Do the FHA's Design and Construction Requirements Apply to Your Property?

Find out which, if any, of your residential rental units must meet federal accessibility rules for tenants.

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Have you heard of the Fair Housing Act’s (FHA) design and construction requirements? Many landlords haven’t, and as a result, they have no idea if their buildings comply—or if their buildings even need to.

Although landlords aren't architects, you may be responsible for making your buildings accessible to tenants, and you could face legal trouble if your buildings weren't built in compliance with applicable requirements. If a prospect or tenant with a mobility impairment claims you didn't make your buildings accessible, he could complain to the U.S. Department of Housing and Urban Development (HUD). After reviewing the case, a judge may order you to spend a lot of money retrofitting your buildings to make them compliant, and you might also have to pay stiff penalties and damages to the complainant.

Step #1: Determine if Your Buildings Are Covered

The FHA’s design and construction requirements are the federal legal guidelines for basic accessibility, and they apply to many buildings that went into service after March 13, 1991.

So, if you own any multi-unit rental properties, there’s a good chance that one or more of your buildings are covered by the FHA’s design and construction requirements. Also, as time goes on, the likelihood improves that any building you’re considering purchasing should have been built in accordance with the requirements.

Rather than assume a building is covered, it’s important to take a moment to make this determination yourself. Then, you can assess whether your buildings, indeed, comply.

Your building is covered if the following three statements are all true:

  • Your building has four or more apartments. The design and construction requirements apply only to “multifamily dwellings,”which means that a building must have at least four apartments to be covered (even if the apartments are detached from each other by means of a breezeway, stairwell, or other similar feature). Community rooms, game rooms, business centers, and fitness centers don’t enter the equation—to be covered, the building must have at least four rental units.
  • Your building was “designed and constructed”for first occupancy after March 13, 1991. This means that your building wasn’t used for any purpose on or before this date. If, for example, even one tenant lived in your building on or before March 13, 1991, then your building doesn’t need to meet the FHA’s design and construction requirements.
  • The last permit for the building was issued after June 15, 1990. If your building was designed and constructed for first occupancy after March 13, 1991, the FHA’s design and construction requirements don’t apply if the last building permit (or renewal) is dated after June 15, 1990. (The purpose of this rule was to give developers time to incorporate the requirements into the design and construction of their buildings.)

Step #2: Determine Which Apartments Are Covered

If you determine that your rental property is covered by the FHA’s design and construction requirements, your next step is to know which apartments must meet the requirements.

This is a simple inquiry, which hinges upon the existence of an elevator in your building:

  • If your building has multiple floors with an elevator, then all apartments in your building are covered by the requirements.
  • If your building has multiple floors without an elevator (or if it’s a single-story building), then only the ground-floor apartments are covered.

Step #3: Learn How to Comply with the FHA Rules

If some or all of your rental properties are covered, check the Nolo article, How to Comply With the FHA’s Design and Construction Requirements for advice on your responsibilities.

Additional Considerations

There are a few more important points to keep in mind when it comes to the FHA’s design and construction requirements:

  1. Modification requests. If you determine that your buildings aren't covered by the FHA’s design and construction requirements, keep in mind that you must still consider prospects’and tenants’modification requests and grant them, if you determine that they’re reasonable. Also, even if your buildings meet the requirements, you must still consider requests for further modifications. See the Nolo article, Disabled Renters’ Housing Rights, for more information on the subject.
  2. Renovations. If you determine that your building isn't covered by the design and construction requirements, renovations you make to the building normally won’t affect the building’s exempt status. But if you add a wing or other new section to your building, and this addition includes four or more apartments, the new section must be built in compliance with the requirements.
  3. Federal assistance. If your building gets federal assistance, you may also need to comply with an additional set of accessibility standards, as outlined in the regulations for Section 504 of the Rehabilitation Act of 1973. For example, you may need to include a certain number of accessible apartments in your building.
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