[nagdu] Fair Housing Accessibility FIRST: FAQ

Fri Dec 9 01:53:53 UTC 2011

http://www.fairhousingfirst.org/faq/ada.html 

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AMERICANS WITH DISABILITIES ACT

Do any accessibility requirements apply to detached single-family homes? 

Detached single family homes that are funded in any way by federal, state,
or local funds may be required to be accessible under laws other than the
Fair Housing Act. These laws, particularly Section 504 of the 1973
Rehabilitation Act and Title II of the Americans with Disabilities Act, have
requirements for accessibility. For example, detached single family houses
funded through the HOPE VI program operated by the Department of Housing and
Urban Development (HUD), whether for sale or rental, must comply with HUD's
requirements for Section 504. This includes making at least 5% of the units
accessible to persons with mobility impairments and at least 2% of the units
accessible to persons with vision and hearing impairments. The applicable
standard for compliance is the Uniform Federal Accessibility Standard or
UFAS.

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Are the public and common use areas of a newly constructed development that
consists entirely of buildings that have no covered dwelling units required
to be accessible under the Fair Housing Act? 

If there are no covered multifamily dwellings on a site, then the public and
common use areas of the site are not required to be accessible under the
Fair Housing Act. Supplement to Notice of Fair Housing Accessibility
Guidelines: Questions and Answers about the Guidelines, 59 FR 33362-33368,
June 28, 1994, question 13.

However, the Americans with Disabilities Act (Title III) may apply to
certain areas that serve the public. The Americans with Disabilities Act
(Title II) may apply to housing that is operated by public entities such as
state or local governments. Section 504 of the 1973 Rehabilitation Act may
apply to public and common use areas of properties that are operated by
entities that receive federal financial assistance. An independent
determination should be made regarding whether or not the ADA or Section 504
may apply and require accessibility when the Fair Housing Act does not
apply.

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If the Americans with Disabilities Act Accessibility Guidelines (ADAAG) and
the Fair Housing Act requirements both apply to the same property, which
standard should be used? 

Title III of the ADA, in relevant part, applies to commercial facilities and
public accommodations. Inns, hotels, motels, and other places of lodging are
public accommodations under Title III of the ADA, as are dormitories,
homeless shelters, nursing homes, and some timeshares. See 28 CFR 36.104. In
addition, the common areas that are for public use at "covered multifamily
dwellings" under the Act must meet the ADA Standards for Accessible Design
(ADA Standards). For example, a rental office in a multifamily residential
development or a convenience store located in that development would be
covered under Title III of the ADA. 28 CFR 36.104. Common use areas that are
for use only by the residents and their guests would not be covered by the
ADA.

The Fair Housing Act's design and construction requirements do not preempt
the ADA and in those cases where a development is subject to more than one
accessibility standard, the laws and the standards must be read together and
followed together.

There are certain properties, or portions thereof, that are covered by both
the Act and Title II and/or Title III of the ADA. These may include certain
timeshares, dormitories, residential hotels, boarding houses, nursing homes,
homeless shelters, congregate care facilities, public use portions of
private multifamily dwellings, and public housing. These properties must be
designed and built in accordance with the accessibility requirements of both
the Act and the ADA. In addition, to the extent that the requirements of
these various laws overlap, the more stringent requirements of each law must
be met, in terms of both scoping and technical requirements.

In the preamble to its rule implementing Title III, DOJ discussed the
relationship between the requirements of the Fair Housing Act and the ADA.
The preamble noted that many facilities are mixed use facilities. For
example, a hotel may allow both residential and short term stays. In that
case, both the ADA and the Fair Housing Act may apply to the facility. The
preamble to the Title III rule also stated that residential hotels, commonly
known as "single room occupancies," may fall under the Fair Housing Act when
operated or used as long term residences, but they are also considered
"places of lodging" under the ADA when guests are free to use them on a
short term basis. The preamble also discussed a similar analysis with
respect to homeless shelters, nursing homes, residential care facilities,
and other facilities where persons may reside for varying lengths of time.
The preamble concluded that such facilities should be analyzed separately
under both the Fair Housing Act and the ADA. 56 FR at 3551-52.

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What are the federal access requirements for rental offices? 

(a) Are rental offices required to be accessible under the Fair Housing Act?

Rental offices serving buildings that are covered by the design and
construction requirements of the Fair Housing Act must comply because they
are public and common use areas.

(b) What requirements apply to rental offices that are not covered by the
Fair Housing Act's design and construction requirements?

If the buildings are not covered by the Fair Housing Act's design and
construction requirements (for example, because they were built for first
occupancy before March 13, 1991), the Fair Housing Act's general
requirements of non-discriminatory treatment and reasonable accommodations
apply. If a rental office is not accessible, a person with a disability must
still be accommodated.

In addition, rental offices that serve the public must comply with the
access requirements of the ADA, Title III (that is, if they are constructed
for first occupancy after January 26, 1993), they must be constructed to
comply with ADAAG; if constructed before that date, architectural barriers
must be removed if doing so is "readily achievable." 36 U.S.C. 36.401.

A housing provider is covered by Section 504 of the 1973 Rehabilitation Act
if the provider is a recipient of federal financial assistance. Section 504
requires that "programs and activities" such as a rental office be
accessible. When physical accessibility cannot be provided, access to rental
office services must be made available in some other way.

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A resident of a condominium is deaf and needs a sign language interpreter to
interpret Homeowner Association (HOA) meetings that affect the resident's
legal and/or financial obligations as a homeowner. Does the HOA have an
obligation to provide and pay for a sign language interpreter?

A request for a sign language interpreter falls under the reasonable
accommodation requirements of the Fair Housing Act. If a person requires a
sign language interpreter in order to participate in important
decision-making activities at a HOA meeting affecting their legal rights or
financial obligations as a homeowner, then a request for provision of a sign
language interpreter as a reasonable accommodation may be made. If the
request is found to be an undue financial and administrative hardship, an
interactive process should be engaged in between the parties to develop an
agreed upon strategy to provide an effective alternative means of enabling
the homeowner to participate in the Homeowner's Association meetings and
protect his/her legal and financial rights. If the provision of a sign
language interpreter is not a financial and administrative hardship, the HOA
should provide and pay for the services.

A potential purchaser, who has a hearing disability, of a single-family
house from a developer requires a sign language interpreter in order to
communicate with construction staff during construction of the house. Does
the Fair Housing Act require the builder/developer to provide and pay for
the interpreter service?

A request for a sign language interpreter falls under the reasonable
accommodation requirements of the Fair Housing Act. If a person with a
hearing disability needs an interpreter in order to participate in critical
stages of a construction activity, a request for a reasonable accommodation
may be made. Interpreter services should be provided and paid for by the
builder/developer unless providing them constitutes an undue financial and
administrative burden. If the request for an interpreter is an undue
financial and administrative hardship for the builder or developer, the
parties should enter into an interactive process to develop a communication
strategy that will provide a meaningful exchange of necessary information
between the person with a disability and the builder. Alternative solutions
could entail establishing a regular meeting to be held for several hours
every two weeks, at which the builder provides interpretative services.
Communications of a brief or interim nature could then be handled through a
TTY relay system telephone call. The Americans with Disabilities Act likely
also applies to this situation, as the builder is serving the public in the
context of selling a commodity, and thus the right to request a reasonable
accommodation also extends from the ADA.