How strong is the exclusive right of the Lagunamar owners to compete for the entire inventory during the Home Resort Reservation Period?

[timsi]

IMO during the Home Resort Reservation Period Abound cannot have access to the Lagunamar inventory and this is the whole idea behind the home resort. It does not matter whether they want to use deposits (“elections”) made by Lagunamar owners or inventory controlled by the developer. I decided to start a discussion specific to Westin Lagunamar because the other thread included material from other resorts and VSN rules that may not be relevant for Lagunamar. What do you guys think? I think this is relevant not only for the Lagunamar owners but also for those that book Lagunamar through VSN because a 4-month head start for Abound means a lot less inventory available to book with StarOptions 8 months before check in. Thank you.


These are the relevant articles concerning the reservations as found in the Bylaws of Cancun Lagunamar Property Ownership Association :

“ARTICLE THIRTEEN THE PLAN RESERVATION SYSTEM

13.1. Reservation Windows.
(a) Required Reservation Periods. There must be at least one “Home Resort
Reservation Period.” The Home Resort Reservation Period must permit a Member to request a reservation, without competition from anyone who is not assigned a Vacation Ownership Interest in a Vacation Unit that is the same Unit Type as the Member’s Unit Type and for any Vacation Period in the same Season as the Member’s Vacation Week, provided that nobody else has reserved the Vacation Period and that no other Persons have the exclusive right to reserve the Vacation Period. The Home Resort Reservation Period must last at least sixty (60) days. The Home Resort Reservation Period cannot begin more than eighteen months before the Check-in Day for any Use Period.
(b) Founding Member and Association Manager Reservations. The
Reservation Rules may create one or more reservation periods during which the Founding
Member and/or the Association Manager may reserve any Use Period in a Vacation Unit that
nobody else has reserved and that no other Persons have the exclusive right to reserve. This
means the Members may have to compete with the Founding Member and/or the Association
Manager for a reservation. This Reservation Period may not start more than sixty (60) days before the Check-in-Day of a Use Period. It may overlap with other Home Resort Reservation
Periods.
(c) Additional Reservation Periods. In addition to these Reservation Periods,
there may be other Reservation Periods including Home Resort Reservation Periods. They may
appear, for example, when the Developer creates a new Unit Type or a new kind of Vacation
Ownership Interest or when the Property Association creates new kinds of Reservation Periods
as permitted by the Vacation Plan Documents.
(d) Reservation Priorities. The Reservation Rules may, but are not required
to, create other reservation priorities. For example, they may give priority to the reservation
requests of: (1) a Member requesting two or more Vacation Weeks in a row over a Member
requesting a single Vacation Week; (2) a Member owning an Annual Vacation Ownership
Interest over a Member owning an Biennial Vacation Ownership Interest; (3) a Member
requesting the use of a whole Two Bedroom Lock-Off Unit; or (4) a Member requesting a
Vacation Period over a Member requesting a Split Vacation Period. The reservation rules may
also provide for rotating the use of Use Periods in great demand, such as holiday Use Periods,
and for waiting lists.

13.2. Reservation Errors. If anyone entitled to occupy a Vacation Unit cannot do so
due to an error by the entity operating the reservation system, then that entity must find and pay
for (as liquidated damages) other lodgings in the same area for the injured Person and his or her
Guests to stay during his or her Vacation Period. The lodgings should sleep as many people as
the Member’s Assigned Unit.

13.3. Exchange Programs. The Property Association may enter into a contract with
one or more External Exchange Companies to provide External Exchange Program services to
Members. In addition, the Property Association may enter into an affiliation agreement with an
Internal Exchange Program to provide internal exchange program services to Members. For
administrative convenience in the operation of the reservation system for the Property
Association and in the determination of the respective rights of Members, each Member may
receive an assigned number of “Points” representing the reservation power of the Member’s
Vacation Ownership. Currently, these points are described as “StarOptions.” The issuance and
use of StarOptions are governed by the Reservation Rules. The Property Association may utilize
or adopt the rules of the Internal Exchange Program as its Reservation Rules.

13.4. Delinquent Members. A Member is not allowed to reserve, use or exchange a
Vacation Unit if (i) the Member has not paid any Member Charge due or past due, or (ii) if the
Member has not paid any amounts due under any note or Security Interest made by the Member
in favor of the Founding Member. The Manager may cancel a reservation held by a Member if
that Member does not pay any Regular Assessment, Special Assessment or Personal Charge due
or past due.

13.5. Transaction Fees. The reservation rules may require that the Members pay
reasonable fees relating to the manner in which a Member wishes to use his or her Vacation
Ownership Interest.

13.6. Reservation Rules. Each Member shall follow the Reservation Rules in order
to access a Vacation Period associated with such Member’s Vacation Ownership Interest. The
Board has the power to utilize the reservation rules of an external or internal exchange program
as the Reservation Rules for the Plan. Currently, the Board has determined that the
Reservation Rules for the Starwood Vacation Network shall serve as the reservation rules
for the Vacation Ownership Plan and the Starwood Vacation Exchange Company shall
serve as the operator of the Plan’s Reservation System. A copy of the SVN Rules shall be
provided to each Member at the time of purchase. These Reservation Rules shall remain in place
for as long as the Resort is affiliated with the Starwood Vacation Network.

13.7. Amendment. This Article may not be amended without a vote of at least 90%
of the votes of each class of Members.”

And article 2:

"2.2. Conflicts. In the event of conflict between the provisions of the Vacation Plan
Documents, the following shall control in order of priority: these Bylaws, the Reservation Rules,
the Resort Rules and, as to any particular Member, the Equity Membership Certificate."

 

[daviator]

without competition from anyone who is not assigned a Vacation Ownership Interest

But I’m the case of Abound, anyone who elects Abound for a given year has assigned their VOI for that year to MVC, and MVC can use it just like the owner could have, including competing during the Home Resort period. The electing owner assigns their rights to MVC, not unlike if you were to allow a family member to use your ownership in a given year. They could compete with other owners just as you could.

At least that’s my read on it. I don’t own at Lagunamar FWIW.

 

[timsi]

But I’m the case of Abound, anyone who elects Abound for a given year has assigned their VOI for that year to MVC, and MVC can use it just like the owner could have, including competing during the Home Resort period. The electing owner assigns their rights to MVC, not unlike if you were to allow a family member to use your ownership in a given year. They could compete with other owners just as you could.

At least that’s my read on it. I don’t own at Lagunamar FWIW.

Not really, the Bylaws mention the assignment process, you have to be registered with Chicago Title as part of the transfer of ownership. Of course, those who are not owners also cannot vote, only those who are assigned VOIs (also in the Bylaws). The same idea. Can you imagine if suddenly Vistana claimed that you lost the right to vote the moment you deposited your week into an exchange?

Remember, the whole idea with being an owner is to differentiate between owners and those who exchange. It is not that the exchangers do not have the right to book but they just have to wait until the home resort reservation period ends and only then they can book what is left.

 

[dioxide45]

Don't you already have a whole long thread on this exact same topic?

Abound has been created. Now what for the unqualified Vistana voluntary weeks?

Unlike the voluntary VOIs, the mandatory resale VOIs have not been offered anything to mitigate the losses that arise from the creation of Abound, primarily the infringement of the right to enjoy without competition exclusive priority during the home reservation period. I looked at the documents...

tugbbs.com

 

[EnglishmanAbroad]

Today, as soon as you make a SO reservation aren't you are 'giving up' your VOI.

So today, I could for example, use my 2023 Lagunamar SO to make a Maui reservation for March 2023. If tomorrow I change my mind and cancel the reservation I don't get my 2023 Lagunamar VOI back as far as I'm aware. Or do I?

 

[bnoble]

IMO

This is the most important part of your post.

It's your opinion. It's also wrong.

 

[dioxide45]

This is the most important part of your post.

It's your opinion. It's also wrong.

I wouldn't necessarily say it is wrong, that is up for a court to decide. If one were to take it to court.

 

[timsi]

Today, as soon as you make a SO reservation aren't you are 'giving up' your VOI.

So today, I could for example, use my 2023 Lagunamar SO to make a Maui reservation for March 2023. If tomorrow I change my mind and cancel the reservation, I don't get my 2023 Lagunamar VOI back as far as I'm aware. Or do I?

Yes you do, you can still book your home resort during the Home Resort Reservation Period if you cancel your Maui reservation. Regardless, you only give up your week (regardless of how Vistana posts on the website for inventory purposes) but the ones that exchange through VSN still have to wait for the home resort reservation period to end. You cannot book Maui 12 months before check in if your are using Lagunamar, even if the inventory for your booking comes from a Maui owner.

 

[timsi]

Don't you already have a whole long thread on this exact same topic?

Abound has been created. Now what for the unqualified Vistana voluntary weeks?

Unlike the voluntary VOIs, the mandatory resale VOIs have not been offered anything to mitigate the losses that arise from the creation of Abound, primarily the infringement of the right to enjoy without competition exclusive priority during the home reservation period. I looked at the documents...

tugbbs.com

That thread is in most part not specific to Lagunamar but to the VSN rules.

 

[DavidnRobin]

TL;DR


Sent from my iPhone using Tapatalk

 

[timsi]

This is the most important part of your post.

It's your opinion. It's also wrong.

That is also your opinion. Do you typically book your own resort, or you exchange most of the time?

Maybe I should ask the HGVC owners how they would feel if Max started booking 12 months before check in. I am a bit surprised when owners would allow the developer to play fast and loose with the existing rules, I always thought that the Vistana owners understood and respected the idea of home resort and everything that derived from that.

 

[sponger76]

Don't you already have a whole long thread on this exact same topic?

Abound has been created. Now what for the unqualified Vistana voluntary weeks?

Unlike the voluntary VOIs, the mandatory resale VOIs have not been offered anything to mitigate the losses that arise from the creation of Abound, primarily the infringement of the right to enjoy without competition exclusive priority during the home reservation period. I looked at the documents...

tugbbs.com

This dead horse is really taking a beating.

 

[bnoble]

I wouldn't necessarily say it is wrong, that is up for a court to decide.

There is zero chance that the election agreement doesn't include a provision granting rights to the Abound trust to reserve the underlying week as if it were the owner. Zero. It's not as if Marriott is the first timeshare company to ever overlay a points system on top of a fixed/floating weeks system. For that matter, it's not the first timeshare company to overlay a point system on top of another point system. The legal mechanisms to do that are well trod.

 

[ocdb8r]

Not really, the Bylaws mention the assignment process, you have to be registered with Chicago Title as part of the transfer of ownership. Of course, those who are not owners also cannot vote, only those who are assigned VOIs (also in the Bylaws). The same idea. Can you imagine if suddenly Vistana claimed that you lost the right to vote the moment you deposited your week into an exchange?

As usual you gloss over and misinterpret the details to try to make your argument more plausible.

1) the bylaws mention registration with the Registrar for the "...registration, transfer and exchange of Equity Membership Certificates..." - there is nothing there about "assignment" (whether permanent or temporary) of anything, much less the reservation and usage rights that accompany a Vacation Ownership Interest. As such, there is wide room for interpretation that these rights may be assigned to the Exchange Program with the same exact rights as the owner (as is laid out in the Exchange Program documentation). As you have pointed out, only in case of a conflict would the bylaws prevail (and given there is reasonable room to interpret the Exchange Program Rules and the Bylaws as NOT in conflict, I do not believe this would be successfully challenged in court).

2) your argument regarding the right to vote is also a red herring; the bylaws clearly indicate the right to vote is associated with who is named on the Equity Ownership Certificate, so no "assignment" of a Vacation Ownership Interest would entitle another person (or entity) to vote.

I agree with dioxide45 - it would be for a court to decide. Stop wasting pages in the TUG forums to try to convince an audience that can't solve this for you.

[Ignore function re-engaged]

 

[timsi]

There is zero chance that the election agreement doesn't include a provision granting rights to the Abound trust to reserve the underlying week as if it were the owner. Zero. It's not as if Marriott is the first timeshare company to ever overlay a points system on top of a fixed/floating weeks system. For that matter, it's not the first timeshare company to overlay a point system on top of another point system. The legal mechanisms to do that are well trod.

It does not matter the provisions Vistana and Marriott come up with concerning the Abound exchange procedures. In case of conflict, the Bylaws have priority.

"2.2. Conflicts. In the event of conflict between the provisions of the Vacation Plan
Documents, the following shall control in order of priority: these Bylaws, the Reservation Rules,
the Resort Rules and, as to any particular Member, the Equity Membership Certificate."

 

[dioxide45]

There is zero chance that the election agreement doesn't include a provision granting rights to the Abound trust to reserve the underlying week as if it were the owner. Zero. It's not as if Marriott is the first timeshare company to ever overlay a points system on top of a fixed/floating weeks system. For that matter, it's not the first timeshare company to overlay a point system on top of another point system. The legal mechanisms to do that are well trod.

Again, we don't know that. There is simply an affiliation agreement between Abound and VSN. According to the Abound exchange procedures, when I elect points for my week I grant Abound my usage rights. But we don't really know if that is legal based on the underlying documents. The affiliation agreement can't override base ownership rights. Almost every other timeshare system with points that I can think of protects a home resort ownership right. Wyndham does this, HGVC does it with both the the HGV Club and HGV Max. Marriott seems to be unique in their setup of how they created their points overlay. We shouldn't make assumptions based on what we don't really know.

 

[timsi]

As usual you gloss over and misinterpret the details to try to make your argument more plausible.

1) the bylaws mention registration with the Registrar for the "...registration, transfer and exchange of Equity Membership Certificates..." - there is nothing there about "assignment" (whether permanent or temporary) of anything, much less the reservation and usage rights that accompany a Vacation Ownership Interest. As such, there is wide room for interpretation that these rights may be assigned to the Exchange Program with the same exact rights as the owner (as is laid out in the Exchange Program documentation). As you have pointed out, only in case of a conflict would the bylaws prevail (and given there is reasonable room to interpret the Exchange Program Rules and the Bylaws as NOT in conflict, I do not believe this would be successfully challenged in court).

2) your argument regarding the right to vote is also a red herring; the bylaws clearly indicate the right to vote is associated with who is named on the Equity Ownership Certificate, so no "assignment" of a Vacation Ownership Interest would entitle another person (or entity) to vote.

I agree with dioxide45 - it would be for a court to decide. Stop wasting pages in the TUG forums to try to convince an audience that can't solve this for you.

[Ignore function re-engaged]

Sorry to say but you are not correct on either. You have to be a member to have VOIs and you have to go through Chicago title. About the vote it is also clear:

"3.7. Two Classes of Members. The Property Association shall have two (2)
classes of voting memberships:
(a) “Class A Members” shall be all Members except the Class B Member.
Each Annual Vacation Ownership Interest owned by a Class A Member has two (2) votes in
matters subject to a vote of Members. Each Biennial Vacation Ownership Interest assigned to a
Class A Member has one (1) vote.
(b) The Founding Member is the “Class B Member.” Each Annual Vacation
Ownership Interest assigned to the Class B Member has six (6) votes in matters subject to a vote
of Members. Each Biennial Vacation Ownership Interests assigned to the Class B Member has
three (3) votes."

 

[GoPokes!]

There is zero chance that the election agreement doesn't include a provision granting rights to the Abound trust to reserve the underlying week as if it were the owner. Zero. It's not as if Marriott is the first timeshare company to ever overlay a points system on top of a fixed/floating weeks system. For that matter, it's not the first timeshare company to overlay a point system on top of another point system. The legal mechanisms to do that are well trod.

I am not disputing your assertion, but did you find such language in the election agreement?

 

[bnoble]

My assertion is based on the expectation that Marriott lawyers are competent.

I mean, I'm happy to be proven wrong, but if I were a betting man I'd lay the points and take the favorite on this one.

 

[ocdb8r]

"3.7. Two Classes of Members. The Property Association shall have two (2)
classes of voting memberships:
(a) “Class A Members” shall be all Members except the Class B Member.
Each Annual Vacation Ownership Interest owned by a Class A Member has two (2) votes in
matters subject to a vote of Members. Each Biennial Vacation Ownership Interest assigned to a
Class A Member has one (1) vote.
(b) The Founding Member is the “Class B Member.” Each Annual Vacation
Ownership Interest assigned to the Class B Member has six (6) votes in matters subject to a vote
of Members. Each Biennial Vacation Ownership Interests assigned to the Class B Member has
three (3) votes."

Again, either intentionally not reading the documents or twisting the facts. Yes, the amount of votes assigned is associated with a VOI - but the right to cast that vote is solely vested in the holder of the Equity Membership Certificate.

2.4. Primary User. The first person listed as the Member on an Equity Membership Certificate is the person who shall be considered the primary user for such Membership (the “Primary User”). The Primary User shall be considered the Equity Member and only the vote of the Primary User shall be counted as the vote assigned to that Equity Membership Certificate in the Property Association. The identity and notice address of the Primary User may be changed only upon written notice from the Primary User to the Registrar.

You have to be a member to have VOIs and you have to go through Chicago title.

No, you have to hold a Equity Membership Certificate to own a VOI - nothing in the bylaws prevents you from assigning your VOI usage rights to the Exchange Program.

11.3 "...The Primary User in whose name any Equity Membership Certificates is so registered shall be deemed and treated as the sole owner and Member thereof for all purposes of these Bylaws and the other Vacation Plan Documents and Registrar ."

 

[dioxide45]

My assertion is based on the expectation that Marriott lawyers are competent.

I mean, I'm happy to be proven wrong, but if I were a betting man I'd lay the points and take the favorite on this one.

I think far too many people put far too much confidence in corporate attorneys. In many cases they are simply inept and provide advice based on what they think they can get away with based on potential challenges that may come forward. They know ;legal challenges will be few and far between simply due to lack of desire of potential plaintiffs and the fact that the corporations have far more money than individual owners. It is more about what they can get away with rather than what they can legally do or not do.

 

[ocdb8r]

I think far too many people put far too much confidence in corporate attorneys. In many cases they are simply inept and provide advice based on what they think they can get away with based on potential challenges that may come forward. They know ;legal challenges will be few and far between simply due to lack of desire of potential plaintiffs and the fact that the corporations have far more money than individual owners. It is more about what they can get away with rather than what they can legally do or not do.

I don't see that you and bnoble are in disagreement - you indicated above the Abound affiliation agreement indicates when you elect Abound points you assign your usage rights (I haven't see a copy to check, but trust that is the case). I think bnoble is just arguing that such a provision must exist.

From that point it all turns on timsi's rant that this is in conflict with the Lagunamar bylaws - I am not convinced it is in conflict with the provision cited over and over again. Nothing has been produced that indicates an owner may not assign their usage rights to the Exchange Programs; until that provision emerges, I believe there is plenty of latitude for a court to interpret that the byelaws and Exchange Program Rules are not in conflict and no need to resolve....

 

[dioxide45]

I don't see that you and bnoble are in disagreement - you indicated above the Abound affiliation agreement indicates when you elect Abound points you assign your usage rights (I haven't see a copy to check, but trust that is the case). I think bnoble is just arguing that such a provision must exist.

From that point it all turns on timsi's rant that this is in conflict with the Lagunamar bylaws - I am not convinced it is in conflict with the provision cited over and over again. Nothing has been produced that indicates an owner may not assign their usage rights to the Exchange Programs; until that provision emerges, I believe there is plenty of latitude for a court to interpret that the byelaws and Exchange Program Rules are not in conflict and no need to resolve....

I don't necessarily disagree, but the question remains around bulk deposits to external exchange and how that is permitted. Can a bulk deposit just be a deposit of your usage rights rather than the deposit of physical inventory.

I am also playing devil's advocate to some degree. To simply say that Marriott has lawyers and they are competent with nothing else to back it up isn't enough to claim that someone else is wrong in their interpretation. It doesn't matter how much money you would be willing to bet on it.

 

[daviator]

Yes you do, you can still book your home resort during the Home Resort Reservation Period if you cancel your Maui reservation. Regardless, you only give up your week (regardless of how Vistana posts on the website for inventory purposes) but the ones that exchange through VSN still have to wait for the home resort reservation period to end. You cannot book Maui 12 months before check in if your are using Lagunamar, even if the inventory for your booking comes from a Maui owner.

I don’t think this is true. When you use (for example) your 2023 StarOptions to make a reservation at a different resort than you own, you are irrevocably giving up your 2023 Home Resort reservation rights. If you subsequently cancel the SO reservation, you’ll get the SOs back (restricted if it’s within 60 days of checkin) but you do NOT get your home resort reservation priority back for 2023.

 

[GoPokes!]

Nothing has been produced that indicates an owner may not assign their usage rights to the Exchange Programs

I don't believe anyone disagrees with this. However it sounds like timsi's concern is related to when the assigned usage right could actually be exercised. That is, could it be exercised during the home resort reservation period? If so, then that appears to contradict the sentence that timsi bolded in the original post. That sentence mentions "unit type", and since Abound points aren't units, then it would seem that Abound points reservations would have to wait until the home resort reservation period is over.