More Than Accommodations and Modifications: FHA Accessibility Guidelines

When most people think of the Fair Housing Act* (the “Act”) with respect to handicap, they think about requests for accommodations or modifications, and they look to the Americans with Disabilities Act for design and accessibility requirements. This is not the whole story though. The Fair Housing Act published regulations governing accessibility and design in January 1989, and a Design Manual in 1996. Issues regarding these accessibility requirements arise from time to time, especially when it comes to changes to common areas of existing facilities, such as swimming pool gate locks. The following information is a conservative view of compliance requirements under the Act based upon the joint guidance of HUD and the Department of Justice.

What Structures are covered by the Act?

The short answer is: all multifamily communities. The Fair Housing Act has design and construction requirements that apply to covered multifamily dwellings buildings having four or more dwelling units built for first occupancy after March 13, 1991. This is significant because the Act affects all areas of your communities, not just those where you allow the public!

In buildings with four or more dwelling units and at least one elevator, all dwelling units and all public and common use areas are subject to the Act’s design and construction requirements. In buildings with four or more dwelling units and no elevator, all ground floor units and public and common use areas are subject to the Act’s design and construction requirements.

What does the Act require with respect to accessibility?

• The public and common use areas must be readily accessible to and usable by persons with disabilities;
• All doors designed to allow passage into and within all premises of covered dwellings must be sufficiently wide to allow passage by persons with disabilities, including persons who use wheelchairs;
• All premises within covered dwellings must contain the following features:
  • An accessible route into and through the dwelling unit;
  • Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
  • Reinforcements in bathroom walls to allow the later installation of grab bars;
  • Usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about and use the space.

What is an accessible route?

An accessible route is a continuous unobstructed path connecting accessible elements and spaces in a building or within a site that can be negotiated by a person with a severe disability using a wheelchair, and that is also safe for and usable by people with other disabilities. Further, persons with disabilities must be able to enter their dwellings through the same entrance that is used by other persons to enter their dwellings. In addition, routes to the primary entrances of buildings and dwelling units are public and common use areas and must be readily accessible to and usable by people with disabilities. The accessible route to the primary entrance must not place special conditions on persons with disabilities – such as a special key, an attendant, or additional waiting periods that are not imposed on other persons. This does not preclude the use of special locks or security systems at entrances that are used by all persons to enter the building and/or the dwelling units, and which are used by all residents and members of the public visiting the development; however, such locks and security systems must be accessible.

How many entrances must be accessible?

Generally, only one entrance must be accessible, but the primary entry to dwelling units that have individual exterior entrances or the primary entry to a building containing covered dwelling units must be accessible. Additional entrances to a building or to a dwelling also must be accessible if they are public and common use areas, i.e., if they are designed for and used by the public or residents. Note that you should not design and construct a multifamily building or dwelling unit in such a manner that persons with disabilities must use a different entrance than the entrance used by persons without disabilities.

Are rental offices and other public and common use areas required to be accessible under the Fair Housing Act?

Rental offices and other public and common use areas must be accessible if they serve multifamily dwelling units that are subject to the design and construction requirements of the Act.

What about pools?

A swimming pool must be located on an accessible pedestrian route that extends to the pool edge, but the Act does not require that the pool be equipped with special features to offer greater access into the pool than is provided for persons without disabilities. In addition, a door or gate accessing the pool must meet the Act’s design and construction requirements 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, these also must be accessible and meet the requirements for accessible public and common use areas.

Are garbage dumpsters required to comply with the Act’s design and construction requirements?

Garbage dumpsters are public and common use spaces and must be located on accessible pedestrian routes.

What if a state or local building code requires greater accessibility than the Fair Housing Act?

The Fair Housing Act does not reduce the requirements of state or local codes that require greater accessibility than the Act. Thus, the state or local building code’s greater accessibility must be provided. However, if a state or local code requires, or is interpreted or applied in a manner that requires, less accessibility than the Act, the Act’s requirements must nonetheless be followed.

What if we get sued under the Fair Housing Act?

Lawsuits brought pursuant to the Fair Housing Act may seek injunctive relief including retrofitting of the property so that the covered dwelling units and public and common use areas meet the Act’s requirements, training, education, reporting, future compliance with the Act’s requirement, surveying and inspecting retrofits, monetary damages for aggrieved persons, and, in cases brought by the federal government, civil penalties.

Unfortunately, this is not the end of the story though. Further complaints regarding accessibility can arise for some communities depending on who they allow access to and how they are/were funded in relation to requirements under Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (1990), the Architectural Barriers Act (1968), and state or local laws. These sections are beyond the scope of this article though.

*Portions of this article have been drawn in part or whole from the HUD and DOJ Joint Statement of April 30, 2013 - Accessibility (Design and Construction) Requirements for Covered Multifamily Dwellings Under the Fair Housing Act.

This article is not legal advice and should not be relied upon as such.

This article was written and published with permission by Brownlee Whitlow & Praet, PLLC and was originally published in the 2019 June-July issue of the ApartMentor magazine.