The Global Financial Crisis is motivating lenders, developers and operators to get creative. We at JMBM are busy looking at opportunities with our clients to purchase and/or reposition distressed hotel properties, unsold condo hotels or condo hotel inventory, and unsold timeshares and timeshare inventory. Some of these properties will need to be renovated and repurposed to compete in this difficult market. It is important to understand what physical modifications to a timeshare, hotel or other facility may involve upgrades under the Americans with Disabilities Act and applicable state disabled access laws.
How can you determine if your property is compliant with applicable access laws?
Title III of the Americans with Disabilities Act prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
To determine whether a modification to a structure is an “alteration” under the Americans with Disabilities Act, the following are considerations:
- The aggregate cost of the modification relative to the physical and financial characteristics of the structure
- The physical scope of the modification (e.g., What specific portions of the structure were modified? Did the modification affect only the structure’s surfaces or did it affect the structural components? Did the modifications affect only personal property or did it affect fixtures that are considered realty? Did the modifications affect the “usability” of the building or facility?)
- The reason for undertaking the modification (e.g., maintenance? improvement? to change the purpose, function, or use of the structure?)
Basically, as the cost, degree, and scope of the modifications increase, the ADA Standards may change. However, even an inexpensive or minor modification to an important accessible element of a property may be regarded as an “alteration” if it fundamentally changes the use or “usability” of the facility.
advantages, or accommodations of any place of public accommodation”. See 42 U.S.C. § 12182(a). If the property in question is older and currently “grandfathered in” under the ADA, the property may currently comply with the Act even though the physical characteristics of the property would not comply if built today. However, if the property is renovated, certain areas may need to comply with the alterations standards of the ADA and state laws.
In determining whether a property complies with the requirements of the ADA, compliance authorities (e.g., building and safety officials in connection with the issuance of a building permit) will likely focus in part on whether the inaccessibility of a property to a disabled person constitutes discrimination. Keep in mind that neither the issuance of a building permit by a department of building and safety or its equivalent nor the preparation of design plans by a licensed architect is a guarantee that a property complies with state and federal requirements relating to disabled access. In particular, out-of-state and international architecture firms may not be sufficiently familiar with accessibility requirements to serve as a meaningful resource in this regard. You should have an expert attorney (like those at JMBM), along with an experienced local site-adapt architect or access consultant, conduct an overview of the plans
What is the “Path of Travel” and must it be accessible?
Title III of the ADA, under certain circumstances, requires that altered portions of public accommodations be made accessible to the disabled, but this does not apply if the property has not been altered after January 26, 1992.
Relevant provisions of the ADA provide that “discrimination” includes, “a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible … where such alterations … are not disproportionate to the overall alterations.” That being said, the Department of Justice in its implementing regulation does recognize that normal maintenance and certain upgrades that do not affect the “usability” of the building or facility are not alterations.
Where certain alterations are made, it is possible that the “path of travel” to the altered area must also be made accessible for the disabled, and the defined “path of travel” may be much broader than you would expect. However, the cost of modifying a “path of travel” may be considered, when it was the alteration of a portion of a property that triggered the additional requirement to make the path of travel to the altered area accessible. Specifically, a proportionality requirement (looking at the cost of modifying the path of travel in proportion to the cost of the unit alterations) can limit the extent to which a supporting area must be made accessible. A different standard may apply when architectural barriers exist that limit accessibility. This analysis is complex, and you should be sure to have competent counsel and consultants review the standards and the facility with you.
Where certain alterations are made, it is possible that the “path of travel” to the altered area must also be made accessible for the disabled, and the defined “path of travel” may be much broader than you would expect.
Should you be concerned?
The Department of Justice and local Attorneys General offices are stepping up the enforcement of federal and state accessibility requirements. The factors relating to compliance requirements are not straightforward, but JMBM’s attorneys have deep experience in this area of the law, and you should consult with ADA counsel in connection with any renovation that you are contemplating or undertaking. Our ADA attorneys also work with other experts to conduct independent surveys of our client’s hotel and resort properties to assess the level of accessibility and recommend cost-effective ADA compliance strategies.