The 2010 ADA Standards were big news for commercial developers, retailers and others whose businesses are open to the public. They seem far less important to residential developers, because on their face they don’t apply, or apply only in limited places, like a leasing or sales office.There is, however, an easy to overlook application of the ADA Standards that creates a trap for the unwary. With a single phone call making a perfectly sensible business decision the manager of a Home Owners Association can turn private amenities into public accomodations that must comply with the ADA.
Real estate developers and owners generally understand that residential developments must comply with the FHA Accessibility Guidelines or one of the other “safe harbor” specifications recognized by HUD. Commercial developments, hotels and the like must comply with either the ADA Accessibility Guidelines or, if more recently constructed, with the 2010 ADA Standards. In the early years of the ADA there was considerable litigation about what parts of a private residential development might constitute a “public accomodation,” but it is now well established that a leasing or sales office must be ADA compliant, while those parts of a development reserved for owners and guests must be FHA compliant.
The trouble comes when private facilities become public and are therefore subject to the requirements of the ADA. In my own subdivision a pool, club house and tennis courts are reserved exclusively for owners and guests. However, in order to subsidize the cost of these facilities the pool is rented for swim meets, the tennis courts are rented for tennis tournaments and the club house and grounds are rented for weddings and parties. The FHA Design Guide warns that such facilities must “comply with the ADA during the event” in which they are accessible to the public.
This has not been a big problem in years past because, as HUD observes, the ADA Accessibility Guidelines and the FHA Accessibility Guidelines contained “similar technical specifications for most features.” Unfortunately, with the effectiveness of the 2010 ADA Standards that is not as true as it used to be. The FHA Guidelines have not been revised, and some of the differences represent a significant cost.
The best example of this for residential developers goes back to those swim meets I mentioned earlier. The 2010 ADA Standards require accessible entry to swimming pools, a requirement not found in the FHA guidelines. With some exceptions at least one accessible means of entry must be either a pool lift or ramp, neither of which is a trivial expense. A developer building a new pool or a HOA renovating an existing pool may be surprised to find that a pool in perfect compliance with the FHA Accessibility Guidelines cannot be used, even temporarily, for public events unless it also complies with the new 2010 Standards.
It isn’t news that a private swimming pool can become temporarily public, but the new 2010 ADA Standards create a new risk and a new expense that never existed before. Developers and HOA’s that rely on the distinction between private amenities and public accommodations need to be more mindful than ever of the dual standards and the differences between them.