By Jeffrey R. Schmitt
Co-authored by Jeff Schmitt and Margaret Wichmann
An aging baby-boomer generation and the increasing choice by empty-nesters to lower maintenance responsibilities and move into multi-unit residential buildings pose an interesting question for property managers and condominium board members. As a building’s age demographic increases, does a condominium association have an obligation to make the units or common areas accessible to persons with disabilities? Condominiums and other multi-unit residential developments present unique issues, because the building includes both private dwellings and public places. Some developments even include public commercial spaces as well. Given this dichotomy, building management will have to consider if, and what parts, of the building need to be accessible.
The Americans With Disabilities Act of 1990 (“ADA”) prohibits discrimination on the basis of disability in employment, public services, public accommodations and services operated by private entities and common carriers. However, according to a supplement issued by the U.S. Department of Housing and Urban Development, strictly residential facilities are not covered under Title III of the ADA. What may pose a dilemma for a condominium, though, is that certain common areas, which are located in residential facilities, are considered places of public accommodation in some circumstances. The ADA identifies 12 categories of places of public accommodation:
- Inns, hotels or places of lodging;
- Restaurants, bars or establishments serving food and drink;
- Movie theaters, concert halls or stadiums;
- Auditoriums, lecture halls or convention centers;
- Bakers, grocery stores or other sales or rental establishments;
- Laundromats, dry cleaners, banks, barber shops or other service establishments;
- Terminals, depots or public transportation stations;
- Museums, libraries or galleries;
- Parks, zoos or amusement parks;
- Nurseries and schools;
- Day care centers, senior centers or other social service establishments; and
- Gymnasiums, health spas or places of exercise or recreation.
Depending on the nature of the condominium building, some of these categories of places of public accommodation may be applicable. Property managers and the building’s board must consider the possibility that federal law imposes obligations to provide reasonable accommodations with persons with disabilities, whether residents or members of the general public. This is especially important if a building is considering renovations to common areas or commercial portions of a building.
Condominium management should also be mindful of the implications of the Fair Housing Act (“FHA”). The FHA prohibits discrimination in the sale or rental of housing. Under the FHA, “discrimination” includes refusal to make accommodations in rules and policies or in connection with the design and construction of certain multi-family dwellings. The FHA was expanded in 1988, and some multi-family developments may have been “grandfathered” into the requirements of the Act.
However, even for buildings that may be grandfathered in under the FHA guidelines, these buildings may still be subject to a “reasonable accommodation” standard. The Department of Housing and Urban Development and the Department of Justice have defined “reasonable accommodation” as “a change, exception or adjustment to a rule or policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.” Whether a reasonable accommodation is necessary is a question that is highly fact specific, and requires a case-by-case determination. Courts have been reluctant to make a blanket decision that would not take into account the specifics of a particular building and requested accommodation. However, some courts have suggested that reasonable accommodations would require modifying existing policies or taking modest steps to accommodate disabled residents, but may not require a building to undertake new construction or significant renovations.
Building management should be aware of the requirements of the ADA and the FHA, and the possibility that parts of multi-unit residential developments may be subject to a requirement that reasonable accommodations be made for persons with disabilities. These issues must be considered not only for unit owners, but for other residents, members of the general public, or new owners or tenants as well.
Posted by Attorneys Jeffrey R. Schmitt and Margaret L. Wichmann. Schmitt leads the firm’s Title Litigation practice group and practices in commercial litigation including banking, real estate, construction, and other matters for individuals and businesses. Wichmann practices primarily in corporate law and intellectual property. Her work includes entity formation, merger and acquisition, employment law, and estate planning. She focuses on intellectual property issues that business clients face, including licensing, infringement, and social media.
02/14/12 3:34 PM
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