Is The ADA Compliance Infringing on Home Owner Rights?

Recent events in Lake Tahoe and Big Bear are now raising a new question about whether the American Disabilities Act applies to home ownership. As real estate agents we consider home ownership one of the most sacred freedoms that we enjoy as Americans. Yet this right continues to be attacked constantly. As a result we see these rights boxed in with limitations ranging from building codes to deed restrictions.

Enforcement of the ADA compliance has revealed the fragility of our right to property usage. In a second home market such as Big Bear and Lake Tahoe, it is not uncommon to see home owners use their homes as vacation rentals. The ADA law says that private entities must provide public access to handicap people. It goes further to include inns, hotel, motels and other places of lodging. However, does “other places of lodging” include residential facilities such as condos or homes? Please refer to the statues below:

section 42 § 12181 (7)(A) states, “(7) Public accommodation
The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce—
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) 42 § 12182 (a) General rule
(C) No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

This is something that is now being challenged in Big Bear and Lake Tahoe. A group of investors representing hotels, motels and inns are trying to eliminate its competition in Big Bear by using the ADA law against vacation rental agencies and home owners. In Lake Tahoe an individual that happens to be an attorney with a handicap is pursuing law suits against commercial properties, businesses and vacation rentals such as homes and condos. This individual is both enforcing compliance with ADA requirements and seeking cash settlements that are ranging in the thousands of dollars.

For those of you that are not familiar with the vacation rental market, it is a home owner that rents their home on a nightly basis but it is usually infrequent. In large, the income earned is not substantial and most are happy to realize enough revenue to pay a small portion of their property expenses. For example the average occupancy might only be two months out of the year. At $150 per night this could equate to a gross amount of $8,000 to $10,000 per year. Minus the management fees and you might have enough to pay the property tax bill.

Obviously, vacation rentals are not a profit making venture. In its aggregate form, the rental agencies are able to make a profit by managing dozens of these properties. The vacation rental business as a whole does represent a significant percentage of the lodging business. As more home owners use their homes for vacation rentals it does make an impact. The Big Bear lawsuit did exempt the rental agencies from any liability due to ADA compliance. Because the rental agencies did not own the homes, the judge did suggest that the home owners themselves could be liable. The door is now open to an attack on the home owners.

Many of you understand that building codes change every year. If a home owner were to be held liable for every code change, you could imagine the huge cost of renovation that it would extol. That is why homes are grandfathered for future codes. However, a major remodel could make the home owner eligible to comply with current codes. Shouldn’t a home owner have the same protection from ADA laws regardless of usage? Should an infrequent rental be considered as public access?

Don’t get me wrong. I believe that public entities should create public access for everyone which includes the handicap. In fact many of us have been temporarily handicapped at some point in our life which includes me. As we grow older, we become handicapped. It’s in my best interest and yours to make sure this happens. But to what extent should this apply? What is reasonable? If the above mentioned plaintiffs are successful with enforcing ADA compliance with individual home owners, is this an infringement on our individual ownership rights? I look forward to your comments.