FHA vs. ADA: Communities Struggle to Make Sense of New ADA Rules

Last fall, the Justice Department issued new ADA rules that take full effect on March 15, 2012. Among other things, the new rules adopt scoping provisions establishing accessible design standards, including standards on making swimming pools, exercise clubs, and other recreation facilities accessible for individuals with disabilities.

Many wonder whether their community is subject to the new Americans With Disabilities Act (ADA) rules. The short answer—in most conventional housing communities—is no. The ADA new rules don’t apply to any community that wasn’t subject to the ADA before the new rules were issued, according to our fair housing experts. In conventional housing communities, the Fair Housing Act (FHA)—not the ADA—applies to units, buildings, and common areas generally reserved for use by residents and their guests. In those communities, the ADA applies only to “places of public accommodation—that is, areas within the community that are open to the public.

In general, that’s limited to your leasing office—not the pool or other amenities that are available for use only by residents and their invited guests. The ADA applies only if you make those facilities available to the public—for example, by renting them out to groups or individuals who are not otherwise associated with your community. Consequently, the new ADA rules for pools and other amenities don’t apply in most conventional housing communities—if your pool wasn’t covered by the ADA before the new rules were issued, then the new ADA requirements for pools don’t apply.

Still confused? If you have areas within your community that are open to the public—such as day care centers, medical offices, or other facilities—get legal advice to ensure that you comply with all applicable accessibility requirements.

Editor’s Note: There’s an exception that extends the ADA requirements to housing owned or operated by or on behalf of places of higher education. Consequently, communities that offer student housing should consult their attorney to determine whether the ADA applies.

Source: “Meeting Disability-Related Needs of Individuals with Mobility Impairments,” Fair Housing Coach, March 2012