From the latest ae ProNet Newsletter:
By David T. Patterson and Frederick T. Bills
Design and Accessibility Requirements under the Fair Housing Act: Violations of the design and accessibility standards of the Americans with Disabilities Act (“ADA”) and the Fair Housing Act (“FHA”) present some of the largest liability risks, in terms of claim value, to design professionals across the country. Generally, the federal statutes require certain residential and commercial structures be readily accessible to, and usable by, individuals with disabilities. And, while accessibility and usability are components considered over the course of design and the standard of care, the statutes pose significant risk to designers. Exacerbating that risk, the FHA financially incentivizes enforcement by private entities by providing recovery of attorneys’ fees and costs to the prevailing party. This article focuses on the design and accessibility requirements of the FHA so designers can better understand their risk under the statute and where to turn for guidance in the event of a claim.
What Does the FHA Require? The FHA is a federal civil rights statute designed to protect individuals from discrimination in the housing market. Discrimination includes the failure to design and construct dwellings with the following features: i. the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons; ii. all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and iii. all premises within such dwellings contain the following features of adaptive design: I. an accessible route into and through the dwelling; II. light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; III. reinforcements in bathroom walls to allow later installation of grab bars; and IV. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3). The accessibility requirements apply to multi-family residential buildings containing four or more units and built for first occupancy after March 13, 1991. All ground floor units and common use areas must comply with the requirements in buildings which are not serviced by an elevator, whereas all common use areas and units must comply in buildings serviced by an elevator. 42 U.S.C. § 3604(f)(7). All seven of the accessibility requirements must be achieved; it is no defense for a developer or designer to demonstrate that a project complies with some or most of the statutory requirements. U.S. v. Edward Rose & Sons, 384 F.3d 258 (6th Cir. 2004)
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