Ensure Building and Common Areas Comply with Federal Accessibility Requirements

Federally assisted sites are covered by accessibility requirements for design and construction under either the Fair Housing Act (FHA) or Section 504 of the Rehabilitation Act of 1973. As a site owner or manager, you must make sure that your site complies with these requirements. Because HUD and the Department of Justice (DOJ) treat compliance with these requirements seriously, you need to follow suit. The penalties for violating these requirements are stiff, including HUD fines and lawsuits from DOJ and private individuals.

Generally, if your site was built after July 1988 and is federally assisted, you must comply with Section 504 accessibility requirements. And FHA accessibility requirements, which apply whether or not your site receives federal funds, apply for sites “opened for first occupancy after March 13, 1991,” which means that if you are constructing a new site today, it’s probably covered by both. But if you already own or manage a site that has one or more buildings covered by the requirements, you must be sure that these buildings are in compliance. If you discover they are not, you must fix the problem as soon as possible.

We’ll cover the basics on each set of accessibility requirements so you can determine whether parts of your site are covered by either set of accessibility requirements or both. And we’ll discuss five rules that will help ensure your buildings and common areas comply with the FHA and Section 504 accessibility requirements.

Are You Covered?

Whether you must comply either with FHA or Section 504 requirements, or with both, depends on when your site was built and the area of the site in question. Here are the basics on what each set of accessibility requirements covers:

FHA requirements. If any buildings at your site opened for first occupancy after March 13, 1991, they must have been built in compliance with the FHA’s accessibility requirements. These requirements say that all ground-floor and elevator-accessible units (meaning all units in a building with an elevator), public-use areas, and common areas must be accessible to people with mobility impairments. The FHA and its regulations list seven design and construction requirements pertaining to buildings, common areas, and units that covered sites must follow. With regard to buildings and common areas, the FHA requires accessible building entrance on an accessible route and accessible and usable public and common use areas.

You don’t have to comply with these requirements if the building was designed and constructed for first occupancy on or before March 13, 1991 or the building has fewer than four units. If a building has four or more units, it is covered even if those units are separated by a breezeway, stairway, or firewall. Detached single-family houses, duplexes, triplexes, and multistory townhouses without elevators are not covered.

Section 504 requirements. Federally assisted sites are also subject to the physical accessibility requirements of Section 504 of the Rehabilitation Act. These apply to sites with 15 or more units built before July 1988 if these sites have undergone “substantial” alterations. To be considered substantial, the alterations must cost 75 percent or more of the replacement cost of the completed site. But even if no substantial alterations are made, Section 504 requires modifications on an “as needed” basis.

Section 504 requires sites with six or more units to have a minimum of 5 percent of units—or at least one unit—that is “physically accessible” for persons who have mobility impairments (under HUD regulations this applies to sites constructed after July 1988). The Uniform Federal Accessibility Standards (UFAS) spells out minimum standards for physical accessibility. You can find the UFAS at https://www.access-board.gov/guidelines-and-standards/buildings-and-sites/ under Architectural Barriers Act (ABA) standards. However, HUD notes that you may depart from particular technical and scoping requirements of the UFAS, if you use other methods that provide substantially equivalent or greater access to and usability of the building [HUD Handbook 4350.3, par. 2-36(A)(2)].

Section 504 also required each site to have completed a self-evaluation of its “policies and practices” that don’t meet Section 504 requirements, and to have developed a transition plan for completing structural changes “needed to make the [site] readily accessible and usable by individuals with handicaps” [HUD Handbook 4350.3, par. 2-34]. Although the regulatory deadlines for completing self-evaluations have now passed, HUD notes that the self-evaluation is an excellent management tool for ensuring that the owner’s current policies and procedures comply with Section 504 requirements [HUD Handbook 4350.3, par. 2-34(B)]. In addition, HUD recommends that owner periodically update their self-evaluations as a way to ensure compliance [HUD Handbook 4350.3, par. 2-34(C)]. Updates are particularly important if there have been alterations to the site or units have been added or demolished.

Other accessibility laws. It’s important to note that some states and local governments have their own accessibility laws, which may be more stringent than the FHA’s requirements. And these laws may require you to follow different sets of accessibility standards than what the FHA or Section 504 requires. For example, although federal law requires that, depending on the number of parking spaces that are available to a site, from 2 to 4 percent of the total be handicap-accessible, Massachusetts requires at least 10 percent.

In addition, all sites, regardless of when they opened for first occupancy, must comply with Title III of the Americans with Disabilities Act (ADA). This law requires you, as an owner or manager, to remove barriers that prevent people with disabilities from getting to and using your public use areas. Public use areas are any areas that are open to the public, such as your leasing office. A common area set aside for residents only is not considered a public use area.

For sites built before Jan. 23, 1993, you must remove barriers that keep people with wheelchairs out of your public use areas only if barrier removal is “readily achievable.” This means that it must make both structural and financial sense to remove the barriers. If removing a barrier is not readily achievable, you don’t need to do it to comply with the ADA.

For instance, if widening an entrance would mean tearing down beams on either side of the door that support the building, you don’t have to widen the entrance. But most of the time, the barriers that you must remove are ones like stairs, curbs, and narrow doorways that keep people in wheelchairs out of public use areas.

FOLLOW FIVE RULES FOR BUILDING AND COMMON AREA COMPLIANCE

HUD requires owners to provide accessible routes to and throughout the property and provide accessible parking spaces in an accessible location as long as such improvements would not result in an undue financial and administrative burden [HUD Handbook 4350.3, par. 2-35(C)]. The following five rules will help you ensure that your buildings and common areas comply with the FHA and Section 504 accessibility requirements. They are based on design and construction standards that HUD says you, as a site owner or manager, may rely on to comply with both sets of accessibility requirements

If you suspect you’re not in compliance, or you want the certainty of having a reliable, professional opinion, ask a fair housing consultant or architect who understands these requirements to help you determine whether your site was built according to all provisions contained in HUD’s approval standards. If you discover that your site does not comply with all design and construction requirements, you will need to bring in a consultant or an architect to tell you what changes are necessary to fix the problems.

Rule #1: At Least One Building Entrance Must Be on an Accessible Route

FHA and Section 504 accessibility requirements state that buildings must have “at least one building entrance on an accessible route,” unless it’s impractical to meet this requirement.

Entrances with steps don’t meet this requirement unless there’s a way to bypass them. But even if an entrance has a ramp or is flush with the walkway that leads to it, disabled residents may have trouble using it if the slope of the walkway is too great. Walkways with a steep slope can be challenging, if not impossible, to navigate with a wheelchair. As a result, individuals with disabilities cannot obtain “full use and enjoyment” of their housing as provided by law.

To comply, make sure your walkways don’t slope more than 5 percent, or 1:20, which means your walkways should not rise more than one inch over each 20-inch segment. One way to bring a steep walkway into compliance is to redesign your landscaping so that a once-straight walkway curves once or twice before reaching the entrance. This lets you spread the elevation change over a longer distance.

If you are unable to sufficiently lessen the slope of your walkway, you can convert your walkway into a ramp. This requires installing railings on both sides of the walkway and including edge protection and appropriate-size landings at the top and bottom. Also, your ramp must not slope more than 8.33 percent or 1:12.

Rule #2: Routes from Pedestrian Arrival Points Must Be Accessible

You must also give the public an accessible route to each covered building’s or common area’s accessible entrance. Often this means making sure that disabled residents can travel between your parking lot and your buildings without hindrances. But the term “pedestrian arrival point” also refers to public transit stops, passenger loading zones, public streets, and sidewalks.

Rule #3: All Walkways Must Have Curb Ramps Where Needed

FHA and Section 504 requirements state that a building’s common and public-use areas must be “readily accessible to and usable by” persons with disabilities. Accordingly, you must make sure that persons with disabilities must be able to get not only from their parking spaces to their units and back but also to site amenities, such as your swimming pool, management office, business or rental center, model unit, club room, or mailbox kiosk.

To accomplish this, you must make sure your site has curb ramps, where needed, along all walkways.

Rule #4: Curb Ramps Must Be Correctly Designed and Graded

The curb ramps for your walkways must be correctly designed and graded. To ensure compliance, check that:

• Running slopes don’t exceed 1:12;
• The total vertical rise of the curb ramps does not exceed six inches, unless handrails are provided;
• The curb ramps are at least 36 inches wide; and
• The side flares are sloped 1:10 or less. (In some situations, depending on the design of the adjacent walkways, they must be sloped 1:12 or less.)

Rule #5: Some Parking Spaces Must Be Accessible

You must provide some accessible parking spaces at your common and public-use facilities. This lets persons with disabilities, especially those who use wheelchairs, drive to a facility that is not easily accessible on foot. To check whether your accessible parking spaces were built in compliance with the FHA’s requirements, make sure that:

Your accessible parking spaces are wide enough. Accessible parking spaces are required to be at least eight feet wide, with a sign indicating accessibility.

At least 2 percent of the spaces serving covered units are accessible. If your site provides different types of parking, such as surface parking, garage, or covered spaces, remember that at least one space for each type of parking must be made accessible, even if this number exceeds 2 percent. And provide at least one accessible space at each facility for which you provide parking.

The accessible route from a covered building slopes into its parking lot. Some sites’ parking lots were built without curbs. But if your site’s parking lot has curbs, and lies one step (or more) below the rest of the grounds, make sure that your routes leading from accessible entrances to your parking lot slope where they meet the curb. This way, residents who use wheelchairs can get to and from the parking lot (or other pedestrian arrival points) without having to overcome steps.

The accessible route to the parking lot leads to an access aisle. Having curb ramps connecting accessible routes to your parking lot is important for making routes accessible but it’s not enough. At the points where your routes meet your parking lot, there must be a dedicated access aisle.

And you cannot let parked cars or other obstructions block the access point in any way. Access aisles are usually identified by white or yellow cross-hatched markings, warning people not to park their vehicles or leave behind articles in the area. Each accessible parking space has an adjacent access aisle at least five feet wide.

If you provide visitor parking, there is no minimum number of accessible parking spaces you must set aside. But there must be “a sufficient number of” accessible visitor parking spaces “to provide access to grade level entrances.” Also, make sure you have at least one accessible parking space at your rental office.

Editor’s Note: For more information on fair housing-related parking issues, you can download a copy of our recent one-hour webinar, “How to Handle Parking-Related Requests and Disputes,” here.