Is your Clubhouse at RISK? Thoughts on being ADA compliant.

April 25, 2017

A clubhouse is a great asset to a community association. But if an association isn’t careful, a clubhouse can become a target for unwanted legal claims based on, among other things, the Americans With Disabilities Act.

One area of frequent concern is whether a clubhouse constitutes a “public accommodation” under the ADA.

 

As you may know, compliance with ADA accessibility standards can be an expensive undertaking. The ADA defines a public accommodation to include, among other things, “an auditorium, convention center, lecture hall, or other place of public gathering.”

 

Here are a few hypothetical scenarios involving a condominium association with a clubhouse.

 

The association’s owners have formed the Social Club. Although it has no official ties to the condominium association, membership in the Social Club is restricted to owners in the association. The Social Club occasionally holds events at the clubhouse for which it charges a fee. Non-owners may attend the events, but only as guests of a Social Club member.

 

Other groups use the clubhouse, as well. The clubhouse is used by the Book Club, which is comprised of owners, non-owner residents (e.g. tenants), and non-residents.

 

The clubhouse is also used by the Developer of the association, which still owns several units and rents each of them to various persons. The Developer periodically reserves the clubhouse for group meetings with its tenants to inform them of goings-on in the association related to tenant occupancy of the units.

 

As a general rule, condominiums do not qualify as public accommodations under the ADA.  But it is conceivable that an association for a condominium complex might operate a facility that is.

 

For example, “although a model home used only as an example of what is being offered for sale is a residential property and not a ‘public accommodation’ subject to the ADA, if a room in the model home functions as a sales office, the ADA applies at least to it.”[1]

 

 A recent court decision quoted a U.S. Department of Justice opinion letter, which stated:

 “The ADA does not apply to strictly residential facilities. Assuming your housing complex is strictly residential and would not be considered a social service center establishment, whether the ADA applies to the clubhouse depends on who is entitled to use the clubhouse. If activities in a clubhouse within a residential complex are intended for the exclusive use of residents and their guests, the facility is considered an amenity of the housing development. It would not be considered a public accommodation subject to the accessibility requirements of the ADA.

If the clubhouse facilities and activities are made available to the general public for rental or use, they would be covered by the ADA. Once covered by the ADA, the owners or operators of the clubhouse would be required to remove architectural barriers to accessibility if their removal is readily achievable, that is, without much difficulty or expense.”[2]

 

 Whether the clubhouse is a public accommodation depends on who is entitled to use the clubhouse and under what circumstances.

 

 •          The Social Club: Although the Social Club is not affiliated with the association, its membership is comprised exclusively of association members. Non-members participate in Social Club events at the clubhouse occasionally, and only as guests. The Social Club’s use of the clubhouse is consistent with it not being a public accommodation.

 

 •          The Book Club: The Book Club has access to the clubhouse only through its members who are also association members. So technically, Book Club members who are not association members are guests of club members who are also association members. The fact that non-Association members are not entitled to use the clubhouse other than as guests of association members, is consistent with the clubhouse not being a public accommodation.

 

 •          The Developer: Typically, when an owner leases a unit, the owner surrenders all rights of access in an association to its tenant(s). Therefore, the Developer technically would have no right to use the clubhouse as a non-resident member of the association. Its use of the clubhouse could indicate that non-residents are entitled to reserve and use the clubhouse, which would be consistent with the clubhouse being a public accommodation. The association may want to consider asking the Developer to arrange for one of its tenants to reserve the clubhouse for meetings and then invite the Developer’s representative to participate as the tenant’s guest.

 

If you have questions about whether your association’s clubhouse, or other common area facilities, might expose your association to ADA claims, contact the attorneys at Myers, Widders, Gibson, Jones & Feingold.

 

 

 

[1] Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1555.

[2] Carolyn v. Orange Park Cmty. Ass'n (2009) 177 Cal.App.4th 1090, 1102.

 

 

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