Condo Media - December 2012 - 20

RHODE ISLAND N e w s

by Frank A. Lombardi, Esq.

R e g i o n a l

Handicap Pool Access
Do it Right, Do it Now
ince the cold weather is either here or just about to arrive, talk of pools is wistful at best. But when it comes to factoring in costs for new construction or capital improvements, the discussion is anything but seasonal. We’ve recently run into interesting issues concerning pools in condominiums. Many condominium projects built in the early 1980s are starting to show their age. In particular, pools around the state are in need of capital repairs — replacement of liners, cement aprons and the like. Thirty years ago, big pools were the rage, now not so much. Also, with this economy, boards are looking to shrink pool size to save maintenance costs. When management is asked to consider shrinking or modifying or even removing the pools, we are asked whether they should install handicap access ramps and chairlifts into the pool. We’ve received related questions from developers who plan to install pools on the condominium property as an additional amenity. Should they also consider installing the handicap access to the pool? The answer is “yes” to both questions. Do it right from the start, and do it now.

C A I

Requests for Accommodation
The question was posed to us when an association had planned extensive capital improvements to its pool. The plan was to shrink the pool’s footprint. They applied for a permit and the city’s building inspector required them to install a handicap access ramp and chairlift. Our first question was: Had a unit owner requested access for himself or his family?

If so, then the FHA would require the installation, as the law requires condominiums to make reasonable accommodations to a person’s dwelling, condo unit and associated facilities. Specifically, the Fair Housing Act (Title V of the Civil Rights Act of 1968, as amended (42 USC 3601-3631) makes it unlawful to “discriminate against any person ... in the provisions of services or facilities in connection with (his) dwelling, because of a handicap” of that person or any person associated with that person. Discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 USC Section 3604 (f)(3)(B). We believe this would apply to not only the unit owners, but to their family as well. Essentially, any person that could be reasonably related to using the dwelling (unit) would be covered by the FHA. The answer is not quite as easy when the condo’s board is modifying the pool and needs to decide whether to spend the extra $10-$20,000 or so to install a chair lift, even though no unit owner has requested it. To be sure, the condo may modify the pool without the accessibility and essentially wait for the request, but the cost of retrofitting the ramp or lift may be twice as much as doing it right the first time. But, the board indicates: We’ve never received a unit owner request, why should we consider it now? In our opinion, it is not a question of “if” they ask, but of “when.” Further, since the cost of installing it during new construction or during major

capital repairs, (i.e. shrinking the footprint of the pool) would be cheaper than retrofitting a lift after installation, we recommend doing it right and doing it now.

Public Accommodation Considerations
The issue is also simple if the pool is a public accommodation, i.e. a hotel pool or even a residential condominium if access to the pool is open to the public. For example, if the condominium rents out the facility to a local high school for swim meets or has charitable events for non-residents, etc. Then, at that point, the ADA kicks in and handicap accessibility will be required. Specifically, the Americans with Disabilities Act (ADA) was enacted in 1990 with the expressed purpose of making life easier for people with disabilities. Being able to use a pool would fall into that category. In 2008, the ADA Amendments Act (ADAAA) was passed. Its purpose is to broaden the definition of disability, which had been narrowed by U.S. Supreme Court decisions. Title III of the Act concerns Public Accommodations, which would include facilities open to the public such as restaurants, hotels, grocery stores, retail stores, gyms, zoos, a bank or bakery and the like. Title III requires that all new construction and modifications must be accessible to individuals with disabilities. For existing facilities, barriers to services must be removed if “readily achievable.” Presumably, the requirement would be realized when applying for a building permit and the building official for the state or city comes in to

CONDO MEDIA • DECEMBER 2012

Condo Media - December 2012

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