Complying with Fair Housing Accessibility Requirements
This month’s lesson addresses fair housing accessibility requirements. Compliance can get complicated because of the number and complexity of federal, state, and local laws and codes that address accessibility in various settings.
To keep it simple, we’ll focus on the primary law that governs accessibility in multifamily housing communities—the federal Fair Housing Act (FHA). The FHA, which bans housing discrimination based on disability, requires certain accessible features in multifamily housing built since March 1991.
Earlier this year, HUD and the Justice Department issued new formal guidance to reinforce the FHA’s requirement that multifamily housing be designed and constructed so that it’s accessible to persons with disabilities.
“Today, more than 30 million Americans use a wheelchair or have difficulty walking or climbing stairs and they have every right to live in housing that is accessible to them,” John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “This new guidance promotes access and helps developers construct housing that complies with the Fair Housing Act from the start so they don’t have to retrofit later.”
Efforts to enforce the fair housing accessibility requirements have increased in recent years. Across the country, fair housing organizations have been visiting communities to detect violations of the accessibility requirements—and to pursue fair housing claims for alleged violations. Since January 2009, HUD and its fair housing partners have investigated and either settled or charged 300 cases that alleged violations of the FHA’s design and construction requirements. During the same period, the Justice Department’s Civil Rights Division has filed 19 cases alleging failure to design and construct multifamily housing in compliance with fair housing requirements. Cases have been filed against community owners, developers, and design professionals, racking up substantial legal fees—and in some cases hefty settlements to resolve the litigation. Here are a few settlements from this year alone:
Texas: In June 2013, the National Fair Housing Alliance (NFHA) and the North Texas Fair Housing Center announced a fair housing settlement with a multifamily housing developer that owns and operates about 160 communities across the country. The complaint alleged disability discrimination in the design and construction violations of three multifamily housing communities in Texas. According to the complaint, the alleged violations included:
· Kitchens and bathrooms with insufficient maneuvering space for wheelchair users at sinks and toilets;
· Doors with excessively high thresholds;
· Inaccessible visitor parking for leasing offices;
· Mailboxes mounted too high;
· Closet doorways that are excessively narrow; and
· Accessible parking spaces without the required access aisle for people with mobility impairments to safely leave or enter their parked vehicles.
Under the settlement, the developer agreed to pay $87,000 and to make major renovations to the subject communities [National Fair Housing Alliance v. UDR, Inc., June 2013].
Oregon: In May 2013, the Justice Department announced a settlement with an Oregon developer to settle a lawsuit, accusing it of violating the FHA by building a 275-unit rental community with steps and other features that made it inaccessible to individuals with disabilities. Under the settlement, the developer agreed to take corrective actions to remove accessibility barriers that include:
· Removing steps from sidewalks;
· Widening interior doorways;
· Reducing threshold heights; and
· Replacing excessively sloped portions of sidewalks, and installing properly sloped curb ramps to allow persons with disabilities to access the sidewalks from the parking areas.
In addition, the defendants agreed to pay $48,000 to the fair housing organization whose investigation revealed the alleged violations and $32,000 to establish a settlement fund to compensate affected individuals. The settlement didn’t resolve claims against the company that provided design and engineering services [U.S. v. Montagne Development, Inc., May 2013].
Florida: In March 2013, the NFHA and West Palm Beach Coalition for Independent Living Options announced a $1.35 million fair housing settlement with a large affordable housing developer in Florida. The lawsuit alleged disability discrimination in the design and construction of more than 50 residential developments, which include more than 5,000 apartments. Under the settlement, the developer agreed to make modifications to multifamily dwellings and common areas to make them accessible to individuals with disabilities. The developer also agreed to create and subsidize a housing accessibility fund, which will be supervised by the NFHA, to help Floridians with disabilities make their homes more accessible. In addition, the developer will pay $1.35 million in damages, expenses, attorney fees, and other costs to the fair housing organizations [NFHA v. Cornerstone Group Development Corp., March 2013].
In this lesson, we’ll review the new HUD-Department of Justice (DOJ) guidance on accessibility and explain how the FHA’s design and construction rules apply to multifamily housing communities. We’ll also offer seven rules to help ensure compliance with fair housing accessibility requirements. Then, you can take the COACH’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The FHA prohibits housing discrimination because of race, color, religion, sex, national origin, familial status, or disability. In addition to the general provisions banning discriminatory practices, the FHA imposes a duty on housing providers to satisfy three additional disability-related requirements:
· To make reasonable accommodations for individuals with disabilities;
· To allow individuals with disabilities to make reasonable modifications; and
· To meet accessibility requirements in covered multifamily housing communities.
The accessibility requirements require multifamily housing communities built since the early 1990s to meet specified design and construction requirements to ensure accessibility by individuals with mobility disorders, particularly those who use wheelchairs. Failure to comply with the FHA’s design and construction standards is a form of disability discrimination, according to the new HUD-DOJ guidance on accessibility.
The FHA’s design and construction rules generally apply to multifamily communities consisting of four or more units intended for first occupancy on or after March 13, 1991. The law requires covered multifamily communities to meet seven design and construction requirements:
1. An accessible entrance on an accessible route;
2. Accessible common- and public-use areas;
3. Doors sufficiently wide to accommodate wheelchairs;
4. Accessible routes into and through each dwelling;
5. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
6. Reinforcements in bathroom walls to allow later installation of grab bars; and
7. Usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about and use the space.
These requirements apply to all public and common-use areas—and to all rental units, if the building has an elevator. In buildings without an elevator, the standards apply only to ground-floor units. (Note that a non-elevator building may have more than one “ground floor,” according to the accessibility guidance. For example, a building would have two ground floors if it’s located on a slope with an upper slope at grade on one side and a lower story at grade at the opposite side.)
The FHA doesn’t include technical specifications that would meet the design and construction requirements or provide one national uniform set of accessibility standards. Instead, HUD has approved 10 “safe harbors”—objective and recognized standards, including its own fair housing accessibility guidelines and fair housing design manual. As long as the community satisfies the technical requirements under one of these safe harbors, it’s deemed to meet the FHA’s design and construction requirements.
COACH’s Tip: For more information on technical requirements under the FHA’s design and construction standards, visit the Fair Housing Act Accessibility FIRST Web site, fairhousingfirst.org, the HUD-sponsored initiative to promote compliance with the FHA design and construction requirements.
7 RULES FOR COMPLYING WITH FAIR HOUSING ACCESSIBILITY REQUIREMENTS
Rule # 1: Learn About Applicable Accessibility Laws
In all likelihood, your community is subject to several federal, state, and local laws—many of which have different accessibility requirements. Though you may not be required to master their technical requirements, it’s a good idea to become familiar with accessibility laws that may apply to your community.
The FHA’s design and construction standards apply to covered multifamily dwellings—that is, communities with four or more units built for first occupancy on or after March 13, 1991. If your community was built before that date, then the FHA’s design and construction rules don’t apply, even if you make significant renovations to the property. The HUD-DOJ guidance states that alterations, rehabilitation, or repair of pre-existing residential buildings are not covered because first occupancy occurred before the effective date of the law’s design and construction requirements. If, however, the renovation includes the addition of four or more new rental units, then the federal guidance states that the new units must comply with the FHA’s accessibility requirements.
Aside from the FHA’s design and construction standards, there are other laws that may impose additional accessibility requirements on your community—or portions of your community. Housing subject to the requirements of more than one federal, state, or local law must comply with the requirements of each law, according to the accessibility guidance. Where federal, state, or local laws differ, the more stringent requirements apply.
Many communities are subject to state or local building codes, which may require greater accessibility than the FHA. The federal guidance explains that the FHA doesn’t reduce the requirements of state or local codes that require greater accessibility than the federal act, so the state or local building code’s greater accessibility must be provided. But if the state or local code requires less accessibility than the federal act, then communities are still bound to comply with the FHA’s design and construction standards.
Meanwhile, federally assisted housing communities must comply with the accessibility provisions of Section 504 of the Rehabilitation Act of 1973. If the community was built for first occupancy after March 1991 and federal funding was involved, then both Section 504 and the FHA apply, so the accessibility standards under both laws must be used, according to the accessibility guidance.
The same goes for the Americans with Disabilities Act (ADA)—though its reach is limited to “places of public accommodation” in conventional housing communities. In general, that means places within your community that are open to the public, including your business office and commercial enterprises, such as a convenience store located within your community. Common-use areas reserved for your residents and their guests are covered under the FHA—but not the ADA—according to the accessibility guidance.
COACH’s Tip: For more information on Section 504, visit HUD’s Web site at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/disabilities/sect504. Information about ADA requirements for leasing offices and any other community facilities that are open to the public is available on the Justice Department’s ADA Web page at www.ada.gov.
Rule #2: Make Your Leasing Office Accessible
Take all necessary steps to ensure your leasing office and model units are accessible to individuals with disabilities.
Rental offices and other public- and common-use areas must be accessible if they serve multifamily communities that are subject to the FHA’s design and construction standards, according to the HUD-DOJ accessibility guidance.
In communities built for first occupancy before March 1991, the FHA’s design and construction requirements don’t apply. But that doesn’t mean that you shouldn’t be concerned about accessibility in your leasing office. Because it’s open to the public, a community’s leasing office is subject to the ADA’s accessibility requirements.
Check with experts for the technical requirements, but at a minimum, you should ensure that there are no barriers to the entrance to the leasing office and there’s adequate accessible parking in the leasing office’s parking lot, including parking that’s accessible for vans. In addition, bathrooms must be accessible for people who are using wheelchairs or other mobility devices.
Rule #3: Provide an Accessible Building Entrance on an Accessible Route
The FHA’s design and construction standards require that all covered multifamily dwellings have at least one accessible building entrance on an accessible route, unless it’s impractical to provide one because of the terrain or unusual characteristics of the site.
Individuals with disabilities must be able to enter the building through the same entrance used by everyone else. The accessibility guidance warns against building designs that require individuals with disabilities to use an entrance that's different from the one used by people without disabilities. Furthermore, the accessible route cannot be hidden, remote, circuitous, or require people with disabilities to travel long distances.
An accessible route means a continuous, unobstructed path connecting accessible elements and spaces within a building or within a site that can be negotiated by a person with a severe disability using a wheelchair, and that’s also safe for and usable by people with other disabilities, according to the guidance. That route must connect vehicular and pedestrian arrival points, such as accessible parking lots and public streets and sidewalks, to the entrances of the covered building. The guidance states that exterior accessible routes should be pedestrian routes that are separate from the road or driveway, although there’s a vehicular traffic exception that may apply under certain circumstances.
Additional entrances to the building also must be accessible if they’re public or common-use areas, according to the guidance. If, for example, a secondary entrance at the back of the building containing units leads to the clubhouse or parking, then both that entrance and the primary entrance must be accessible.
Rule #4: Ensure Accessibility to Public and Common-Use Areas
If your community is covered under the FHA’s design and construction standards, then you must ensure that public and common-use areas are readily accessible to and useable by individuals with disabilities, including those who use wheelchairs. Among other things, the rules require that all doors that allow passage into public and common-use areas be wide enough to allow passage by people who use wheelchairs, scooters, or walkers. Public and common-use areas include rental and management offices, model units, parking lots, storage areas, indoor and outdoor recreational areas, lobbies, mailrooms and mailboxes, and laundry areas.
The FHA permits accessible routes between public and common-use areas and dwelling units to be interior or exterior, according to the accessibility guidance. But if the general circulation path is via an interior route, then that path must be readily accessible and usable by people with disabilities. People with disabilities can’t be required to go outside a building to access a public or common-use area when people without disabilities aren't required to do the same.
In general, walkways between separate buildings containing only dwelling units aren’t required to be accessible. But if the walkways also serve as an accessible route to a public or common-use area, then the walkway must be accessible. For example, if a walkway connects separate buildings and is the only walkway to the clubhouse, then it must be accessible.
The FHA’s design standards also establish minimal levels for accessible parking for residents and visitors. If parking is provided at the site, the guidelines call for enough accessible parking on a wheelchair-accessible route to accommodate residents of at least 2 percent of the dwelling units. The guidelines also call for accessible parking at facilities (such as swimming pools) that serve an accessible building.
If your community has a pool, then the FHA requires that it be located on an accessible pedestrian route that extends to the pool’s edge, according to the accessibility guidance. The door or gate accessing the pool must be wide enough to allow passage by an individual using a wheelchair and the deck around the pool must be on an accessible route. If toilet rooms, showers, lockers, or other amenities are provided at the pool, then they must also be accessible and usable by individuals with disabilities.
The HUD-DOJ guidance emphasizes that the FHA doesn’t require that the pool be equipped with special features to offer greater access into the pool than is provided for persons without disabilities. These requirements, recently added to the ADA regulations, apply to swimming pools and related facilities only if people other than residents and their guests are allowed to use them.
Rule #5: Provide Accessible Entrances and Routes Into and Through Covered Units
In covered communities, all units in elevator buildings—and ground-floor units in non-elevator buildings—must satisfy the FHA’s design and construction requirements. The rules require doorways into and through covered units be wide enough to accommodate a wheelchair. The rules also require an accessible route into and through each covered dwelling.
And the primary entrance to covered units must be readily accessible to and useable by persons with disabilities. The accessibility guidance explains that the primary entrance is part of the public and common-use areas because it’s used by residents, guests, and members of the public for the purpose of entering the dwelling or building. Service doors, back doors, and patio doors may serve as additional accessible entrances, but they may not serve as the only entrance to buildings or units, according to the federal guidelines.
Rule #6: Make Sure Covered Units Satisfy FHA Accessibility Requirements
The FHA’s design and construction standards mandate certain accessibility features inside covered units, so that they may be usable by individuals in wheelchairs. The FHA doesn’t require fully accessible units, according to HUD-DOJ guidance, which explains that the FHA’s design and construction requirements are modest and result in units that look similar to traditional units—and easily adaptable by people with disabilities who require features not required under federal fair housing law.
Inside covered units, the FHA requires light switches, electrical outlets, thermostats, and other environmental controls to be in accessible locations. Common violations occur when outlets are placed too low and switches for thermostats and other environmental switches are placed too high.
The FHA also requires bathrooms and kitchens in those units to be “usable” by individuals with disabilities. In general, that means they must be designed and constructed so an individual in a wheelchair can maneuver about the space and use fixtures and appliances.
Finally, the rules require reinforcements in bathroom walls in covered units so that grab bars may be added when needed around toilets, tubs, or showers. The law doesn’t require the installation of grab bars in bathrooms.
Rule #7: Consider Reasonable Modification Requests
Aside from the FHA’s design and construction standards, all multifamily communities must abide by the FHA’s other nondiscrimination provisions, including obligations to provide reasonable accommodations or allow reasonable modifications for individuals with disabilities.
Both may involve accessibility concerns—though the modification provisions generally cover requests for structural changes to units and public or common-use areas. Examples of reasonable modifications include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen countertops to a height suitable for people in wheelchairs, adding a ramp to make a primary entrance accessible for people in wheelchairs, or altering a walkway to provide access to a public or common-use area.
Fair housing law requires communities to permit an applicant or resident with a disability to make reasonable modifications to the interior or exterior of his unit and common areas if necessary to allow him full enjoyment of the community. Under the FHA, the community must permit reasonable modifications, but the resident is responsible for paying the costs associated with the requested modifications.
It’s a different story, however, if the request involves features of accessible design that should have been included when the community was originally constructed. If the request involves a structural change to a unit or common area required under the FHA’s design and construction standards, then the community is responsible for providing and paying for those requested structural changes, according to a joint DOJ-HUD guidance on reasonable modifications. The guidelines include an example:
Example: A resident with a disability who uses a wheelchair lives in a ground-floor unit of a non-elevator building constructed in 1995. Since it was built for first occupancy after March 1991, the building was covered under the FHA’s design and construction standards, so all ground-floor units must meet minimum accessibility requirements. The doors in the unit aren’t wide enough for passage using a wheelchair, in violation of the design and construction standards, but can be made so through retrofitting. Under these circumstances, a federal court has ruled that the resident has a potential claim against the housing provider.
In contrast, if the request is for a structural change not required under the FHA’s design and construction standards, then it should be treated as a request for a reasonable modification, and the applicant or resident is responsible for paying the cost of the structural changes. This could occur in communities built before March 1991, when the FHA’s design and construction requirements took effect. It could also occur when the requested modification involves an accessibility feature not required under the FHA’s seven design and construction standards. The guidelines offer a few examples:
Example: A resident with a disability lives in a building constructed in 1987. The doors aren’t wide enough to allow passage using a wheelchair but can be made so through retrofitting. If the resident meets other requirements for obtaining a modification, she may widen the doors, at her own expense.
Example: A resident with a disability lives in a building constructed in 1993 in compliance with the FHA’s design and construction standards. The resident wants to install grab bars in the bathroom because of her disability. As long as she meets other requirements for obtaining a modification, she may install the grab bars at her own expense.
COACH’s Tip: Under Section 504, federally assisted housing communities may be required to make and pay for structural changes to units and common areas as a reasonable accommodation for an individual with a disability.
· Fair Housing Act: 42 USC §3601 et seq.
· HUD-DOJ guidance: Reasonable Modifications Under the Fair Housing Act, www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf.
· U.S. Department of Justice/HUD Guidance, April 30, 2013: Accessibility (Design and Construction) Requirements for Covered Multifamily Dwellings Under the Fair Housing Act, http://portal.hud.gov/hudportal/documents/huddoc?id=JOINTSTATEMENT.PDF.
Carl York, CPM® Emeritus, CAM, CAPS: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.
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|August 2013 Coach's Quiz|