Banker & Tradesman

Monday, November 5, 2012

Diving In
Disabled Seniors Deserve Condo-Living Rights

Retrofitting Swimming Pools Should Be Part Of On-Going Planning

By Frank A. Lombardi

Seniors today are living longer than ever before, and technological advances are improving their quality of life, even if they have disabilities.  Seniors are now also more educated and active than ever before. They typically know how the system works, and they advocate for laws to protect their way of life and address their disabilities, wherever they live.

Millions of seniors have chosen the condominium form of living, and this increasingly large segment of the housing market poses special challenges to developers, association boards, project managers, bankers, brokers and lawyers.  This is particularly the case when it comes to working with disabled seniors, who recognize their rights and want to continue to enjoy their favorite activities, including having year-round access to pools.  

While pools may not be the top story of the day as the weather turns cold, planning for new construction and capital improvements is hardly a seasonal discussion.  And accommodating the needs of seniors is a critical part of the ongoing planning process.  Yes, it is tough to make major investments in a down economy.  But consider how much more it will cost to recoup money and rebuild reputation in the wake of multi-million dollar law suits.

The fact is that many condominium projects built in the early ’80s are starting to show their age and require attention.  If the need for repairs and upgrades for seniors is ignored, the legal consequences are clear.

Recognizing Rights
Consider the following scenarios:

  • A developer is considering the installation of a pool on a new or existing facility.  Should he plan to include handicapped access?
  • A board is considering modifications to existing pools in the condo community.  Should it include ramps and chair lifts that promote accessibility?

The answer in both cases is yes.

It’s simple if a condo unit owner family, or their guests seek access to the condo’s pool and have requested this.  According to the Federal Housing Amendment, condominiums must make reasonable accommodations to a person’s condo unit and associated facilities, and that includes making pools accessible.

The answer is also simple if the pool is a public accommodation, such as a hotel pool or even a private condominium if the pool is considered “public.” For instance, what happens if the condominium rents out the facility to a local high school for swim meets or hosts charitable events for non-residents?  At that point, the Americans with Disabilities Act (ADA) kicks in, and handicap accessibility again will be required.

The issue is more difficult if the condo’s board is modifying the pool and needs to decide whether to spend an extra $10,000 to $20,000 to install a chair lift, even though no unit owner has requested it.  The condo may modify the pool without the lift, but it will only be a matter of time before someone does request it, and then the cost of retrofitting may be twice as much.  Accordingly, the prudent policy would be to do it right the first time.

Recognizing The Law
Of course, there are many legal precedents involved in protecting citizens’ quality of life.

First, 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 U.S.C Section 3604 (f)(3)(B).

Second, 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 falls 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 include facilities open to the public such as restaurants, hotels, grocery stores, retail stores, gyms, zoos, etc.  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 to inspect.

State and municipal laws in Massachusetts and Rhode Island may vary, of course, so a consultation with a local attorney is recommended. For example, if the pool is not a covered facility under ADA’s defined terms, a local building inspector may not require the access under state or municipal building codes.

For developers starting new projects, the analysis would be the same. And a project that is fully compliant with FHA andADAwould in the long run save the association money.

In short, it is time to recognize the rights of disabled senior citizens and voluntarily provide handicap accommodations.  It’s the smart thing to do, and it’s the right thing to do.  While time may not always be on our side as we grow older, the law in most cases is.

Frank A. Lombardi is a principal at the law firm of Goodman, Shapiro & Lombardi, which has offices in Providence and Dedham.