How Properties Can Stay a Step Ahead of Accessibility Compliance
What an apartment owner or manager doesn’t know about accessibility compliance can literally be costly.
Properties that are non-compliant to provisions of the Fair Housing Amendments Act of 1988 and American’s With Disabilities Act of 1990 subject themselves to millions of dollars in damages. Most often, violators could prevent such exposure if only they’d fully understood the rules and regulations and known whether or not the property was compliant.
Greg Proctor, a compliance specialist, has seen the gamut of violations in his 30 plus years working with Affordable and non-Affordable properties to identify and correct ADA compliance issues. Most often, the property’s management team doesn’t realize there are issues that may result in citations from a state or federal agency, or, worse, be sued.
“I’ve done this for a long time and have seen well over 1,000 properties in that time frame and yet to see one that does not have some sort of non-compliance for accessibility,” Proctor said.
Properties aren’t always accessibility compliant from the start
A common misconception, Proctor says, is that apartments are accessibility compliant when the doors at a community first open and residents move in. It’s usually unlikely that a state or federal agency like the U.S. Department of Housing and Urban Development (HUD) has given an ADA stamp of approval shortly after construction crews pull out.
“Nobody, including the state agencies or HUD, is going out there and taking a look at that property for accessibility when it’s built,” Proctor said. “The architect may have in the process of designing the property, and the construction company may have known about accessibility when they built it, but there is nobody who is actually going to come out and say that you can’t rent these units until they are proven completely accessible.”
That assumption can come back to haunt a property a few years later when a state agency makes a tax credit inspection and cites the property for non-compliance on accessibility issues. Or, even worse, the property is taken to court by a mobility-impaired resident, guest or employee.
In recent years, apartments have been sued and paid dearly for a number of accessibility violations. Settlements have reached as high as seven figures, but, moreover, costs to retrofit non-compliant units have been in the tens of millions of dollars in some cases.
Non-compliance issues are potentially many and can be expensive
Proctor said the most common types of non-compliance issues, depending on the age of the property, are inadequate accessible parking spaces, high thresholds and switches and thermostats placed out of reach. Others include sidewalks blocked by parked cars, insufficient floor space to accommodate wheelchairs and narrow doors.
When working with property owners, he often tells the story of one apartment portfolio that got sued for $20 million because thresholds into units were out of compliance. Fair Housing Amendment design requirements call for thresholds to be no greater than ½ inch in height.
“There is big exposure out there,” Proctor said.
Compliance is a work in progress and requires periodic assessment
Affordable properties could be out of compliance even if the required self-evaluation and transition plans required by HUD in 1989 were complete. Proctor says there is a good chance that many of the compliance issues that were reviewed a couple decades ago may no longer be applicable because the property has changed for one reason or another.
The Fair Housing Act rules and regulations don’t change very often but the state of compliance at the property might. That can include a parking lot being restriped or a unit not having low-pile carpet or a thermostat being placed at a non-compliant height.
Getting a professional compliance assessment of the property is one way that apartments of any type can determine potential exposure, Proctor said. Understanding accessibility, let alone, can be daunting for some — properties fall under several different federal laws and state and local codes, and federal programs and the age of the property determine which apply.
Every little bit helps.
“It’s a good opportunity to get somebody in there to take a snapshot,” Proctor said. “Accessibility is really a snapshot in time. What is accessible today is not necessarily going to be accessible tomorrow. Properties should revisit compliance and not assume because they had a plan done last year or two years ago that it’s still valid.”