Community Insider Summer 2017 - Page 30

various ADA claims. The costs associated with upgrading the common areas to comply with ADA requirements (ramps, parking, railings, sidewalks, etc.) can be extraordinarily expensive to the Association and its membership as the Association generally does not budget for the expenses associated with bringing its common areas into compliance with the ADA. So, the ultimate question is, does the HOA remain a community reserved for the use of the Owners, their tenants and their guests or does the HOA become more expansive and open use up to the general public. To be or not to be, that is the question. Jonathan D Massie is a principal of Massie Berman, APC, a full-service law firm specializing exclusively in the representation of homeowners associations. Mr. Massie can be reached at (619) 260-9010 or jmassie@massieberman.com. community organizations as a meeting place for educational seminars. The party room is not a place of public accommodation.” regarding sale of the clothing or even renting the clubhouse for non-owner private parties such as wedding receptions in order to gain revenue from the rental. The vast majorities of HOAs are restricted to use by the Owner’s, their tenants and guests and are not subject to the ADA. However, the status of the HOA can be unwittingly changed. For example, an HOA may consider opening up their swimming pool for use by anyone who wants to participate in a “Master’s” swim program that permits not only current residents or their guests but also the public. Similarly, some HOAs have considered allowing the clubhouse to be reserved by a representative of a clothing line to make presentations to residents and any member of the public Bringing the issue back to Hamlet, the question then becomes, does the CID remain a private community for the benefit of owners, their tenants and guests (to be) or does it open up the community and become a place where the public is accommodated (or not to be)? If the CID becomes a place of public accommodation, what are the ramifications? One of the primary distinctions between the ADA and the FHAA is the difference in the manner in which the two laws impose the requirement of paying for the proposed modification. Pursuant to the FHAA, the individual disabled owner living in the HOA who requests the modification must pay for the costs of installation. See 42 USC§3604(f)(3)(B). However, if the HOA is deemed a place of public accommodation, the HOA is required, at its expense, and on an ongoing basis, to take the initiative to remove barriers to access or use that exists on the HOA premises where such removal is “readily achievable.” See 42 USC §12182(b) (2)(A). Changing the HOA status to a place of public accommodations has significant repercussions. Opening use of the common areas to the public can subject the Association to compliance with ADA and potential litigation relating to 38 Years take that to the bank. Brendan Concannon Regional Account Executive 619-961-6346 Toll Free 866-800-4656, ext. 7480 brendan.concannon@mutualofomahabank.com www.westerntowing.com mutualofomahabank.com 30 | SAN DIEGO COMMUNITY INSIDER | SPRING 2017 WWW.CAI-SD.ORG AFN45863_0813 Member FDIC Equal Housing Lender