US Department of Justice Civil Rights Division - Letter - tal029

8/14/2019 US Department of Justice Civil Rights Division - Letter - tal029

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DJ 181-06-0002

Apr 20 1992

Mr. William B. IngersollIngersoll and Block1401 Sixteenth Street, N.W.Washington, D.C. 20036

Dear Mr. Ingersoll:

This letter responds to your August 21, 1991, letter on

behalf of Marriott Ownership Resorts, Inc. (Marriott), requesting

guidance on the application of certain provisions of theAmericans with Disabilities Act (ADA) to the timesharing resortsoperated by Marriott under its Vacation Ownership System.Specifically, you have requested guidance as to whether"timesharing that is sold in increments of one week or less is apublic accommodation as that term is defined in the ADA."

The ADA authorizes the Department to provide technicalassistance to entities that are subject to the Act. This letter

provides informal guidance to assist you in understanding how theADA may apply to your client. However, this technical assistance

does not constitute a determination by the Department of Justiceof your client's rights or responsibilities under the ADA anddoes not constitute a binding determination by the Department ofJustice.

Based on our review of your letter and supporting materials,it is our understanding that the specific question you pose isthe following: Is a vacation property owned in the form of

ownership referred to by Marriott as "timesharing," and sold byMarriott in increments of one week or less, a "place of public

accommodation" as defined in this Department's regulationImplementing title III of the ADA? See, 56 Fed. Reg. 35,544(July 26, 1991) to be codified at 28 C.F.R. pt. 36.

cc: Records; CRS Files; Oneglia; Friedlander; Wodatch; Pecht.:uddl:udd:pecht:ingersoll

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To be considered a place of public accommodation under thetitle III regulation, a facility must be operated by a privateentity, its operations must affect commerce, and it must fallwithin one of the 12 categories listed in S 36.104 of theregulation. Each category includes representative examples ofcovered facilities. However, the examples included are meant tobe illustrative, not exhaustive. Thus, a facility does not have

to be specifically listed in order to be covered.

Therefore, in order for Marriott's timesharing resorts to be

considered places of public accommodation, they must fall withinone of the 12 categories. In this instance, the analysis turnson whether any given resort is a "place of lodging" such as aninn, hotel, or motel. These terms are not defined in either theAct itself or the title III regulation. However, the preamble tothe title III regulation does note that the category "places oflodging" would "exclude solely residential facilities because thenature of a place of lodging contemplates the use of the facilityfor short-term stays."

Thus, one factor that should be considered in determiningwhether a particular facility is a place of lodging is whetherthe facility is intended or used for, or permits short-termstays. Although the regulation does not define "short-term," theDepartment would consider stays of one week or less to be "short-term" stays. While this interpretation may be consistent withcertain Federal court precedents established under title II ofthe Civil Rights Act of 1964 and cited in the materials you


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provided to us, you should be aware that the Department may lookto such precedents for guidance but does not consider itselfbound by them in interpreting its ADA regulations.

In addition to considering whether a given facility isintended or used for, or permits short-term stays, in making adetermination as to whether a facility is a place of lodging,

each entity should also consider the extent to which the facilitydoes or does not share the characteristics of the examples listedas places of lodging. For example, one potentially significantdifference between inns, hotels, and motels, as a group, andfacilities held in Marriott's form of timeshare ownership isthat, according to your April 23, 1991, letter to John Wodatch,timeshare owners are deeded a fee interest in the timesharing

resort. Obviously, a deeded fee interest differs from theinterest normally conveyed to the patron of a hotel or motel.However, if, as you point out in the April 23rd letter, the fee

interest conveyed is subject to recorded restrictive covenantsthat substantially restrict the "traditional possessory rights ofownership" and the properties are, in fact, operated in a mannervery similar to the manner in which hotels are operated,timeshare facilities are more likely to be treated as places oflodging covered under the ADA.

01-00598

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Based on the representations made in your April 23, 1991,letter, we believe that timeshare facilities in Marriott'sVacation Ownership System are nonresidential places of publicaccommodation. In reaching this conclusion we have considered

the following factors to be of particular significance:

1. Ownership of timesharing units is sold in intervals ofone week or less, which is consistent with the requirement that aplace of lodging be a facility that is intended or used for, orpermits short-term stays;

2. While ownership to individual units is conveyed in feesimple, recorded restrictive covenants substantially limit rights


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of ownership and owners have no right to occupy, alter, orexercise other control over any specific unit;

3. Owners of timesharing interests are not required toreturn to the same unit or project and may utilize variousexchange options to exchange their units for units at otherresorts; and

4. Marriott's timeshare accommodations are operated likehotels (i.e., reservations, central registration, and roomassignments are required) by a company that is in the hotelbusiness.

We wish to stress that we have reached this conclusion based

on your description of the ownership and operation of Marriott'sVacation Ownership System. Thus, this conclusion should not beviewed as a general statement of the Department's position with

respect to other types of timesharing facilities; our position onthis issue may well be different given a different set of factsconcerning the ownership and operation of such facilities.

As you note in your April 23, 1991, letter, as places ofpublic accommodation, timeshare facilities are subject to thetitle III requirements for readily achievable barrier removal;

and any new construction or alteration of such facilities mustfollow the Accessibility Guidelines adopted as Appendix A to the

Department's title III regulation. We would also like to pointout that, as a public accommodation, Marriott is also subject toother significant non-discrimination requirements under title IIIof the ADA. For example, Marriott must provide auxiliary aidsand services to guests with hearing, speech, or visionimpairments, unless doing so would result in an undue burden or afundamental alteration in the nature of the services oraccommodations being offered.

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I hope this information has been helpful to you.

Sincerely,

John R. DunneAssistant Attorney General

Civil Rights Division

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August 21, 1991

VIA MESSENGER

Stewart OnegliaChief

Coordination and Review SectionDepartment of Justice320 First Street, N.W.

Washington, D.C.

RE: Request for GuidanceFinal Rule published by the Department of Justice("Department") in the Federal Register on July 26,1991 with respect to Title III of the Americans withDisabilities Act, Nondiscrimination on the Basis ofDisability by Public Accommodations and in Commer-cial Facilities (the "Final Rule")

Dear Ms. Oneglia:

On behalf of Marriott Ownership Resorts, Inc. ("Marriott"),we are requesting guidance as to the meaning of the term "short-term stay" as used in the Department's Section by Section Analysisin the Final Rule with respect to the definition of publicaccommodations. On April 23, Marriott submitted comments to theDepartment with respect to the proposed rule making implementing


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Title III of the Americans with Disabilities Act (the "ADA" or the"Act"), requesting confirmation in the Final Rule of Marriott'sposition that timesharing that is sold in increments of one weekor less is a public accommodation as that term is defined in theADA. A copy of Marriott's April 23 comments is enclosed for yourreference.

In addition, on March 14, I spoke at the public hearingin Washington, D.C. regarding this issue. At that time, the panelindicated that it was aware of this question and intended toaddress it in the Final Rule. Although we recognize that it wasdifficult for the Department to address the many individualquestions that arose in the comments to the proposed rule, we werenevertheless disappointed to find no reference at all to timeshar-

ing or vacation ownership in the Final Rule. We were encouraged,however, by the Department's statements in the Section-By-Section

01-00601

Stewart OnegliaAugust 21, 1991Page 2

Analysis and Response to Comments (the "Department's Analysis")that "... the nature of a place of lodging contemplates the use ofthe facility for short-term stays." (56 Fed. Reg. 35552; emphasisadded).

Although the Department's distinction between short-termstays and long-term stays was encouraging, the absence of anydefinition of a short-term stay has left Marriott, and the


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timeshare industry, without the immediate guidance necessary toknow whether or not they are required to comply with the provisionsof the ADA. Given the approaching deadlines for removal ofarchitectural barriers, as well as plans for future projects to beconstructed, this places an undue burden on the industry. We aretherefore requesting guidance as to whether a stay of one week orless constitutes a "short-term stay."

As discussed in the attached comments, we believe thatthere is considerable legal basis to conclude that stays of oneweek or less constitute a short-term stay. In particular, pleaserefer to our discussion of Title II public accommodations (SectionII.A. of our comments, beginning on page 7) in which we citeseveral Federal court decisions interpreting the term lodging to

transient guests, as used in the definition of public accommoda-tions in Title II, to apply to lodging for one week or less.

In its analysis, the Department repeatedly differentiatesbetween short-term and long-term stays. For example, in discussingresidential hotels, the Department states,

Although such hotels or portions of such hotelsmay fall under the Fair Housing Act whenoperated or used as long-term residences, they

are also considered "places of lodging" whenguest of such hotels are free to use them on

a short-term basis.

We wish to emphasize that it is Marriott's position thatits timeshare projects are not residential in nature, as that termhas been interpreted in the context of the Fair Housing Act.Therefore, Marriott projects are not mixed use projects that allowboth residential and short-term stays and should not be subject toboth the ADA and the Fair Housing Act.

Based on the Department's distinction between short-term

and long-term stays and the legal precedent cited in the attachedcomments, we believe that projects in which timesharing that issold in increments of one week or less are public accommodationswhich are covered only by the ADA. Because of the necessity totake immediate steps to remove architectural barriers and to design


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01-00602

Stewart OnegliaAugust 21, 1991Page 3

new construction, we would appreciate your comments and guidanceon this issue as soon as possible.

Sincerely,

William B. Ingersoll

WBI:SLV:pc

Enclosure:

April 23 Comments

cc:w/copy of enclosureIrene BowenPaul Hancock

01-00603


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April 23, 1991

John L. Wodatch

Office of Americans with Disabilities ActCivil Rights Division

U.S. Department of JusticeRulemaking Docket 003Box 75087Washington, D.C. 20013

RE: Comments of Marriott Ownership Resorts, Inc. withrespect to Timesharing and the Marriott VacationOwnership System

Dear Mr. Wodatch:

On behalf of Marriott Ownership Resorts, Inc., ("Marriott"),a subsidiary of the Marriott Corporation, we are submitting thefollowing comments in response to the proposed rule makingimplementing Title III of the Americans with Disabilities Act("ADA") or (the "Act") issued by the Department of Justice (the"Department") in the February 22 Federal Register (55 Fed. Reg.7452) (the "Proposed Rulemaking"). By separate letter, Marriottis submitting comments on several provisions in the proposed rule


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making. However, because of the importance to Marriott ofconfirming that timesharing that is sold in increments of one weekor less is a public accommodation, as that term is defined in theAct, we are submitting separate comments on this issue alone.

Since the enactment of the Americans with DisabilitiesAct of 1990 (the "ADA")1, there has been considerable confusion as

to whether the ADA or the handicapped provisions in the 1988Amendments to Fair Housing Act (the "Fair Housing Act")2 apply totimesharing. Historically, the timesharing industry has stressedcompliance with Title II of the Civil Rights Act of 1964 ("Title

1 Americans with Disabilities Act of 1990, Pub. L. No. 101-336, S 104 Stat. 327, (1990).

2 Title VIII of the Civil Rights Act of 1968, as amended, 42U.S.C. S 3601 et seq. (1988).

01-00604

John L. Wodatch

April 23, 1991Page 2

II")3 because of the public accommodations nature of timesharingfacilities. Marriott, a subsidiary of the Marriott Corporation,is a leader in the timesharing industry. Marriott's VacationOwnership System currently includes seven timesharing resortsdeveloped by Marriott and several other resorts under constructionor in the planning stage.4


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Marriott has been committed to non-discriminatorypractices in all aspects of its business, and it has been par-ticularly concerned about complying with the new requirementsenacted by Congress regarding handicapped accessibility. It isclear that Congress intended to provide handicapped access to allfacilities which are generally available to the public, includingboth public accommodations which are occupied on a transient basis

and residential dwelling units. However, we believe that Congressdid not intend timesharing to be covered by both the ADA and theFair Housing Act. Further, even if some types of timesharing arecovered by the Fair Housing Act, we do not believe that all typesof timesharing, regardless of the length of stay of the owners, aresubject to the Fair Housing Act.

The Department recognized that the transitory nature ofa stay as well as the length of stay is determinative when itstated in the Section by Section Analysis:

Places of lodging (e.g. hotels and inns,primarily intended for transitory stays) aredesignated as places of public accommodation.Places used for longer stays (e.g. residentialhotels) are not consider "commercial facili-ties" because they are residential facilities.

(Emphasis added.)

Based on the reasons expressed herein, we urge theDepartment to clarify the confusion by clearly stating in the finalregulations that transitory timesharing facilities which are soldin increments of one week or less, are subject to regulation aspublic accommodations under the ADA.

The following memorandum will provide a background ontimesharing as it is structured today, with particular emphasis on

3 42 U.S.C. 2000 et seq.

4 Marriott has developed seven timesharing resorts in threestates: Florida, South Carolina and California. New resorts areunder construction in Florida and Colorado and resorts are alsobeing planned in the Bahamas, Mexico and other national and


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international locations.

01-00605

John L. Wodatch


Marriott's Vacation Ownership System. This will be followed byanalysis of the legal basis for applying the ADA to timesharing,as well as a discussion of the inapplicability of the Fair HousingAct to timesharing which is sold in increments of one week or less.

I. INTRODUCTION

In addition to the case law and statutory interpretationsoutlined herein, there is a practical reason why timesharing suchas the Marriott Vacation Ownership System should be covered by theADA. ADA will provide immediate accessibility to individuals withdisabilities at no personal cost. Under ADA, architectural andcommunication barriers in existing projects must be removed, whenreadily achievable, at no expense to the individual with a dis-

ability. Further, all alterations and renovations must meet thestandards for new construction, as well as for alterations. Under

the Fair Housing Act, a person with disabilities who wishes suchmodifications must make them at his own expense. This is unrealis-tic when a guest only spends one week a year at a resort. Similar-ly, under the proposed Architectural and Transportation BarriersCompliance Board ("ATBCB") accessibility guidelines, a percentageof each class of new units must be readily accessible to in-dividuals with disabilities. The Fair Housing Act provides forless accessible units. For example, the proposed ATBCB guidelinesrequire grab bars in accessible units; Fair Housing only requiresreinforcement in the walls, but the handicapped must install grab

bars at their own expense. Thus, confirming that timesharing thatis sold in increments of one week or less is subject to the ADAwill make the majority of timesharing in the United States moreaccessible to the disabled at no personal cost.

Background

Although there are many types of timesharing, alltimesharing is sold as a mechanism which allows individuals to


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assure the availability of transient vacation accommodations of ashort duration, typically one week intervals. There are fouressential elements in the structure of any timeshare project: theinterest, the unit, the interval and the exchange.

Interests. There are two basic types of timesharinginterests - fee and non-fee or "right to use." In fee timeshar-

ing, the purchaser receives some type of deeded interest - eitheran undivided percentage interest in the entire project or in aspecific unit. Right to use timesharing is generally structuredas a club membership in which the purchaser receives the right touse a certain type of unit at a timeshare project for a specifiednumber of years. All of Marriott's timesharing resorts arestructured as some type of fee timesharing.

01-00606

John L. WodatchApril 23, 1991

Page 4

Units. Although Marriott owners are deeded an interestin a specific unit, they waive the right to use that specific unitunder the recorded covenants and restrictions for the project.Instead, owners may only use one of several units of the type inwhich an interest was purchased, i.e., 1 bedroom, 2 bedroom, etc.Owners have absolutely no individual control over the units and areprohibited from altering them in any manner or from installingfurnishings or fixtures. Further, the recorded covenants andrestrictions prohibit the use of a unit as a permanent residence.Therefore, few, if any, of the traditional possessory rights of

ownership are available to Marriott timeshare owners. The emphasisis on the vacation experience, not on ownership.

Timeshare owners occupy standardized units similar tohotel suites that are designed for the transient use of the public.The units are identical both inside and outside, with floor plansthat facilitate interchangeability. Interior furnishings areidentical, from furniture to color schemes. Linens, towels,tissues, utensils, ashtrays, etc. are provided by the timesharing


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facility management group, just as in hotels.

A unique feature in Marriott's California timesharingproject are "lock-out" units, in which a second or guest bedroomcan be physically locked off from the rest of the unit to createtwo usable units - a master or one-bedroom apartment and a one-bedroom guest suite. Owners may use each of the two separate

halves of the unit in their appropriate season. Or they may rentor exchange either half through the exchange programs describedbelow.

Intervals. Timesharing involves the concept of purchas-ing the right to use accommodations for a defined time period or"interval." Marriott timesharing intervals are sold in one week

intervals. There are two types of intervals - fixed and floating- with variations within each type. Fixed time generally refersto the right to use a unit during a specific week each year.

However, it may also refer to a specified season. In projects withfloating time, all owners must reserve their time, usually on afirst-come, first-served basis. Although the organizationalstructure varies from resort to resort, except for a few units inthe first two resorts developed by Marriott, all of the units inthe Marriott Vacation Ownership System are subject to floatingtime.

Under Marriott's floating time program, all owners arerequired to reserve the use of a unit of the type in which their

interest was purchased within the season of the week they pur-chased. For example, a purchaser of an interest in Unit 100, a 2-bedroom unit, for the first week in August, could reserve anyavailable 2-bedroom unit during the summer season. Owners are

01-00607

John L. WodatchApril 23, 1991Page 5

requested to submit four choices in order of preference. Themanagement company assigns the weeks on a first-come, first-servedbasis; however, the actual units are not assigned until the time


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of check-in. Under this program, there is no anticipation norlikelihood of an owner staying in the same unit each year or evenof vacationing during the same week each year.

The documentation for all of Marriott's timesharingresorts permits two flexible features which add to the transientnature of the occupancy - "odd-even year usage" and "split week

usage." The odd-even year program permits owners to use a unitat a specific timesharing resort every other year rather thanannually. In addition, a split week program has been implementedat the Desert Springs Villas Resort in California. Under thisprogram, an owner may divide the normal seven-day use period intotwo separate use periods of three and four days during the sameseason as the week they purchased. When the split-week program is

combined with the "lock-out" feature, as described above, ownersmay use, rent or exchange the separate halves of their units fora total of four periods each year - two three-day periods in one

half of the unit and two four-day periods in the other half.

Marriott timeshare accommodations are similar to hotelaccommodations in additional respects: central registration, check-in and check-out, and room assignment is required; keys aredistributed and collected as in hotel facilities; and all main-tenance and housekeeping functions are the responsibility of

management, not of the guests. Utilities are usually master-metered and the expense covered out of the facility's operatingbudget.

In short, Marriott timesharing purchasers are not buyingan interest in a residential unit; they are buying usage ofvacation accommodations which can be used, rented or exchanged fromone project to another. The vacation experience is reinforced bythe exchange systems, in which owners may exchange a week in theirproject for a week in a project in another location.

Exchange. The nature of timesharing as transient

vacation accommodations is further underlined by the existence ofexchange systems. Virtually every timesharing project participatesin some type of exchange system, as timesharing developers havefound that people will not buy timesharing if they are limited toreturning to the same project year after year. Almost all time-share owners utilize the exchange during their period of timeshareownership, with over 75% maintaining their affiliation with anexchange system in anticipation of exchanging their vacation weekfor a week at another project. Industry figures indicate that over


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one-third of exchange members exchanged their unit for another in1990, with this percentage increasing each year. Marriott's

01-00608


statistics are even higher, showing that owners in the Marriott

Vacation Ownership System utilize the exchange systems providedmore than 50% of the time, depending on the resort and the lengthof ownership.

Marriott timesharing resorts offer two exchange optionsto their owners. Marriott is affiliated with one of the two majorexchange companies, Interval International, Inc. In addition tothe external exchange program with timesharing projects around theworld, Interval International operates a special internal exchangeprogram for Marriott timesharing resorts under which owners at

Marriott resorts are given priority over other Interval Interna-tional members in exchanging their time period for time in another

Marriott timesharing resort.

A final benefit currently offered to all Marriott ownersis the Honored Guest Awards program. This program substantiallybroadens the bundle of rights purchased with a timeshare interest.The Honored Guest Awards program is similar to the airline frequentflyer programs. Originally designed for guests at Marriott hotels,owners of timeshare interests in Marriott timesharing resorts arecurrently eligible to participate in this program.5 Members mayearn points that can be accumulated and redeemed for future stays

at various Marriott hotels, free or discounted airline tickets,rental cars, etc. Marriott timeshare owners can earn Honored GuestAwards points by assigning the use of their unit to Marriott duringany given year instead of using it personally. In addition, pointsare sometimes given as a sales incentive.

Clearly, timesharing is appropriately seen as a transientpublic accommodation, which is differentiated from other publicaccommodations by virtue of the concept of a pre-purchase which


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assures the availability of a vacation experience in a standardizedsetting. Marriott sales and owner literature emphasizes the manyways that owners may use their floating time: personal use, theinternal Marriott exchange, the external Interval Internationalexchange, rental to third parties or the Honored Guest Awardsprogram. None of these features are characteristic of a residen-

tial unit that an owner expects to return to year after year.Instead, the one week periods, floating time reservation system,flexible features in some resorts such as split weeks and lock-out units and the Honored Guest Awards program are all typical oftransient public accommodations such as hotels which are subjectto the ADA.

5 Like the hotel program, the Honored Guest Award program fortimeshare owners may be changed or eliminated at the discretion ofMarriott.

01-00609

John L. Wodatch


II. TIMESHARING AS PUBLIC ACCOMMODATIONS UNDER TITLE II ANDTHEAMERICANS WITH DISABILITIES ACT.

A. Title II

Because of the relationship between public accommodations

under Title II and public accommodations under the ADA, it is firstnecessary to address the application of Title II to public accom-modations such as Marriott timesharing. Marriott views itstimesharing facilities as public accommodations for transientguests that are regulated by Title II. Section 2000a(b)(1) ofTitle II includes as public accommodations, "any inn, hotel, motel,or other establishment which provides lodging to transient guests.-..." The legislative history regarding the scope of Title IIdifferentiates lodging for transient guests from permanent residen-


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tial housing:

Only public establishments furnishing lodgingto transcients [sic] would be within thissubsection. Establishments furnishing lodgingto guests of a permanent duration, or to guestsof an indefinite duration having no fixed

intent to leave, as in the case of a boardinghouse, would not be included.6

Similarly, the following explanation of the transientguest requirement, submitted by U.S. Attorney General Kennedyduring the extensive hearings on the Civil Rights Act of 1964,emphasizes that transient guests were intended to be non-permanent

in nature:

The "transient guest" requirement exempts

establishments, like apartment houses, whichprovide permanent residential housing. Forexample, apartments rented on month-to-monthtenancies automatically renewed each monthunless specifically terminated, are exempted.7

Federal courts have interpreted the term "transient" to

apply to lodging for one week or less. In U.S. v Beach Associates,

6 S. Rep. No. 872, 88th Cong., 2nd Sess., reprinted in 1988U.S. Code Cong. & Admin. News 2355, 2356.

7. Hearings Before Subcommittee No. 5 of the Committee on theJudiciary, House of Representatives, 88th Cong., 1st Session, Part

II, Series No. 4, p. 1402.

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Inc.8, the court held that beach apartments which were rented bythe week were "lodging by transient guests" within the meaning ofsection 2000a(b)(1)9.

Affirming the decision in Beach Associates, the court inU.S. v. Young Men's Christ. Ass'n of Columbia, S.C.10, construed

"transient" as including "lodgers of a week or less." Althoughthere was disagreement between the parties as to whether the YMCArented accommodations for less than a week, the record establishedthat accommodations were rented for no more than one week.11Citing Beach Associates and United States v. Sadler (No. 570, E.D.N.C., January 15, 1968), the court stated:

I feel obliged to accept the construction of"transient" adopted in these decisions. Sincethe defendant concedes that it is its policy

to rent rooms in its dormitory by the week, itfollows that, under the construction adoptedin the Beach Associates Case, the defendantdoes provide, as I have concluded, lodging for"transient" guests within the meaning of 42"U.S.C. section 2000a(b)(1).12

The one week threshold in Beach Associates and YoungMen's Chris. Assn' is analogous to the sale of timesharing inincrements of one week or less. Equally important is the non-

residential nature of the facilities, a point which is emphasizedin the ADA.

B. Americans with Disabilities Act of 1990 (the "ADA")

Title III of the ADA is entitled "Public Accommodationsand Services Operated by Private Entities." The definition of"public accommodations" in the ADA is almost identical to thedefinition in Title II - "an inn, hotel, or other place of lodg-

ing...."13 Although the term "transient guests" is not included inthe ADA definition, both the House and the Senate reports state


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8 286 F.Supp. 801 (D.C. Md. 1968).9 Id. at 808.10 310 F.Supp 79 (D. S.C. 1979)

11 Id. at 82.12 Id.13 Section 301(7)(A).

01-00611

John L. Wodatch


that "[O]nly nonresidential facilities are covered by this tit-le."14

A one week stay in a timesharing resort cannot be deemedto be residential in any sense of the word. Timesharing units arenonresidential. Even when there is an ownership interest, per-manent residence is prohibited and owners have no possessory rights

in their units. Congress, in enacting the Americans with Dis-abilities Act, extended the protection to the handicapped afforded

in the Fair Housing Act to residential facilities to nonresidentialpublic accommodations such as timesharing resorts.

II. FAIR HOUSING ACT

Congress did not specifically include timesharingfacilities in the 1988 Amendments to the Fair Housing Act; however,HUD, in its Section by Section Analysis of the Final Fair HousingAccessibility Guidelines, stated that "... the fact of vacationtimesharing ownership of units in a building does not affect

whether the structure is subject to the Act's accessibilityrequirements."15 We believe this statement is incomplete. Al-though the fact of vacation ownership should not affect whether astructure is subject to the Fair Housing Act, the length of stay,based on a timeshare owner's interest, should be determinative.

The underlying policy of the Fair Housing Act is "toprovide, within constitutional limitations, for fair housingthroughout the United States."16 "Housing" is not defined in the


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Act, nor is the term used to any extent. Instead, the focus is on"dwellings," which are defined as:

... any building, structure, or portion thereofwhich is occupied as, or designed or intendedfor occupancy as, a residence by one or morefamilies, and any vacant land which is offered

for sale or lease for the construction orlocation thereon of any such building structure, or portionthereof.17

14 H.R. Rep. No. 101-485, Part 2, 101st Cong., 2d Sess, at 99.See also, S. Rep. No. 101-16, 101st Cong., 1st Sess., at 59.

15 Comments to Final Fair Housing Accessibility Guidelines,56 Fed. Reg. 9472 at 9482 (March 6, 1991).

16 Id. at S 3601 (emphasis added).

17 Id. at S 3602(b) (emphasis added).

01-00612


The application of the Act to timesharing that is soldin increments of one week or less hinges on whether timesharingunits are "dwellings." The central concept in the definition of"dwelling" is the term "residence." It is the consistent emphasis

on residence as opposed to transient accommodations that distin-guishes traditional housing units from timesharing units.

Although the legislative history of the Act is meager dueto the lack of committee reports and other relevant materials, thebackground events against which the Act was passed, such as theurban riots of 1967, indicate that a major concern was segregationin residential neighborhoods.18 Case law is equally sparse. The


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few courts that have addressed the question of whether the Actapplies to a particular structure have focused on the term "resi-dence."

In United States v. Hughes Memorial Home19, the courtheld that the Act applies to a children's home in which the averagestay was four years. In its analysis, the court stated "[W]hether

the Home is within the scope of the prohibition in section 3604(a)thus turns on whether it is "occupied as a ... residence."20

Because "residence" is not defined in the Act, the courtlooked to its ordinary meaning, quoting from Webster's Third NewInternational Dictionary:

a temporary or permanent dwelling place, aboveor habitation to which one intends to returnas distinguished from the place of temporary

sojourn or transient visit [.]21

The transient nature of accommodations has been anessential element in deciding whether a structure is a "dwelling."

In Patel v. Holley House Motels,22 the court held that a motel wasnot a "dwelling" under the Act. Citing the above definition of a

residence in Hughes Memorial, the court stated:

18 See Laufman v. Oakley Building & Loan Co., 408 F. Supp,

489, 496-97, quoting from The Report of the National AdvisoryCommission on Civil Disorders (1968).

19 396 F.Supp. 544 (W.D. Va. 1975)

20 Id. at 549.

21 Id.

22 483 F.Supp 374 (S.D. Ala. S.D. 1979).

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It is clear that the Palms Motel is an es-tablishment which provides lodging to "tran-sient" guests. The Palms Motel is a "public

accommodation" as distinguished from a "dwel-ling," see Title II, Civil Rights Act of 1965(Public Accommodations), 42 U.S.C. S 2000a(b)-(1), and Plaintiffs, therefore, have no claimunder the Fair Housing Act.23

Using the same rationale, the district court in Baxter

v. City of Belleville, Ill.24, held that a home for AIDS victimswas subject to the Act, stating, "[A]lthough the length of theresidence may vary, the persons who will reside at [the home] will

not be living there as mere transients."25

The most recent case to address the definition of adwelling is U.S. v. Columbus Country Club26, which involved therental of summer bungalows belonging to a private club. TheColumbus Country Club was a non-profit social organization whose"annual" members owned the land collectively, which it leased to

its annual members for a fee. However, the annual members ownedtheir cottages.27 Members could spend up to five months a year in

their bungalows and most returned each summer. The court quoted,in part, from R. Schwemm, a professor of law at the University ofKentucky:

Title VIII "would presumably cover... facili-ties whose occupants remain for more than abrief period of time and who view their roomsas a residence 'to return to.'"28

To better understand the court of appeal's decision, the

full passage from which this quote was taken is reproduced below:

23 Id. at 381.

24 720 F.Supp. 720 (S.D. Ill. 1989).

25 Id at 731.

26 915 F2d 877 (3rd Cir. 1990).


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27 U.S. v. Columbus Country Club, No. 87-8164, Lexis Slip op.14757 (E.D. Pa. 1989).

28 Id. at 881, quoting from Robert G. Schwemm, HousingDiscrimination Law, 53 (1983).

01-00614


Other courts have agreed with Hughes Memorial thattemporary residence cases should generally bedecided by looking to whether the occupants intendto remain in these residences for any substantial

period of time. If occupancy is merely transient,as would be the case with most motel and hotel

rooms, the property may be viewed as something lessthan a dwelling and therefore not subject to TitleVIII. On the other hand, Title VIII has been heldto apply when a longer term occupancy is involvedas in Hughes Memorial and in the monthly rental ofa mobile home site. If this principle is followed,the statute would presumably cover boarding houses,dormitories, and other facilities whose occupantsremain for more than brief period of time and whoview their rooms as a residence "to return to." 29

After citing Professor Schwemm, Hughes Memorial, HolleyHouse Motels and City of Belleville, the third circuit held:

We agree with these cases and hold that thecentral inquiry is whether the defendant'sannual members intend to remain in the bun-galows for any significant period of time andwhether they view their bungalows as a place


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to return to.30

Timeshare units have none of the traditional attributesof a residence, but are merely transient vacation accommodations.Unlike the members of the Columbus Country Club, Marriott time-share owners purchase intervals of one week, hardly a "significant

period of time." Members of the Club returned to the same bungalowyear after year. Timeshare owners of one week intervals do notintend to return to their resorts each year, as evidenced by theuse of the exchange systems. Columbus Country Club members ownedtheir bungalows, which could be permanently furnished and alteredaccording to each owner's wishes. They were entitled to thetraditional possessory rights of ownership. Not only are manytimeshare owners denied the use of the same unit each year, but,

like hotel guests, they are never permitted to furnish a unit orto make any type of alteration, however temporary.

29 Schwemm at 53.

30 Columbus Country Club at 881.

01-00615


IV. CONCLUSION

Based on the above and because ADA provides more acces-sibility at less personal cost to individuals with disabilities,we feel that the final rule should clarify that timesharing, suchas Marriott's, which is sold in increments of one week or less, isa public accommodation which is covered by the ADA. Such timeshar-ing is sold and used as transient vacation accommodations that aremost analogous to hotel use; therefore, such timesharing units


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should be regulated as public accommodations under the ADA. Theentire nature of timesharing is nonresidential. The emphasis ison variety of vacation use, not on the unit itself.

The district courts in Beach Associates and Young Men'sChrist. Assn explicitly held that lodgings which are used forperiods of one week or less are covered by Title II. It follows

that timesharing interests that are sold in increments of one weekor less should also be covered by Title II. As a public accommoda-tion, timesharing should also be subject to the ADA.

We wish to stress that Marriott does not wish to avoidcivil rights or handicapped accessibility regulation. In fact, asstated herein, we believe that by confirming that timesharing that

is sold in increments of one week or less is subject to the ADA,the Department will provide immediate accessibility in suchprojects to individuals with disabilities at no personal cost.

Sincerely,

William B. Ingersoll

WBI:SLV:pc

01-00616

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US Department of Justice Civil Rights Division - Letter - tal029

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