Does an HOA have to provide the disabled access to the common area?

A recent Arizona case, Nolan v. Starlight Pines, addressed the question of when the Arizonans with Disabilities Act (ADA) or the Arizona Fair Housing Act (AFHA) apply to a community association’s private common areas.  Both of these state laws have a federal counterpart as well. 

ADA.  Arizona law prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” A.R.S. § 41-1492.02(A).  For purposes of the statute, a public accommodation is defined to include, among other things, places of lodging, restaurants and bars, theaters, stadiums, concert and lecture halls, auditoriums, convention centers, museums, libraries, public transportation stations, retail establishments, service establishments, social service establishments, places of recreation and schools.   A.R.S. § 41-1492(9)(a)-(l) .  Simply allowing common areas in an HOA to be used by visitors and friends of the members is not enough to make them places of public accommodation.  Generally, a facility is not regarded as a public accommodation unless it is open “indiscriminately to other members of the general public.”  That is, occasional use of private facilities by the general public is not sufficient to convert that facility into a public accommodation.  Thus, the ADA would not apply in circumstances where the HOA common area use is restricted to its members and guests.  Nor would the ADA apply if the general public was invited to use the park on occassion.

AFHA.  The FHA provides that an HOA discriminates against the disabled if they refuse to make reasonable and necessary accommodations in rules, policies, practices or services to afford the person equal opportunity to use and enjoy a dwelling.  Discrimination may also occur if the design and construction of certain multifamily dwellings do not accommodate the disabled (i.e. accessible route into and through the dwelling, light switches, electrical outlets; reinforcements in bathroom walls to allow later installation of grab bars; useable kitchens and bathrooms so that an individual in a wheelchair can maneuver about the space). 

Because common areas do not by themselves constitute multifamily dwellings (buildings with four or more units), an HOA is not required to design or construct the common area in accordance with the standards set forth in the FHA.  Instead, according to the Court in Starlight Pines, an HOA is “only required to…

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