Five Misconceptions about Fair Housing Act Design and Construction Compliance

From “If I comply with the building code, then I comply with the Fair Housing Act” to “Everything is adaptable, so it doesn’t need to work day one, right?” – our accessibility consultants have heard it all. Here are five of the most common misconceptions about the Fair Housing Act that we come across on a regular basis…

1.  Following the accessibility requirements of the building code will satisfy the design and construction requirements of the Fair Housing Act.

Not true. Following the accessibility requirements of the building code may not always satisfy the design and construction requirements of the Fair Housing Act. Building codes and federal laws are mutually exclusive; a building department or building official is responsible for ensuring compliance with the code – not the law. And, HUD is responsible for enforcement of the Fair Housing Act – not building codes. Meeting the requirements of one may not always satisfy the requirements of the other. There is only one code, i.e., the International Building Code (2000, 2003, and 2006 editions, with a few caveats) that are HUD-approved ‘safe harbors’ for compliance with the design and construction requirements of the Fair Housing Act. Later editions of the code are not approved by HUD as meeting the requirements of the FHA. And, any edition of the International Building Code adopted by a local jurisdiction and edited to fit the context of the local jurisdiction is not a safe harbor for compliance. The general rule of thumb is to apply the accessible design and construction requirements of the code and the law and comply with the most stringent provision.

2.  Meeting the design and construction requirements of the Fair Housing Act is not required at the time of design and construction. Because the Fair Housing Act permits adaptability, modifying a feature to accommodate a resident’s particular need is the best way to comply with the Fair Housing Act.

Not true. Meeting the design and construction requirements of the Fair Housing Act at the time of design and construction is required. To say that its permissible to meet the requirements by adapting features as needed and only upon request makes the design and construction requirements of the Act meaningless. Adaptability is permitted by the law, but only after the minimum design and construction requirements are met. And, what is permitted to be adapted post construction is included in the technical standards. For example, a forward or parallel approach is required to be provided at a kitchen sink in a dwelling unit. In order to accommodate the front approach, the base cabinet must be designed to be removable, i.e., adaptable. Adaptability in this case is contemplated by the requirements for usable kitchens. On the other hand, a light switch is required by the Fair Housing Act Accessibility Guidelines to be installed below 48 inches above the finished floor. The Act does not permit the light switch to be installed higher and modified as requested. To install a light switch higher than 48 inches above the finish floor is in violation of the design and construction requirements of the Fair Housing Act Accessibility Guidelines. Adaptability in this case is not contemplated or permitted by the requirements for usable kitchens.

3.  The Fair Housing Act Accessibility Guidelines are mandatory.

Not true. The Fair Housing Act Accessibility Guidelines are not mandatory; they are guidelines issued by HUD to help design teams comply with the seven design and construction requirements of the Act. However, in 24 CFR Part 100, published in the Federal  Register on October 24, 2008, HUD makes it clear that “In enforcing the design and construction requirements of the Fair Housing Act, a prima facie case may be established by proving a violation of HUD’s Fair Housing Accessibility Guidelines. This prima facie case may be rebutted by demonstrating compliance with a recognized, comparable, objective measure of accessibility.” Additionally, there are 10 HUD-approved ‘safe harbors’ for compliance; one of which is the Fair Housing Accessibility Guidelines. Although not required, it is highly recommended that design teams use one of the HUD-approved ‘safe harbors.’ As HUD states in 24 CFR Part 100, “…designers and builders who choose to depart from the provisions of a specific safe harbor bear the burden of demonstrating that their actions result in compliance with the Act’s design and construction requirements.”

4.  Because the technical standard referenced by the Fair Housing Act Accessibility Guidelines includes criteria for built-in furnishings and equipment, movable non-fixed tables in a residential community room or on a common-use roof deck, for example, are not required to be accessible.

Not true. Although it is true that the technical standard referenced by the Fair Housing Act Accessibility Guidelines includes criteria for built-in furnishings and equipment, it is not true that they are not required to be accessible. The over-arching requirement of the Fair Housing Act is equitable use, or – equal access for all. Although the technical standard includes criteria applicable to built-in furnishings, the law itself requires that if a table is provided as an amenity in a resident community room, then a sufficient number of them must be accessible to allow access by people with disabilities. Providing only inaccessible movable tables means that people with disabilities are shut out enjoying a resident amenity and are therefore not provided with equal access.

5.  If an multifamily apartment building includes a unit that is set aside for rent on a day-to-day basis by friends and/or family of residents of the apartment building, then as long as that apartment is designed to the requirements applicable to the rest of the dwelling units in the building, then the apartment is in compliance with the Fair Housing Act.

Not true. Although the apartment may appear exactly the same as other apartments in the building, because its available to be rented out on a day-to-day basis to friends and family of any resident who lives in the building, it is technically a resident common area, i.e., a common-use amenity available to all residents. As a result, the dwelling unit must comply with the stringent technical criteria applicable to common-use areas. For example, the sink in the kitchen must be designed to be fully accessible, i.e., no base cabinet below, just like the sink in the community room kitchen or rooftop kitchen. Kitchen sinks in the balance of dwelling units in the building are permitted to include a base cabinet below as long as the sinks are served by a compliant parallel approach.

Stay tuned for Five Misconceptions about the Americans with Disabilities Act, followed by the Top Five Misconceptions about Section 504 of the Rehabilitation Act of 1973.

 

 

 

Written by Peter A. Stratton, Senior Vice President, Managing Director, Accessibility Services

 

 

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