ANOTHER NOVICE QUESTIONS.. REGARDING... The Gym..

Started by FionaC • 18 replies • 1608 views

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FionaC (California)
Posts: 212

Posted:

I hope I am not annoying anyone regarding my ignorance about this whole sitution. You are all so kind and fabulous for supporting and answering my question from yesterday.. Here is a BIGGIE!

We have several residents in our complexe that are disablied. One uses a wheelchair and or walker. Our new set up GYM is NOT set up to allow access of a wheelchair or any mobility devices.

I fear not alot of planing went into this from the board and the committee involved.

First of all is this allowed? What if the disabled homeowners want to use the bowflex manchine? They can't get into the room, the machines are put almost on top of each other which does not allow for anyone with disabilities to walk through with any assistive devices, the door doesn't appear to be wide enough for a wheelchair.

Is this an issue if it's pushed by any one who is disabled, and our HOA Board just set up a very unsafe, non disabled friendly gym?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Fiona:

Here is a link for the overall sections of the Davis-Stirling Act:
http://www.davis-stirling.com/MainIndex/Statutes/DavisStirlingAct/tabid/791/Default.aspx

Your question probably is something you need to ask your local city planning department as they are the ones who issued construction permits and would have overseen modifications to meet the local ordinances, including handicap access as needed.

Below is the Davis-Stirling information, but it pertains mostly to the individual Units.

Civil Code §1360. Modification of Unit for Handicap Access.
(a) Subject to the provisions of the governing documents and other applicable provisions of law, if the boundaries of the separate interest are contained within a building, the owner of the separate interest may do the following:
(1) Make any improvements or alterations within the boundaries of his or her separate interest that do not impair the structural integrity or mechanical systems or lessen the support of any portions of the common interest development.
(2) Modify a unit in a condominium project, at the owner's expense, to facilitate access for persons who are blind, visually handicapped, deaf, or physically disabled, or to alter conditions which could be hazardous to these persons. These modifications may also include modifications of the route from the public way to the door of the unit for the purposes of this paragraph if the unit is on the ground floor or already accessible by an existing ramp or elevator. The right granted by this paragraph is subject to the following conditions:
(A) The modifications shall be consistent with applicable building code requirements.
(B) The modifications shall be consistent with the intent of otherwise applicable provisions of the governing documents pertaining to safety or aesthetics.
(C) Modifications external to the dwelling shall not prevent reasonable passage by other residents, and shall be removed by the owner when the unit is no longer occupied by persons requiring those modifications who are blind, visually handicapped, deaf, or physically disabled.
(D) Any owner who intends to modify a unit pursuant to this paragraph shall submit his or her plans and specifications to the association of the condominium project for review to determine whether the modifications will comply with the provisions of this paragraph. The association shall not deny approval of the proposed modifications under this paragraph without good cause.
(b) Any change in the exterior appearance of a separate interest shall be in accordance with the governing documents and applicable provisions of law.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Janet,

What you posted from Davis-Sterling would be applicable to an individual unit owner to modify their unit. Fiona is addressing a common area space that is available to all of the unti owners.

So in hy opinion, the ADA act would apply here and shame on this HOA for installing anything in the common area that is not handicapped approved for use. They made an expensive Boo Boo and will need to fix this, especially if a handicapped member wants to use the gym.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Donna ... I agree "shame" on them.

FYI ... that is why I let her know: ... but it pertains mostly to the individual Units

The only reason I posted it was because of the last provision:

(b) Any change in the exterior appearance of a separate interest shall be in accordance with the governing documents and applicable provisions of law.

FionaC (California)
Posts: 212

Posted:

So does this sound like a potential lawsuit waiting to happen? My spouse is disabled, can walk but had mobility issues that would not allow him to use this room safely due to the way it's set up. The doors don't open all the way, due to the equipement, the amount. ( no wheelchair allowed ) The space is cramped... and you have to almost walk side ways to move around..

I dont' know what to do, or how to present this issue.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Fiona:

I would recommend that you send a letter to your Board and request information on how they are going to address the American Disabilities Act with regards to the gym facility. Nicely let them know that you are concerned as there are a number of homeowners who are disabled and that it appears to you they would not have proper access with regards to the new facility.

Honestly Fiona it could be that they did not consider this issue, and need the opportunity to rectify the situation.

FionaC (California)
Posts: 212

Posted:

Hello Janet. I think your advice is perfect. I am just fearful they did not think about this. Our gym is clearly not set up for anyone who has any mobility issues. Both doors can't even open properly because the machines are so cramped inside there is no room to allow for this.

I will let the gym open and present itself as they plan this Sunday... and I will follow up with a well written letter asking about how are they going to address the issues with disabled homeowners.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I think you are on the right track Fiona ... I too think they did not consider the issue and it is only fair to bring it to their attention and give them the opportunity to address the potential problem.

Thank you for looking at the other side of the issue with a positive attitude. It is always good to try and solve issues as an HOA team.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Fiona,

If the Board refuses to do something about the situation in the gym, maybe you can shake them up a little by calling the Fire Inspector in your area. The door of the gym cannot open fully and that alone is a code violation. They do need to address this and a simple start if they do refuse to see your point would be to go after the code issue.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I am thinking that the board's obligation is to provide ACCESS to all areas of the common facilities, ie. ramps, extra wide doorways, bathrooms, etc. but that would not include providing certain excerise machines to serve this special population.

The liability cost for overseeing that may be prohibitive, just like if you were to open a daycare center, with small children using the facility.

The room must be accessible. Whether or not anyone chooses to use what's in there is their decision.

FionaC (California)
Posts: 212

Posted:

Seriously? You all are so helpful. I was thinking about the code violation perhaps? I was unsure if this was an issue, but highly suspected it was. I have a local atty here that I emailed for advice to "fix" the problem. He specializes in HOA and Real Estate so perhaps he can help me with wording of my interaction to try to set this straight.

The gym isnot open yet... but I know for sure the door does not open all the way.. I was told this specifically by someone who redid the gym itself.

FionaC (California)
Posts: 212

Posted:

Quote:

Posted By DonnaS on 01/28/2011 4:47 AM

Fiona,

If the Board refuses to do something about the situation in the gym, maybe you can shake them up a little by calling the Fire Inspector in your area. The door of the gym cannot open fully and that alone is a code violation. They do need to address this and a simple start if they do refuse to see your point would be to go after the code issue.

Donna,
I did some sleuthing and I found out a biggie. This gym was originally intended to be part of our clubhouse, sort of a separate wet bar with a huge patio. Our city requires for dwellings as ours to apply for a permit for an intended change. Our HOA broke several city codes by not doing this and no permit was ever processed for our gymnasium. The city is not happy about this and its only a matter of time before the HOA is contacted.
What surprises me. I of course had not idea that changing the use of a room in a private owned communty required a permit. But! Our management company who is one of the larger ones in our city totally knew we were doing this, yet said nothing about seeking a permit? I am surprised a bit.

RobW (California)
Posts: 279

Posted:

In California (and, I'm guessing, in other parts of the country as well), HOAs are not required to make architectural modifications to accommodate people with physical disabilities, unless the HOA owns common area facilities that are expressly open to the public, in which case those public facilities must comply with the ADA (Americans with Disabilities Act). Barring that, individual homeowners can demand that the Association provide such architectural modifications to any of the buildings - even to the front entrance to a multifamily condo building or recreational facility - but the homeowner has to pay for it.

What's being overlooked here is that we're talking about private property, and the ADA does not apply.

This is spelled out clearly in the Davis-Stirling Act here.

Rob

FionaC (California)
Posts: 212

Posted:

But... it is covered under the fair housing act... will find the link..

DonnaS (Tennessee)
Posts: 5,671

Posted:

Fiona,

It does not matter what D/S Act says. The Federal law trumps the State in this case. Unless the ADA will say, "Unless California states" would mean that Cal has the option of following ADA. IT DOES NOT say that so ADA rules.

SusanB22 (California)
Posts: 5

Posted:

Too bad the board didn't consider all residents when setting up this gym. Did they at least appoint a committe? Was this discussed at board meetings? If so, I;m curious as to why it wasn't brought up before the HOA went to a great deal of expense?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Rob:

That one did not come up when I was searching. I do notice that the one you just posted has a link to statute 1360(a); however, 1360(a) is lacking a reciprocal link. Since you are from California how about you sent them a quick contact and recommend that they also add a link to the one you just posted to help other HOA’s and homeowners find all pertinent information. It is always good for all of us to be proactive when we can, to help others in the future find all related information to alleviate confusion.

I’m not so sure ADA would rule here because when looking up some information ADA generally applies to places of “public accommodation”. With definition: Place of public accommodation means a facility, operated by a private entity, whose operations affect commerce. It further states in some areas that: Private Clubs and places run by religious organizations are not considered places of public accommodation.

The FHA could apply; however, under them the HOA would not be responsible for the costs as this text suggests: Although the housing provider or homeowner association must permit the modification, the tenant (or prospective tenant) is responsible for paying the cost of the modification.

Very interesting and many different ways to look at one issue …

Of course there is another potential snag to consider is all homeowners are responsible for all costs within HOA equally … so if some do not have equal access to benefits they are paying to maintain … Might be a good debate question.

AnnJ1 (Florida)
Posts: 122

Posted:

Hi Fiona,

I've always had the belief that condo associations were exempt from the ADA rules of accommodation unless the common area (clubhouse in our association) was open to the public. Atty Adams' (of Becker and Poliokoff) opinion is below.....

Question: I am a handicapped person who must use a
motorized chair to get around in a condo complex. I
was informed by the board that condo complexes are
considered to be like a single family residence, and are
therefore exempt from the Americans with Disabilities
Act. Is the board correct, or do they have to follow
ADA regulations? J.D. (via e-mail)

Answer: An answer regarding the applicability of
the Americans with Disabilities Act will depend
substantially upon the nature of your condominium.
The ADA mandates accommodations for disabled
persons in places of public accommodation, and requires
retrofitting in many instances. If there is some type of
facility at the condominium that is open to the general
public, the area may fall under the ADA as a place of
public accommodation. If the facilities are restricted
to residents and their guests only, then it is likely that
the ADA would not apply.

However, there are other sections of law that also
relate to disabled individuals. For example, the
Fair Housing Amendments Act of 1988 protects
handicapped individuals from discriminatory
housing practices. Refusal to make reasonable
accommodations, when such accommodations
are necessary to afford each resident an equal
opportunity to use and enjoy a dwelling, constitute
unlawful discrimination under the FHAA. This
includes the right to make reasonable modifications
to the premises.

The main difference between the ADA and FHAA is
that ADA requires retrofitting at association expense,
whereas FHAA involves premises modification at the
disabled individual’s expense.
.....................................

HTH,
Ann

FionaC (California)
Posts: 212

Posted:

Quote:

Posted By SusanB22 on 01/29/2011 2:36 PM
Too bad the board didn't consider all residents when setting up this gym. Did they at least appoint a committe? Was this discussed at board meetings? If so, I;m curious as to why it wasn't brought up before the HOA went to a great deal of expense?

Susan, back in October I offered to assist the committee I was told that the comittee was fully functional and didn't need any more help. The info disclosed at meeting were all about money, and individual itmes they purchased. IT was not until I saw the layout of the room, the cramped space that it came to mind. I honestly would of brought it up but my common sense said, they thought of this as they were utilizing the floor plan. We as a home ownership were not informed of the tight space floor plan. I happened to walk by the room that was open as they were finishing up. It's not disabled friendly, has a blocked entrance and you have to walk through equipment like a tight maze side ways to get to and fro the front entry way.

I was not previliged to seeing or knowing this until just a few days ago. I myself plan on helping them keeping to code and pursing a fix. This is not the HOA's fault, but I can't help but wonder why our management company and manager who was well aware of the HOA intent, plans and purchases. to "go ahead". NO city permites were done. ( bad ) fire safety codes are broken ( bad ) our disbaled homeonwers can't us this (bad) our board erected rules that break the DSA ( bad) I am not on a mission here, but this is what I discovered by a few phones calls, posting on here and speaking to a local HOA atty.

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