Guidance on the 2010 ADA Standards for Accessible Design

Subpart D - Title III Regulation financially infeasible. This would be espe- pool to increase the availability of accessible cially true for smaller projects. Finally, this units. One commenter argued that the legal commenter argued that requiring units to entity running the place of lodging has an be part of the common elements that are obligation to retain control over the required owned by all of the individual unit owners number of accessible units to ensure that is infeasible because the common owner- they are available in accordance with title III. ship would result in pooled rental income, which would transform the owners into A number of commenters also argued participants in a rental pool, and thus turn that the Department has no legal author- the sale of the condominiums into the sale ity to require individual owners to engage of securities under SEC Release 33-5347. in barrier removal where an existing development adds a rental program. Several commenters noted that requir- One commenter stated that Texas law ing the operator of the rental program to prohibits the operator of on-site rental own the accessible units is not feasible program from demanding that alterations either because the operator of the rental be made to a particular unit. In addition, program would have to have the funds to under Texas law, condominium declara- invest in the purchase of all of the acces- tions may not require some units and not sible units, and it would not have a means others to make changes, because that of recouping its investment. One commenter would lead to unequal treatment of units stated that in Texas, it is illegal for on-site and owners, which is not permissible. rental programs to own condominium units. Another commenter noted that such a One commenter stated that since it requirement might lead to the loss of on-site was not possible for operators of rental rental programs, leaving owners to use indi- programs offering privately owned condo- vidual third-party brokers, or rent the units miniums to comply with accessible scop- privately. One commenter acknowledged ing, the Department should create exemp- that individual owners cannot be required tions from the accessible scoping, espe- to place their units in a rental pool simply to cially for existing facilities. In addition, this offer an accessible unit to the public, since commenter stated that if an operator of the owners may be purchasing units for their an on-site rental program were to require own use. However, this commenter recom- renovations as a condition of participa- mended that owners who choose to place tion in the rental program, unit owners their units in a rental pool be required to might just rent their units through a differ- contribute to a fund that would be used to ent broker or on their own, in which case renovate units that are placed in the rental such requirements would not apply. 54 - Guidance on 2010 Standards: Title III Department of Justice