Homeowner Assocaitons and ADA Compliance on Homeowner Property

Our covenants and declarations prohibit fences and storage building or sheds. Other small outbuildings, such as workshops and spa buildings, have been approved as long as the design and construction is the same as the exterior of the home. A homeowner has requested to place a prefab (extruded plastic) greenhouse on their property and was denied as the structure was not similar in composition and appearance to their home. They were advised that if they built a stick frame structure, that is the same in appearance as their home, the greenhouse would be allowed. Again they have submitted the request now claiming that it is necessary for their disabled grandfather who resides in their home. The board has indicated that the greenhouse concept is not denied, it is the type of structure that will not be approved.

Additionally our community is a fenceless community. A homeowner has requested to fence their yard and was denied by the board. They immediately appealed indicating that their son is disabled and that the association must permit the fence as directed by ADA laws.

Are single family homework associations bound by ADA laws with regard to a homeowner's property? Since these are not common areas it seems that the requests are not governed under ADA. The board and managin agernt feel compelled ot honre these requests based on fear of non-compliance to ADA. Does anyone have insight on these issues?

I think ADA basically deals with the common areas. Your problem will be with the Fair Housing Admin. Here's a good article that may help give you some guidelines:
http://www.hoalaw.biz/fair_housing.htm

Joe

joseph has an excellent point... get the contract specified that should the reason cease to exist, then the accomodations also must be removed.

Also, make sure you get, in writing, from a medical professional (or two) that any such accomodations are MEDICALLY NECESSARY for life and health. Often, people want something and say "i need it", but that don't count. Only if a doctor says that an item is required for their medical benefit must you comply. I cannot image any doctor saying that a greenhouse is medically necessary to someone's life, for example.

SusanD,
I’m still doing some research and came across this article. I hope it helps.

I’m not sure if I’m allowed to post links to this discussion board or not. If you then I apologize now. I’m sure the moderators will let me know!

http://www.dgsllp.com/articles/article_hoa_ada_compliance.html

Chuck W.

Use the search feature (upper right of the forum page) to make two searches for: disability then for disabilities.

You'll find other discussion on this that may help.

Best Regards,
HOATalk.com

We learned at an HOA law seminar this spring sponsored by our HOA attorney that the HOA is not required to comply with ADA unless they are renting out the facilities as a source of income. Once you do this, then you will need to comply with ADA. You do however, have to abide by the FHA.

Regarding a person's personal property, this may just be an excuse to get what they want. We had a similar situation that had to do with our covenants not allowing parking in the driveway unless there were an excess number of vehicles. Somehow the person said he didn't need to follow the covenants because he was disabled.

In the past, we have had issues with some items not related to ADA but rather a so called 'religious' thing. Per our attorney, we fined the homeowner a flat amount and required a 'condition of sale' change when the home was sold. This worked out well.

Personally, I would contact an HOA attorney for advice on this one so that you do not end up in hot water or get taken advantage of.

The ADA in an HOA
by Richard Thompson

The ADA (Americans with Disabilities Act) required that extensive and expensive alterations become standard in certain commercial and residential buildings. Many are required to have wider doors, special bathrooms, ramps, handrails, handicap parking and a variety of other features. So, how does this all apply to a homeowner association?

Consider a resident who moves in and wants accessible parking. As a result of the federal Fair Housing Amendments Act (FHAA), homeowner associations are required to determine and provide a “reasonable accommodation” to disabled residents when requested. According to the FHAA, it is unlawful “to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap...” This prohibition on discrimination also makes it unlawful to refuse “to make reasonable accommodations in rules, policies, practices, or services, when such may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling.”

In the case of Gittleman v.Woodhaven Condominium Association, the plaintiff asked for a designated parking space due to his disability. The HOA argued that it was unable to grant his request because the master deed said parking spaces were common elements for the non-exclusive use of all unit owners.

The court, however, found that under federal housing law, the HOA is “duty bound to: (1) avoid enforcing provisions of the master deed that have discriminatory effects; and (2) regulate the use of the common elements so as to comply with the requirements of the FHAA.” Therefore, the HOA was found guilty of discrimination under the FHAA’s guidelines.

The most important thing an HOA Board can do when faced with such a request is to respond promptly in writing that it will investigate the matter. Then, review the governing documents and determine if the parking is designated a common element, limited common element, individually owned or some combination.

Finally, the Board should work with legal counsel to properly address the request. For more on handling disability issues, subscribe to www.Regenesis.net. Thanks to Pamela J. Park of Kovitz Shifrin Nesbit for the information in this article.
http://realtytimes.com/rtcpages/20020925_adahoa.htm

To get to the root of the existing question, no ADA does not apply to ones personal residence. Meaning, you don't have to provide accessible access onto your own personal property. Common areas are a different story, they are semi-public areas and do have responsibilities to provide reasonable accomodations under the Fair Housing Act. Meaning, if you have a clubhouse that was recently erected then it needs to be handicapped accessible. The key is reasonable accomodation, is it reasonable to erect a handicapped parking spot, yes it is. Is it reasonable to modify a gate so a wheelchair can get by, yes it is. Is it reasonable to provide a chair lift into a pool, one could argue that. But, if you think that your common areas don't qualify, you need to rethink.

To give you an example of this, I sat on a committee to do an arena renovation, one of the topics was handicapped showers and bathrooms in a basketball lockerroom. We argued that there is not a handicapped person on a basketball team. However, the law won out citing the fact that it is a semi-public area and needs to be accessible.

From the US Dept of Justice website:

The ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress.

So, unless your HOA is hiring people, or is offereing public accomodations (Public accommodations are private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, hotels, movie theaters, private schools, convention centers, doctors' offices, homeless shelters, transportation depots, zoos, funeral homes, day care centers, and recreation facilities including sports stadiums and fitness clubs.), you are not covered by the ADA.

Having a pool open to MEMBERS of the HOA is not a public accomodation. Opening your pool to the city of Anaheim would be a public accomodation, however.

Brian:

I haven't studied ADA enough to know how it applies or doesn't, but if you have common areas that are open to homeowners and the homeowners guests it is a semi-public area. Again, it sounds like you have done more homework than me, but I will go back to the example I had before, how many handicap basketball players do you have and how many public people are allowed in a lockerroom, however, we were required to make it accessible.

I "borrowed" this from the blog of an attorney I know. Let's see if this helps or just adds to the confusion:

Is an association clubhouse subject to the Americans with Disabilities Act?

The Community Association Network has a Daily News weblog feed that reports on news relating to community associations. Today, it referenced a Sun-Sentinel story about two disabled people suing their association for having an inaccessible clubhouse. The South Florida newspaper reported that John Garon and Vatrice Rivera, who use wheelchairs, claim that they are unable to properly use the parking lot, bathrooms and water fountains in their community's clubhouse. They have filed suit claiming that because the clubhouse is open to the public for political debates and some entertainment, the building must comply with the federal Americans with Disabilities Act ("ADA").

There are two federal laws that may impose disability access requirements on community associations. The Federal Fair Housing Act and the ADA. The Federal Fair Housing Act is intended to apply to residential situations while the ADA is intended to apply to most commercial operations open to the public (sometimes referred to as public accommodations). The main difference between the two Acts is that those covered by the ADA are required to make the facilities of the public accommodations accessible to the disabled if it is readily achievable while the Fair Housing Act requires the housing provider to permit a disabled individual to make reasonable modifications to the project at the disabled individual's expense. In other words, whether the ADA or the Federal Fair Housing Act applies to a project is important because it determines who pays for the cost of eliminating barriers to the disabled.

If a condominium or planned community is purely residential, the ADA does not apply. However, if the condominium or planned community contains commercial uses, the Americans with Disabilities may apply at least to the extent that the commercial uses fall within the ADA and the common area is open to the customers of the commercial establishment. In the case of a residential project that opens its amenities to the general public, the analysis is a little more involved. If the amenity is open only to the residents and their guests, the ADA does not apply. Federal Regulations (28 CFR § 36.102(e)) states that the ADA does not apply to private clubs, but will apply to the facilities of a private club that is made available to customers of a public accommodation. Appendix B to the Federal Regulations states that:

An entity that is not in and of itself a public accommodation, such as a trade association or performing artist, may become a public accommodation when it leases space for a conference or performance at a hotel, convention center, or stadium. For an entity to become a public accommodation when it is the lessee of space, however, the Department believes that consideration in some form must be given. Thus, a Boy Scout troop that accepts donated space does not become a public accommodation because the troop has not "leased'' space, as required by the ADA.
Therefore, a factor in the analysis is whether the association charged for the use of the premises. Even if an association does not charge for the use of its amenities, it may wish to limit access to residents and their guests to avoid a claim that they must undertake modifications to the amenities to comply with the ADA.

Joe

Thanks Joe, you beat me to it. I was going to re-emphasise my "Common Areas" apply statement with the caveat as to whether your HOA is filing (assuming incorporated) under not-for-profit or has outside income from facilities open to public use (i.e. a pool that has a yearly membership open to others outside of the community for example)

Don't thank me, that came from Richard Ekimoto, a condo attorney in Hawaii, borrowed it from his blog. People from Hawaii, California, Colorado, Virginia, New Jersey and Texas are fortunate in that some really experienced HOA attorneys are writing blogs regarding laws in their states, which means that they get information and analysis a little quicker.

Joe

I would love some help as I am one of (3) newly elected Board Members of a very small group
of condo owners---8. Someone has requested that they would like to add a handicapped "bar"
on the outside of their building so the owner---with a progressive neurological handicap can
go up the steep stairs of which there are many. Not that we are unsympathetic but we are
worried that this owner may use the ADA to their advantage and start wanting to alter the
exterior common areas so as soon it may look like an assisted living facility. The owners
have been several of the historic complainers about ever little thing. What rights do the
considerate other homeowners have in not wanting this to proceed? Instead of moving to a
condo where the future might be made easier by a one level living arrangement (mind you this
is a vacation home condo) as most of us would consider this may open the field to be an everchanging cascade of uncompromising requests.

Just remember folks you are only a doctor visit away from MS,Cancer, LG or some other life long chronic disease. When you talk about making accomodations for the disabled YOU MAY BE FINE TODAY AND BY NEXT MONDAY YOU MAY BE THE ONE NEEDING AN THE HELP FROM THE ASSOCIATION. YOUR POSTS ABOUT PROPERTY VALUES OVER HUMAN VALUE SHOWS HOW VERY LITTLE YOU HAVE IN TERMS OF CHARACTER.

I HOPE YOU GET THE CHANCE SOME DAY TO EXPERIENCE A DISABILITY FOR YOURSELF AND THEN LETS SEE WHAT YOU THINK OF WALKING A MILE IN THOSE SHOES.

YOUR LACK OF COMPASSION FOR OTHERS IS SICKING AND WASN'T IT CHRIST WHO SAID THOSE WHO HAVE COMPASSION FOR THE ILL WILL BE BLESSED? DON'T GO TO CHURCH ON SUNDA, OR SAY YOU BELIEVE IN A HIGHER POWER WHAT EVER THAT MAY BE, AND THEN FORGET TO PUT WHAT YOU LEARN INTO PRACTICE.

JAKE S

Jake:

You are certainly a breath of fresh air. I don't think it is anyone's intent here to discriminate or turn their back on those with physical challenges. I think most of us have someone we know that has some sort of disability or we may have one ourselves. With that said it is the job of the BOD to take the emotion out of every decision and do what is best for the association, that isn't easy, it is very hard to do. There are some instances that it may not benefit those with disabilities, other times it might. The law says you have to provide reasonable accomodations and that is what the BOD is supposed to do. One thing to remember is that no one is forcing them to live there, if when looking there are not current accomodations that would be something I would investigate to see how easily and likely it is to make those changes. You are entitiled to your opinion but you may want to tone it down a bit and read the posting rules about this forum.

Brad

I appreciate your comments but I live the REAL World....and I am trying to get others to do the same. Tell what is the worst illness you have ever had? Tell me do you suffer every day? That is why there are laws to protect disabled people those of us who are well can not just box up people who are not and put them where we want to. That is why the laws had to be written to protect disabled people and force those who lack understanding to not overstep their bounds. These laws are enforced with fines, penalities and pain and suffering damages to the HOA and that is the only way to push back those who lack understanding.

No one is forciing them to live there???? Lets say Brad goes to the doctor tomorrow, the doc looks at the scans, Brad sorry to tell you this. You have 2 weeks, 2 months or 2 years to live. (By the way my Aunt was just given this news 2 months ago) Now tell me Brad what is the first thing you are going to do. M O V E. I am sure you are going to be thinking about fighting for your life not moving. I do not think packing boxing and looking at other homes is going to be on your agenda. This is what I mean by compassion. HOA's FAIL to have it.

Get REAL people ILLNESS CAN HAPPEN TO YOU. Stop hiding behind denial. Someone needs to be a breath of fresh air here. As President of an HOA this is not the first time I have dealt with issues dealing with disability.

You may not be one of the baby boomers but look out here they come and you better learn to accomodate their disabilities or you will likely be facing some very very nasty lawsuits. AND some EXTEMELY BAD newpaper press about your HOA because it will hit the papers when you mistreat any protected group of people in America.

I know you hate my guts but one day you all will learn the hard way if you do not learn sooner.

Have a blessed day and remember God is watching.

Jake

If we can fall ill or disabled at any moment then what steps are you taking personally at your home to protect yourself or make you more able when your not? If your not taking your own steps, then why expect that of others? The ADA rules realizes the limitations for complying for every single disability out there. It doesn't require "Above average accommodations must be installed". It's reasonable to assume that an elevator isn't required to be installed in a 3 story condominium to accommodate a resident in a wheel chair that one day may decide to move into the condo.

The handicap people I know aren't Handicap as much as they are "Handi-Able". They aren't looking for special treatment just EQUAL treatment. They also would be greatly offended by someone wishing bad health or disabling condition just so someone would know how it feels to be them. They don't want anyone to walk in their shoes or to feel sorry for them. People don't stop being people just because they have a disability.

I volunteer for Habitat for Humanity and we built a handicap accessible home for someone. It was a young girl who had lived in a trailor with her older parents. They physically had to carry her to the bathroom because her wheelchair didn't fit down the hallway. We made the home have extra wide doors and a shower that you could roll a wheelchair into. These were accommodations the OWNER's paid for. Habitat just provided the materials and volunteer labor for installing these features. There was never any real requirement that the home be made handicap friendly. The owner already knew the accommodations they needed and paid to get them done.

If your handicap or think you will become handicap, you make the arrangements and concessions. It's NOT a matter of feeling sorry for someone or to accommodate someone with rules/regulations. Your not heartless human beings because you make someone pay extra to get those concessions for their condition. It's just reality those materials are custom and custom costs money.

Melissa

I have reread your post several times. To me YOU just don't get it. I would hate to have you on the board of my association because I think you are more interested in your own ego and self satisfaction than in helping others.

By the way what are you doing to prepare for your handicap? What kind of question is that? Your whole life could change in 5 seconds with a car accident or being a victim of a robbery etc. how are YOU planning for that?

Grow up and get a heart....