California Condoguru ENewsletter

THE ADA, INVITEES, AND PUBLIC USE OF HOMEOWNER ASSOCIATION FACILITIES What Do You Need to Know To Stay Out of Trouble?

Right off the bat, I will tell you that I am not an expert in civil discrimination cases. I am an HOA attorney and know a lot about dealing with the Fair Housing Agencies in various counties on claims brought against homeowner associations, and know from experience in working on those claims that all Fair Housing agents/workers are trained by their respective agencies and many tend to sympathize with the disabled parties making the claims. This can make it hard to get reasonable consideration of proposed resolutions or acceptance of arguments on the HOA's behalf. And I know that homeowners associations are subject to many of the discrimination laws and have to tread lightly in many situations that potentially involve discrimination, harassment based on discrimination, rules enforcement that might involve a discrimination claim, etc. And I know how to work those claims, and I know HOAs do not always win even if they are right.

And all that said, I recommend that anyone reading this newsletter consult with their HOA or Condo attorney if you have questions or concerns after reading this because this is an important issue with potentially serious legal ramifications.

This particular newsletter is about the ADA more than other discrimination laws like the Fair Housing Act and subsequent amendments to it and The Fair Housing Amendments Act of 1988, or Civil Code Section 1360, all of which require some reasonable accommodation in housing and/or rules enforcement. For purposes of this E-Newsletter, I am focusing on how the ADA relates to facilities use and special construction requirements to accommodate disabled parties. It is especially timely I think since some HOAs and Condo Associations are contemplating or allowing swim pool use by swim team groups and "outsiders", and others are (some because of budgeting issues), contemplating renting out their clubhouses or recreational facilities for use by third parties, or for use by members who want to hold Tupperware, jewelry, home design or other types of parties where they expect attendance by "outsiders". I do not mean to be facetious using the word "outsiders" the appropriate legal term is "third parties", but someone might ask, "who is the first party, and who is the second party then." To avoid that question, "outsiders" works. It means people who do not live in the development and are not officially considered "guests". It means the general public or some facet of it. The ADA is defined as follows on the web:

Americans with Disabilities Act, U.S. civil-rights law, enacted 1990, that forbids discrimination of various sorts against persons with physical or mental handicaps. Its primary emphasis is on enabling these persons to enter the job market and remain employed, but it also outlaws most physical barriers in public accommodations, transportation, telecommunications, and government services. Š Some 50 million current or potential workers are estimated to be covered by the law's provisions. Studies suggest that the number of disabled persons entering the workforce has not improved significantly, and that a contributing factor may be their reluctance to lose (e.g., because personal income would exceed statutory maximums) other benefits available to them on the basis of their disabilities. The act has already been much litigated. In 1999, for instance, the U.S. Supreme Court ruled that correctable conditions like eyesight requiring the use of glasses do not qualify as disabilities under the act, and a 2002 decision established that a disability must limit a person's ability to perform tasks of central importance not just in the workplace but in daily life. The Columbia Encyclopedia. Copyright © 2001-08 Columbia University Press. All rights reserved."

You can see that the emphasis seems to be on discrimination in the workplace but I have highlighted the pertinent part of the definition as it relates to this E-newsletter. Now, you may have (I should say "probably have") heard that the ADA applies to public or governmental entities, and not purely private homeowners associations. In fact, I have said that! I use the words "purely private" carefully - to mean those HOAs that do not invite the public in!

You may see your HOA as "private", but the question is will the courts agree if there is any questionable public activity within the development and an accompanying complaint that a building lacks a ramp for access, or handicapped parking is not available, or a bathroom door is not wide enough? Possibly not!

Homeowners associations that allow the locally sponsored "Flowerette" synchronized swim team to practice in the pool can be challenged with an ADA claim if any of the "Flowerettes" do not live in the development or the teacher is getting paid for the class and is an "outsider" and/or if enrollment includes "outsiders". All it takes is someone who is up on the law to start complaining (even if they are not related to any of the "Flowerettes"). I am not opining on who would win, but it is a battle you probably do not want to fight.

Likewise, if the association allows Little League teams to practice or play in the parks that belong to the association, has an equestrian, walking, or bike path open to the public, allows owners to hold regular on site "garage sales", invites local politicians in and encourages the public to attend rallies, sells memberships to its gym facilities or allows clubhouse rental use for weddings and parties, advertises classes to be held in the clubhouse in arts and crafts, allowing the public to attend, has a marina or other facilities commonly used by the public, etc., etc., etc., the Board ought to take a look at the facilities on premises and determine if they are handicap accessible, if there is appropriate signage, or if the rules allow guests to bring interpreters, seeing eye dogs, and/or allows other accommodations for the like. It may be time to get a legal opinion as to what is required to protect you from an ADA claim, what the risks are of non-compliance, and consider whether the benefits outweigh the risks. And as to such pervasive use as swim team meets using the association pool and facilities, parking, etc., there are a lot more things to think about including owners' rights. Watch for a Primer coming soon on Third Party Use of Common Area Facilities The Benefits and the Risks.