HOA Compliance with the Americans With Disabilities (ADA) Act

Signed into law in 1990 by President George H. W. Bush, the Americans with Disabilities Act (ADA) provides equal opportunities and protects the rights of individuals with disabilities. This law applies to state and local governments (including government buildings, facilities, parks, programs, and services). It also covers educational institutions, public transportation and telecommunications providers, employers with 15 or more employees, commercial facilities, and places of public accommodation (i.e., public or privately owned places that are open to the general public).

The ADA does not typically apply to accommodations or services that are not available to the general public, such as privately-owned, residential community associations whose common areas, amenities, and services are exclusively for the use of the association’s members, residents, and their invited guests. In other words, if an HOA is purely residential and the association’s common areas and services are not open to the general public, then the association is not subject to the ADA. However, it is still governed by the federal Fair Housing Act and any state fair housing laws.

On the other hand, if a community association has facilities that are open to the public, hosts public events, has 15 or more employees, or is a mixed-used community with retail, industrial, or commercial facilities, then it may have to comply with the ADA, as well as federal and state fair housing laws.

In this article, we’ll examine circumstances that can cause the ADA and its restrictions to apply to a community association.

Purpose

The purpose of the Americans with Disabilities Act is to allow disabled persons full and equal access and enjoyment to public places, transportation, telecommunications, education, government services, and the workplace.

Many HOA board members often wonder if their association must comply (or is in compliance with) the ADA, which mandates that certain accommodations for disabled persons are available in public facilities.

When (and Where) Does the ADA Apply?

In general, the ADA applies to amenities and other parts of the community that are not used solely by the association’s members, residents, and the invited guests of those members and residents. Under this law, all public and government facilities are required to comply with specific use accommodations and accessibility requirements.

An HOA is not subject to the ADA unless the association is operating what is considered a public accommodation, which is any facility the HOA allows members of the general public to use.

Below are some examples of public use that would require ADA compliance by an HOA:

• The HOA maintains a rental office on property that receives regular visits from any member of the general public.
• Churches, schools, or clubs use the association’s facilities on a regular basis, such as for meetings or events.
• Tennis practices and tennis meets open to public spectators are held at the association’s common area courts.
• Trails, playground areas, golf courses, etc., are open to use by the general public (i.e., no signage is posted specifying use by residents and guests only).
• The association leases a facility to the public in exchange for money, such as allowing members of the public to purchase a membership or pass to use the HOA pool.
• Swim practices and swim meets are held at the HOA’s pool.
• The association is part of a timeshare.
• Public gatherings or events are held at the association’s clubhouse.

Association common areas used for public events, or any event hosted by the HOA that is open to members of the public, must be ADA accessible. This may also apply to parking lots if spaces are designated for guest parking. Keep in mind that part-time public use can be enough for the ADA to apply to an association.

Is My HOA in Compliance?

Any HOA allowing activities such as those outlined above should ensure ADA compliance by carefully inspecting the property to ensure that barriers (such as curbs), safety hazards, stairs/steps, etc. are fixed or removed immediately. Also, special handicap parking must be made available to members of the public. Failure to do so could lead to discrimination claims against the association or its members.

Because the association can be deemed out of compliance with the ADA through rules, policies, or possible architectural barriers, the HOA must be aware of any potential facilities that may be considered public accommodations as defined by law.

Reasonable Accommodations & Modifications

Both the ADA and the federal Fair Housing Act require community associations to grant reasonable accommodations and modifications requested due to a disability. So, even if an HOA is a private entity and does not fall under the ADA, it will need to follow the Fair Housing Act requirements in this section.

First, an association must make reasonable accommodations to its rules and policies for someone with a disability, unless the requested accommodation lacks a sufficient connection to the person’s disability or would cause an undue financial or administrative burden on the association or fundamentally alter its operations. Under the Fair Housing Act, such reasonable accommodations must be paid for by the association. Examples may include changing the on-site office’s hours of operation so that they don’t always conflict with a member’s medical treatments or allowing a service animal into community facilities and common areas where pets are not allowed.

Additionally, homeowners and residents must be permitted to make reasonable, disability-related modifications, at their own expense, to their home or the association’s common areas, unless it would create an undue burden for the association. Unlike reasonable accommodations, the person requesting the modification pays for it. However, the association will be responsible for the costs of maintaining common area modifications to the common area. Examples include installing ramps, adding privacy screening, or widening sidewalks and driveways.

The association may have the ability to provide a variance with stipulations to return the property back to its original state after residency is over, but this depends on the circumstances of the request. Typically, a homeowner could not be given this stipulation, but a renter may be.

HOAs that open their facilities and common areas to the public must be vigilant to ensure that their policies, governing documents, and actions comply with the ADA in order to protect the association from civil liability. A claim against the association may not only result in exorbitant legal expenses and severe penalties, but it can also affect the HOA’s insurance coverage. Please contact legal counsel to discuss the details of your particular situation.

This article is for educational purposes only. If you would like more information on the Americans with Disabilities Act, please visit https://www.ada.gov/. 

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