Excluding Owner With AIDS Would Pose Problems

Question: I sit on a sub-association board of a common interest development in California and I have also been on the master board, so I am an experienced board member. The other boards look to me for recommendations and value my opinion so I want to make sure on this before I give my advice.

We have hundreds of expensive homes in this development and thousands of residents. The development has a couple of swimming pools, a Jacuzzi and a workout room.

Because we are a strong and long-standing board, we have not had problems with homeowners until recently. We have just learned that a homeowner has AIDS. One of the board members has access to this information firsthand so we know it is true.

We do not want this homeowner or friends of the homeowner to continue to use the facilities. Is there a nice way to stop them without making a big deal of this?

Answer: No. As an experienced board member, you know that every member of the homeowners association is entitled to use the facilities, subject to reasonable rules and regulations. If your board attempts to unreasonably deny access to the amenities to a member who has AIDS, your association will pay the consequences for such actions.

You state that another board member accessed the “information,” and therefore you know it to be true. As we understand it, AIDS is a medical condition and, as such, would be subject to all the privacy laws relating to disclosure of the condition.

If your board member acquired the information surreptitiously, that member and possibly your board and the entire association might be liable in damages for the public disclosure of private information.

Homeowners who purchase in common interest developments understand they must share the facilities, and bought their homes knowing that.

In attempting to exclude one homeowner, you may have to exclude anyone with anything as unassuming as the flu, which, after all, can be spread simply by a sneeze or cough.

Will you then prevent those with tuberculosis and hepatitis from using the facilities? How will you know for sure who actually has the diseases you choose to prohibit, and who will make those decisions to exclude?

Enforcement of a ban would present a host of legal problems, which your association may not want to risk.

Legality aside, the expense of instituting a method of determination of such information and then exclusion of certain individuals may outweigh the costs of the amenities themselves and the dissension that accompanies it.

Ask your association’s attorney if your actions of discrimination--and disclosure of this individual’s medical condition--will withstand legal challenges.

Absent a legitimate justification, you cannot exclude an owner from using the facilities.

Educating your members about AIDS, its symptoms and, most important, how the disease is transmitted, might better serve your needs.

Efforts to prevent this person from exercising his or her rights to use the facilities can never be done without making it “a big deal.”

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Stephen Glassman is a writer and an attorney in private practice specializing in corporate and business law. Donie Vanitzian, J.D., is a writer and arbitrator and manages commercial property. Both live in common interest developments and have served on various association boards. Please send questions to: Common Interest Living, P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to: cidcommonsense@aol.com.