Disability Defined
The Davis-Stirling Act defines disabled as: blind, visually handicapped, deaf, or physically disabled. (Civ. Code § 4760) Federal statutes have a broader definition to mean a physical or mental impairment that substantially limits one or more major life activities but does not include current, illegal use of or addiction to a controlled substances. "Major Life Activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. (24 CFR § 100.201.) The courts look to whether someone's condition substantially limits a major life activity in its corrected condition. Therefore, someone who is legally blind without glasses is not disabled if they are are fitted with glasses. There are a number of disability discrimination laws on the federal and state level. Not all of them apply to homeowners associations. Following is a list of disability anti-discrimination laws:
Disability Laws Affecting HOAs
Homeowner associations are private residential communities and are not subject to the Americans with Disabilities Act. However, those portions of the common areas open to the public must comply with ADA requirements. (Coronado v. Cobblestone Village.) In addition, "reasonable accommodation" for persons with disabilities is a requirement both under the Federal Fair Housing Act (FFHA) and California's Civil Rights Department. Following are some of those laws protecting the disabled:
Americans With Disabilities Act. In 2010 ADA Standards were changed to require all commercial facilities, such as hotels, motels and health clubs, provide accommodations for the disabled. The ADA does not apply to homeowner associations. However, if an association were to open its facilities to the public, then ADA regulations would apply.
Federal Fair Housing Act of 1988 (FFHA), 42 U.S.C. § 3601 et seq. Applies to HOAs and requires reasonable accommodations in rules and policies to allow the disabled to use and enjoy their dwellings. Reasonableness is determined by weighing the benefit of the accommodation against the burden on the association. The requesting person bears the cost associated with the disability accommodation. Claims under FFHA must be made within two years of the incident of alleged discrimination. (Telesca v. The Village of Kings Creek Condominium Association, Inc., No. 09-13910, U.S. App. Ct., 11th Cir., Aug. 2, 2010.)
Fair Employment and Housing Act (FEHA), Gov. Code §§12900-12996. FEHA is the California equivalent of the FFHA. FEHA applies to homeowners associations and requires reasonable modification of an association's rules and policies to allow a disabled person equal opportunity to use and enjoy the premises. It is administered by California's Civil Rights Department (formerly the Department of Fair Employment and Housing).
Unruh Civil Rights Act (UCRA), California Civil Code § 51. The UCRA applies to homeowners associations (O'Connor v. Village Green). However, associations are not required to bear the cost of accommodating disability modification requests.
Davis-Stirling Act (Civ. Code § 4760) allows owners to make alterations to their units and the common areas at their own expense to accommodate their disabilities.
Verifying a Person's Disability
When a disabled person makes a request for reasonable accommodation and the person's disability is obvious, the association cannot request additional information about the existence and validity of the disability. When the disability is not obvious, an association can request information verifying:
- The person is disabled,
- The need for the requested accommodation, and
- The relationship between the disability and the requested accommodation.
Interactive Process. When a request for reasonable accommodation is made, the association must engage in an "interactive process" with the person making the request. Once the need for accommodation has been established, the association must engage in an informal interactive process to clarify what the individual needs and identify the appropriate accommodation. Failure to do so in good faith may result in liability if a reasonable accommodation would have been possible.
Confidentiality. California's Code of Regulations § 12176(b)(1) requires, "All information concerning an individual’s disability, request for an accommodation, or medical verification or information must be kept confidential and must not be shared with other persons..."
Discrimination. Discrimination under the Act includes “a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.” (42 U.S.C. § 3604(f)(3)(A).) The statute also makes unlawful any “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” (42 U.S.C § 3605(f)(3)(B).)
Disability Reasonable Accommodation
The U.S. Department of Housing and Urban Development defines reasonable accommodation as "a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces." (HUD Service and Assistance Animal Guidance.) "[T]he phrase "reasonable accommodation" means a moderate adjustment to a challenged policy, not a fundamental change in the policy...the word accommodation means adjustment." (Davis v. Echo Valley Condominium Association (2019) 945 F.3d 483, 490; internal quotations marks and citations omitted.)
Not All Requests Are Reasonable. Common area facilities do not qualify as public accommodations simply because they are accessible to the public. Private facilities do not become public simply because the general public is not actively excluded from them.
ATVs on Roads & Trails. A handicapped owner in an association in Florida wanted to use an all terrain vehicle (ATV) on the association's private roads and trails. The association declined because it believed it would be unsafe both for the individual and for other residents. The owner sued and lost. He appealed and lost. The court recognized that an ATV would make it easier for the plaintiff to travel on the association's roads since it was impractical for him to use his wheelchair for this purpose. However, the record showed that the benefit to plaintiff was substantially outweighed by the danger the ATV would present to plaintiff as well as others in the community. Accordingly, the association's denial of the ATV request was not a violation of the Federal Fair Housing Act. (see Scoggins v. Lee's Crossing HOA.)
Golf Carts. Woodland Golf Club is a private club. Lobel was disabled and could not walk without crutches. He played golf with the aid of a special cart that lifts and swivels him toward the ball. Lobel is not a member of the Woodland Golf Club but is a frequent guest. The Club banned his cart from the greens because it caused expensive damage. Lobel sued under the Americans with Disabilities Act. The court ruled against Lobel because ADA requirements do not apply to private clubs. (Lobel v. Woodland Golf Club of Auburndale)
Equestrian Trails. The Orange Park Community Association (OPCA) had a common area trail system that was accessible to residents and non-residents alike. For safety reasons, the association installed barriers at the trail's entry points to prevent vehicle access. A non-resident disabled person wanted to use a horse drawn carriage on the trails and sued the association under the Disabled Persons Act, Unruh Civil Rights Act, and the Americans with Disabilities Act. The court concluded the association's private trails were not transformed into public accommodations merely because the association did not actively exclude members of the public from using the trails. (Carolyn v. Orange Park Community Association (2009) 177 Cal.App.4th 1090.) See "Injuries on Easements & Trails."
Smoking Ban. Davis suffered from asthma and alleged that her association's refusal to ban smoking in her building discriminated against her because of her health issues and was in violation of the Fair Housing Act (FHA). The Association submitted a smoking ban amendment to the membership for approval but it failed. The court determined that a smoking ban would amount to a fundamental alteration of the association's policies and would intrude on the rights of other residents to smoke within their units. The court ruled that a smoking ban is not a reasonable accommodation to Davis. (Davis v. Echo Valley Condominium Association)
Common Area ADA Modifications
Associations are required to reasonably accommodate a handicapped owner's request to modify their units or the common areas at their own expense to address their disability. (Civ. Code § 4760) This may include the installation of a wheelchair ramp, handrails, or some other accommodation. A “modification” under the FHA is distinct from an accommodation. The Fair Housing Act does not define “modification,” but regulations promulgated by HUD define a modification as any change to the public or common use areas of a building or any change to a dwelling unit. Claims for reconstruction or renovation to a dwelling are actionable under the reasonable modifications section of the FHA, and not the reasonable accommodation section. The right to modify the common areas is subject to the following conditions:
- Alterations may not impair the structural integrity or mechanical systems or lessen the support of any portions of the development.
- Alterations must be consistent with applicable building codes.
- Alterations must be consistent with the governing documents pertaining to safety or aesthetics.
- Alterations must not prevent reasonable passage by other residents and must be removed when the unit is no longer occupied by persons requiring the modifications. [NOTE: The requirement to remove is not automatic. If the alterations adversely affect subsequent occupants, the association may have a basis for requiring their removal. Otherwise, the improvements can be left in place.]
- Owners who intend to make modifications must submit plans to the association and the association may not disapprove them without good cause.
Licensed Contractor. Boards can require that any modifications to the common areas be done in a workmanlike manner by a licensed and insured contractor with appropriate building permits.
Voluntary Compliance With ADA
Whenever possible, associations should voluntarily bring their facilities into compliance. This includes the association's fitness center, swimming pool, clubhouse, elevators, etc. It benefits our aging population of owners and, in the long run, is less expensive than litigating over such issues.
Certified Access Specialist. Associations that want to make their grounds and facilities accessible to the disabled should contact a Certified Access Specialist (CASp) to provide appropriate guidelines for the conversion. A list of specialists can be found here.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.