FAQ: ADA and Housing Association Issues

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There are few things more difficult than disagreements that involve claims of discrimination or disability, especially when the facts get filtered through federal and state regulations. Whether you are a homeowners association, condo board, or an aggrieved party, you need an attorney who is an experienced trial lawyer on your side, especially in this area of law.

Why? If settlement or compromise cannot be found, in our experience, this area of law will result in hotly contested litigation. Courtroom experience assures your lawyer knows what to say, when to say it, what facts are important, what facts are allowed into the courtroom and what a jury or the judge is likely to say about them.

Also, government agencies involved in this area of law tend to punish with significant fines. When allegations are made, or things start getting out of control, make sure you have experienced counsel on your side. We have a no-nonsense reputation and approach to legal counsel. We believe in results. Call Gregory M. Garrison, APC, at 619-798-9501 or through our online form. Consultations are free. Choosing the wrong lawyer isn’t.

What are These Statutes and Law About?

All discrimination statutes share a common purpose: the government’s desire to assure disabilities are accommodated and to prevent discrimination against certain groups that federal and state politicians have decided need protection. The Federal Fair Housing Act (FFHA), Americans with Disabilities Act (ADA), California Unruh Civil Rights Act (UNRUH), California Fair Housing Act (CFHA) and California Civil Code Section 4760 (rewrite of California Civil Code Section 1360 effective Jan. 1, 2013) give people, agencies and lawyers enormous power. The game becomes whether the facts of a particular case fit within these statutes, what accommodation is being asked for and who is going to pay for it. There is an enormous body of information available on the internet that may, or may not apply to your situation. Fact patterns that produce one conclusion and ruling can just as easily be argued to produce another one when one or more facts change. Litigators are trained to find and use these distinguishing facts. Check your decision with a lawyer before moving forward as errors and fines in this area of law can be expensive.

Disability Law and Condo/Homeowners Associations FAQ

Question: Does the Americans with Disabilities Act apply to condo and homeowners associations?.

Answer: This law is written to apply to government or public facilities, so, unless an association conducts itself in a manner that holds itself out to be a public facility/accommodation, the answer is generally no; however … how do you accidentally hold yourself out to be a public facility? If you do not limit the use of your facilities to members and guests, i.e., by starting to rent out or giving access to nonmembers. For example, if the association starts to allow the public regular access (paid or not) to a pool, tennis court, shuffleboard court, you start opening yourself up to argument that you are a “public facility.” In other words, if a board gets in the habit of allowing nonmember groups to use your facilities, or rents your facilities for nonmember parties, you may be opening yourself up being treated as a “public facility.” So, unfortunately, by opening a facility to the public, you open yourself to the Americans with Disabilities Act. Whether you have done that or not is very fact and judgment dependent.

Question: Does the California Unruh Civil Rights Act apply to associations? Homeowners associations are “business establishments” within the meaning of this statute. It has been found to apply to apartment complexes as well as to apply to the covenants, conditions and restrictions of a 619-unit condominium nonprofit organization. O’Connor v. Village Green Owners Association (1983) 33 Cal. 3d 790.

Answer: So the answer is generally yes.

Question: Does the Federal Fair Housing Act (FFHA) and California Fair Housing Act (CFHA) apply to associations?

Answer: Yes. The Federal Fair Housing Act is a “civil rights” law that would apply to all “housing providers” and that includes homeowners associations, HOAs, condominium associations, cooperative associations, townhouse associations, planned community associations etc.

The California Fair Housing Act California Code Section 12955 is another “civil right” law but was drafted by the state of California. It applies to “housing accommodations” so again all forms of common ownership associations are covered.

Together, these statutes protect against harassment of any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or based on marital status or source of income.

Question: Does the Davis-Stirling Act, codified as California Civil Code Section 1360 | 4760 (rewrite of 1360 effective Jan. 1, 2013) apply to common ownership associations, i.e. HOA, condominium associations, etc.?

Answer: Yes. This section specifically applies to common ownership associations and its purpose is to allow individual owners of common interest developments to modify their separate property interests at their own expense to facilitate their access or modify conditions that could be dangerous for them subject to certain conditions that must apply (see Chapter 5).