A NEW PROPERTY WITH FAIR HOUSING ACT ACCESSIBILITY VIOLATIONS WHAT?!?

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1 A NEW PROPERTY WITH FAIR HOUSING ACT ACCESSIBILITY VIOLATIONS WHAT?!? By: Mike Ferguson, P.E. Director of Engineering Services at D3G Common Concerns/Questions This property was built in 2006, plans were approved and construction inspected by the local building officials. I can t believe that there are any Fair Housing Act (FHA) violations at this property. John Q. Lender Although the frequency of similar comments is decreasing, we are often trying to respond to these types of comments from lenders and their borrowers. There are really only two reasons for non-compliance: 1) poor design by the architect, and/or 2) poor construction oversight. But these buildings were approved and signed off by the building officials, and we have the Certificate of Occupancy (C of O). John Q. Lender Most building officials are not trained in, or inspect for, handicapped accessibility. Their priority is to ensure the structure of the building and its components comply with the applicable building codes. They are most concerned with the building structure, mechanical, electrical, plumbing, and fire protection systems. Accessibility may be a concept a local building code official understands, but the technical requirements of the Act are cumbersome, and enforced by the Federal Government and HUD. Even today, 20+ years after the Act s accessibility design requirements, many municipal building departments continue to lack technical competency of the standard. Isn t there a percentage of units that must comply with the Fair Housing Act? John Q. Lender The Act requires that all ground floor dwelling units, or all units in a building with an elevator, comply with the Act. This will be discussed in further detail later, but there are exceptions to every rule. Wait a minute, I have an A7 where HUD approved the plans and inspected construction; so how can there be FHA design issues? John Q. Lender This is a common question, but the Act states that the Developer, Design Architect, and Contractor are to be held accountable for design violations. HUD s involvement during development and construction does not equate to compliance. History Title VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act (FHA), prohibits discrimination in the sale, rental, and financing of dwellings based on race, color, religion, sex, and national origin. In 1988, Congress passed the Fair Housing Amendments Act. The Amendments expand coverage of Title VIII to prohibit discriminatory housing practices based on disability and familial status. Now it is unlawful to deny the rental or sale of a dwelling unit to a person because that person has a disability. The Fair Housing Act Design Manual. For more background information, see FHA Design Requirements, How Fair Is It?

2 What is Covered by the FHA? The design requirements apply to buildings containing 4 or more covered multifamily dwellings built for first occupancy after March 13, Covered multifamily dwellings consist of ALL dwelling units is a building with an elevator and ALL ground floor dwelling units in buildings without elevators. Based upon the design, there can be more than 1 ground floor in a building and the ground floor does not have to be the lowest level in the building. Also, to be a covered unit all of the finished living space must be on the same floor; therefore, 2-story dwelling units, such as the conventional townhouse unit, are not required to comply with the FHA. Please note that raised or sunken areas are permissible in covered dwelling units, most commonly loft style units. Not only are the dwelling units required to comply with the Act, but all common areas intended for use by the residents are also required to comply with the Act. There are some exceptions to every rule and site topography is one example. Since the FHA is intended to place modest accessibility requirements on covered multifamily dwellings, there may be site restraints that will restrict or present an unreasonable burden to make all ground floor units accessible. There are specific calculations that must be completed by the designers as a burden of proof. In this event, a minimum of 20% of the ground floor units must comply with the Act and if any other unit can be made easily accessible then it is required to do so. How to Comply with the FHA The design requirements of the Act are not overly stringent, and there are 7 basic design requirements of the Act (detailed later). When completed at the time of construction, the design requirements do not add any more cost to a project; however, post-construction retrofits can be costly, both in design and construction. HUD recognizes 10 safe harbors for compliance with the Fair Housing Act's design and construction requirements ( A common question posed to us is; what dictates the safe harbor to be used during the design and/or review stage? The design architect is required to comply with the building code enforced in the jurisdiction of the proposed property location. There may be additional code requirements based on the lending and financing of the project (i.e. HUD s new construction program requires compliance with the Fair Housing Act Design Manual, which is 1 of the 10 recognized safe harbors). Many jurisdictions enforce the International Code Council (ICC) series of building codes ( which incorporates the ICC/ANSI A (Accessible and Usable Buildings and Facilities) accessibility standard. Even though there are slight differences in design requirements between the 10 safe harbors, it is worth noting that they all have the same core principles for spatial configurations. 7 Basic Design Requirements The Fair Housing Act requires that the following basic requirements be met in order to comply with the accessible design standards of the Act: Requirement 1 Requirement 2 Requirement 3 Requirement 4 Requirement 5 Accessible Building Entrances on an Accessible Route, Accessible and Usable Public and Common Use Areas, Usable Doors (usable by a person in a wheelchair), Accessible Route Into and Through the Covered Unit, Light Switches, Electrical Outlets, Thermostats, and Other Environmental Controls in Accessible Locations,

3 Requirement 6 Requirement 7 Reinforced Walls for Grab Bars (If you have a project in Georgia, you will fully understand wall blocking), Usable Kitchens and Bathrooms. Commonly Observed Violations During our thousands of multifamily housing inspections we have observed violations of each of these 7 design requirements. The following violations are indications of some potentially greater design and construction issues. During your visit keep an eye out for the following red flags. 1. There must be an accessible route from the parking areas to the buildings, i.e. curb cuts, ramps, or sloped sidewalks. Compliant ramp Compliant curb access 2. The accessible route must be at least 36 inches in width, with proper slope. Compliant accessible routes

4 3. The covered dwelling units must have entrance doors with low thresholds; no steps permitted. Non-compliant door threshold Compliant door threshold 4. All amenities and common areas must be on an accessible route, i.e. mail kiosks, trash areas, pools, clubhouse, playgrounds, laundry rooms, fitness rooms, etc. Amenities on accessible routes 5. All common area doors and entrance doors to covered dwelling units must be usable and provide a clear opening of at least 32 inches. Compliant unit entrance door Non-compliant patio door

5 6. All covered dwelling unit interior doors must provide an opening of 32 inches. Any door intended for user passage must feature the required opening. Non-compliant interior door Compliant interior door 7. Any exterior open stair assembly must provide a barrier/railing beneath the stairs to provide cane detection for the visually impaired. A safe 80 inches of head clearance must be provided. Compliant cane detection beneath exposed stairs 8. Kitchens must provide 40 of clearance between opposing countertop edges and appliances (excluding handles) and U-Shaped kitchens must provide 60 of clearance. Compliant galley kitchen Compliant U-shaped kitchens

6 Closing Statements I have FHA violations at my property, now what? John Q. Lender. See FHA Design Requirements, How Fair Is it? for a discussion on the potential resolve. I would first and foremost recommend seeking legal counsel, for I have been told by developers, architects, contractors, and owners, that the legal costs associated with a lawsuit is exorbitant. After that, I would consider resident disclosure. Consider preparing a document that discloses the FHA accessibility design issues at the property. If any current or future tenants need the physical barriers removed and the violations corrected, do it now. As for the remaining violations, well it depends. Also, keep in mind that during a refinance transaction, FHA violations, which present a life safety concern, should be addressed as a Critical Repair. All remaining violations should then be addressed accordingly, per local field office requirements. Do I need to correct all violations, or can I do some as a Non-Critical Repair and the remaining as a Replacement Reserve item? John Q. Lender. It depends on the HUD field office; for we are finding that each has their own internal procedure for remedy. I know that the readership of this article is surprised by that observation. Example being, recently in one day (within 2 hours of each call) I had a similar discussion with 2 different HUD field offices. One specifically told me that essentially the law had been broken and all design violations must be corrected or the borrower can seek financing elsewhere. In a contrasting discussion, the other HUD field office was going to request the borrower correct all common and public area violations and a small percentage of the covered dwelling units as a Non-Critical Repair, with the remaining dwelling unit violations being corrected on an as-needed basis (R4R item). As you can see by this example, how to deal with accessibility non-conformance is highly variable. If you have any ideas you would like to see addressed in future articles, contact me at m.ferguson@d3g.biz with your thoughts.