With an aging population and the recent Pool Accessibility Standards, it has become increasingly necessary for homeowner associations and condominium associations to be aware of the Americans with Disabilities Act’s (ADA) requirements with regard to how they affect their association.
While all Boards of Directors wish to meet the special needs of the association membership, many times other factors, such as costs and feasibility, must be considered. So when a Board of Directors considers whether or not to make accommodations for individuals falling under the ADA, there are areas of the ADA that should be evaluated. In most cases, seeking guidance from the association’s attorney is advisable and a good use of association funds. What follows is an overview and should not be substituted for a more precise legal opinion from the association’s attorney on individual association membership issues that may arise.
Under the ADA many medical conditions can qualify as a disability, even short term physical and mental conditions. A person is considered disabled under the ADA if (1) they have a physical or mental impairment that substantially limits one or more of their major life functions, (2) they have a record of such impairment or they are regarded as having such impairment.
The ADA also prohibits discrimination against persons who are associated with an individual with a disability. An example of this would be a parent or spouse who is a primary care-giver of the person who falls under the ADA.
ADA concerns most often arise when it comes to membership requests for special or handicap parking. The issue generally centers around where and when to provide for handicap parking and whether the Association must approve or provide for the addition of ramps for wheelchair access to a clubhouse or an individual home. The Board of Directors often hears complaints and concerns about parking, but when the Board is presented with an issue involving a handicapped individual’s request or complaint about their parking situation, or the member requests to make modifications to their unit or the common elements, the Board of Directors must review the issue carefully and take the appropriate action.
The Americans with Disabilities Act (ADA), 42 USC 12101 et seq., mandates accommodations for disabled persons. Title III provides that there cannot be discrimination against persons with disabilities in places of “public accommodation.” Title III of the ADA defines a “public accommodation” as a facility whose operations affects commerce and fall within one of 12 specified categories in the ADA. Most Community Associations are not subject to the ADA since they are not considered a place of “public accommodation”, but “public accommodations” may include a swimming pool, clubhouse or parking lot that is located on a homeowner association or condominium association property that is opened to the general public.
Under the ADA, certain private facilities and locations are subject to the public accommodations mandate and the ADA uses broad language when categorizing different types of facilities and locations. For example, the ADA uses the term “other places of public gathering” and this can be used as a catchall for other locations or facilities even if it is a private facility or location. 42 USC 12181(7)(D). Generally speaking, parking at a homeowner association or condominium association parking lot is private parking for members of the association only; therefore, the ADA would generally not apply.
The ADA mandates could also apply with regard to the clubhouse, pool or other common elements. If the ADA applies, Title III requires that all new construction and/or modifications to existing structures must be accessible to individuals with disabilities. For existing facilities, barriers to services must be removed if readily achievable. If the clubhouse or pool is opened to the public, a strong argument exists that the ADA applies; thus an association should take a close look at their clubhouse or pool area to determine if there are barriers for the handicapped and whether the removal of such barriers is readily achievable. If the clubhouse or pool is not opened to the public and only the membership is permitted to use the facilities, it is generally not likely that the pool or clubhouse would be considered a place of “public accommodation” under the ADA.
However, there are still circumstances that a concerned party could argue the “public accommodation” mandate about whether the common elements of an association, even though private, may become subject to this mandate. For example, if a member rents the clubhouse for an event and opens it up to the general public, has the clubhouse become a place of “public accommodation?” In short, this can possibly be argued to be the case. Again, these are the type of issues that need to be reviewed by the association’s attorney to determine if a common element of the association constitutes a place of “public accommodation” or if an association policy/practice would fall under this mandate.
If the ADA mandate for “public accommodation” is met, the ADA Accessibility Guidelines set forth a minimum standard for parking spaces, elevators, and doors as well as a variety of other facets that must be met. Reference: ADA Accessibility Guidelines for Buildings and Facilities, 36 CFR 1191.
If a Board of Directors receives a request from a member requesting a modification or a designated handicap parking space, the Board of Directors should thoroughly review the matter for feasibility. If the Board of Directors considers denying the request because they do not feel the disability warrants such modifications or designation of a parking space, extreme care must be exercised. Under the ADA, the Association is not permitted to inquire into the specifics of a person’s disability.
However, requiring a note from a doctor to determine eligibility for a handicap parking space would likely not violate the ADA. But the Board of Directors must refrain from evaluating members’ conditions as serious or not serious enough to warrant an accommodation.
If the association is making major renovations or improvements to the clubhouse or other common areas, there may be accessibility upgrades that the association must make pursuant to the ADA. With regard to the clubhouse, the Board of Directors should review the space where meetings are held and the overall handicap accessibility and compliance with ADA. Other common structures that are undergoing major renovations may also need to be reviewed for ADA compliance. For example, these common structures or areas could include hallways, lounges, lobbies, laundry rooms, trash rooms, mail rooms, recreational areas and passageways among and between buildings. WDPM
This article is written for informational purposes only and the HOA’s attorney should always be relied on to interpret state and Federal statutes. And in light of the fact that court decisions interpreting the ADA are regularly rendered and regulations and guidelines regarding the application of the ADA are published from time to time, if an association is faced with an ADA request it believes should be denied, it should have the matter reviewed by Association’s attorney before making a final decision.
Copyright – William Douglas Management, Inc. 2016