The U.S. Department of Housing and Urban Development ("HUD") and the Department of Justice ("DOJ") recently released a joint statement providing guidance on the disability and accessibility requirements of the Fair Housing Act (the "Act") for condominiums and multifamily housing.
In general, the accessibility requirements of the Act cover the design and construction of condominiums and other multifamily housing developments with more than four units. In covered developments with no elevators, all ground floor units and all common areas must comply with the Act. In covered developments with at least one elevator, all units and common areas must comply.
The joint statement could signal stricter interpretation and stricter enforcement efforts by HUD and DOJ. For example, among the questions addressed in the joint statement is whether a buyer of a unit covered by the Act could have the builder customize the unit to eliminate accessibility features required by the Act. HUD and DOJ state that a buyer may not modify his or her unit such that it does not meet the Act's requirements, either before or after completion of construction. As the Fair Housing Act places restrictions on the design of kitchens, bathrooms, living rooms, bedrooms, lofts and other living areas, HUD and DOJ interpretation of the Act signals permanent, significant restrictions on a buyer's ability to modify his or her unit.
The joint statement also addressed who can be sued for non-compliance with the Act. HUD and DOJ assert that any person or entity involved in the noncompliant design and construction of buildings may be held liable for violations of the Act. This includes development companies, homeowners associations, property management companies, subsequent owners of a property, or even individual owners or occupants of violating units when they must be involved to provide authority to correct the violations.
Other topics in the joint statement include accessibility route design, when townhouses must comply with the Act, whether buildings on slopes may have multiple ground floors that must comply with the Act, exemptions from compliance, and "safe harbors" that ensure compliance.