Do We Need A Pool Lift?

By Lanier Coulter, Esq.

Published December 17, 2012

  

Several questions about whether an association has to modify its pool have come up due to changes in the Americans with Disabilities Act (ADA).  All community associations have to be willing to make a reasonable accommodation for residents upon request pursuant to the ADA, or even if the pool isn't open to the public, the FHA.  The bigger issue in light of recent changes to swimming pool access is whether a community association falls under Title III of the Americans with Disability Act (ADA).  Unfortunately, this is a very difficult question to answer based on the current case law.   Please note, the 2010 standards under the ADA only apply to new pools built after a certain date or to pools that undergo alterations after that date. 

  

A community association pool is not technically subject to these ADA standards unless it is open to the public.  There are several factors in determining whether the Association would be viewed as open to the public.  Here is what the Department of Justice has stated in its questions and answers about a community pool:

 

Community pools that are associated with a private residential community and are limited to the exclusive use of residents and their guests are not covered by the ADA accessibility requirements. On the other hand, if a swimming pool/club located in a residential community is made available to the public for rental or use, it is covered under Title III of the ADA. If a community pool is owned or operated by a state or local government entity, it is covered by Title II of the ADA, which requires "program accessibility."

 

If the Association's pool is used solely by members and their guests, it is not open to the public and therefore not subject to the public accommodation requirements.  If the pool is open to swimming competition where non-resident competitors are on the community association swim team, then this would make the pool open and require the association to comply based on the Department of Justice's position outlined above.  Similarly, if the association sells non-resident licenses to use the facilities it would be trigger the public pool requirements for the association.  Open pools must be compliant with Title III of the ADA, including, without limitation, the recent change regarding access for disabled individuals.  Currently the extension date to comply for existing pools runs through January 31, 2013. 

 

Fines and penalties for a violation of the ADA are thousands of dollars per violation.  So, an economic decision may need to be made by associations that want to permit outsiders to use the pool (such as in swim meet competitions) as to whether to become compliant and avoid any question about whether the pool is subject to Title III of the ADA. 

 

As noted above, even if a pool is not open to the public, an association may need to make a reasonable accommodation to a disabled person in order to avoid liability under the FHA.  In addition, regardless of whether an association's pool is subject to the ADA, the Association may find itself in a position where it must defend itself against an ADA claim if its pool does not comply with the standards. 


 
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G. Lanier Coulter, Jr. - owner/founder of the firm. He is a 1998 graduate of Oglethorpe University and a 2001 graduate of Emory University School of Law, where he was the recipient

of the Attorneys' Title Guaranty Fund Award.  

 

Lanier is a member of the state Bar of Georgia and the DeKalb County Bar Association.  He is the author of "Don't Wait Until it's Too Late, Statutes of Limitation and How They Can Affect Your Association's Rights" which appeared in Georgia Commons, a Publication of Community Associations Institute of Georgia, Inc.  

 

Lanier practices primarily in the area of community association law.  Lanier assists associations in interpretation and enforcement of their governing documents (covenant enforcement and collection of assessments) and in the negotiation, financing and execution of major renovation and rehabilitation projects.  He is an instructor of continuing education courses for community association managers and attorneys, including, "Dealing With Difficult People," "Problem Solving for Planned Communities," and "Condominium Law." 

 

Currently Lanier serves as a member of the Amicus Committee the Community Association Institute and a member of the Legislative Action Committee for the Georgia for Chapter of the Community Association Institute.  He was the recipient of the 2011 Rising Star Award in the CAI-Georgia Chapter.

Contact Lanier at: glc@coulterlawfirm.net