We frequently get asked what special steps must be taken by associations to be compliant with the Americans with Disabilities Act (ADA.) In many cases our association clients are not subject to the ADA but it depends heavily on who they allow to use the common area and amenities.
The most common trigger that makes the ADA apply to associations is when the association’s common area and amenities are used with some degree of frequency by the general public that are not members of the association. For example, if the association allows nonmembers to use the association’s pool for a fee, that will, in our opinion, trigger the ADA application to that amenity.
If the common area is only used by members of the association there is little concern that the ADA applies. There is only minor concern that the ADA applies if members of the association bring a few guests to use the amenities on occasion. Unfortunately, there is not much guidance on how often and how many non-members must use the amenities to make the ADA apply to those amenities.
Once ADA obligations apply the association could be responsible to make significant modifications to the amenities.
Be careful however, there are clear obligations for associations under the Federal and State Fair Housing Acts (FHA) that often require accommodations and modifications based on handicap (along with race, color, sex, national origin, and familial status). Although an association may not have to take action under the ADA it is possible that action is required under the FHA. Board of Directors can easily and unintentionally violate the FHA even when the ADA does not apply.
If you have questions regarding the ADA or the FHA you are welcome to contact our office and speak to one of our community association attorneys at Law Firm Carolinas. in one of our Greensboro, Charlotte, Triangle or Coastal offices.