Three Misconceptions Regarding ADA and Fair Housing Accessibility Laws

fair housing act guidelines

 

It is quite common for auditors, inspectors and regulatory agencies to misapply the various accessibility laws on the books. Multifamily owners will sometimes find themselves non-compliant because of a misinterpretation of the regulations and may spend thousands of dollars correcting a problem that really doesn’t exist.

Multifamily professionals from site managers to operators and owners must understand which regulations apply to their property to avoid a fair housing lawsuit, fine or penalty. Understanding when the property was built and whether a regulatory or federal subsidy applies is the first step.

In this article, we look at three common misconceptions of the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the Fair Housing Act regarding accessibility at multifamily properties:

1. Properties must have ADA units

Let’s start out by blowing away the most common misunderstanding about accessibility at multifamily properties: mandatory ADA units. The truth is, apartment properties do not have Americans With Disabilities Act (ADA) units. Zero. Zip. Zilch. When people want to talk about their ADA units, that’s your signal that they do not have an understanding of accessibility laws.

ADA applies to public accommodations. Examples of public accommodations are hotel rooms, restaurants, convention centers, convenience stores and government-owned housing like university dorm rooms. Thus, while the ADA – signed into law in 1990 – applies to multifamily properties, it does not apply to the dwelling units. All areas of public accommodation must be fully accessible. Public areas at a multifamily property include the rental office. A community room might fall under ADA if it is available to more than the residents and their guests (i.e. used for town meetings or leased out).

[Additional Reading: Service Animals & The ADA: The Definitive Guide For Property Managers]

The ADA also applies to the parking areas at leasing offices. The act requires that a certain number of accessible parking spaces be van-accessible. The access aisle for a van-accessible space is required to be 96 inches or 8 feet wide. Standard access aisles have to be 60-inches or five-feet wide. Multifamily properties are also required to have “Van Accessible” signage at the space. If you do not have a van-accessible space at your property, chances are darn good that you are out of compliance. A Fair Housing tester needn’t get out of the car at your property to determine that you are not abiding by Fair Housing laws.

2. Section 504 applies to ALL properties with government subsidies

Another common misconception is that Section 504 of the Rehabilitation Act of 1973 applies to your property if you have a government subsidy. While parts of Section 504 are going to apply to you, they do not necessarily relate to your property as built. The design requirements of Section 504 were implemented for newly constructed Rural Development properties in 1982 and for U.S. Department of Housing and Urban Development (HUD) properties in 1988. Properties built under these programs before these dates are not required to provide five percent fully accessible units and two percent hearing and visually impaired units unless substantially rehabilitated. Properties constructed before those dates are encouraged to provide five percent fully accessible units during renovation/rehabilitation/repair.

Section 504 also requires that common areas be fully accessible. If a property was built prior to the implementation dates, the owner is under no obligation to make the dwelling units or common areas accessible. Fair Housing laws do require an owner to make reasonable accommodations or modifications if requested by an applicant or a resident. So even though an owner is not required to make wholesale changes to a property, it is likely that he will have to make changes due to a reasonable request by an applicant or resident.

3. The Fair Housing Amendments Act does not distinguish between accessible and adaptable units

Another misunderstanding is the difference between accessible units and adaptable units. The Fair Housing Amendments Act of 1988 (FHAA) added disability and familial status as federally protected classes. FHAA requires that buildings built after March 13, 1991, be constructed with seven specific design features, and to be adaptable. All ground-floor units and all units in elevator buildings must be adaptable. All common areas must also be completely accessible, just as they are under Section 504.

The seven design features of these adaptable units allow an owner to quickly adapt a unit if someone with a physical disability needs accessible features. For example:  An adaptable unit has reinforced walls at the toilets and tub/showers to accommodate the installation of grab bars if needed by the resident, while a fully accessible unit has those grab bars already installed. Another interesting twist is that townhouses (or units with living spaces on multiple floors) are not covered by these regulations (unless the building they are in has an elevator).

Understanding the truth behind these misconceptions will enable multifamily properties to stay within full compliance and potentially avoid a costly Fair Housing lawsuit.

For more information, download the Fair Housing Act and ADA Guidelines eBook.

fair housing act guidelines

(Editor’s note- we have updated and republished this article to benefit readers new to Property Management Insider.)

 


VP of Business Development - Windsor Compliance, RealPage, Inc.

author photo two

Greg is a thirty-year veteran of the affordable housing industry and has owned and/or operated all types of affordable housing including HUD, Tax Credit and Rural Development. He has a degree management from Appalachian State University and holds multiple affordable housing designations and certifications.

Mr. Proctor is currently responsible for Business Development of Windsor Compliance, which is now part of the RealPage family. Along with business development, he also works closely with state housing finance agencies on behalf of Windsor’s clients and the industry.

9 responses to “Three Misconceptions Regarding ADA and Fair Housing Accessibility Laws”

  1. pat killelea says:

    when installing grab bars in a non-designated apartment (or a designated handicapped unit for that matter) am I required to use the code locations or can I install according to resident’s wishes? Also, in a handicapped apartment, is the resident allowed to make changes that are not code compliant if they wish? For example, a screen door with a 1″ lip on the bottom.

  2. Lynn Peterson says:

    Who determines the amount of handicapped parking required for an apartment complex. For example there are 650 units in our complex and oonly 15 designated handicapped parking. Who determines the number required for that fa
    cility

    • Rick Halloran says:

      You might also mention public housing I.e. Publically funded, housing built on belhalf of a title II entity and private housing for public use. These do have ADA units. See 2010 ADAS section 233.

  3. WangoTangoMan says:

    If all the parking is controlled access and for residents only, are accessible parking spaces required? (assuming we eliminate out accessible units)

  4. Kari Olsen says:

    When a resident asks for an accommodation for a parking space does the property management have to try to accommodate? My son has Down’s syndrome and is very unsteady on his feet he had tripped several times in the parking space they provided which is in the curb with bushes and bark I asked to have my space moved to the maintenance spot which they did now that they are not using the apartment that that space originally belonged to as a maintenance shack they have given the spot to the new resident. They said it was never documented!the space number was changed to my space number.

  5. Robin says:

    I understand the above to mean that a home that is rental property – and built 1925 — does not necessarily have to provide ADA access for the occupant of one of the floors — a man aged 60 who has become disabled in recent years. What the law does ordain is ADA access to public places or general areas on the rental property. This would be rental office, some sort of common party room, etc….. But the owners of this home are not required to provide any sort of specific access to this man’s floor of the house??? He currently spends most days indoors in a wheelchair and comes out occasionally with assistance and/or a walker and cane…..He has a car but it is parked and dusty due to his lack of ability to use it most days.

    Would appreciate comments by others on this. Thanks.

    • Benjamin Ledford says:

      That is correct. ADA does not apply, since it is not a place of public accomodation or using government funding, and the Fair Housing Act does not apply because 1) it is not multifamily and 2) it was built before 1993.

  6. Stephen_me says:

    The article brings up ADA requirements for parking lots. I am unclear, does the ADA apply to parking lots only if I have a leasing office or would it also apply to the parking lot that supports our duplex and triplex when I do not have a leasing office on site? Is there another law that might require such parking?

Follow PMI


Property Management Insider is brought to you by RealPage. Learn more.

 

© RealPage, Inc. All trademarks are the properties of their respective owners. 1-877-325-7243 | Terms & Conditions | Privacy Policy | DMCA Notice | Sitemap