's been done in the past at times but ultimately it comes down to the integrity of the parties. And whether one agrees that Marriott should or shouldn't do this (they have the legal right) doesn't affect those issues.

 

[Sapper]

Not if it's for the purpose of bypassing ROFR or if one is continent on the other. Can it be done, yes in all likelihood, I know it's been done in the past at times but ultimately it comes down to the integrity of the parties. And whether one agrees that Marriott should or shouldn't do this (they have the legal right) doesn't affect those issues.

One contingent on the other makes it a single transaction, which if not disclosed to the entity that can exercise ROFR, would not be legal. I’ll agree with that.

 

[Dean]

One contingent on the other makes it a single transaction, which if not disclosed to the entity that can exercise ROFR, would not be legal. I’ll agree with that.

Which was precisely the issue I responded to. This would be state law but I've seen this issue referenced for a number of states as illegal and never seen a post that supported the reverse for any state but you never know. Another common suggestion is to include payment that would not be possible to match but usually there is a requirement that the item can be assigned a monetary value. I did this a few years ago, not to bypass ROFR but because it was the actual deal. I was trading a 1 BR week at La Cabana in Aruba for 50 DVC points. The value was basically the same and when queried, we stated that reasonable value. DVC waived ROFR and we proceeded with both transactions successfully. On another time I sold DVC points and DVC exercised ROFR. One thing they tried though was to add terms to the deal. They added that I was forbidden from disclosing the terms. I refused for 2 reasons. I'd actually already disclosed the terms but mostly out of principle. I was willing to lose the sale and keep the points rather than proceed in that situation. They caved and we completed the transfer.

Here's one reference I found online.

A final note about right of first refusal agreements: both parties must act in “good faith” in honoring the agreement. In other words, neither the grantor nor the holder may collude with a third party in an effort to subvert the ROFR.

 

[SeekingOne]

So, are you saying that when I die, I cannot gift my weeks to a friend, because Marriott can exercise ROFR?

 

[Bill4728]

Receiving something in a will is not a gift . I'm unsure if it even need to go thru ROFR.

 

[dioxide45]

So, are you saying that when I die, I cannot gift my weeks to a friend, because Marriott can exercise ROFR?

This wouldn't be a give but rather treated as an inheritance and I don't think ROFR applies.

 

[Dean]

So, are you saying that when I die, I cannot gift my weeks to a friend, because Marriott can exercise ROFR?

As noted, it's a different situation when it's willed rather than gifted.

 

[BJRSanDiego]

I'm wondering if anyone has gifted a Marriott timeshare to a relative with the same last name and indicates that the person receiving the TS is a close relative. Does Marriott ask for proof that the recipient is either a sibling or offspring?

 

[hcarman]

I had a friend who just got gifted a timeshare week from her sister. I don’t believe they had any ROFR issue. Her sister was disabled and could no longer use.