By Mike Stewart
In recent years, multifamily property owners have faced a rising number of lawsuits from “serial plaintiffs” or “testers” alleging noncompliance with the Americans with Disabilities Act (ADA) and Fair Housing Act (FHA) regulations. These legal challenges can impose substantial financial burdens on multifamily owners, encompassing not only costs associated with rectifying legitimate violations, but also the cost to defend a lawsuit and potentially pay fines, damages and the plaintiff’s legal fees.
The ADA and the FHA are landmark pieces of legislation that prohibit discrimination based on disability. While both laws aim to ensure equal access and opportunity for people with disabilities, they have distinct requirements and implications for multifamily property owners.
Below is an overview of the ADA and FHA as they relate to the design and construction of multifamily properties and guidance for owners seeking to reduce legal risks.
The Americans with Disabilities Act (ADA)
Enacted in 1990, the ADA focuses primarily on public accommodations and commercial facilities, including multifamily housing. Title III of the ADA prohibits discrimination based on disability in places of public accommodation. In multifamily properties, this includes common areas such as rental offices, lobbies, mailrooms, recreational facilities and parking lots.
Importantly, the ADA generally does not extend to the interior of individual dwelling units in multifamily properties. However, some public and common-use spaces within units, such as rental offices, are considered “public accommodations” under Title III of the ADA because they are open to people other than residents and their guests.
Common areas must be designed and constructed to be accessible to people with disabilities. These areas must be free of barriers that would prevent people with disabilities from using them. While the ADA primarily focuses on new construction, it also requires that existing multifamily properties remove architectural barriers where it is “readily achievable,” meaning easy to complete without much difficulty or expense. Owners of older buildings may need to make modifications to their properties to comply with the ADA.
Common ADA violations in multifamily properties are failure to include accessible parking spaces, inaccessible routes into buildings (including steps and steep slopes without ramps or elevators), inaccessible common areas and lack of accessible signage.
The Fair Housing Act (FHA)
The FHA, initially enacted in 1968 and subsequently amended in 1988, has broader implications for multifamily housing than the ADA. The FHA prohibits discrimination in housing based on various protected characteristics, including disability. It applies to both privately owned and publicly assisted housing. The FHA requires that “covered multifamily dwellings” designed and constructed for first occupancy after March 13, 1991, be accessible to and usable by people with disabilities.
Covered multifamily dwellings include all units in buildings with four or more units and at least one elevator as well as all ground floor units in a building with four or more units and no elevator.
The FHA’s accessibility requirements go beyond the ADA by mandating that covered units have certain features that make them readily adaptable for people with disabilities. It is important to note that “adaptable” and “accessible” do not mean the same thing. A building being adaptable means that it must have certain features that make it easy for a building owner to make the living unit accessible within a short amount of time. For example, an adaptable feature requirement is reinforced walls in the bathroom to allow for quick and easy installation of grab bars.
HUD’s Fair Housing Accessibility Guidelines detail the below seven requirements that provide a safe harbor for compliance with the FHA’s design and construction requirements:
- Accessible entrances
- Accessible and usable public and common-use areas
- Usable doors (wide enough for wheelchairs)
- Accessible route into and through the dwelling unit
- Reachable light switches, electrical outlets and thermostats
- Reinforced walls in bathrooms to allow for grab bar installation
- Usable kitchens and bathrooms with sufficient maneuvering space
Common Design and Construction Issues Leading to ADA and FHA Violations
Several design and construction issues commonly lead to ADA and FHA violations in multifamily properties. Some of these issues include:
- Inaccessible entrances and routes: Entrances with steps or steep slopes without ramps or elevators can create significant barriers for people with mobility impairments. Even if an accessible entrance walk is provided, it must connect to a pedestrian arrival area (often a parking lot).
- Narrow doorways and hallways: Doorways and hallways that are too narrow to accommodate wheelchairs and other mobility devices restrict access to units and common areas.
- Lack of ramps or elevators: Multi-story buildings without ramps or elevators prevent people with mobility impairments from accessing upper floors.
- Insufficient clear floor space: Adequate clear floor space is essential for people with mobility impairments to maneuver within units and common areas.
- Inaccessible kitchens and bathrooms: Kitchens and bathrooms with limited maneuvering space, high counters, and inaccessible fixtures can make it difficult or impossible for people with disabilities to use these essential spaces.
- Inaccessible environmental controls: Light switches, thermostats and other environmental controls that are placed out of reach for people with disabilities can limit their ability to control their living environment.
- Lack of accessible parking spaces and access aisles: Parking lots must have a sufficient number of accessible parking spaces with access aisles that are wide enough for vans with wheelchair lifts.
- Inaccessible site amenities: Playgrounds, grills, gardens and other site amenities should be accessible to all residents, including those with disabilities. This often requires providing accessible routes from dwelling units to these amenities.
Steps Multifamily Property Owners Can Take to Comply with ADA and FHA Regulations
Multifamily property owners can take several proactive steps to ensure compliance with ADA and FHA regulations during the design and construction phases.
Require protection from architects and designers: Engage architects, designers and contractors with expertise in ADA and FHA accessibility guidelines. While increasingly resistant, require that architects and designers retain liability for design defects resulting in ADA and FHA violations.
Conduct ADA and FHA inspection following project completion: Following project completion, engage a reputable ADA and FHA consultant to complete a full inspection of the project, and complete any recommended repairs. Often the sole focus of a plaintiff’s lawsuit is the recovery of attorneys’ fees from an owner; therefore, having this report on hand may aid in early negotiations to convince a plaintiff’s attorney to dismiss his or her suit given the perceived reduced likelihood of prevailing in a lawsuit.
Implement compliance programs: Develop and implement comprehensive compliance programs that include regular training for property management staff, periodic accessibility audits and ongoing monitoring of policies and practices to ensure continued adherence to ADA and FHA requirements.
Perform thorough due diligence: Buyers of multifamily properties should conduct comprehensive inspections of the property to identify any potential ADA and FHA compliance issues. This should include a review of physical accessibility features such as ramps, door widths, accessible restrooms and parking spaces, as well as an examination of the property’s existing policies and procedures. For newly constructed projects, buyers need to carefully review and understand obligations of the project’s architects and contractors under their design and construction contracts and ensure that the buyer is assuming the seller’s rights under those agreements.
Allocate risk in purchase and sale agreements: Representations and warranties are typically heavily negotiated in purchase and sale agreements in multifamily transactions. Buyers may consider including representations and warranties in the purchase and sale agreement that the property is in compliance with ADA and FHA requirements and require specific indemnities and survival periods for pre-existing ADA and FHA violations. For newly constructed projects, buyers may negotiate for funds to be held in escrow to address any discovered violations for any remaining portion of the statute of limitations.
Compliance with ADA and FHA is crucial for developers, owners and purchasers of multifamily properties to avoid potential legal challenges. It is essential to be proactive in addressing accessibility issues, both in new construction and existing properties. Consulting with experts, conducting thorough assessments and staying informed about the latest regulations and best practices are vital steps in mitigating risk and fostering an inclusive living environment.
Mike Stewart is a member at the law firm of Bass, Berry & Sims. He advises developers, investors and owners on projects across the country, with a particular focus on multifamily transactions. He can be reached at [email protected].