The American With Disabilities Act seeks to provide to disabled persons unfettered access to public and certain private locales so they are not victims of discrimination. It is that Act (hereafter “ADA”) which has mandated ramps on sidewalks and to entrances to buildings that are open to the public as well as public bathrooms that are accessible and usable for people in wheelchairs. In terms of housing, the Federal Fair Housing Act (“FFHA”) also comes into play. These laws govern both public and private facilities, and set forth the degree to which an entity, such as a homeowner’s association (“HOA”), is responsible for making modifications or improvements to accommodate individuals with disabilities. HOA Boards and Managers should be aware of these requirements or face significant liability if action is brought either by a governmental agency or a civil claimant. This article shall discuss when a HOA may be subject to such requirements.
The HOA and the ADA:
Under the ADA, all public and government facilities are required to comply with specific use and construction requirements to accommodate disabled individuals. It is important to note that the ADA applies only to “public accommodations.”
A HOA will not be subject to the ADA unless the HOA is operating a “public accommodation.” A “public accommodation” is any facility which a HOA is providing for use by members of the general public and not solely for use by the HOA’s members and their guests. HOA members may bring their family and guests to a facility, such as a swimming pool or gym, and it is not considered as converting use to the general public.
However, HOAs have been subject to ADA requirements if:
(1) a HOA allows members of the public to buy memberships or passes to the HOA’s pool or health facilities,
(2) where a HOA allows schools, church groups or clubs to use HOA facilities on a “regular basis,” and
(3) where a HOA maintains a rental office on the property that receives regular visits from the general public.
Any HOA considering or currently allowing such activity should carefully inspect their facilities to ensure compliance with the ADA or, in the alternative, cease all such activities immediately. The failure to do so may lead to claims of discrimination against the HOA and subject the HOA to liability.
A more recent “public use” to confront is the short-term rentals that members of the HOA may be providing to various internet access companies to either increase their income or to occupy the premises while the owner is absent. In tourist locales, such “private” hotels are increasingly common and are often offered without the HOA even knowing that such use is being made. There is little doubt that if such use is allowed by the HOA that the premises would be considered public accommodation.
If such use is tolerated, even if not allowed under HOA rules, an action could be brought against the HOA indicating that the rules prohibiting it are a sham. The HOA must not only prohibit such use but should take action to halt HOA members from engaging in such use.
Equally telling would be if members used their premises for offices or as establishments open to the public. As examples, if therapists, notaries or attorneys were operating out of HOA premises and seeing clients on the premises that would certainly give rise to claims of the need for public accommodation.
Federal Fair Housing Act (“FFHA”)
The FFHA is similar to the ADA; however, the FFHA applies directly to housing facilities, including HOAs and to owners or users of the premises, even if not the general public. Under the FFHA, a HOA may not legally refuse to make reasonable accommodations in its rules or policies when such accommodations may be necessary for a disabled owner to fully enjoy and use her unit.
An example would include when a disabled owner requires the assistance of a service animal; a HOA would be obligated to grant a waiver from its “no pets” rule. The HOA ‘s refusal to make such an accommodation (one that is reasonable and necessary to afford a disabled owner the full enjoyment and use of her unit) is deemed to be discrimination under the FFHA. The FFHA also requires HOAs to permit a disabled owner to make, at such owner’s expense, reasonable modifications to the owner’s unit and HOA common areas. This requirement is also codified in California Civil Code Section 1360 discussed below.
Thus, if there is a common health facility, such as a gym or weight room, or a pool and spa, reasonable accommodations must be provided by the HOA.
California Civil Code Section 1360
Civil Code Section 1360 requires HOAs to allow disabled owners to make modifications to their units and HOA common areas at the owners’ expense in order to accommodate the owner’s disability. Examples of such modifications may include power stair lifts, ramps or handrails.
Under Civil Code Section 1360, a HOA must allow an owner to make modifications to his or her unit and the route to the unit from a public way, so long as (1) the modifications are consistent with building codes, (2) the modifications are consistent with the intent of the governing documents relating to safety and aesthetics, (3) the modifications do not prevent reasonable passage by other residents, (4) the modifications are removed by the owner when the unit is no longer occupied by the disabled individual, and (5) the owner submits plans and specifications to the HOA for review.
Note that the HOA may require (1) the submission of plans for the modifications in order to ensure consistency with the overall design of the neighborhood, and (2) the execution of an agreement that the owner return the property to its original condition upon leaving the property.
HOAs should also realize that as our population ages, including owners of units, the number of owners requiring accommodation is going to increase and, indeed, the value of the property may actually be increased by making such improvements as required. The goal of the laws is admirable, and the real problem is that the expense can be substantial.
What must be avoided is not realizing the implication of these laws and allowing their violation through neglect or failure to act.