- September 27, 2016
- September 22, 2016
- September 8, 2016
Digested From “Some Thoughts on Swimming Pools and Accessibility”
Mondaq News Alerts (06/04/14) Badami, Scott M.
Swimming pools are a terrific amenity to show off when a prospect is visiting an apartment community. Thus, it falls on management to ensure compliance with the Fair Housing Act (FHA) and/or the Americans with Disabilities Act (ADA) with respect to a disabled resident who seeks pool access. The ADA defines a place of public accommodation as a "facility operated by a private entity whose operations affect commerce." In general, however, privately owned conventional residential communities -- such as apartment communities -- are not considered to be places of public accommodation in this regard. Regulations implementing the ADA have prompted many apartment owners to question whether management is responsible for the costs of installing a lift to ensure pool access by a disabled resident. In cases where an apartment community's pool is exclusively for the use of the community's residents, the ADA would not apply. But in cases where the general public is also entitled to regularly use the pool, the ADA would apply.
There are, of course, gray areas. For instance, what if a residents' guests are permitted to use the pool even if the resident is not present? What if the owner allows residents to rent the pool area for social events? Or, what if the owner periodically throws pool parties as part of his marketing/advertising plan? Each of these three situations will create uncertainty. FHA guidance maintains that the more it appears that a pool is available for the public's use, the more likely ADA rules will apply. Also under the FHA, apartment management must not discriminate against a disabled resident in the use of a given community's amenities. This means that management must ensure that the amenities at the property are available for the reasonable use of all residents. "While the FHA does not contain accessibility standards like those under the new ADA rules," the article's author concludes, "management would be required to provide a barrier-free pathway to the edge of the pool. In addition, management must not unreasonably prevent a resident from using his/her own lift or other equipment to gain access to a pool."
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