One question that commonly arises in condominium or homeowners’ associations is what the association’s responsibility is to comply with accessibility standards that may be requested by elderly or disabled residents. There are many federal, state and local laws governing accessibility standards. This article is designed to clarify the requirements imposed by law, and to explain an association’s responsibilities to elderly or disabled residents with respect to providing accessibility standards.
The Americans with Disabilities Act (the “ADA”) was passed by Congress in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 USCA §12101(b)(1). The ADA provided that, in order to eliminate discrimination in public accommodations, new construction and alterations of public facilities and commercial facilities would be required to be accessible by disabled individuals. 42 USCA §12183.
However, the ADA is typically not applicable to condominium or homeowner’s associations, as the ADA is only applicable to public accommodations, such as office buildings, restaurants, hotels, or stores. Independent Housing Services of San Francisco v.FillmoreCenter Assoc., 840 F.Supp. 1328 (N.D. Cal. 1993), (apartments and condominiums do not constitute “public accommodations” within the meaning of the ADA). Therefore, a condominium or homeowner’s association would have no responsibility to comply with the ADA unless its building contained professional or commercial space. If an association does contain professional or commercial spaces, then only those spaces would be required to comply with the ADA. The residential portions of those buildings would still be exempt from the ADA guidelines.
Even though an association may not have the responsibility to comply with the federally mandated accessibility standards set forth in the ADA, there are several state and local accessibility guidelines which does require compliance from an Association. The Illinois Environmental Barriers Act (the “Act”), requires certain accessibility standards for public facilities and multi-story housing units, to facilitate access to and use of the public facility or multi-story housing units. 410 ILCS 25/4.
Under the Act, “public facility” includes any building or structure which is used or held out for use or intended for use by the public or by employees for the purpose of gathering, recreation, or the purchase, rental, sale or acquisition of any goods, personal property or services, among other purposes. 410 ILCS 25/3. Generally, the Illinois Attorney General’s Office has applied the Act to condominium associations for little more than providing parking spaces for public use. However, the Act only applies to those associations which were constructed after the effective date of the Act, September 25, 1985. (410 ILCS 25/5(a)(1)).
The Illinois Accessibility Code (the “Code”) sets forth the accessibility standards for those associations built after September 25, 1985. If an accessibility issue arises in an association constructed after the effective date of the Act, the Code should be referred to determine if the association meets those accessibility standards. If the association does not meet the Code’s accessibility standards, then it would be required to make any alterations or modifications necessary to meet those standards. (71 Illinois Administrative Code 400.110 et.seq.)
The Act also applies to any alterations performed on a public facility after September 25, 1985. Specifically, the Act requires that any alterations to a public facility shall provide accessibility based upon the overall cost of the alteration. Generally, if the percentage of the alteration exceeds a certain amount, in relation to the reproduction cost of the public facility, then the association may have to modify other areas of the building in order to comply with the Code’s accessibility standards. 410 ILCS 25/5(b). Therefore, if any association undertakes a major alteration to their building, the Act should be reviewed for specific guidelines as to how this may effect the rest of the building.
Even if the association was constructed prior to September 25, 1985, the association may have to provide reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicap person equal opportunity to use and enjoy a dwelling under the Federal Fair Housing Act, 42 U.S.C. §§3601, et. seq., (the “FHA”).
A “reasonable accommodation,” within the meaning of the FHA is one which would not impose undue hardship or burden upon the association. U.S. v. Village of Marshall, (787 F. Supp. 872). However, an accommodation for a handicapped person is “unreasonable,” and thus not required by the FHA if it imposes undue financial or administrative burdens, or requires a fundamental alteration in the nature of the program. Judy B. v. Borough of Tioga, (889 F. Supp. 792).
The FHA also requires the association to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person is such modifications may be necessary to afford such person full enjoyment of the premises. 42 USCA §3604(f)(3). Whether or not an association must permit a handicapped person to install a reasonable modification to the premises is typically examined on a case-by-case basis.
Failure to respond properly to an elderly or disabled resident’s request regarding accessibility issues can entangle the association in an extremely expensive lawsuit. Therefore, it is in the best interest of the association to promptly respond to all requests and refer such requests to its attorneys so that all of the federal, state and local laws which govern accessibility standards can be considered.
Originally published in the February 2007 ACTHA Newsletter.
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