Could House-Sharing Open the Door for ADA Litigation?

The rise of house-sharing via services like Airbnb raises an interesting question: Could this open the door for ADA lawsuits?

The Americans with Disabilities Act provides for a private right of action by disabled people against establishments that aren't ADA complaint. It's hard to dispute that the Act has been great for ensuring equal access to public facilities for everyone, regardless of ability or disability.

But with the rise of the "sharing economy" and cities regulating Airbnb rentals as though they were hotels, could house-sharing become the next battleground for ADA violations? (Answer: probably.)

Is It a Hotel?

The ADA applies to "[h]otels, motels, inns and other places of lodging." But because Airbnb rentals are just people's apartments, which were not specifically built with ADA compliance in mind, many of them probably aren't complaint. That would matter only if people's apartments fell under the ADA. But do they?

As you may know, the ADA doesn't apply to "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."

It's unclear, though, whether multiple apartment units in the same apartment building would qualify; it seems like they would have to if the ADA were to apply, as two-thirds of Airbnb landlords are renting out their entire place, not just a room. Although, the next question becomes whether the apartment is the "residence of such proprietor," and in many cases, the answer is "no way." (A data analysis commissioned by the San Francisco Chronicle showed that more than 500 "hosts" in San Francisco were renting multiple properties.)

No Lawsuits... Yet

As of yet, there haven't been any ADA lawsuits over Airbnb, but that doesn't mean they're not coming. Whether the ADA applies is the first hurdle, but there's no guidance about that, either. Even trying to analogize the situation to building codes isn't helpful.

Portland, Oregon's Inlander reported, on the occasion of that city legalizing Airbnb, that state building codes might not apply to short-term rentals -- and that includes health regulations, fire regulations, and disability regulations that hotels have to comply with. Then again, taking a more normative approach, New York Attorney General Eric Schneiderman, in a New York Times op-ed, argued for making hotel building codes apply to Airbnb rentals because hotel building codes are for the protection of tourists "who are usually unfamiliar with the rooms and buildings where they are sleeping."

Airbnb officially discourages discrimination, including disability discrimination; a nice statement, but ultimately unenforceable. Even a market-based solution -- reporting hosts whose rentals aren't ADA compliant -- wouldn't work if those hosts still had enough business to make ADA compliance a less enticing, more expensive alternative.

As a result, it's unclear what will happen when the ADA meets the sharing economy. The one certainty, like death and taxes, is that the lawyers are going to get involved.

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Related Resources:

• Does Airbnb have an ADA problem? (48 Hills)
• Why we can't figure out how to regulate Airbnb (Wonkblog)
• Plaintiff Must Pay Defendant's Fees for Failed ADA Claim (FindLaw's California Case Law Blog)
• No Expert Needed To Survive Summary Judgment in ADA Case (FindLaw's U.S. Ninth Circuit Blog)