P R O T E C T Y O U R S E L F F R O M P E N A L T Y

A MULTIFAMILY PERSPECTIVE ON THE AMERICANS WITH DISABILITIES

ACT (ADA) AND FAIR HOUSING ACT (FHA)

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KNOW THE FACTS UNDERSTANDING BASIC DIFFERENCES BETWEEN THE ADA AND THE FHAAs a multifamily owner and/or operator, it’s important to understand the compliance

requirements of the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) to

enhance community appeal, avoid expensive penalties, and protect brand reputation.

53 MILLION

ADULTS IN THE U.S.LIVE WITH ADISABILITY1 How these laws apply specifically to multifamily properties can be a

complex issue, leading to confusion and misinformation—sometimes disseminated by auditors, inspectors, and even regulatory agencies.

Although both are federal civil rights acts that were created to provide protected classes with equal access to public and private housing, and public accommodations, there are fundamental differences between the two.

The FHA was enacted in 1968 to outlaw discrimination in public and private housing and related facilities and services based on race, color, religion, sex, and national origin. It was amended in 1988 to include familial status and disability. The ADA was adopted in 1990 to ensure equal opportunity for individuals with disabilities, and protect them in part from discrimination in the use and enjoyment of places identified as public accommodations. Thus, the FHA protects a broader class of individuals and addresses a broader scope of housing issues that include, but are not limited to, leasing and selling practices and zoning ordinances.

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KNOW THE FACTS

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BASIC SNAPSHOT OF FHA AND ADA DIFFERENCES

ISSUE DISTINCTION FHA ADA

Who is protected?

The FHA protects a broader class of individuals from discrimination based on race, sex, religion and other class attributes.

The ADA prohibits discrimination only for individuals with disabilities in employment, public accommodations, transportation, state and local government services, and telecommunications.

Private Housing vs. Public Accommodations

The FHA affects both public and private housing for protected classes.

The ADA is limited in scope to public accommodations, and does not cover a property’s dwelling units.

Accessibility

The FHA requires certain accessibility features but does not require retrofitting for properties constructed prior to March 13, 1991.

The ADA requires certain accessibility features, and ongoing updates and modifications when readily achievable.

Enforcement

The Department of Justice, city and county human rights commissions, state and local fair housing boards, and the Department of Housing and Urban Development all enforce FHA compliance.

Only the Department of Justice enforces ADA compliance.

5 1 . 9 %OF U.S. ADULTS WITH DISABILITIES

ARE AGED 18-64;40.3% ARE 65 AND OLDER

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WHAT THE LAW SAYSExcerpt from the U.S. Department of Justice Summary of ADA Title III: Public Accommodations “Public accommodations must comply

with specific requirements related to

architectural standards for new and altered

buildings; reasonable modifications to

policies, practices, and procedures; effective

communication with people with hearing,

vision, or speech disabilities; and other

access requirements. Additionally, public

accommodations must remove barriers in

existing buildings where it is easy to do so

without much difficulty or expense, given

the public accommodation’s resources.”

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Excerpts from the U.S. Department of Justice Summary of the Fair Housing Act

According to the FHA, “it is unlawful to discriminate in any aspect of selling or renting housing or to deny a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence. Other covered activities include, for example, financing, zoning practices, new construction design, and advertising.”

“The Fair Housing Act requires owners of housing facilities to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities. . . . The Fair Housing Act also requires landlords to allow tenants with disabilities to make reasonable access-related modifications to their private living space, as well as to common use spaces. (The landlord is not required to pay for the changes.) The Act further requires that new multifamily housing with four or more units be designed and built to allow access for persons with disabilities. This includes accessible common use areas, doors that are wide enough for wheelchairs, kitchens and bathrooms that allow a person using a wheelchair to maneuver, and other adaptable features within the units.”

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KNOW THE FACTS

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DISPELLING A POPULAR MISCONCEPTION ABOUT THE ADA Because the ADA only applies to public accommodations, a property’s dwelling units DO NOT

have accessibility requirements. However, all areas of public accommodation on a property must

be fully accessible. Public areas at multifamily properties include the rental office and parking

areas at leasing offices. A community room might fall under ADA compliance if it is made

available to the public (e.g., used for town meetings or public events that involve non-residents

and guests).

For example, the ADA requires that a certain number of accessible parking spaces be van-accessible. The access aisle for a 96-inch wide van-accessible space is required to be 96 inches or 8 feet wide. Standard access aisles for cars or 132-inch wide van-accessible spaces have to be 60-inches or five-feet wide. The van accessible spaces are also required to have “Van Accessible” signage. If you do not have a van-accessible space for every six accessible parking spaces at your property, you may be in jeopardy of non-compliance and violating the ADA.

1 IN 8A D U LT S LIVING IN THE U.S.SAY THEY HAVE SERIOUS DIFFICULTY WALKING OR CLIMBING STAIRS

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KNOW THE FACTS ACCESSIBILITY AREA AWARENESS Accessibility standards affect every type of multifamily property, including conventional,

affordable, senior, military and even student housing. Following are the common areas of

non-accessibility you should be aware of.

25,369 C H A R G E S

FOR ADA VIOLATIONS WERE FILED IN 2014; 2,360WERE SETTLED 4

Common Areas of Non-Accessibility with ADA: Title III

• Lack of accessible routes to leasing offices

• Lack of van-accessible parking at leasing offices

• Insufficient clear floor space in public bathrooms

• Lack of accessible features in public bathrooms

• Lack of lever hardware on doors to leasing offices

Common Areas of Non-Accessibility with the FHAAG (Fair Housing Act Accessibility Guidelines)

• Lack of accessible routes to covered units and common-use areas

• Steep vertical level changes at unit entrances

• Steep running slopes on routes leading to covered units and public and common use areas

• No sidewalk connections to public and common use areas

• Lack of adaptive design violations in kitchens and bathrooms

• Insufficient clear floor space in kitchen and bathrooms

• Knob hardware on primary unit entrances

• Switches and thermostats outside of reach ranges

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QUESTIONS EVERY PROPERTY OWNER OR OPERATOR SHOULD ASK If you’re a property owner or operator, the following are questions and issues you should be

asking. If you don’t know the answer to any of the questions, it could cost you.5

Accessible Route Q Is there at least one accessible route

that is a continuous, unobstructed

path through the development (with

sufficient curb cuts)?

Q Does the accessible route have a

minimum clear width of 36” (not

reduced by obstructions, vegetation,

parked cars)?

Q If stairs are part of the

accessible route, is there a ramp

or other alternative way to get

between levels?

Q Does the accessible route connect all

buildings containing UFAS and/or Fair

Housing covered units and at least

one of each type of amenity?

Accessible Parking Q Does the development provide a

minimum of 2% of parking spaces for

fair housing “covered” units and/or

a minimum of one parking space for

mobility units?

Q Do all accessible parking spaces

reserved for the disabled have a

sign with the symbol of accessibility

designating the space, with the

sign being clearly visible and not

obstructed by a vehicle parked in

the space?

Q Are all designated parking spaces at

least 96” wide and have an adjacent

access aisle that is 60” wide?

Q Are the accessible parking spaces and

aisles part of the accessible route to

the building and/or facility entrance?

Q If the development provides different

types of parking (carports, garage,

surface, etc.) is at least one of each

type designated as accessible?

Q If parking spaces are available at

common and public use amenities,

is at least one space designated

as accessible?

Cover Unit’s Primary Entry Door Q Do the doors that are part of an

accessible route have door hardware

that is operable with a shape that is

easy to grip with one hand and does

not require tight grasping, pinching,

or twisting of the wrist?

Common Use Doors Q Do the doors that are part of an

accessible route have door hardware

that is operable with a shape that is

easy to grip with one hand and does

not require tight grasping, pinching,

or twisting of the wrist (including

screen doors)?

Common Use Facilities Q Is at least one trash facility provided

on an accessible route and have

hardware that does not require tight

grasping, pinching, twisting of the

wrist to operate and is no higher than

54” for a side approach or 48” if only

a front approach is possible?

Q If a common use laundry facility is

provided, is at least one washing

machine and clothes dryer a front

loading type?

Q If provided, is the rent collection

slot at less than 54” high for side

reach approach?

ASK THE EXPERTS Although this eBook is a good primer regarding what multifamily properties should

know about ADA and FHA accessibility requirements, staying informed about

regulatory updates and changing compliance requirements requires a degree of

expertise that the typical property management staff may not possess.

Regardless of property type, Windsor Compliance can provide you with in-depth

Accessibility Plans that include:

• Onsite evaluation of property

• Disclosure of findings

• Citation of applicable regulations

• Correction (transition) plan

• Estimated cost of repairs

• Suggested timing of corrections

To learn more about Windsor Compliance and receive a quote for an Accessibility Plan, contact your Sales Rep or call us at 800-336-8109.

These materials are for informational purposes only and not for the purpose of providing legal advice.

Windsor Compliance does not provide legal advice and encourages all clients to consult with their own attorney.

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1. http://www.cdc.gov/media/releases/2015/

p0730-us-disability.html

2. http://www.disabilitycompendium.org/docs/

default-source/2014-compendium/annual-

report.pdf

3. http://www.ada.gov/cguide.htm#anchor63409

4. http://www.eeoc.gov/eeoc/statistics/

enforcement/ada-charges.cfm

5. U.S. Department of Housing & Urban

Development Office of Fair Housing & Equal

Opportunity UFAS Accessibility Checklist,

Revised May 7, 2008.

http://www.hud.gov/offices/fheo/library/

UFASAccessibilityChecklistforPHAs-5-7-08.pdf

SOURCES