Ms. Williams

ADA Compliance

ADA Compliance: New Regulations Affect Vacation Ownership Properties

By Soy Williams, President, Soy Williams Consulting, Inc.

Twenty years have passed since the Americans with Disabilities Act (ADA) became the law of the land. Before then, the federal Fair Housing Amendments Act was passed in 1988. Yet many still question whether their timeshare, condo-hotel, or other similar vacation ownership properties are required to comply with one or both. Owners and operators become aware of a problem only after a guest with a disability complains, a lawsuit is filed, or the U.S. Department of Justice begins an investigation. Recent changes to the ADA regulations promise to reinvigorate the continuing debate on providing compliant lodging facilities.

The U.S. Department of Justice (DOJ) has made significant changes to the Americans with Disabilities Act regulations governing the lodging industry. Included in these changes are provisions that should further assist owners and operators in determining whether their timeshares, condo-hotels, fractional ownership and other "hybrid" vacation ownership properties should comply with requirements of the ADA and the Fair Housing Act (FHAct).

The ADA is a better-known term in industry circles, even though the FHAct became law before the ADA. Rooted in the civil rights movement of the 1960s, the FHAct was first passed in 1968. The FHAct prohibited discrimination in the sale, rental and financing of housing based on color, religion, sex, or national origin. 1988 amendments to the FHAct expanded the coverage to include individuals with disabilities and families with children. The same amendments also established design and construction requirements for certain new multifamily dwellings for first occupancy after March 13, 1991.

The Americans with Disabilities Act celebrated its 20th anniversary last year, signed into law by President George H.W. Bush in 1990. Issues surrounding timeshares and other hybrid lodging facilities involving a myriad of ownership arrangements have owners and operators still questioning whether or not they are subject to the ADA, the FHAct, or both.

Hopefully by now there is little doubt that the ADA applies to "places of lodging" which include inns, hotels, motels and similar places that are used for short-term stays. Timeshares and other hybrids, however, deserve another look.

Is a timeshare required to comply with the ADA?

DOJ noted in a technical assistance letter in 1992 that one potential difference between a traditional hotel and a timeshare was the ownership in which timeshare owners are deeded a fee interest in a resort. Having taken that into consideration, DOJ came to the conclusion that certain timeshares were non-residential places of lodging based on following factors:

• Ownership of timeshare units was sold in short-term intervals consistent with the requirement that a place of lodging was intended or used for, or permited short-term stays;
• Recorded restrictive covenants limited rights of ownership over any specific unit;
• Owners of timeshare interests were not required to return to the same unit or even the same project, with the ability to utilize options to exchange units for units at other resorts, and
• Timeshare accommodations were operated like hotels.

Ownership structure is only one of many determining factors. Essentially, if a vacation ownership property is operated and used like a place of lodging then it is subject to the ADA.

Is a mixed-use residential and lodging facility required to comply with the Fair Housing Act?

In deciding Fair Housing Act coverage, ownership typically is not a controlling factor. The U. S. Department of Housing and Urban Development has held a long-standing position that the FHAct does not distinguish between different forms of ownership when determining whether a unit or building is covered. (For example, certain condominiums are covered by the FHAct design and construction requirements even if they are pre-sold as a shell and the interior is designed and constructed by the buyer.) Timeshare, fractional, cooperative or other ownership of units in a building does not affect whether the structure is subject to the FHAct accessibility requirements. Rather, the determinant is whether a unit is occupied as, or designed or intended for occupancy as a residence by one or more individuals.

Can the ADA and the FHAct apply to the same facility?

Drawing a line between a residence covered by the FHAct and a place of lodging covered by the ADA requires further analysis. In the preamble to the 1991 ADA regulations, DOJ discussed the relationship between the Fair Housing Act and the ADA concerning facilities that are both residential in nature and engage in activities that would cause them to be classified as places of lodging. For example, a condominium property or condo-hotel may allow both residential and short term stays. In that case, both the FHAct and the ADA may apply to the property. Such a facility (or portion thereof) when used as a residential facility would be subject to the FHAct. The same complex (or a portion thereof), operated or used as a place of lodging when guests are free to use units on a short term basis, would be subject to the ADA.

If a facility allows both residential and short-term stays and does not allocate spaces for these different uses in separate, discrete units, both the FHAct and the ADA may apply to the entire facility. This means that all units would need to include FHAct features, and an appropriate number of those units would also need to provide ADA compliant elements.

An Exception to the Rule

Every situation is unique. There is an exception to the application of the ADA to certain facilities that contain individually owned units, even when those units are used as short-term rentals. Where a unit is not owned or controlled by the entity that operates the overall facility, and the physical features of the unit interior are controlled by an individual owner, the unit may not be subject to any ADA requirement.

New Definition Provides Additional Guidance

Recent changes to the DOJ regulations (which became effective on March 15) are intended to bring additional clarity to ADA application to timeshares, condo-hotels and other hybrids. A more detailed definition states that a place of lodging is a facility that provides guest rooms for sleeping for stays that are primarily short-term in nature (generally 30 days or less) where the occupant does not have the right to return to a specific room or unit after the conclusion of the stay. In order to be considered a place of lodging, a facility also needs to provide guest rooms under conditions and with amenities similar to a hotel, motel, or inn.

Further consideration is given in the new regulations to whether a facility resembles a place of lodging. If a property is operated like a traditional hotel in the provision of management and reservations services, availability of guest rooms or units on a walk-up or call-in basis, availability of housekeeping or linen services, and if reservations are accepted without guaranteeing a particular unit until check-in without prior lease or security deposit, then the hybrid property would likely be a place of lodging covered by the ADA. Each property should be individually evaluated on a case by case bases in consultation with an attorney.

Key Difference Between FHAct and ADA Standards

The FHAct and the ADA design and construction requirements differ significantly in the number of units required to comply with the standards. Generally, the FHAct imposes a lower level of accessibility (sometimes referred to as "adaptability") over 100 percent of covered units, while the ADA requires only a certain number of guest units to be fully accessible.

The adaptability provisions of the FHAct are intended to facilitate the ability of persons with disabilities to enjoy their residences without imposing unreasonable requirements on builders, landlords and others residents. (An example of adaptability is the provision of bathroom wall reinforcement for later installation of grab bars.) Congress believed that such provisions would be easy to incorporate in design and construction of housing units and compliance with these minimum standards would eliminate many barriers that discriminated against persons with disabilities.

The ADA requirements are more robust. A place of lodging must include a certain number of units that are fully accessible in accordance with the ADA design and construction standards. Thus, a certain number of timeshare and similar guest units are required to be designed and constructed, modified or altered to be readily accessible to and usable by individuals with disabilities. It would be insufficient to provide only reinforcements for grab bars in an ADA unit, and fully compliant grab bars must also be installed.

New ADA Requirements for Recreational Facilities Also Apply

The new ADA requirements include standards for accessible recreational facilities not included in the previous regulations. Recreational boating facilities, exercise machines and equipment, fishing piers and platforms, golf and miniature golf facilities, play areas, swimming pools, wading pools and spas, if provide, are required to be to be accessible to individuals with disabilities. Saunas and steams rooms, if provided, must also comply with the new ADA standards.

Since there is no "grandfathering" under the ADA, construction must be initiated where none is planned to provide compliant recreational facilities. This means that construction would likely be required to alter affected areas such as golf courses, health clubs or spas, and swimming pools that are part of a lodging facility.

Compliance Deadline

The deadline to comply fully with these and all new ADA requirements is March 12, 2012, less than a year away. Refer to the following U.S. Department of Justice website for additional ADA information: http://www.ada.gov. Fair Housing Act information can be found at http://www.fairhousingfirst.org.

Soy Williams is a registered architect with more than 25 years of experience in disability related issues. Ms. Williams specializes in accessibility requirements of federal civil rights laws as well as model, state and local accessibility codes and standards. Ms. Williams became involved in the revisions to the Americans with Disabilities Act (ADA) accessibility guidelines in 1993 and was appointed by President William Jefferson Clinton to the U.S. Architectural and Transportation Barriers Compliance Board (the U.S. Access Board) in 2000. During her tenure she saw the completion of the revisions to the ADA guidelines. These guidelines are now the U. S. Department of Justice 2010 requirements for accessible buildings and facilities. Ms. Williams can be contacted at 305-238-9740 or soy@soywilliamsconsulting.com Extended Bio...

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