Three Misconceptions Regarding ADA and Fair Housing Accessibility Laws

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 out of compliance 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, there are no apartment properties that 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 or 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 remain in full compliance and potentially avoid a costly Fair Housing lawsuit.

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