For some New Jerseyans, planning their daily errands and activities can be as  logistically difficult as mountain climbing. These residents are, of course,  those with disabilities, the elderly or anyone whose mobility has been  compromised by illness or injury—even temporarily—getting into or out of their own buildings can feel like a monumental  task...like climbing a mountain.  

 Legally, however there are laws in place that are supposed to provide protection  and grant those with disabilities rights that would help make daily life a  little bit easier. One law, in particular, is Title III of the Americans with  Disabilities Act of 1990 (ADA). This law states that owners of certain  buildings must remove barriers and provide people with disabilities with access  equal to or similar to that available to the general public.  

 Reasonable accommodation can be structural, such as a ramp at the primary  entrance to provide wheelchair/walker access, or installing grab-bars in  public/community bathrooms. Reasonable accommodation can also involve policy or  rule changes, such as permitting a tenant who is blind, physically disabled, or  has a psychological disability to have a guide dog, service dog or a companion  animal despite a building's “no pets” policy. Human Rights laws provide guidance in assessing requests for reasonable  accommodation, taking into account the nature and cost of the proposed  accommodation and the financial resources of the landlord or building.  

 Interpretation of the Law

 As with many laws however, deciphering the ADA's legalese can be complicated—not fully understanding the laws applications can result in accidental  non-compliance. For example, in some cases, managers and boards in some of the  state's older buildings often mistakenly think they are exempt from these laws,  believing that the laws are solely meant for new construction. Others may be  baffled by the technical requirements of these laws, and still others equate  accessibility with big budgets that they may not have at their disposal.  

 Jonathan Parkhurst, a resident of Jersey City and a partner with the New York  City-based law firm of Cary Kane, LLP, notes that, “The ADA provides a whole set of technical regulations regarding accessibility,  the statute requires that the building be accessible for those with  disabilities. As to what that means there is a whole bevy of regulations.” He points out that these regulations are why, “generally you'll see many buildings now with ramps and other accommodations for  those with accessibility issues.”  

 The question that many building managers and board members face is how far does  the building have to go in providing “reasonable” accommodations?  

 According to Parkhurst, “The statute itself is broad, the accessibility guidelines do provide specifics,  a lot of specifics, the regulations must be reviewed very carefully... the  guidelines regulate even the placement of ATMs, saunas, steam rooms, laundry  rooms. The guidelines’ goal is to make it so that most people with disabilities are able to utilize  the facilities of the building.”  

 Though these guidelines are in place to insure accessibility, that doesn't  necessarily mean that a building must undertake massive renovations to meet the  requirements of the statute.  

 “Generally there is no need to change the building as existing,” says Parkhurst, “but once alterations are being made they then have to make them so that the  building is accessible.”  

 David J. Byrne, a shareholder and co-chair of the Community Associations Group  for the New Jersey-based law firm of Stark & Stark, agrees, “Generally speaking, the ADA is relevant in the condominium/co-op context in only  the rehabilitation and/or renovation of existing facilities, etc., and only to  the extent that said rehabilitation and/or renovation is of a certain  significance.”  

 Byrne points out that, “The ADA certainly is relevant to the creation of a new building. The United  States Fair Housing Act (and any relevant city and/or state anti-discrimination  codes) is typically more relevant [regarding new construction].”  

 The key word here is renovation, says Parkhurst. “If you have a building that's not completely accessible,” he says, “and you are making changes to the front entrance in any regard, that's when you  have to put the ramp in. There's something of a rule of reason when it comes to  reasonable accommodation, a good rule of thumb is that when you’re making changes to something you've got to change it in a way that it will then be ADA compliant, any addition, any  alteration.”  

 “What some people might consider regular maintenance,” says Parkhurst, “may in fact trigger the alteration. For example, if the stairs to your entrance  need repair, unless it's a real tiny patch-up job, there's a very good chance  that it will trigger ADA and you'll need to meet the accessibility  requirements, to the point that once you have to make the alteration or the  addition, you must take advantage of that to include accessibility, even though  sometimes making it accessible might become a project on top of what you were  planning on doing.”  

 Help for All

 To help make the process smoother, New Jersey state, county and local department  of building and code enforcement officers are tasked with ensuring that all new  construction and renovations of existing buildings, meet the requirements and  guidelines of the ADA. Additionally, the New Jersey Department of Consumer  Affairs provides information for residents, management and boards as to where  they can turn to for assistance and help in complying with the ADA. .  

 According to many ADA advocates, the biggest problem faced under the rules of  the ADA is the belief that older buildings are grandfathered out of the law and  thus not required to make changes. It is tasked to local building and code  enforcement departments to make sure that every building that can be made  accessible in a reasonable fashion—if there is a unit owner that requires it—be made accessible.  

 According to the ADA, disabled residents who need accommodation should inform  the building manager and identify the type of accommodation needed. A note from  a medical doctor or other health care professional may be required, but medical  records are not necessarily required.  

 Non-Compliance? What Happens?

 In spite of the fact that there are specific federal and state laws on disabled  access, some managers and building owners refuse to make required exterior  alterations for disabled residents, leading to dissatisfied unit owners,  possible litigation and hefty fines.  

 Local building code enforcement departments try to intervene first, without  resorting to formal complaints and litigation. At the local level, building  management can be fined for not providing necessary equal access as provided by  the guidelines of the ADA. The longer that a building is in violation of the  guidelines of the ADA, the fines will continue to grow. If a building continues  to remain in violation the matter would then be turned over to the city or  township counsel. The counsel would then begin to pursue civil litigation to  force compliance under the law.  

 The local building and code enforcement department will evaluate the building  and will inform the management, board or owner, what steps and alterations  would need to done in order for the building to be in compliance. In the case  of older buildings which were built before the enactment of the ADA, these  building and code enforcement officers, would make recommendations for  alterations that are reasonable and sensible.  

 Parkhurst gives an example. “If you have an old building, that might be a walk-up residential building, and a  disabled person comes and says that they want to purchase the top apartment,  you don't have to completely gut the building to put in an elevator.” That would be unreasonable—both physically and financially.  

 If the accommodation is determined to be reasonable and the building management  and/or board refuse to comply with local building and code enforcement  departments, then the building, will be found to be in violation. Each  municipality has a different set of codes as to how long the building must  comply.  

 In the rare event that a request continues to be refused, the case may be sent  to the U.S. Department of Justice (DOJ), which relies on a group known as the  Key Bridge Foundation to mediate a solution. The foundation is a non-profit  organization underwritten by the DOJ and organized to handle complaints filed  with the DOJ under Title III of the ADA.  

 According to the DOJ website, courts may levy civil penalties only in cases  brought by the DOJ—not by private litigants. The department only seeks such penalties when the  violation is substantial and the business has shown bad faith. This can take  many forms, including hostile acts against people with disabilities, a  long-term failure to inquire about what the ADA requires, or sustained  resistance to voluntary compliance.  

 Compliance 101

 James Boydston, the president of Handi-Lift, a company based in Carlstadt, New  Jersey, that makes accessibility aids for disabled individuals throughout the  tri-state area, sees many situations where building manager and boards approach  his company because a unit owner and the building manager/board are at the  brink of a lawsuit.  

 “Many condos and co-ops have historical buildings that they don't want to change  the look of or put anything permanent in,” says Boydston, “so we are asked to make temporary accommodations, such as portable wheelchair  lifts.”  

 However, Boydston says that these products are a temporary answer, as they do  not meet ADA requirements. “The ADA wants the wheelchair unit owner to be able to get in and out without  assistance.”  

 As more Baby-Boomers age and require accommodations in order to enjoy their  homes and common areas, ADA compliance may soon become a non-issue. The demand  for accessible housing will increase and ADA-compliant features can be used as  strong marketing tools to a 55-and over population.  

 Many developers and building managers understand that it's in their own best  interest to provide accommodations for disabled unit owners. In doing so, they  not only raise the sense of community in their buildings but also let all  residents know that they’re valued—regardless of their mobility.    

 J.M. Wilson is a freelance writer and a frequent contributor to The New Jersey  Cooperator. Associate Editor Liam P. Cusack contributed to this article.