You may be asking yourself, “Why would a homeowners association need to worry about ADA requirements?” After all, single-family residents are not a public accommodation and therefore do NOT fall under the ADA.
Well, things aren’t always what they seem. You see, an HOA is governed by two distinctly different sets of access requirements:
- The HOA and all of its common use areas such as the clubhouse, pool and pool area, showers, restrooms, drinking fountains, playground and sports fields all fall under “common use” areas. Based on the date of construction and any subsequent permitted alterations or structural repairs, the ADA is in full enforcement within these areas.
- The individual homes, units, condos or townhouses are “owned” by an individual and not the HOA. This is different from multi-family housing or apartment complexes in that the “owner” is responsible for any access needs to their unit and the path of travel from their unit to their parking space, additional path of travel needs to the common use areas including access out to the public right of way. These areas are governed by the FFHA and the CFHA. The Federal Fair Housing Act and the California Fair Housing Act are very similar in this regard.
Even if an HOA facility was built prior to 1990, it still has obligations under the Federal ADA to maintain the level of access it was originally built with in good condition for the use of its resident owners.
In fact, the new 2010 ADA supplements now require that HOA’s must always be engaged in “readily achievable” barrier removal through out the facility controlled by the HOA.
Of course, if any permitted alterations, structural repairs or additions are constructed after it was first built, then that is the “trigger” both at the State and Federal level to provide the 20% in addition of the total construction cost be spent on removing barriers.
What causes an HOA to be pulled into the category of “Public Accommodation”?
So what causes an HOA to be pulled into the category of “Public Accommodation”? After all, the ADA only deals with places of public accommodation that provides goods, services or privileges to the common public.
There are two distinct areas within an HOA that every manager must keep their eyes on:
1) All common use areas that the HOA has “held out” for the use of visitors or the common public, and;
2) Individual units controlled by the resident owner
Americans with Disabilities Act (“ADA”)
“Public Accommodation” is defined as any facility that an HOA holds out for use by the general public- not solely for the use of members and their guests.
How most HOA’s get into trouble without even realizing it.
An HOA inadvertently “triggers” the “public accommodation” clause by:
- Allowing members of the general public to purchase memberships or passes to the HOA pool.
- Allowing churches, schools or private clubs to use the HOA facilities on a regular basis.
- HOA maintains a rental office on site that receives regular visits from the general public.
- “Semi- private” vs. “Purely-private” makes all the difference in the world.
- HOA rents out or allows their ball fields to be used by local leagues?
- HOA allows pools to be used for team swim meets.
- Clubhouse being used for meetings, private sales or shows.
- HOA allows any other portion of the property to be used by anyone outside the association?
- HOA allows the clubhouse to be used as “polling place” during election time.
- HOA provides a walking path across the property and allows people outside of the HOA to use it.
What role does the CFHA and FFHA play in how an HOA deals with owners or members’ access needs?
Federal Fair Housing Act (“FFHA”)& California Fair Housing Act (“CFHA”)
Here are a few key points to remember!
- Even though the FHA & the ADA are similar, the FHA applies directly to housing facilities such as an HOA.
- Under the FFHA & CFHA, a HOA cannot legally refuse to make reasonable accommodations in its rules or policies when such accommodations are necessary for a disabled owner to fully enjoy and use their unit.
- NO PET policies does not allow refusal for true service animal.
- NOTE: California has a “companion pet” law so be careful.
- FHA requires that HOA’s allow a disabled owner to make, at such owner’s expense, reasonable modifications to the owner’s unit and HOA common areas.
This is further reinforced in the California Civil Code Section 4760, which states:
HOA’s are required 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:
- Installing a power stair lift inside the unit
- Installing a ramp and handrails up to their main entry
- Installing wider and longer steps or reduced threshold height at their entry door
- Installing addition curb ramps along path of travel from unit to parking
- Making repairs to the walkways leading from their unit to clubhouse, pool or public sidewalk connection
REMEMBER! An HOA must allow an owner to make modifications to their unit and the route to the unit from the public way, so long as:
- The modifications are consistent with current building codes
- The modifications are consistent with the intent of the governing documents relating to safety and aesthetics
- The modifications do not prevent reasonable passage by other residents or owners
- The modifications are removed by the owner when the disabled individual no longer occupies the unit
- The owner submits plans and specifications to the HOA for review prior to submittal and sign a legal agreement to restore property to original condition upon vacating unit
HOA’s are being sued more and more by the common public being invited in for some reason or another and by his or her own resident owners.
Be Careful!! Look at your HOA policies and procedures, and ask yourself:
Do we invite anyone from the public onto our property?
Do we properly engage, communicate and work with our disabled resident owners when special accommodation requests are made?
If you are an HOA manager and your facility is considered “Semi-private”, which means you do allow some level of public access into your facility, then your responsibility is double that of a normal property manager, apartment complex manager or a retail strip center manager. You have both the ADA and the FHA to worry about.
If you have any questions concerning the level of access truly required within your HOA, please contact our office directly to speak with one of our Access Specialists.