As discussed in RealWorld 2018 sessions
Understanding compliance requirements of the Fair Housing Act of 1968 and Americans with Disabilities Act of 1990 and respective updates is no simple task for multifamily properties. How the laws apply specifically to the industry can be complex and, if not followed, result in expensive penalties and tarnish brand reputation.
FHA requires housing providers to provide reasonable accommodations (i.e., reasonable changes) for people with disabilities to use and enjoy their dwellings. Based on the definition of a disability as the FHA, ADA and Rehabilitation Act of 1973, accommodations range beyond having wheelchair-accessible entrances or sidewalks and van-accessible parking spaces.
A disability – according to the FHA, and Section 504 of the Rehabilitation Act of 1973 – is a physical or mental impairment which substantially limits one or more major life activity. In the United States, one out of every five adults has a disability, according to a 2015 study published by the Centers for Disease Control and Prevention. The most common functional disability type was a mobility limitation – defined as serious difficulty walking or climbing stairs — reported by one in eight adults. Others included disability in thinking and/or memory, independent living, vision, and self-care.
RealPage Vice President Business Development Greg Proctor, featured in “All Access Pass: A Compliance Diary” at RealWorld, says most properties are unknowingly out of compliance on FHA accessibility laws. Mailboxes and light switches that are too high, lack of van-accessible parking, steep sidewalks and even the wrong type of door handles are common violations.
“Your property is out of compliance,” he said. “It may not be big, and you may not have heard from a federal or state agency, but your exposure is there and you need to be aware of that.”
But FHA violations for discrimination of persons with disabilities not necessarily associated with physical attributes of a property are popping up on the radar, especially in multifamily.
A hot topic at recent rental housing conferences has been how landlords should handle the increasing number of requests for emotional support animals, which do not have the same rights as a service animal under the ADA. Proctor touched on the subject at RealWorld in an overview on accessibility accommodation requirements.
Proctor said landlords need to know they have rights when considering reasonable accommodation requests and that they have a say.
“Understand the difference between a service animal and an emotional support animal,” Proctor said. “And be thinking about, I am in control of the situation. You are the one in control and knowledge is power. If you understand that, you can determine what to do to mitigate your risk.”
For example, while they cannot ask directly what a person’s disability is, owners can inquire about what tasks the service animal provides for the resident or prospect. Service animals are not pets and are exempt from pet deposits and other fees related to the animal cannot be charged. Breeds or size cannot be restricted.
Proctor says that housing providers generally don’t have much to worry about if they allow pets, don’t charge pet fees and don’t place any restrictions on the size or type. Housing providers must also extend the same accommodations for guests of the property and the public.
Housing operators shouldn’t take accessibility compliance lightly
Accessibility and the governing laws and regulations – not just limited to emotional support and service animals – are sometimes confusing and can lead to misinformation, even that sometimes disseminated by auditors, inspectors, and regulatory agencies.
With 53 million Americans living with disabilities, housing providers shouldn’t take FHA, ADA and Section 504 compliance lightly. First-time ADA violations can result in up to $75,000 in civil fines. Four years ago, $425 million in compensation was awarded to victims who were discriminated against, according to the ADA.
In recent years, the U.S. Department of Housing and Urban Development (HUD) has brought the subject to the forefront, targeting residents and potential residents in a broad advertising campaign. The Department of Justice (DOJ) has a webpage devoted to how to file an ADA complaint.
Any notification to a state agency from HUD or the DOJ regarding potential violations of Fair Housing results in the immediate filing of an 8823 by the state agency to the Internal Revenue Service.
The message is crystal clear: Housing discrimination is unlawful, unfair and un-American.
Fundamental differences between FHA and ADA
Although FHA and ADA are federal civil rights acts that were created to provide protected classes with equal access to public and private housing, and public accommodations, respectively, there are fundamental differences between the two.
The FHA was enacted in 1968 to outlaw discrimination in public and private housing and related facilities and services based on race, color, religion, sex and national origin. It was amended in 1988 to include familial status and disability.
The ADA was adopted in 1990 to ensure equal opportunity for individuals with disabilities, and protect them in part from discrimination in the use and enjoyment of places identified as public accommodations. Thus, the FHA protects a broader class of individuals and addresses a broader scope of housing issues that include, but are not limited to, leasing and selling practices and zoning ordinances.
Because the ADA generally only applies to public accommodations, a property’s dwelling units are not covered. However, all areas of public accommodation on a property must be fully accessible.
Public areas at multifamily properties include the rental office and parking areas at leasing offices.
A community room might fall under ADA compliance if it is made available to the public (e.g., used for town meetings or public events that involve non-residents and guests). The ADA requires that a certain number of accessible parking spaces be van-accessible, for example The access aisle for a van-accessible space is required to be 96 inches or eight feet wide. Standard access aisles for cars have to be 60 inches or five feet wide. The van-accessible spaces are also required to have “Van Accessible” signage, and one in every six accessible spaces must be van-accessible.
Design and construction of multifamily under microscope of DOJ
In the last 30 years, more focus has been placed on design and construction of multifamily dwellings.
According to the FHA, dwellings of four or more units intended for first occupancy after March 13, 1991, must have certain features – “an accessible entrance on an accessible route, accessible common and public use areas, doors sufficiently wide to accommodate wheelchairs, accessible routes into and through each dwelling, light switches, electrical outlets, and thermostats in accessible location, reinforcements in bathroom walls to accommodate grab bar installations, and usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.”
The DOJ notes that developers, builders, owners and architects responsible for the design or construction of new multifamily housing may be held liable if buildings don’t meet these design requirements.
Some recent accessibility violations cited by the DOJ include no sidewalk connections to public and common areas, steep slopes on sidewalks and walkways leading to apartments and covered walkways, knob hardware on primary entrances, lack of van-accessible parking at leasing offices, mail boxes that are out of proper range in height, thresholds on doors or lack of a ramp to a lower-level entrance.
And the government hasn’t been bashful about enforcing the laws against those who haven’t complied. In many cases, the violations have cost those charged with discrimination. Violators have had to do building retrofits, establish funds or other construction requirements to make other housing units accessible, implement Fair Housing accessibility training, keep detailed records and periodically report to the DOJ, pay damages to victims of alleged discriminatory housing practices and satisfy civil penalties.
Not to mention attorney’s fees.
Getting smarter about the laws and compliance
It’s hard enough abiding to the FHA, ADA and Section 504, but when a multifamily housing company is growing into new markets, maintaining compliance with new state and local regulations can burden a full-time compliance management staff. Keeping an internal compliance department trained and up to date on all the tax credit rules and affordable-specific guidelines may seem overwhelming. It can also be a big burden on the company’s finances, especially if a violation is involved.
Proctor has long advocated that multifamily properties can help themselves to avoid costly penalties, legal fees and other expenses by getting smarter about the laws.
RealPage Compliance Services provides compliance monitoring and asset management for all property types so properties are in line with changing regulations, as well as those that have been etched in stone since the conception of the acts. Compliance monitoring takes a deep dive into all types of Affordable properties, including Low Income Housing Tax Credit properties (Section 42), tax-exempt bond, Section 8, HOME, HUD and Rural Development properties.
Accessibility plans customized for the client include an onsite property evaluation, disclosure of findings, citation of applicable regulations, a corrective action plan, cost estimate for repairs and a plan to remedy problems.
Says Proctor, having an accessibility plan helps identify potential liability, shows an insurance company that the owner is serious about reducing risk, which can help reduce premiums.
“Doing an Accessibility Plan is a very simple way to understand areas of noncompliance and be proactive in corrective those issues,” Proctor said. “These plans provide the knowledge you need to stay in compliance and make sure that you correct the things you need to correct to be in compliance.
“The good news is that it’s not that expensive to correct.”