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Law Pro
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Category: Real Estate Law
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Experience:  20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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We are attempting to enforce compliance in our subdivision

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We are attempting to enforce compliance in our subdivision and one owner raised an interesting question. To we run afoul of the ADA if we give a disabled person a compliance notice?

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I presume you are stating that the disabled person isn't in compliance with the HOA rules and regulations, CC&Rs because of a "resonable accomodation" necessary for them to access their condo/twnhse? Correct or am I misinterpreting your question?

Customer: replied 4 years ago.

The way I understand it they are arguing that they shouldn't be forced to clean their driveway because they are disabled and the ADA protects them from this compliance issue.

Now that's a different twist - something I haven't heard before. Hear something new every day.

However, the association can inform the members that if they can't "clean their driveway" then the association will either fine them or pay someone to clean up their driveway and assess them the costs.

That is not within the parameters nor the ADA applicable to such.

Various laws have been established to protect the rights of disabled individuals, such as the Americans with Disabilities Act ("ADA") and the Federal Fair Housing Act ("FFHA"). These laws govern both public and private facilities, and set forth the degree to which an entity, such as a homeowners association ("HOA"), is responsible for making modifications or improvements to accommodate individuals with disabilities.

Under the ADA, all public and government facilities are required to comply with specific use and construction requirements to accommodate disabled individuals. It is important to note that the ADA applies only to "public accommodations." Therefore, a HOA will not be subject to the ADA unless the HOA is operating what can be considered a "public accommodation." A "public accommodation" is any facility which a HOA is holding out for use by members of the general public--not solely for use by the HOA's members and their guests.

HOAs have been subjected to ADA requirements when: (1) a HOA allows members of the public to buy memberships or passes to the HOA's pool, (2) where a HOA allows schools, church groups or clubs to use HOA facilities on a regular basis, and (3) where a HOA maintains a rental office on the property that receives regular visits from the general public.

The FFHA is similar to the ADA; however, the FFHA applies directly to housing facilities, including HOAs. Under the FFHA, a HOA may not legally refuse to make reasonable accommodations in its rules or policies when such accommodations may be necessary for a disabled owner to fully enjoy and use her unit. An example would include when a disabled owner requires the assistance of a service animal; a HOA would be obligated to grant a waiver from its "no pets" rule. The HOA 's refusal to make such an accommodation (one that is reasonable and necessary to afford a disabled owner the full enjoyment and use of her unit) is deemed to be discrimination under the FFHA. The FFHA also requires HOAs to permit a disabled owner to make, at such owner's expense, reasonable modifications to the owner's unit and HOA common areas. []

The driveway and the costs to clean such are the problem of the unit owners regardless if they are disabled.

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