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Can You 'Share' Your 'Rental' with the Disabled?

By Mark Wilson, Esq. | Last updated on

By now, hopefully we've grown up and realized the fiction that is the "sharing" economy; that is, it's not a lot of "sharing" but a lot of "regular economy."

The San Francisco Chronicle pored through Airbnb's data for that city and found that, far from letting Mom and Pop rent out a spare room, two thirds of the listings were for entire houses or apartments, and one third of the "sharers" listed multiple rentals. (Although, as the Chron acknowledges, many different individual renters hire one of a few property management companies to handle the rentals -- but isn't that also a problem when you have to hire a property management company?)

ADA Compliance?

It seems as though more and more Airbnb "hosts" are operating some kind of hotel business, leading to the next legal issue in this thorny world: ADA compliance. The Americans with Disabilities Act applies to "[h]otels, motels, inns and other places of lodging." But because Airbnb rentals are just people's apartments, not locations specifically built to be hotels, they may not be compliant.

But wait, there's another wrinkle that turns this legal murk into a legal morass: 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 the whole 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."

The Fix Is In

Disability advocates "swarmed" San Francisco City Hall last week, the Chron reported, in order to appear comment publicly on the introduction of a suite of ordinances authored by Supervisor David Chiu. Chiu has the right idea: whatever the fix, it would have to be legislative. Portland's Inlander reported, on the occasion of that city legalizing Airbnb, that Oregon 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, but not Airbnb.

When it comes to "sharing," fellow sharing economy companies Lyft and Uber complain about the heavy-handed regulation of the industries they're "disrupting," implying that services like hotels and taxis are expensive and inefficient because they're so heavily regulated, and wouldn't the Web 2.0 Silicon Valley Libertarian answer be an un-regulated free market system?

Probably not: many of those regulations are there for a reason. When you open up your doors to the general public, you're suddenly responsible for the general public's healthy, safety, and welfare, which can't be easily wiped away with a shrug and a "caveat emptor."

Or can it?

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