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Application of Americans with Disabilities Act  (ADA)  
to Homeowner Associations
  
By Robert I. Long

As featured in Channels of Communication, the magazine of the 
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.  

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     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 gathering.

     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.

      If 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.

     The 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 the demand.


Law Office of Robert I. Long
674 County Square Drive     Suite 305    Ventura, CA  93003
(805) 642-0055    Fax (805) 658-0066    4long@usa.net

 

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