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Accessibility under the Fair Housing Act and the Rehabilitation Act of 1973

The Fair Housing Act Amendments of 1988 (the "Fair Housing Act") made it unlawful to discriminate against persons with handicaps. As part of its protections, the Fair Housing Act requires that multi family housing consisting of 4 or more units must be designed and constructed to provide accessible and usable housing for individuals with disabilities. The rule applies to buildings with elevators and all first floor units in buildings without elevators.

In March 1991, HUD published accessibility guidelines (the "Accessibility Guidelines") to provide developers with technical guidance on how to comply with the accessibility requirements of the Fair Housing Act. The Accessibility Guidelines apply to all new multi-family housing consisting of 4 or more units built for first occupancy after March 13, 1991.

The Accessibility Guidelines are not mandatory, nor do they prescribe specific requirements which, if not met would constitute violations of the Fair Housing Act. Developers may depart from the Accessibility Guidelines and use alternate ways to comply with the accessibility requirements of the Fair Housing Act. However, if complied with, the Accessibility Guidelines are intended to provide a safe harbor for compliance with the Fair Housing Act.

There are seven design requirement areas which should be addressed to be assured of the safe harbor:

  1. An accessible building entrance on an accessible route

  2. Accessible public and common use areas

  3. Usable doors (usable by a person in a wheelchair)

  4. Accessible route into and through the dwelling unit

  5. Light switches, electrical outlets, thermostats and other environmental controls in accessible locations

  6. Reinforced walls in bathrooms for later installation of grab bars

  7. Usable kitchens and bathrooms

The Fair Housing Act also requires reasonable modifications to units permitted for handicapped persons. The Act makes it unlawful to refuse to permit, at the expense of the handicapped person, reasonable modifications to existing premises occupied by a handicapped person if such modifications are necessary to provide the person use and enjoyment of the premises. In rental properties, the landlord may require the person to agree in their lease that they will restore the units' interior to the condition it was in before modification.

Another statute that guides the compliance program of the OFHEO is the Rehabilitation Act of 1973, specifically Section 504 of the act ("Section 504"). Section 504 provides that "no otherwise qualified individual with handicaps... shall, solely by reason of his handicap, be excluded from the participation in or be denied the benefits or be subjected to discrimination under any program or activity receiving federal financial assistance". Thus, awardees receiving HOME funds or any other federal assistance will be subject to Section 504.

Section 504 applies to new construction or rehabilitation of housing after July 11, 1988. Section 504 requires that 5% of the units in covered multi-family dwellings (5 or more units) be accessible to persons with physical disabilities. In addition to the 5% requirement for persons with disabilities, Section 504 also requires that 2% of the units in a multi family development be designed and constructed for the visually or hearing impaired. Section 504 also applies to rehabilitated properties if the project contains 15 or more units and the cost of the alterations is 75% or more of the replacement cost of the completed facility. If the 15 units, 75% replacement cost threshold is not met, Section 504 requires that to the "maximum extent feasible" the units be made readily accessible to and usable by handicapped individuals. The defining standard is that accessibility is not required in a rehabilitation project if it would pose an undue financial or administrative burden on the developer.

Accessible, when relating to the building means that the facility, when designed and constructed can be approached, entered and used by individuals with handicaps. Accessible when referring to an individual unit means such unit is located on an accessible route and when designed, constructed, altered or adapted can be approached, entered and used by individuals with handicaps. Adaptable means the ability of certain elements of a dwelling unit, such as, but not limited to, kitchen counters, sinks, and grab bars, to be added to, raised, lowered, or otherwise altered, to accommodate the needs of persons with or without disabilities, or to accommodate the needs of persons with different types or degrees of disabilities. For example, in a unit adaptable for a hearing-impaired person, the wiring for visible emergency alarms may be installed but the alarms need not be installed until such a time as the unit is made ready or occupancy by a hearing-impaired person. An adaptable unit on an accessible route is an accessible unit for purposes of Section 504.

Standards for design in federal programs are found in the Uniform Federal Accessibility Standards ("UFAS"). A building designed in accordance with UFAS is deemed to be in compliance with Section 504. In addition, a building which is in compliance with the New York State Building Code will also be in compliance with UFAS and therefore with Section 504.

Last updated on 01/24/07