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The New FHA Safe Harbors: FAQs

word bubbles with a question mark and exclamation point insideNow that HUD has adopted the 2009 edition of the ICC A117.1 Standard and the 2009, 2012, 2015, and 2018 editions of the IBC as additional safe harbors that can be used to demonstrate compliance with the design and construction requirements of the FHA, what changes? What do designers need to know before moving forward with selecting their chosen safe harbor? Here are a few of the most common questions that our Accessibility Team has been asked about the use of the new safe harbors since they became effective on March 8, 2021:

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The New HUD-approved FHA Safe Harbors

Houses in a rowEven though the Fair Housing Act (FHA) has been in effect for more than 30 years, owners, developers, architects and others are still cited for noncompliance with the FHA’s seven design and construction requirements. Based on our experience, a major contributing factor to this continued noncompliance is the common misconception that following the accessibility requirements of a building code (e.g., current editions of The International Building Code) will result in compliance with the FHA. To ensure compliance with the design and construction requirements of the FHA, it is important to incorporate one of the U.S. Department of Housing and Urban Development (HUD) approved safe harbors into the design of a multifamily development. The long-standing list of safe harbors has not been updated in nearly 14 years, when the 2003 edition of the ICC A117.1 Standard was approved by HUD. Before that, the 2006 edition of the International Building Code was the latest version of the code to be HUD- approved as meeting the design and construction requirements of the Act. As a result, while the building codes have continued to progress, HUD has lagged behind – until now.

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Fair Housing – What’s Your Safe Harbor?

Compliance with the accessible design and construction requirements of the Fair Housing Act (FHA), a federal civil rights law, has significantly improved since the early 1990s when the regulations were promulgated. Unfortunately, a quick search of recent news articles will reveal that noncompliance with basic FHA requirements continues to be a problem in newly constructed multifamily projects nationwide. Owners, developers, architects, and others are still cited for noncompliance with the FHA’s seven design and construction requirements despite the fact that it has been approximately 30 years since those requirements went into effect.

Based on our experience, one of the contributing factors in continued noncompliance is the common misconception that following the accessibility requirements of a building code will result in compliance with the FHA. It is important to note that if the accessibility requirements of one of the ten HUD-approved safe harbors are not incorporated into the design of a multifamily development, and the project complies only with the accessibility requirements of a building code, then the risk of noncompliance exists.

Throughout the 1990s and early 2000s, many building codes fell far short of FHA compliance. For example, many developers in New York City relied on compliance with NYC’s Local Law 58 of 1987, believing that they would also be compliant with the Fair Housing Act. Unfortunately, this resulted in widespread noncompliance. LL58 permitted step up terraces and small bathroom layouts with inswinging doors, among other design elements that did not satisfy FHA compliance. The problem has certainly become less pervasive in more recent years as the ICC and local jurisdictions have become aware of shortcomings in their code requirements, but there are still some FHA criteria that have fallen through the cracks in even the most up-to-date building codes. (more…)