HOAs and the ADA by Tracy Kinsella, Garfield & Hecht, P.C.
Does your HOA have a rental office? Does your HOA allow members of the general public to use or rent common areas such as party rooms, clubhouse or a pool area? Are any common areas used a polling place during an election? Is there an HOA walking path which the HOA allows members of the general public to use? If the answer to any of the above questions is yes, then your HOA is likely subject to the ADA.
The Americans with Disabilities Act, 42 USC § 12101, et seq., (“ADA”) is a federal civil rights law that prohibits discrimination against disabled persons. The ADA applies when property is open to the public, even if only for occasional and limited events. Conversely, if property is purely residential and not open to the general public, then that property is not subject to the ADA. The ADA’s “public accommodations” provision does not apply to homeowner associations unless the homeowner association’s facilities are open to the public.
The public accommodation, as defined by the ADA, is any facility that a HOA holds out for use by the general public as opposed to limiting use to owners/members and their guests. If any common area of the HOA is open to the general public, the HOA should be prepared that the ADA will apply and that the HOA may be required to make reasonable accommodations. Reasonable accommodations may involve installing ramps, elevators, lifts or removing stairs or other obstacles which impair access to the area.
In addition to the examples set forth in the first paragraph, a HOA’s building or premises may contain areas of commercial space such as restaurants, stores, salons and pool areas. Also, many HOAs have a rental office on site or use their parking lots for profit during local concerts and events. Again, if these areas are open to the general public, even if only for occasional and limited events, then such areas are places of public accommodation and compliance with the ADA will be required.
An area that few HOAs, which are subject to the ADA, fail to consider is their website. The ADA requires certain businesses to make accommodations for people with disabilities. Website content may need to be accessible to deaf users, blind users and other users which navigate by voice, screen readers or other assistive technologies. In the event that there are unit rentals advertised on your HOA’s website, the website needs to be complaint. If an ADA compliant website is required, the developer of the HOA website should be contact to assist with ADA compliance measures.
HOAs that have areas of public accommodations should consider an ADA audit to determine if the areas in question comply with ADA requirements. If there is non-compliance, addressing the problem may be of nominal costs or there may be an exception. HOAs should determine if there is insurance coverage for ADA claims. The risk to HOAs of non-compliance can be substantial if a claim is made by a handicapped person as to lack of access or worse if there is an injury.
If the HOA does not want to be subject to the ADA, the HOA must be sure that it does not make a decision or perform an act which will create a place of public accommodation. It is advisable that parking lots contain signs identifying it as private parking and that amenities which may appear open to the public to install barriers and signs to deter entry.
For additional information or guidance regarding the applicability of the ADA to homeowner associations, we have several experienced attorneys ready to assist you.