Guidance on the 2010 ADA Standards for Accessible Design

Subpart D - Title III Regulation A number of commenters argued that circumstances where there are legal barri- if a development decides to create a ers to requiring compliance with either the rental program, it must provide accessible alterations requirements or the requirements units. Otherwise the development would related to barrier removal. The Department have to ensure that units are retrofitted. A has added an exception to Sec. 36.406(c), commenter argued that if an existing build- providing that in existing facilities that ing is being converted, the Department meet the definition of places of lodging, should require that if alterations of the units where the guest rooms are not owned or are performed by an owner or developer substantially controlled by the entity that prior to sale of the units, then the altera- owns, leases, or operates the overall facil- tions requirements should apply, in order ity and the physical features of the guest to ensure that there are some accessible room interiors are controlled by their indi- units in the rental pool. This commenter vidual owners, the units are not subject to stated that because of the proliferation the alterations requirement, even where of these type of developments in Hawaii, the owner rents the unit out to the public mandatory alteration is the only way to through a transient lodging rental program. guarantee the availability of accessible In addition, the Department has added an units in the long run. In this commenter’s exception to the barrier removal require- view, since conversions almost always ments at Sec. 36.304(g) providing that in require makeover of existing buildings, existing facilities that meet the definition of this will not lead to a significant expense. places of lodging, where the guest rooms are not owned or substantially controlled The Department agrees with the by the entity that owns, leases, or oper- commenters that it would not be feasible ates the overall facility and the physical to require developers to hold back or features of the guest room interiors are purchase accessible units for the purposes controlled by their individual owners, the of making them available to the public in units are not subject to the barrier removal a transient lodging rental program, nor requirement. The Department notes, would it be feasible to require individual however, that there are legal relation- owners of accessible units to participate ships for some timeshares and coopera- in transient lodging rental programs. tives where the ownership interests do not convey control over the physical features The Department recognizes that places of units. In those cases, it may be the case of lodging are developed and financed that the facility has an obligation to meet under myriad ownership and management the alterations or barrier removal require- structures and agrees that there will be ments or to maintain accessible features. Department of Justice Guidance on 2010 Standards: Title III - 55