A.5.2.3.1 Fair Housing Act Design and Construction Requirements

A. The Fair Housing Act established certain design and construction requirements for covered multifamily dwellings built for first occupancy after March 13, 1991. The obligation to comply is permanent. Compliance must be maintained through any subsequent repairs, replacements, alterations, or rehabilitation. If covered multifamily dwellings (and any associated common areas) are built for first occupancy after March 13, 1991 as an addition to an existing property, the added dwellings and common areas must meet the Fair Housing Act design and construction requirements.

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B. Note that “first occupancy” means that the building has never before been used for any purpose. Thus, the requirements do not apply to any building converted to multifamily use from any other use nor to any substantial rehabilitation of multifamily buildings that were occupied before March 13, 1991. See 42 USC 3604(f)(3)(C), 24 CFR 100.205 and HUD’s Fair Housing Act Design Manual published at 56 Federal Register 9472-9515 [Mar. 6, 1991]. “Covered multifamily dwellings” is defined at 42 U.S.C. 3604(f)(7) and 24 C.F.R. 100.201 and means all units in buildings consisting of 4 or more dwelling units if such buildings have one or more elevators; and ground floor units in other buildings consisting of 4 or more units. A “ground floor” is a floor of a building with a building entrance on an accessible route. A building may have more than one ground floor. Buildings consisting of 1, 2 or 3 units do not contain any “covered multifamily dwellings.”

C. All covered multifamily dwellings must be designed and constructed to have at least one building entrance on an accessible route unless it is impractical to do so because of the terrain or unusual characteristics of the site. The burden of establishing impracticality because of terrain or unusual site characteristics is on the person or persons who designed or constructed the housing facility. Even if a property meets the impracticability standard for some or all units, it is not wholly exempt from the design and construction requirements. See24 CFR 100.205(a).

• D. There are seven design and construction requirements under the Fair Housing Act as follows:

1. Accessible building entrance on an accessible route.

2. Accessible and usable public and common use areas.

3. Usable doors (all the doors allowing passage into and within the units are sufficiently wide to allow passage by persons in wheelchairs).

4. Accessible route into and through the covered dwelling unit.

5. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations.

6. Reinforced walls for grab bars in bathrooms (i.e., to allow for later installation of grab bars around the toilet, tub, shower, stall, and shower seat, where such facilities are provided).

7. Usable kitchens and bathrooms (i.e., such that an individual in a wheelchair can maneuver about the space).

E. The Needs Assessor must measure clear door openings, wheelchair maneuverability areas, slopes and cross slopes of sidewalks and other accessible routes, and other dimensioned aspects of the housing to determine compliance with the Fair Housing Act Accessibility Guidelines or another identified safe harbor standard recognized by HUD. Measurements should be made in typical or representative units of each unit type and of typical common spaces and these must be noted and reported. The use of templates or rods of fixed dimension to confirm measurements not less than (or greater than) required is acceptable. Photographs are encouraged. It is insufficient to merely state that a project, building, or a particular feature “appears to” or “seems to” meet (or not meet) the design and construction requirements.