There’s some large confusion as to whether or not HOAs are required by the ADA to provide accommodations.
The logic that follows is simply this:
The Americans with Disabilities Act (ADA) is Civil Law that requires that places of public accommodation provide reasonable accommodations so as to allow members of the public to have access to all goods and services. The ADA is not building code and cannot be grandfathered in that way.
Home Owner Associations are in general, private entities, but may have areas that are open to the public. For example, a pool that is open to the public (but charges), guest parking, a leasing office or rooms that can be rented for are all areas that are public accommodations. Those areas definitely fall under the auspices of the ADA.
This does not mean that HOAs are exempt from the ADA however. For areas that are the exclusive use of a tenant, those areas must be allowed to be made accessible by the tenant for their own disability which includes entering and exiting a building.
Additionally, should the HOA remodel, or upgrade any of their areas, local building code would apply. For California, this definitely means Chapter 11A (which has disability requirements — causing the ADA to kick in).
This area of law does get trickier as local ordinances and other state specific laws come into play. Overall, our recommendation is that an HOA should become accessible whenever possible, to help their aging residents and avoid future litigation issues.
Unfortunately, many HOAs seem to think that resident accessibility is cosmetic or somehow not applicable to them. Some interesting links here include a story about an HOA that seems to think it doesn’t need to allow for easy ingress and egress for their residents:
AURORA, Colo. — A fight over a wheelchair ramp is pitting neighbor against neighbor at an Aurora condo complex.
69-year-old Charlotte Vaile rented the ramps with her own money after the elevator at the Bayberry Condo complex broke down, “because I can’t get in and out of the building,” she said.
Charlotte says she asked the HOA for permission to install the ramp, but the board didn’t get back to her right away.
Once the ramp was installed, the HOA promptly took it down. A board member told Charlotte the building does not have to comply with the American’s with disabilities Act because it was built before the law took effect.
Charlotte called the Aurora Fire department, and they put the ramp back up.
But the HOA is now refusing to make the 2nd and 3rd floors accessible to several other disabled people who live there.
Cathi Fort is also a disabled vet, and she lives on the 2nd floor. She told FOX31 Denver, “I feel like I’m a prisoner in my own home.”
FOX31 contacted the Bayberry Condo Association President and we were referred to the president of the property management company.
Lynda Reifman said the board “took the ramp down because they wanted the opportunity to review Charlotte’s request before she put it up.”
And when we asked Reifman what would happen to the other disabled if there was a fire in the building, she said, “the fire department will get them out, that’s their job.
If you want further resources regarding one law firm’s grasp of the ADA as it applies to HOAs, you can turn here.
So the Takeaway from all this is that if you are an HOA be very careful. You must not deny your tenants safe access in and out of their residences.
You could be a place of public accommodation have then you have to comply ASAP!
If you are fairly certain you’re not, also be careful, because your residents could at any point have a medical need for a ramp, or some other accommodation. It’s of course better to become accessible, even if you don’t think you are — for future (and present) liability but if you choose to do work, that also could trigger the ADA.
You may be required to set aside an additional 20% of your budget just for ADA upgrades.
If you are an HOA or part of an HOA and have questions as to the applicability of the ADA, please contact an attorney. In general, if you take money from your residents you must consider their current and future needs (hint: egress and ingress are far more important than comestics). Also, always also get a licensed and bonded contractor to do accessibility work — as many contractors aren’t always familiar with this area of law. If you have any questions for us, you can contact me at firstname.lastname@example.org or 866 982 3212.