Question: We live in a large gated community of over a thousand homes. Our homeowners’ association’s swimming pool is inaccessible to people with severe disabilities. Is there any way to force our HOA to provide a lift for those that need help to enter the pool? J.C. (via e-mail)

Answer: Under the Americans with Disabilities Act (“ADA”), “Title II Entities” and “Title III Entities” have minimum requirements for making swimming pools, wading pools, and pool spas accessible. The entities required to abide by these requirements are public entities, such as state and local governments (their departments, agencies or other instrumentalities) and places of public accommodations, commercial facilities and private entities that offer educational and occupational certification. Places of public accommodations include restaurants, hotels, theaters, convention centers, hospitals, parks, zoos, museums, amusement parks, health parks and such.

Under the ADA, these entities must make recreational programs and services, including swimming pool programs, accessible to people with disabilities. The ADA requirements provide large pools must have two accessible means of entry, with at least one being a pool lift or sloped entry. Small pools are required to have one accessible means of entry, either a pool lift or a sloped entry.

Condominium associations and homeowners’ associations are generally not considered “places of public accommodation” under the ADA. Common areas of a homeowners’ association and common elements of a condominium, such as the clubhouse and pool, are not covered by the ADA where use is restricted exclusively to residents and their guests, and not open to the public. Exceptions may apply where short term rentals are permitted.

Your HOA is likely not legally required to retrofit to make the swimming pool accessible, provided that it was constructed in accordance with the building codes which existed when the pool was constructed. In some cases, ADA standards are built into building codes and may also be necessary to follow in connection with major renovations.

The federal Fair Housing Act (“FHA”) permits disabled individuals, at their own expense, to make “reasonable modifications” to the common property of an association when such modifications are necessary to permit that individual to use the property for the purpose intended. For example, it is likely that the FHA would require an association to permit a disabled resident to add, at his or her own expense, a pool lift to a commonly-used swimming pool, provided the nature and manner of the requested modification was reasonable.