Hawaii Condo Law

On June 17, 2008, the U.S. Justice Department (”DOJ”) published a notice of proposed rulemaking on the Americans with Disabilities Act (”ADA”). Title III of the ADA provides protections to disabled individuals in places of public accommodations. The ADA requires, among other things, that public accommodations remove architectural barriers to disabled individuals that are “readily achievable”. Readily achievable generally means that it can be easily done without much expense.

Most purely residential community associations are not governed by the ADA, but are instead governed by the Fair Housing Acts. One exception, however, is if the project contains places of lodging. There are a number of provisions that affect community associations, but of particular interest is the proposed definition of places of lodging. The proposed definition would eliminate time share units (at least when it is not involved in an exchange) from the definition of place of lodging. However, the proposed regulations and questions posed by the DOJ raises concerns for any community association that has transient accommodations.

By way of background, the DOJ’s ADA Standards requires a certain number of rooms in places of lodging to be modified for disabled individuals. This makes perfect sense for a hotel. In a 200 room hotel, 8 rooms are required to have mobility features, including 2 with roll-in shower stalls. The following issues arises in condominiums:

1. Who decides which owners have mobility features? Associations typically don’t have the authority to direct owners to make modifications to their own units.
2. Who pays for the modifications to the rooms? One might suggest that since all the owners renting their units on a transient basis benefit, they should all pay, but the owners renting their units on a transient basis change all the time.
3. What happens when an owner with a modified room leaves the rental pool? Since owners own their units, they can decide whether or not to rent it, but now you’re short a modified room.
4. What happens when an owner joins the rental pool? If it triggers a larger number of rooms modified for disabled individuals, what happens? Even if it doesn’t, does this person now pay for the modifications to the other rooms?

The DOJ’s questions point out some concerns for community associations with transient accommodations. In Question 54, the Department of Justice asks:

How should the Department’s regulation provide for a situation in which a new or converted facility constructs the required number of accessible units, but the owners of those units choose not to participate in the rental program? Does the facility have an obligation to encourage or require owners of accessible units to participate in the rental program? Does the facility developer, the condominium association, or the hotel operator have an obligation to retain ownership or control over a certain number of accessible units to avoid this problem? [Emphasis added.]

In Question 55, the Department of Justice asks:

How should the Department’s regulation establish the scoping for a time-share or condominium-rental facility that decides, after the sale of units to individual owners, to begin a rental program that qualifies the facility as a place of lodging? How should the condominium association, operator, or developer determine which units to make accessible? [Emphasis added.]

Note that the DOJ is not asking whether the condominium association should make the units accessible, but how should do it. It seems to assume that the association has control over whether units in the project are rented by the owners and that the owners are renting units on a joint basis. Why should owners not renting their units on a transient basis pay for making units accessible?

If your association is potentially affected, you may wish to present your comments to the DOJ. Simply click the link and enter: “DOJ-CRT-2008-0015-0001″ under Comment or Submission.

On December 1, 2005 and December 2, 2005, I wrote articles about comfort animals. At that time, I noted that the 9th Circuit was likely to rule whether a comfort animal must be specially trained to ameliorate a disability. The Hawaii Federal District court ruled in Prindable v. AOAO 2987 Kalakaua, 304 F.Supp. 1245, 2003 U.S. Dist. LEXIS 23744 (D. Haw. 2003) that in order for an animal to be covered by the reasonable accommodation provisions of the Fair Housing Acts, the animal must be individually trained to ameliorate the effects of the disability. While on appeal, the owners’ unit was foreclosed upon for failure to pay maintenance fees. The owners of the unit had been permitted to keep the animal temporarily until they were removed the unit after the foreclosure. The 9th Circuit Court ruled in Dubois v. Association of Apartment Owners of 2987 Kalakaua that because the owners had never been prevented from having the animal, there was no valid claim of a Fair Housing violation. Although the Hawaii District Court decision was affirmed, the 9th Circuit did not address the issue of an association’s obligations with respect to comfort animals. At this point, the law in Hawaii appears to be the District Court’s decision that a comfort animal must be specially trained to ameliorate a disability.

Note: Due to this recent decision, the planned posting on the applicability of the Recodification to existing condominiums will be delayed a short time.

The Community Association Network has a Daily News weblog feed that reports on news relating to community associations. Today, it referenced a Sun-Sentinel story about two disabled people suing their association for having an inaccessible clubhouse. The South Florida newspaper reported that John Garon and Vatrice Rivera, who use wheelchairs, claim that they are unable to properly use the parking lot, bathrooms and water fountains in their community’s clubhouse. They have filed suit claiming that because the clubhouse is open to the public for political debates and some entertainment, the building must comply with the federal Americans with Disabilities Act (”ADA”).

There are two federal laws that may impose disability access requirements on community associations. The Federal Fair Housing Act and the ADA. The Federal Fair Housing Act is intended to apply to residential situations while the ADA is intended to apply to most commercial operations open to the public (sometimes referred to as public accommodations). The main difference between the two Acts is that those covered by the ADA are required to make the facilities of the public accommodations accessible to the disabled if it is readily achievable while the Fair Housing Act requires the housing provider to permit a disabled individual to make reasonable modifications to the project at the disabled individual’s expense. In other words, whether the ADA or the Federal Fair Housing Act applies to a project is important because it determines who pays for the cost of eliminating barriers to the disabled.

If a condominium or planned community is purely residential, the ADA does not apply. However, if the condominium or planned community contains commercial uses, the Americans with Disabilities may apply at least to the extent that the commercial uses fall within the ADA and the common area is open to the customers of the commercial establishment. In the case of a residential project that opens its amenities to the general public, the analysis is a little more involved. If the amenity is open only to the residents and their guests, the ADA does not apply. Federal Regulations (28 CFR § 36.102(e)) states that the ADA does not apply to private clubs, but will apply to the facilities of a private club that is made available to customers of a public accommodation. Appendix B to the Federal Regulations states that:

An entity that is not in and of itself a public accommodation, such as a trade association or performing artist, may become a public accommodation when it leases space for a conference or performance at a hotel, convention center, or stadium. For an entity to become a public accommodation when it is the lessee of space, however, the Department believes that consideration in some form must be given. Thus, a Boy Scout troop that accepts donated space does not become a public accommodation because the troop has not “leased'’ space, as required by the ADA.

Therefore, a factor in the analysis is whether the association charged for the use of the premises. Even if an association does not charge for the use of its amenities, it may wish to limit access to residents and their guests to avoid a claim that they must undertake modifications to the amenities to comply with the ADA.

The Americans with Disabilities Act (”ADA”) is a federal law that provides protections to people with disabilities. One part of the ADA provides protections for employees of employers with more than 15 employees. Other parts of the ADA applies to state and local government and transportation systems. Title III of the ADA applies to public accommodations and is usually the section of the ADA that community associations have questions about.

Public accommodations under the ADA are:

1. An inn, hotel, motel, or other place of lodging . . .
2. A restaurant, bar, or other establishment serving food or drink;
3. A . . . theater . . . or other place of exhibition or entertainment;
4. An auditorium . . . or other place of public gathering;
5. A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
6. A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
7. A . . . station used for specified public transportation;
8. A museum . . . or other place of public display or collection
9. A park, zoo . . . or other place of recreation;
10. A . . . place of education;
11. A day care center . . . or other social service center establishment;
12. A gymnasium . . . or other place of exercise or recreation.

If the business does not fall within one of the 12 categories, the ADA does not apply. However, the types of businesses within the 12 categories are illustrative. For instance, just because a service establishment is not listed under item six does not mean that it is not covered by the ADA.

If the business is a public accommodation, it has two major obligations under Title III of the ADA: (a) make reasonable accommodations in policies, practices or procedures when it’s necessary to afford the goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities; and (b) remove barriers to disabled persons in the areas open to the general public at its own cost if the removal is readily achievable. Under the ADA, both the public accommodation and the landlord have obligations to remove barriers.

On February 28, 2005, the Department of Housing and Urban Development (”HUD”) published it’s final report on the 2003 Uniform Building Code (”UBC”). By this action, HUD has said that if construction complies with the 2003 UBC, it will not be in violation of the accessibility requirements of the Federal Fair Housing Act. In order to obtain the “safe harbour” status for the UBC, the International Code Council (drafters of the UBC) agreed with HUD’s interpretation that the UBC requires an accessible pedestrian route from site arrival points to accessible building entrances, unless site impracticality applies, along with two other relatively minor points. Since the UBC is used in many western states, including Hawaii, the safe harbour simplifies compliance with the accessibility requirements of the Federal Fair Housing Act.

The Federal Fair Housing Act (”FHA”) includes provisions for accessibility for disabled individuals in new construction. The FHA requires the following for new construction:

1. the public use and common use portions of the dwellings must be readily accessible to and usable by disabled individuals;
2. the doors are designed to allow passage into and within the dwelling to a wheelchair; and
3. the dwellings contain certain features of “Adaptive Design”.

Adaptive Design is a concept that was developed by Barrier Free Environments, Inc. in a technical manual for HUD called Adaptable Housing. The only features of adaptive design required by the FHA (42 U.S.C. 3604(f)(3)) are:

1. accessible route into and through the dwelling;
2. light, switches, electrical outlets and environmental controls in accessible locations;
3. reinforcements in bathroom walls to allow later installation of grab bars; and
4. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver).

The statute (42 U.S.C. 3604(f)(4)) itself contains a safe harbor which permits projects to meet these three requirements by complying with ANSI A117.1. The addition of the 2003 version of the UBC adds a second safe harbour for the accessibility requirements for new construction.

The Federal Fair Housing Act was adopted in 1968 as Title VIII of the Civil Rights Act of 1968. In 1988, Congress expanded the scope of the Federal Fair Housing Act by adopting the Federal Fair Housing Amendments Act of 1988. The Federal Fair Housing Amendments Act established new enforcement procedures and created two new protected classifications. The Federal Fair Housing Act protects individuals from housing discrimination on the basis of race, color, religion, sex, familial status, disability, or national origin. These categories are known as “Protected Classes”. In addition, the Hawaii State Fair Housing Act adds the classification of age and marital status to the Protected Classes.

The Federal Fair Housing Act introduced “familial status discrimination” in 1988. Lawmakers chose to use the term “familial status discrimination” rather than the more easily understood term “discrimination against families with minor children”. Under the Federal Fair Housing Act, it is illegal to discriminate against families with minor children in housing.