I had an interesting situation come up just the other day—a resident at an apartment community claimed that the community pool was violating housing discrimination laws by not being fully accessible to individuals with disabilities. Obviously, any time a resident threatens a property with being “out of compliance with housing laws,” my heart rate jumps considerably. However, it turns out that this situation stemmed from a common misconception regarding the separate requirements of the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA).
The question at issue was whether an apartment community pool was required to have a “pool lift.” The particular resident was alleging that, because the complex did not have a pool lift, the property was not in compliance with the ADA. The fact of the matter, however, is that the ADA only applies to the areas of the apartment community that are open to the general public—which is typically only a select few areas of the property. But here, whether or not the ADA is applicable is extremely important because, to the extent that the ADA applies, your pool must have either a pool lift or a sloped entry (although, as a caveat, the rules regarding your obligations are slightly different depending on when your pool was built). And while the Fair Housing Act Design and Construction Guidelines require that the area around the pool be accessible, there is no set requirement for access into the pool itself (only to the edge).
So how do you know whether the ADA applies to your pool? Well, ask yourself—is the public allowed to use the pool? Or is it restricted to the property’s residents? To the extent that the pool is solely for the use of the residents, then it is a pretty safe bet that the ADA does not apply. But if you allow the general public to use the pool, or if you sell pool memberships to the general public, then there is a good chance that the ADA does apply. So how about all of the gray areas, like allowing guests at the pool, or permitting the local high school to host swim meets at the pool? Unfortunately, like most issues with the ADA and the FHA, there is no clear rule and the safest course of action is to contact an attorney.