One of the biggest issues that we see as property condition assessors in our day to day work is accessibility violations.  They are everywhere.  The running joke in our office is, if you went to assess the condition of a multifamily property and you didn’t find an accessibility violation, you weren’t looking hard enough.  So why is it all of these violations exist?  Aren’t the code inspectors watching over this?  The answer is yes, and no all at the same time.

Three standards

Accessibility in multifamily homes is a complex issue in that there are multiple laws and codes that must be followed depending on the situation.  Depending on the type of apartment complex and how it was funded makes a difference in the applicable accessibility standards.  Potentially we have three accessibility standards that may or may not apply; the American’s with Disabilities Act (ADA), The Federal Fair Housing Act (FFHA), and Uniform Federal Accessibility Standard (UFAS) Section 504.  Let’s look at each of these standards further and see what they are and how they apply.

American’s with Disabilities Act of 1990 (ADA)

The ADA was signed into law in July 1990, extending civil rights protection for persons with disabilities. Generally, Title III of the ADA prohibits discrimination by entities to access and use of “areas of public accommodations” and “commercial facilities” on the basis of disability.  In a typical multifamily setting this would include spaces like; the leasing office, community rooms, public restrooms, common laundry rooms, etc.  It also includes site features like playgrounds and picnic areas.

Regardless of age of the complex, there is no “grandfathering” under the ADA and the areas and facilities must be maintained and operated to comply with the Americans with Disabilities Act Accessibility Guidelines (ADAAG).  Existing facilities constructed prior to January 26, 1992 are held to a lesser standard of compliance with the extent allowed by structural feasibility and the financial resources available.  Typically, if the issue is not able to be corrected a reasonable accommodation must be made.

The Federal Fair Housing Act (FFHA)

The Federal Fair Housing Act of 1988 (Public Law 100-430) prohibits discrimination in housing on the basis of race, color, religion, sex, handicap, familial status, or national origin. The Act also requires reasonable modification of dwellings, reasonable accommodation in policies for handicapped people, and that the design and first construction of certain new multi-family dwellings scheduled for first occupancy after March 13, 1991, meet certain adaptability and accessibility requirements.

The Act is generally divided into 7 areas that are sometimes referred to as the 7 pillars of Fair Housing. These are:

  • Accessible building entrance located on accessible route
  • Accessible & usable public and common use areas
  • Usable doors
  • Accessible route into and through a dwelling unit
  • Environmental controls in accessible locations (light switches, thermostat, outlets, etc)
  • Reinforced walls for grab bars
  • Usable kitchens and bathrooms

Every multifamily building that was constructed after 1991 is required to meet these standards.  Quite often these are the violations that we discover the most.

Uniform Federal Accessibility Standard (UFAS) Section 504

The Rehabilitation Act of 1973 (most often referred to simply as “Section 504”) requires all federally funded public housing authorities, or a federally funded (Section 8 housing, HOPE, HOME, etc.) non-profit developer of low income housing to be subject to Section 504’s requirements.

Section 504 requires that 5% of units, or at least one unit, must be designed for persons with mobility disabilities.  An additional 2% of units, or at least one unit, shall be accessible for persons with hearing or visual disabilities.  This typically includes the addition of fire horns and strobes and other accommodations to a multifamily unit.

Section 504 requires that substantial alterations (75% or more of replacement cost of the facility) of properties with 15 or more units must meet the requirements of new construction.

Section 504 requires that alterations of properties amounting to less than 75% of the replacement cost of the facility and/or with less than 15 units shall to the maximum extent feasible, be made accessible.

Why so Much Confusion?

So why is it that we find so many violations of these codes and standards in our work?  The answer is that the codes are confusing and not always clear when they apply.  Further, building code officials are not always reviewing all applicable codes.  This is usually a shocker to my clients that say, how could a building official sign off on this?  The answer is, they are not always required to review them.  ADA is a law that is referenced within most building codes so it is typically reviewed by building officials.  The Federal Fair Housing Act is a law that is not typically referenced within building codes.  Architect’s and Developers are required to be in compliance with the law, but the building officials are not reviewing for compliance.  Many times it is years down the road before any violation comes to light.  Which is either raised by a tenant who lodges a Fair Housing complaint or by a lender (i.e. HUD) who will not lend money on a project that has a FFHA violation.

The other shocking information to my clients is that in most instances there is no statute of limitations for the architect and developer.  There is a two-year statute of limitations for a renter to file a discrimination grievance under the law, but if the building is built incorrectly the discrimination is ongoing, essentially forever.

Summary

Overall we have to understand the three accessibility codes and standards and when they apply (and when they don’t).  The ADA code must be met at the areas of public accommodation (leasing office, community room, common laundry, etc) on every project regardless of age.  There are no provisions for “grandfathering” any conditions.  The FFHA applies to multifamily buildings that had their first occupancy after March 13, 1991.  One item of note, the FFHA does not apply to historic buildings that have been fully converted from a previous use to housing.  The first occupancy of a historic structure is typically prior to 1991 thus exempting it from the law.  The UFAS standard applies to multifamily housing that has a federal funding component to it.

As you can see, accessibility laws and codes are a complex subject that need to be addressed by qualified professionals.  Errors in judgement with accessibility issues can lead to lawsuits from tenants or a denial of funding from a lender.

In upcoming blog posts we will break down each of these codes and laws further and discuss specific examples of compliance and non-compliance and where the lines begin to blur.  In our next segment we will look closer at the ADA.