A quick primer on the Fair Housing Act and accessibility

The Fair Housing Act requires all multifamily construction built since 1991 to meet a certain level of accessibility for people with disabilities, including features of accessibility included in all ground floor units (or all units if the building has an elevator).


If that statement takes you by surprise, you’re not alone. Even now, nearly fifteen years after the effective date of the Fair Housing Act’s accessibility provisions, many developers, owners, and managers of newer multifamily housing are still confused about what exactly is required
for compliance with the law. And that confusion
is compounded by the same lack of
knowledge and understanding on the part of
many architects, engineers, and other design
team members.

While HUD has taken numerous steps
intended to spread the word about multifamily
accessibility, the reality is that headline-
grabbing lawsuits are often the most
effective eye-openers. In 2005, a private
group known as the Equal Rights
Committee (ERC) filed a lawsuit in federal
court in Maryland, charging that over 100
properties owned or managed by a large,
national REIT all over the country were
designed and constructed in violation of the
Fair Housing Act’s accessibility requirements.

This lawsuit, filed against
Archstone-Smith, was settled shortly after
filing. It is significant primarily because it is
the first example of a large scale legal action
by a private group covering properties in a
wide geographic area. Prior to the ERC’s
action, most of the legal actions in this field
were brought by private groups to HUD’s
administrative process, or filed by the
Department of Justice under its original
jurisdiction for an alleged “pattern or practice”
of discrimination, against properties in
the same local area.

The ERC settlement resulted in a payment
of $1.4 million to ERC for costs, damages for
its “diversion of resources,” and attorney’s
fees. The settlement also differed from many
previous actions with regard to any retrofits
to the properties at issue. In most of these
cases, the alleged violations of the Fair
Housing Act’s accessibility requirements are
identified prior to any settlement. In the
ERC matter, rather than identifying all
potential violations prior to settlement, the
parties agreed to identify and modify noncomplying
features over the course of a specified
period of time. The costs of ultimate
modifications to be made to the properties at
issue, therefore, are still not calculated.

The ERC has since filed two other similar
complaints against large multifamily developers
with a presence in the metropolitan
Washington, DC area, where ERC is located.
Those cases are still pending in litigation
processes. But the settlement of the
Archstone complaint has clearly brought
attention to the need for better awareness
and education on the accessibility issue, and
has many in the business of design and construction of multifamily housing taking a
new look at their procedures for compliance.

So what can someone about to develop
multifamily housing, or about to purchase a
multifamily property built since 1991, do to
ensure compliance with the Fair Housing
Act’s accessibility provisions? First, know the basics. The Fair Housing Act has seven requirements of accessibility: 1. an accessible entrance on an accessible route; 2.
accessible common use areas; 3. usable
doors; and for all “covered units,” meaning
those on the ground floor or any units if the
building has an elevator, 1. an accessible
route into and through the unit; 2. light
switches, thermostats, electrical outlets, and
other environmental controls in accessible
locations; 3. reinforcements in all bathrooms
for the later installation of grab bars;
and 4. kitchens and bathrooms with sufficient
maneuvering space to be “usable” by
people in wheelchairs.

Second, be sure the design team is very
familiar with the Fair Housing Act requirements,
as opposed to other accessibility
laws. Keep in mind that the law at issue here
is not the Americans with Disabilities Act;
don’t be lulled into complacency by a design
team that constantly refers to the “ADA.”

While the ADA and the Fair Housing Act
may have some elements in common, they
have different requirements, different scope
of coverage, and different enforcement
mechanisms. Relying on ADA requirements
and scoping in the case of multifamily
residential construction will not result in
Fair Housing Act compliance.

Third, insist that all parties involved with
the design and construction of any new multifamily
property have adequate errors and
omissions insurance policies. Owners and
developers of multifamily properties are the
first line of assault in accessibility enforcement
actions, and can be held liable even if
they relied on a professional design team,
but they rarely have insurance coverage for
these claims. The owner and developer
needs to be able to look to the insurance
carriers for the architects and engineers
involved, particularly to cover the often significant costs of retrofit.

Fourth, engage in peer review. Those constructing
new multifamily developments covered by the Fair Housing Act’s accessibility
requirements can benefit tremendously by a
plan review by a third party with knowledge
of and experience working with the Fair
Housing Act’s provisions. Keep in mind that
no governmental agency will “pre-approve”
plans for Fair Housing Act compliance.

Similarly, while construction is ongoing,
owners and developers should be sure to
have the professional design team inspect
the ongoing work. Without question, accessibility
concerns are significantly less difficult
(both financially and structurally) to
address prior to or during construction than
after the building is complete and the residents
have moved in.

Finally, many multifamily properties are
built to be sold, or may be sold years after
they are first occupied. While no reported
judicial decisions have affirmed the theory,
both HUD and the Justice Department
appear to agree that a subsequent owner
who had no involvement in the property’s
original design and construction will likely
not have direct liability for Fair Housing
Act violations arising from that original
construction. Even so, a subsequent
owner will certainly be requested to participate
in any enforcement action against the
original design team, and to provide access to the property for often costly and complicated retrofits.

Anyone contemplating purchase of a multifamily
property built in 1991 or later should be sure to
include an assessment of Fair Housing Act
accessibility compliance as part of due diligence.
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Author: Terry L. Kitay