with Disabilities Act
Robert I. Long
featured in Channels of Communication, the magazine of
Channel Islands Chapter of Community Associations Institute, in its
First Quarter 2011 edition.
The ADA protects people with disabilities from discrimination, but
only in some circumstances. As to employers, it generally only applies
if there are at least 15 employees. In the case of a management
company with more than 15 employees, it is the management company, as
employer, that must comply with the ADA, not the homeowner
associations served by it.
For homeowner associations, compliance with the ADA may be
required where there exist “public accommodations” in the
development. However, even if a portion of the project is accessible to the public it will not fall under the ADA unless it is
among the 12 categories of public accommodation defined in the
ADA. Of those categories, the ones an association is likely to
encounter are places of recreation, exercise or public
Even if a situation appears at first glance to fall
within one of those categories, do not automatically assume it
is subject to the ADA. Public access
may not necessarily be found to constitute public accommodation.
In a recent case, it was held that the portion of a bridle path
passing through an association’s property, even though used by the
public, was not a public accommodation under the ADA. Carolyn
v. Orange Park Community Ass’n (2009) 177 CA4th 1090, 99 CR3d 699.
In an opinion letter, the Department of Justice opined that a
locked and gated clubhouse and swimming pool, restricted to use by the
association members and their guests, would not be considered a
“public accommodation” subject to the ADA.
In order to fall under the ADA, the
facility must truly be intended to be open to the public. Examples
include a clubhouse available for rent by outside organizations or
groups, such as a Rotary club or a bridge club, or a park readily
accessible to the surrounding neighborhood and not marked as
restricted to members of the association and their guests.
something falls under the ADA, what is the Association duty? The
Association must provide reasonable accommodations in policies and
practices to accommodate people with disabilities. That could mean
installing a curb ramp, or making the clubhouse bathroom wheel-chair
accessible, but only if it constitutes a “reasonable modification”
of existing premises. The reasonableness test takes into account the
expense of the alteration and the financial resources of the
association. Note that there may be grant money or tax credits
available to offset the costs. The local housing authority may know
where to look for them.
In addition to the ADA, if any portion of the
development first became available for occupancy after March 13, 1991,
the Fair Housing Act (FHA) may also apply. If it applies, the FHA
generally requires that common areas be accessible to persons with
disabilities. Curiously, if a reasonable accommodation is required
under the ADA, it is the association that pays for the modification,
but if an accommodation is required under the FHA, it may be the
resident who bears the costs.
foregoing is intended as general guidance only. If an association is
confronted with a demand to provide a reasonable accommodation for a
disability under the ADA, and if compliance will result in significant
expense or appears likely to trigger a backlash from the community,
the association should consult legal counsel to assess the merits of