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 governs both private and public facilities, similar to the Federal Fair Housing Act (FFHA). The ADA applies to community association property that is open to the public, even if only for the occasional or limited event. If an HOA is purely residential and association property is not open to the public, the association is probably not subject to the ADA, though it is still governed by the Fair Housing Act.
The purpose of the Americans with Disabilities Act is to allow disabled persons full and equal access and enjoyment in public areas, transportation, 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. The truth is, it depends on multiple factors.
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 residents. Under this law, all public and government facilities are required to comply with specific use and accommodations.
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 is holding out for use by members of the general public.
Below are some examples requiring 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
- tennis meets open to public spectators
- trails, playground areas, golf courses, etc. (unless 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 meets are held at the HOA’s pool
- the association is part of a timeshare
- charity events
Common space within the community 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 used for guest parking. Keep in mind that part-time public use can be enough for the ADA to apply.
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.
When necessary, an association must make reasonable modifications in its policies to afford such accommodations to disabled persons unless it can demonstrate that making said modifications fundamentally alters the nature of those accommodations. Those modifications must be paid for by the association unless the cost exceeds the abilities of the association (meaning it causes an undue burden). In such circumstances, the owner must be given an opportunity to defray the cost so that they can have the accommodation.
There must be a nexus between the individual’s actual disability and the accommodation they are requesting. These reasonable accommodations expand to Architectural Control Committee (ACC) requests to modify their own properties in order to accommodate for their actual disability. Examples include: installing ramps, adding privacy screening, or widening sidewalks and driveways. The association may have the ability to provide variance with stipulations to return the property back to its original state, depending on the circumstances of the request.
HOAs 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 is not only an exorbitant expense that could result in severe penalties, it can also affect insurance coverage. Please contact 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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