Ensuring Compliance With FHA's Design And Construction Requirements

As part of its protections against discrimination on the basis of disability, the Fair Housing Act (FHA) aims to improve accessibility for people with disabilities by imposing seven design and construction requirements on certain multifamily communities—generally speaking, those that opened for first occupancy after March 13, 1991.

If all or part of your community is covered by those requirements, it's incumbent on you to ensure compliance. Owners, developers, builders, and architects responsible for the design or construction of covered communities face potential liability for failure to comply. Liability can be in the form of compensatory and punitive damages, civil penalties, attorney's fees, as well as orders to make structural changes to the property.

In this lesson, we'll explain how to determine whether your community is covered by the FHA's design and construction requirements. We'll give you seven rules that correspond with the seven requirements, as well as examples of some common violations, to help you ensure compliance. You can take the Coach's Quiz to see how much you have learned. And, in the Legal Update (see pp. 5-6), we'll review some recent developments at the Department of Housing and Urban Development (HUD) and in the courts.

WHAT DOES THE LAW SAY?

The FHA bars discrimination in the rental of a dwelling unit based on the disability of the renter, a person residing in the unit after it is rented, or any person associated with the renter. The law also bars disability discrimination against any person in the terms, conditions, or privileges of renting the dwelling.

In addition to barring discriminatory practices based on disability, the FHA defines “disability discrimination” to include a failure “to design and construct” certain new multifamily dwellings so that they are accessible to and usable by persons with disabilities, particularly those who use wheelchairs. The FHA requires all newly constructed multifamily dwellings of four or more units intended for first occupancy after March 13, 1991, 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, and thermostats in accessible locations;

6. Reinforcements in bathroom walls to accommodate grab bar installations; and

7. “Usable” kitchens and bathrooms configured so a wheelchair can maneuver about the space.

The FHA did not set technical specifications that would meet those requirements or provide one national, uniform set of accessibility standards. Rather, the law states that “compliance with the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for physically handicapped people (commonly referred to as “ANSI A117.1”) suffices to satisfy” the requirements for the interiors of dwelling units.

In its regulations, HUD recognized that compliance with the 1986 version of the ANSI standard (the version in effect at the time the FHA was enacted) is among the ways a community may meet the seven requirements. Since then, HUD has issued its own accessibility guidelines and a design manual and has approved certain other technical standards. Each has been added to HUD's list of “safe harbors”; compliance with one of the safe harbor standards is considered proof of compliance with the FHA's design and construction requirements.

COACH'S TIP: Regardless of which of the safe harbor standards is used, strict adherence to its technical criteria is required—and spells the difference between compliance and noncompliance with the FHA design and construction standards, says Mark S. Alper, director of fair housing compliance programs for the National Center for Housing Management.

WHAT BUILDINGS ARE COVERED?

The FHA's design and construction requirements apply to “covered multifamily dwellings” designed and constructed “for first occupancy” after March 13, 1991. That means your community must comply with those requirements, unless:

1. The building was designed and constructed for first occupancy on or before March 13, 1991. Under FHA regulations, a building designed and constructed for first occupancy means “a building that has never before been used for any purpose.” Buildings that are rehabilitated are not covered by the design and construction requirements, even if the rehabilitation occurs after March 13, 1991, and even if it is substantial rehabilitation, according to fairhousingfirst.org, the HUD-sponsored initiative to promote compliance with the FHA design and construction requirements.

2. The last building permit or permit renewal was issued on or before June 15, 1990. Buildings that were last issued a building permit on or before June 15, 1990, are not covered by the FHA's design and construction requirements. Even if the last building permit was issued after June 15, 1990, if the property was occupied before March 13, 1991, the building is not covered. HUD adopted these dates to allow time for the requirements to be considered during the design and construction phase of new properties, according to fairhousingfirst.org.

3. The building has fewer than four units. The design and construction requirements apply to “covered multifamily dwellings,” which generally means buildings containing four or more units. Within a covered building, the law covers only ground-floor units if the building does not have an elevator. If it does have an elevator, then all dwelling units in the building are covered.

COACH'S TIP: In addition to the FHA design and construction requirements, multiunit residential communities may have to comply with other federal laws. For example, Alper says a community's business offices and any other commercial enterprise—for example, a laundry facility—are subject to the design and construction requirements of the Americans with Disabilities Act (ADA). If the community receives federal financial assistance, it also must comply with the accessibility requirements under Section 504 of the Rehabilitation Act of 1973.

Communities must also check state and local laws governing accessibility for people with disabilities. In addition, most state or local governments have adopted building codes to govern construction within their jurisdictions. Some of those codes may include more stringent rules than does federal law. To cover your bases, Alper recommends following the most stringent standard to ensure you've complied with all applicable laws on accessibility.

7 RULES TO COMPLY WITH FHA DESIGN, CONSTRUCTION REQUIREMENTS

Rule #1: Provide Accessible Building Entrance on Accessible Route

All covered multifamily dwellings must have at least one building entrance on an accessible route, unless it is impractical to provide one because of the terrain or unusual characteristics of the site.

An accessible route means a continuous, unobstructed path connecting accessible elements and spaces within a building or with a site, which 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, according to HUD's Fair Housing Accessibility Guidelines.

At least one accessible route must be provided to an accessible building entrance. That route must connect to pedestrian arrival points, such as accessible parking lots and public streets and sidewalks. An accessible route means there are no steps, curbs, or protruding objects along the way.

Some common violations of this requirement, according to fairhousingfirst.org, occur when the dwelling entrance has steps, which can block access completely for people who are disabled, or when the entrance walk is too steep, exceeding allowable slopes. In addition, steep ramps without safety provisions, such as handrails, edges, and landings, can be dangerous because people using walkers, canes, and wheelchairs may fall off them.

COACH'S TIP: Over time, weather conditions may cause surfaces to expand and contract, causing cracks on surfaces or changes in slope that may render a route inaccessible. Alper warns owners to be careful about repairs to ensure that the route remains accessible. Maintenance is also important—particularly in winter weather where ice and snow can make surfaces inaccessible.

Rule #2: Provide Accessible, Usable Public and Common-Use Areas

The FHA requires public and common-use areas to be accessible and usable. Public and common-use areas encompass all parts of the housing outside individual units, including rental and management offices, model units, parking lots, storage areas, indoor and outdoor recreational areas, lobbies, mailrooms and mailboxes, and laundry areas.

This requirement also establishes 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) at communities that have accessible buildings.

Some common violations, according to fairhousingfirst.org, include not enough curb ramps, or curb ramps that are too steep, lack side wings, or can be accessed only from heavily traveled areas. Another common violation is the lack of accessible parking at site facilities, such as mailbox kiosks, laundry rooms, playgrounds, and leasing offices, which may inhibit residents with disabilities from enjoying the full use of the property.

Rule #3: Ensure All Doors into and Within Premises Are Wheelchair-Accessible

All doors that allow passage into and within all premises must be wide enough to allow passage by people who use wheelchairs, scooters, or walkers.

A common violation, according to fairhousingfirst.org, occurs when doors to walk-in closets or storage facilities are too narrow to allow a wheelchair to pass through. The same occurs when a bathroom has two doors—oftentimes to a hall and a bedroom—both of which must be usable.

Rule #4: Provide Accessible Route into and Through Each Unit

The FHA requires an accessible route into and through the dwelling unit, which begins at the primary entrance door to the unit and continues through the unit onto decks, balconies, and patios. The guidelines call for an accessible route within a covered unit to be at least 36 inches wide, except through doors, where the width may be reduced to a nominal 32 inches (31 ⅝ inches).

Steps or level changes at primary entrances or thresholds in interior doorways can completely block access for people who are disabled, according to fairhousingfirst.org. A common violation occurs when there are level changes at primary entrances in excess of allowable standards.

Rule #5: Place Environmental Controls in Accessible Locations

People who use wheelchairs, and other individuals with disabilities may not be able to reach and use light switches, electrical outlets, thermostats, and other environmental controls unless the controls are in accessible locations.

The guidelines provide that light switches, electrical outlets, thermostats, and other environmental controls would meet the accessibility requirement if operable parts of the controls are located no higher than 48 inches and no lower than 15 inches above the floor. Common violations occur when outlets are placed too low and switches for thermostats and other environmental switches are placed too high.

Rule #6: Reinforce Bathroom Walls for Later Installation of Grab Bars

Reinforcements in bathroom walls must be installed so grab bars may be added when needed around toilets, tubs, or showers. The law does not require installation of grab bars in bathrooms.

If reinforcing is not placed in walls around tubs, toilets, and showers during construction, people who need to install a grab bar may not be able to adapt their dwelling without extensive construction, according to fairhousingfirst.org.

Rule #7: Provide ‘Usable’ Kitchens and Bathrooms

Kitchens and bathrooms must be designed and constructed so an individual in a wheelchair can maneuver about the space and use fixtures and appliances.

The guidelines provide specifications for kitchens and baths that, when applied, provide a minimum level of accessibility. For example, a kitchen would be usable when it has clear floor space of at least 30 by 48 inches, allowing a person in a wheelchair to make a parallel approach to the range or cooktop and sink, and either a parallel or forward approach to the oven and other appliances. Likewise, sinks in bathrooms must be positioned with a 30- by 48-inch clear floor area parallel to and centered on the sink.

Without the requisite clear floor area, people in wheelchairs may encounter obstructions that can keep them from reaching sinks or appliances, according to fairhousingfirst.org. Common violations in kitchens occur when the sink or range is positioned into the “elbow” of an L-shaped kitchen, or sometimes in a small angled section of counter that doesn't provide a full 48-inch clear floor area.

Resources

Fairhousingfirst.org

Fair Housing Act: 42 U.S.C. §3601 et seq.

HUD Regulations: 24 CFR 100.205

Coach Source

Mark S. Alper: Director of Compliance Services, National Center for Housing Mgmt., Orange Pk., FL

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