Could Your Timeshare Resort Be Subject to the Fair Housing Act Accessibility Requirements?

Co-Written By Ms Kelly D. Lodde

If the answer is yes, then the resort developer may be in for a surprise. Not

only does the federal Fair Housing Act (FHA) prohibit housing discrimination

based on race, color, national origin, sex, religion and disability in all

housing-related transactions, including selling, rentals, advertising and

lending, it also contains stringent accessibility and design requirements

pertaining to people with disabilities.

Developers may be familiar with the ADA (American with Disabilities Act)

accessibility requirements. The ADA requires only a small percentage of units be

accessible to persons with disabilities (roughly one unit per 25) and only

applies to so-called "public accommodations," which are defined to

include mainly hotel sleeping units. Other accessibility requirements apply to

office buildings, sports complexes, convention centers and other buildings open

to the public.

Fair Housing Act Coverage

Timeshare developers may not be familiar with the more burdensome FHA, which

applies to most multifamily residential dwellings such as apartments and

condominiums. The FHA requires every unit be made accessible or adaptable to

persons with disabilities if the covered dwelling was constructed after March

13, 1991. Moreover, it is possible that, if a covered property was constructed

after March 13, 1991, but does not meet FHA accessibility requirements, that

project may need to be modified to come into compliance. Accordingly, a

purchaser of a project constructed after March 13, 1991, may have exposure if

that project is subject to, but not constructed in accordance with the FHA. The

FHA identifies several general areas of compliance as follows: public and common

use areas, doors and passages, accessible routes, light switches, electrical

outlets, thermostats, and other environmental controls, reinforcement of

bathroom walls to permit installation of grab bars and maneuvering of clearance

space for wheelchairs in bathrooms and kitchens.

Although, the FHA does not expressly refer to timeshares or declare timeshare

ownership property subject to the FHA, commentary from HUD (the FHA enforcement

agency) and case precedent indicate timeshare property may be subject to the

FHA.

In 1989, HUD commented that the scope of a covered dwelling under the FHA is

broad enough to cover condominiums, corporations and time-sharing properties

(Fed. Reg. 3238). Additional HUD commentary in 1991 indicates that whether a

timeshare...

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