Disability used to allow private spa

Started by AudreyA • 26 replies • 2940 views

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AudreyA (California)
Posts: 5

Posted:

We are in an HOA with townhomes with adjoining walls. Our outdoor patio areas are are walled but considered "exclusive use common areas." Our CC&R's state that spas cannot be installed unless by permission of the BOD. The homeowner is demanding to be allowed to install a spa because of pain from a brain surgery 10 years ago. They use this as a second home and go boogie boarding in the ocean regularly. The spa would be almost directly under another homeowners bedroom window, and they do not want it. The question is: Can they be allowed the spa under "reasonable accomodation?" There is no restriction to prevent an indoor spa, but they say the indoor spa 'bubbles aren't strong enough'. There have been no other spas allowed in our small HOA.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Audrey,

There are two fed. laws that come into play here. The Fair Housing Act which states the owner should be allowed to make a reasonable accommodation but must pay for it. The Americans with Disability Act requires the HOA to make the accommodation, if reasonable, and pay for it. If the assn's facilities are open to the public, it would most likely be subject to the requirements of the Americans with Disability Act. I would say the HOA would be required to allow the spa. The board would do well to consult with an HOA attorney.

JosephW (Michigan)
Posts: 882

Posted:

First, Mary is right is your need to talk to an attorney. Disability issues are very touchy and could result in fines against the association if not handled correctly. Second, you're going to want to see a doctor's letter stating that an outside spa is required for this person. If what he needs is a whirlpool, then you could probably require that it be placed inside. In any event - get the legal help - don't say yes or no, just let the owner know that its under consideration.

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AudreyA (California)
Posts: 5

Posted:

Thanks,
I've been researching ADA And FHA rules and will need a lawyer to clarify them. However, I do not see how an outdoor spa, which impacts other homeowners (noise) can be medically advised over an indoor spa. They engage in rigorous activities ( ocean boogie surfing) and appear to be using the "reasonable accommodation" tactic to scare the BOD.

BrianB (California)
Posts: 2,820

Posted:

i would say your gut is right Audrey.. don't cave just cause they toss the old ADA thing at you. a reasonable accomodation would be to allow such a spa indoors. allowing it outdoors may or may not be reasonable, but it certainly sounds like if you offer to allow an indoor version, and they insist on an outdoor one, they aren't being reasonable, while the HOA is.

AudreyA (California)
Posts: 5

Posted:

There is no restriction on installing a spa in their bathroom which BTW is huge. So I don't get the "medical necessity " part of it. These are very small patios.... cheek to jowl.... and no one else has one due to the CC&R restriction. How can this be challenged? Even if a doctor's letter stated a spa would be beneficial, how can something like this be prescribed, and specifically an outdoor spa.

Cases like this give a bad reputation on disability laws as people abuse the intent of the law and bend it to their own liking.

BradP (Kansas)
Posts: 2,640

Posted:

Audrey:

As others have said this is a case where you need legal counsel. IT could be that a spa is something that is medically necessary for him but he hasn't thought about the indoor option. Or it could be the indoor option is twice as expensive as the outdoor option. The lawyer will have to sift through what is reasonable. We all have our own ideas, but in this case that would be my suggestion.

MaryA1 (Arizona)
Posts: 7,043

Posted:

05/13/2008 8:01 AM Quote Reply
There is no restriction on installing a spa in their bathroom which BTW is huge. So I don't get the "medical necessity " part of it. These are very small patios.... cheek to jowl.... and no one else has one due to the CC&R restriction. How can this be challenged? Even if a doctor's letter stated a spa would be beneficial, how can something like this be prescribed, and specifically an outdoor spa.

Cases like this give a bad reputation on disability laws as people abuse the intent of the law and bend it to their own liking.

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You asked, ". . .how can something like this be prescribed, and specifically an outdoor spa." I have an outdoor spa and an air tub in the bathroom. Because of back problems, including a surgery, my Dr. wrote a RX for a spa so I could deduct the expense from my income taxes. The RX doesn't state indoor or outdoor, just "spa". I only deducted the expense for the spa. I was afraid to deduct the cost of the air tub too as it would have been quite a large deduction and I didn't want to take any chances with the IRS. However, the reason for preferring an outdoor spa to a whirlpool tub was simple. Each time you use the whirlpool you need to fill it up -- it takes forever and it takes a lot of water. The jets are at the top of the tub and they must be covered with water. The jets on the air tub are at the base of the tub and you can use bubble bath which you can't do in a whirlpool, but it is not as theurapatic. The outdoor spa is always full; you only change the water every 3-4 months. As for noise, the jets are on for only 20 min. If you keep the temp real high you might not even be able to stay in 20 min! I'm not sure that noise should be a factor. Don't other residents ever make any noise on their patios -- how about radios?

As someone else stated, you definitely want to see the Doctor's letter or RX b/4 making a decision. If the requirement is valid, I really can't see why the HOA would object. Since the patio is an exclusive use area why shouldn't owners be allowed to place whatever they want on it? Doesn't exclusive use mean they own it? I'm not a condo member, so I sometimes get confused with the terminology. As someone who has a medical need for a spa, I can certainly identify with this person.

BradP (Kansas)
Posts: 2,640

Posted:

Mary:

Unless you are the only person using the spa and don't use it daily 3-4 months is a long time to go without changing water...The spas I used to manage we would change water every 10-14 days. Of course they had higher usage, but the hot water makes water chemistry very hard to maintain.

DonnaS (Tennessee)
Posts: 5,671

Posted:

As an owner of a spa, I can tell you that I would not want to live above or below it. Even the newest models have noisy motors and the bubbling action makes them even louder. If it was guarenteed that this would be a 1 person tub, then that might be less of a problem. But our 8 person tub gets all kinds of noisy users and a glass of wine makes them worse. So I say "NIX" on the spa tub outdoors and a whirlpool tub indoors is the only way to go. As for the expense of changing his indoor tub? The outdoor spa would cost more. No valid arguement for cost comparisons as I see it.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Brad,

You cannot compare a spa in a home to one at a commercial location (hotel, etc.) My husband & I use the spa almost daily. We keep the temp set at 98 deg. in the winter. Each Sat. my husband checks the ph levels and adds various chemicals, plus there is one chemical we add every day. The water is never cloudy or smelly, has no cholorine smell and is changed every 3-4 months. We've never had a problem! By venting the spa each evening, and turning off the heater, we're able to use it in the summer too!

BradP (Kansas)
Posts: 2,640

Posted:

Mary:

I know you can't compare the two...however, in the world of pools and spas there is a formula for calculating drain intervals. That formula is to take the estimated gallons of water in your spa, divide that by 3, then divide that number by the average bather load each day. I have no idea how big your spa is, but for example if it is 500 gallons and you and your husband are in it every day then every 83 days you should drain it.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Brad,

A shame you're so far away, I'd invite you to come over for a dip! Whatever my husband does to maintain the spa, you wouldn't find any complaints. The key is to find the right mix of chemicals and be careful not to go in with lotions and creams on and of course a clean body goes without saying. LOL

AudreyA (California)
Posts: 5

Posted:

The issue is not one of maintenance of spas, but that of "reasonable accommodation." If one can install a device indoors that is reasonable enough. A 3 person outdoor spa brings this up to a recreational/pleasure installation vs. strictly therapeutic. The point is that people who use the disability/"reasonable accommodation" argument and boogie board in the ocean daily appear to be abusing the intent of accessibility laws. There is no barrier to any accessibility in this case.

MikeS1
Posts: 668

Posted:

Allthough, by concept the patios may be considered as "exclusive use common areas", but I'm speculating that this area (in the docs), is actually referred to as a "Limited Common Area"; which in effect is owned by the COA, but it's designed for the unit owners exclusive use, but I'm sure that the docs have something to say how the space is used.

I've owned several outdoor spas and IMO, the pumps and jets are noisy. Then there's the noise factor generated by putting several people out there late on a Weekend night. I wouldn't want to live next to one of these.

We had a similar situation where the owner wanted us to setup a handicapped space by turning one of our visitor spaces into a handicapped space just for the owner of a garage townhome. The attorney's letter of opinion to the homeowner detailed that fact at the "best solution" for the concept of "Reasonable Accomodation". Why would the Homeowner want to walk 70 yards to the visitor space in lieu of just parking in their own driveway or garage? The answer was obvious.. She just wanted to take advantage of the situation under the guise of the RA provision.

You're probably going to need an attorney's opinion letter and I'm sure that along the way someone is going to ask the homeowner for a letter from the owner's doctor that (1) details the fact that the owner needs a spa and (2) details the fact that an indoor spa is insufficient to satisfy the needs of the homeowner; and that only an outdoor spa will fulfill his needs.

MikeS1
Posts: 668

Posted:

Also - Check with Zoning and ask about plumbing. Most jurisdictions now require that the spa have a drain that goes back into the owners sewer system. I know a lot of outdoor spa owners just discharge the water into the lawn in the common areas, but the water is supposed to be nutrilized or treated before it goes into the storm water drains. This is why most jurisdictions are requiring drains on the spas. Now this is going to possibly require a plumbing and maybe some serious alterations or renovations to the buidling per se. In addition, they are going to have to run (220V) line with GFI (more than likely) out to the tub, so there's so more alterations to the building where the electric line just come from the electric panel and then run it through the outside wall to the spa. Once all these alterations are done, the RA provisions says that once the owner moves out that the building must be restored back to it's original condition at the expense of the owner.

This doesn't sound practical .. does it?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Do we know if the association has a spa for the residents to use? Many places with pools already have a spa so this could be just a matter of convenience for this guy. Yup! They are noisy and even tho I own my own, I would not want to share that noise with my downstair or upstair neighbors.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Mike,

I would be surprised to learn that a doctor would specify an outdoor spa is required in lieu of an indoor spa. A spa, is a spa, is a spa, regardless of where it's located, the theurapatic value is the same. It's up to the member to decide where they want to install the spa. The board will have to rule on the location of the spa w/o any input on this from the member's doctor. One other thing that just came to mind is the location of the bathroom inside the unit. If it's on an upper level, installing a whirlpool tub may be out of the question considering the weight, etc. Just a thought -- trying to look at all angles.

MikeS1
Posts: 668

Posted:

Mary, I agree with you on this one. Yes, when you say the word "patio", you would assume that it's ground level, but yes, an upper level, wood, recessed deck area or upper level concrete patio in a multi-level building would have to be beefed up in order to support the weight. Having built a deck with a large spa above grade and having worked with zoning on this; I have to say, you're right again. IMO, this thing will never fly.

MicheleD (Kentucky)
Posts: 4,491

Posted:

While it's highly possible that an ordinary, Home Depot-ish "whirlpool" bathtub might not be "theraputic" enough, I know for a fact a hundred various companies that send tons of promotional ads to AARP members sell "therapy" grade indoor spa/whirlpool units, making an outdoor spa un-needed.

So the argument that an outdoor spa is the only one capable of addressing his disability would be very weak. It would be perfectly reasonable for the HOA to accommodate an indoor-spa/whirlpool that is of therapy grade, and it would STILL be cheaper than an outdoor recreational spa.

JC3
Posts: 290

Posted:

This is an interesting discussion. You know I am disabled. I'm having more and more days of increasing disability, with fewer days of respite. On those days, I am able to do a few things that I can't generally, anymore, and those include some somewhat physical activities. Slower, and for a much shorter time, with less exertion, less strength, than previously, and longer "recovery times" between events.

Swimming/surfing was never my thing, and I can't even imagine the talent, expertise, strength, co-ordination, etc, involved in that. That the fellow is able to go at all may simply be an indication of the value of the spa he is requesting for him. It is actually possible that he may not be able to walk at all without that help. He may be able to swim more easily than move without the support of the water (I know two people who were like that: could hardly move without mechanical help on land, but could swim like fish, until their disability made that even very difficult and painful. A spa made a huge difference for their quality of life.)

The accommodation that the person needs to be able to function will not be decided by a board (especially one set to deny it) but by the doctor, the circumstances, the needs of the individual, maybe the court.

One of the places that you might find some guidance, since you are so intent on deciding what this person can or not have that he needs might be the ADA itself, and their Job Accommodations Network, if that group will even talk with you, since this is not a workplace issue. http://www.jan.wvu.edu/Erguide/

I know you need, as per your docs, to make decisions that you may not like, but some comments seem mean spirited to me, and have the intent to deny, rather than find a workable, acceptible solution. Consider working WITH the fellow, whether you understand or not, whether you believe him or not, whether you or someone you know/care about has ever been in such a position or not.

There, but for the grace...

JosephW (Michigan)
Posts: 882

Posted:

JC,

I guess that is because too many of us have seen owners who, having purchased in an association, decide that they want something that isn't allowed, and rather than going through the process of convincing their neighbors to change the CC&R's/Bylaws/Rules, they look for an easier way around it. Lately, that easier way is a note from doctor, which is becoming as abused as the handicap parking sticker and comfort animals. I believe that this discussion boiled down to whether it should be inside or outside, once it has been confirmed that this spa is needed. This may not be important in a detached, single-family home HOA where the homes have some space between them and no one lives above or below them, but in an association that has homes with adjoining walls, it could have an impact on a number of other people, and therefore the board has to deal with, not only the accomodation request, but how that will affect others. As board members, they have a responsibility to ask the questions and get the answers

I don't think they meant to come off "mean-spirited", but the way the original post was written, there is room for doubt as to the reason for the outdoor spa request.

As I've stated before, get the lawyer involved in confirming the need, and then make the decision.

Joe

Joseph West
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DonnaS (Tennessee)
Posts: 5,671

Posted:

Joe,
I did not want to go down that road of handicap abuse" but I am glad that you did. We had the emotional support dog to allow a pet in a condo and several other post going that way and this always becomes an emotional issue..

Having lived in Florida for a long time, I can tell you about "Handicapped "Stickers or tags that would fill volumns. The abuse is so rampant with Doctors giving them out like free candy. So when I see a post like this, my negativity takes over. Now, I don't want all of you guys with legitimate handicaps to jump all over me. You yourselves know that many people abuse this system of aiding the handicapped.

As for the original post, I have serious doubts as to the legitimacy of the guy who wants the spa. Condo living is not compatable with having a big ole spa underneath another unit.

BrianB (California)
Posts: 2,820

Posted:

just to add fuel to the fire, having a note from a doctor does not necessarily create a legal obligation. there are a LOT of hoops to jump through, and the best advice here has been to treat each request carefully, with due diligence, and research.

Some issues that must be determined: Is your HOA/COA covered by the ADA or Fair Housing act? If so, Which one? there are differences in what you are obligated to do under each. Is the "handicap" a protected class? If not, then the law doesn't cover it (ie, just because a doctor says handicap doesn't make it true/protected under the law). WHat is reasonable?

Bottom line, everyone here is telling you to not let someone steamroll you with the "ADA" flag waving high. Learn the rules, get your experts lined up, deal with facts, not "he said" suppositions, and be prepared. It's the safest path to victory.

MaryA1 (Arizona)
Posts: 7,043

Posted:

I urge everyone responding to this issue to read JC's post. My best wishes go out to him in his daily struggle to get by. No one but someone in the same situation can really understand the implications of a disability. Does anyone remember our former President, FDR, who was stricken with polio but enjoyed swimming? No, I'm not that old to remember the time, but I have read about it. Some disabilities are not outwardly apparant, but they do exist. I have a close friend who has a VA disability (back injury), but you wouldn't know it by looking at him. Trying to second-guess whether or not his disability is real is a sign of being small-minded.

At any rate, only the individual requesting the installation of the spa, and his doctor, really knows what his disability is. Whether he should be allowed to install an outdoor spa or an indoor whirlpool tub will be the decision of the board. But, I hope they carefully consider the request, research all the angles (noise factor; whether the deck or bathroom floor would have to be reinforced, etc.), and keep in mind the fact that a doctor has prescribed this therapy. Also, the Americans with Disabilities Act and the Fair Housing Act may apply which is why the board would be well advised to obtain legal advice on this issue.

GlenL (Ohio)
Posts: 5,491

Posted:

Audrey you've received some excellent advice here especially from JosephW. If your attorney advises to allow the outdoor spa I would ask if it can be size limited to a one person spa.

Also I would recommend to all BOD's to print out and keep for reference the March 08 joint statement from the U.S. Department of Justice -Civil Rights Division & U.S. Department of Housing and Urban Development - Office of Fair Housing and Equal Opportunity regarding Reasonable Modifications Under the Fair Housing Act. It of course is not a definitive guide to everything but answers a lot of often asked questions.

http://www.usdoj.gov/crt/housing/fairhousing/reasonable_modifications_mar08.pdf

Studies show that 5 out of 4 people have problems with fractions

ClaudiaH (Kentucky)
Posts: 27

Posted:

This subject seems very sensitive and is being taken to a bit of extremes. JC, I empathize with your situation. But for every zing there is a zang. I know someone who has used the system majorly. I'm not going to spell it out because this is the internet. But, people will abuse the system. Some won't, but some will.

When I had back surgery, I went to physical rehab. If this person truly needs heat or water therapy, there are plenty of places to go to get it such as gyms, hospitals, therapy centers. Or, like several have said, their own tub. With the outdoor patio space being so small, I can't imagine that the owners above and below the deck wouldn't be bothered by the noise. Additionally, that's a lot of weight to put on wood supports.

Regardless, I'd be looking for some attorney guidance. I'd probably contact the ACLU and the Council for Disability Rights as well.

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