HUD, DOJ Issue Joint Statement on Accessibility under the Fair Housing Act

On April 30, HUD and the U.S. Department of Justice (DOJ) issued a joint statement concerning the Fair Housing Act requirement that multifamily housing be designed and constructed so as to be accessible to persons with disabilities. The new guidance aims to help design professionals, developers, and builders better understand their obligations, and help persons with disabilities better understand their rights regarding the “design and construction” requirements of the federal Fair Housing Act (FHA).

The FHA prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability. One of the types of disability discrimination prohibited by the FHA is the failure to design and construct covered multifamily dwellings with certain features of accessible design.

The latest joint statement provides guidance regarding the persons, entities, and types of housing that are subject to the accessible design and construction requirements of the FHA. The joint statement also formalizes for the first time some practices or interpretations that the agencies have followed in the past.

For example, the time limit to file an accessible design claim is clarified in the statement. In addition, the statement makes clear that the failure to comply with HUD’s Accessibility Guidelines constitutes a violation of the FHA. This seems to expressly contradict statements made by HUD when the Guidelines were issued in 1991: that the Guidelines were intended to serve as a safe harbor and were not a measure of violation of the FHA.

With the issuance of the latest joint statement, it’s clear that the Justice Department and HUD now agree on a wide range of design issues that arise under the FHA, which may clear the way for increased enforcement efforts. HUD is the agency with the primary responsibility of investigating individual complaints of discrimination. The secretary of HUD, on his own initiative, may also file complaints alleging discrimination. And the attorney general may commence a civil action in federal court when there’s reasonable cause to believe that someone is engaged in a pattern or practice of discrimination or that a group of persons has been denied rights protected by the FHA.

To help you comply with federal accessibility laws, we’ll discuss the time limits formalized in the joint statement and review the various laws that protect the rights of persons with disabilities.

Time Limit for Disabled Person to File Complaint

In the joint statement, HUD and the DOJ insist that the statute of limitations—or the time limit to file a complaint on accessible design claims—begins to run on the date of the injury. The joint statement encourages a person to file a complaint as soon as possible after becoming aware that he or she has been or may be harmed because a property may not be constructed in compliance with the accessibility requirements of the FHA.

Under the FHA, “[a]n aggrieved person may, not later than one year after an alleged discriminatory housing practice has occurred or terminated, file a complaint” with HUD [42 U.S.C. § 3610(a)] and “may commence a civil action [in Court]. . . not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice” [42 U.S.C. § 3613(a)(1)(A)].

HUD and the DOJ believe that the FHA is violated, and the one- or two-year statute of limitations begins to run, when an “aggrieved person” is injured as a result of the failure to design and construct housing to be accessible as required by the act. In other words, a failure to design and construct a site in accordance with the FHA may cause an injury to a person at any time until the violation is corrected.

In addition, HUD has interpreted the FHA to hold that “with respect to the design and construction requirements, complaints can be filed at any time that the building continues to be in noncompliance, because the discriminatory housing practice—failure to design and construct the building in compliance—does not terminate” until the building is brought into compliance with the FHA and the continuing violation terminates.

Although not all courts have agreed with these interpretations, HUD uses them in determining whether to accept a complaint. Some courts have applied a tighter interpretation that starts the clock from the date of issuance of the final certificate of occupancy for a site.

FHA Accessibility Standards

If any buildings at your site opened for first occupancy after March 13, 1991, they must have been built in compliance with the FHA’s accessibility requirements. These requirements say that all ground-floor and elevator-accessible units (meaning all units in a building with an elevator), public use areas, and common areas must be accessible to people with mobility impairments. The law defines “first occupancy” as a building that has never before been used for any purpose.

In addition, rehabilitation projects applying for tax credits and/or HUD program funds must also meet the design and construction standards of the FHA if the first use of the building was after March 13, 1991.

Also, if your site has four or more units, it’s covered by the FHA even if those units are separated by a breezeway, stairway, or firewall. Detached single-family houses, duplexes, triplexes, and multi-story townhouses without elevators are not covered.

The FHA and its regulations list seven design and construction requirements that covered sites must follow:

• Accessible building entrance on an accessible route;
• Accessible and usable public and common use areas;
• Usable doors;
• Accessible route into and through the dwelling unit;
• Environmental controls in accessible locations;
• Reinforced walls for grab bars; and
• Usable kitchens and bathrooms.

The specific design and construction standards can be found in the appropriate requirements of the American National Standards Institute (ANSI), Fair Housing Accessibility Guidelines (FHAG), and in HUD’s Fair Housing Act Design Manual. To help you with your site’s initial assessment, you can use our Site Accessibility Checklist, in the Model Tool box at the end of this article.

It’s important to note that the FHA Guidelines contain a narrow “Site Impracticality Exception,” which provides that first-floor units don’t have to meet all of the law’s requirements when it’s impractical to have an accessible entrance to the building because of the natural hilly terrain or other unusual characteristics of the site.

Section 504 Accessibility Standards

The FHA accessibility requirements apply whether or not your site receives federal funds if it “opened for first occupancy after March 13, 1991.” And if your site was built after July 1988 and is federally assisted, your site must also comply with Section 504 accessibility requirements.

Section 504’s accessibility requirements rely on the Uniform Federal Accessibility Standards (UFAS), which establish specific and detailed standards to determine accessibility.

Section 504 also calls for sites constructed after July 1988 that have six or more units to have a minimum of 5 percent of units that are “physically accessible” for persons who have mobility impairments, and 2 percent of units accessible for people with vision and hearing impairments.

In addition to physical accessibility requirements, Section 504 regulations require site owners and managers to ensure that the housing program itself is accessible, when that program is viewed in its entirety. Examples of discrimination include refusing to permit the use of service animals, having a policy prohibiting residents from having live-in aides, or even having the leasing office in an inaccessible location, such as up a flight of stairs in a building that has no elevator or other way for a person who uses a mobility aid to reach it.

For a detailed checklist of the physical requirements, you can view the UFAS Accessibility Checklist for HUD Recipients at www.hud.gov/offices/fheo/library/UFASAccessibilityChecklistforPHAs-5-7-08.pdf.

ADA Requirements

Generally, the requirements of the ADA aren’t as restrictive as the requirements under Section 504. The ADA guarantees equal opportunity for individuals with disabilities in employment, public accommodations, transportation, state and local government services, and telecommunication. It’s divided into five titles.

Title III prohibits disability-based discrimination and requires privately owned “places of public accommodation” be designed, constructed, and altered in compliance with certain accessibility standards. For most sites’ purposes, the leasing office is considered to be a public accommodation, notes compliance expert Gregory Proctor of Windsor Compliance. Also, van-accessible spaces are required at office and community rooms for rent by nonresidents.

The ADA doesn’t apply to 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 site. 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.

However, if you have areas within your site that are open to the public—such as day care centers, medical offices, or other facilities—you should get legal advice to ensure that you comply with all applicable accessibility requirements.

For a checklist of ADA Accessibility Guidelines to apply to areas of your site that are open to the general public, you can check out www.access-board.gov/adaag/checklist/a16.html.

Insider Source

Gregory Proctor: President, Windsor Consulting, 4165 John Alden Ln., Ste. 705, Lexington, KY 40504; www.windsorconsulting.com.