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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