Summertime means swimming pools.  Many of our communities have a pool for use by residents and guests.  Pools can (and do) make a terrific amenity when a prospect is visiting an apartment complex.  But, how does management ensure compliance with the Fair Housing Act (FHA) and/or the Americans with Disabilities Act (ADA) with respect to a disabled resident who seeks access to a pool?

The ADA defines a place of public accommodation as a “facility operated by a private entity whose operations affect commerce.” Included in the definition are lodging places (hotels), restaurants, theaters, grocery and department stores, schools, museums and other places of recreation. In short, just about any place that is open to the public may be considered a place of public accommodation.

In general, however, privately owned conventional residential communities — such as apartment complexes — are not considered to be places of public accommodation under the ADA.   Regulations implementing the ADA have caused a lot of property owners to ask the question if management is responsible for the costs of installing a lift to ensure pool access by a disabled resident.  Here is some general guidance, although each case will need to be evaluated independently:

In cases where a community’s pool is exclusively for the use of the community’s residents, the ADA would not apply. In contrast, in cases where the general public is also entitled to regularly use the pool, the ADA would most certainly apply. For example, if a property owner sells memberships to the general public, or if it allows the pool to be used for public swim meets, the ADA will likely apply.

Of course, there are gray areas.  What about guests?  What if the residents’ guests are allowed to use the pool even if the resident is not present? What if the owner allows the residents to rent the pool area for parties? Or, what if the owner periodically throws pool parties as part of his marketing/advertising plan?

Each of these situations will create uncertainty.  The guidance currently available is this: the more it appears that the pool is available for the public’s use, the more likely the new ADA rules will apply.  I think if it is just residents and guests, the new ADA rules likely will not apply.

Now, even though the ADA may not apply to a given situation, the FHA certainly applies to us.  Under the FHA, management must not discriminate against a disabled resident in the use of our amenities. That is, 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, 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.

Make sense?  This is one where you might want to speak with a lawyer like me.

Just A Thought.