Don’t Violate ADA, FHA When Evaluating Modification Requests
The Americans with Disabilities Act (ADA) became law in 1990, and the Fair Housing Act (FHA) was amended in 1988 to add protections for individuals with disabilities. But despite the length of time that these laws have been around, there’s still misinformation and confusion about how they apply to associations and their members, versus public spaces or private spaces that are accessible by members of the public. In general, the ADA applies to public spaces, and the Fair Housing Act applies to private spaces, such the interiors of members’ units.
Don’t let improper handling of ADA and FHA issues in your community lead to problematic scenarios—namely, liability and protracted or expensive litigation if your actions don’t comport with the law. The best move you can make is to familiarize yourself these laws, so you and the board can comply with them.
Americans with Disabilities Act. ADA applies to public buildings, such as schools, stores, restaurants, government buildings, and any place that’s routinely accessible to the general public. That means it doesn’t apply to community association facilities, as long as the facilities are for use only by members, renters, and their guests. If the association advertises bingo games open to the public, or if there’s a golf course, restaurant, or store in the community open to the public, or if the high school swim team uses the pool, the facilities being used by the public are governed by the ADA. The ADA requires retrofitting for handicap accessibility at the expense of the property owners, and includes substantial handicap parking space requirements, among other things. If the property is governed by the ADA, the modifications are mandatory.
Fair Housing Act. The Fair Housing Act applies to every part of the community, including dwellings and common elements/common areas. Any modifications to accommodate a disability are at the expense of the individual requesting the modification, not the association. The association isn’t obligated to make any changes, just to work with the owner in allowing her to do so.
To properly evaluate requests for modification under the FHA from a member, first verify that:
- The member has a disability
- The modification is necessary to accommodate the member’s disability.
If the member’s need for the modification isn’t apparent, you are permitted to request additional information to evaluate the modification request.
Assuming the member’s need for a modification is obvious or has been verified, the next step is to determine if the specific modification requested is reasonable. For a list of four key factors to consider, and tips for training your community’s board of directors to properly handle requests, “How to Handle Disability-Related Requests for Modifications,” available to subscribers here.