PART I

“My new apartment project isn’t receiving any Federal money, so we’re not required to comply with the Fair Housing Act (FHA).” This is one of the most common things I hear, when I mention to individuals that their new apartment project is subject to FHA requirements regarding accessibility. It represents one of the biggest misconceptions that can result in significantly increasing the projects exposure to an FHA complaint and a possible lawsuit.

FHA and Privately Funded Apartment Projects

For new, privately funded projects (with four or more units) that are NOT receiving a penny of Federal money or any kind of Federal “assistance”, they are still required to comply with the FHA requirements regarding accessibility. In the case of privately funded apartment projects, the purpose of the FHA is to prevent discrimination because of race, color, national origin, presence of children, sex, and disability for individuals renting housing. It has nothing to do with whether or not the project is receiving Federal money or assistance. The FHA is a Federal program to end discrimination in the entire, overall rental housing market.

How Many Apartment Units in a Project Must Comply?

For a new apartment project (with four or more units), this number will vary, given a number of factors, that are beyond the limits of this blog post to explain. The site layout, unit configuration, and use of elevators can result in a number of permutations with both units required to comply AND units NOT required to comply.

Here is a very general list of “dwelling unit” types (and portions thereof) that are NOT  “covered” by the FHA (hence the FHA term, “covered” units) and are exempt from complying with the FHA requirements for accessibility:

• Unit: Townhomes (given several important caveats)
• Unit: Carriage Houses (given an important caveat)
• Unit: Multistory dwelling units (individual units, 2 stories or more), located in a building without elevators
• Unit: Units on stories other than the ground floor, for buildings with some “covered” units on the ground floor and without elevators (given several important caveats)
• Unit: Units claiming an exemption based on site impracticality
• Unit: Units claiming an exemption based on a site with unusual characteristics (flood plain/coastal high hazard area, given several important caveats)
• Portion of a Unit: Additional stories of a multistory dwelling unit that are NOT on the story of the primary entry to the unit, AND where the unit is located in a building with elevators (given several important caveats)
• Portion of a Unit: The “loft” level or any sunken or raised area of a single-story dwelling unit (given a number of very important caveats)
• Portion of a Unit: The garage for units with an attached garage where the garage is used by the resident of that unit (given several important caveats)

Units claiming exemption because of site impracticality (typically topography) should be particularly careful when making this assessment. The Fair Housing Act Design Manual provides information regarding the various tests that must be performed to verify and validate that the units, indeed meet the criteria for exemption. If you should need assistance with these tests, please contact the Safranek Group. We have expertise in administering these tests and are very familiar with the specific requirements and protocols.

Summary

For new apartment projects, just because your project isn’t receiving Federal “assistance” (READ: money), it doesn’t mean that your project doesn’t have to comply with the FHA requirements for accessibility. Yes, there are specific circumstances where compliance with these requirements is not necessary. Knowing where those circumstances occur, is critical, when claiming exemption from those FHA requirements.

If by now, you’re asking yourself, “Why should I care if my project complies with FHA or ADA?” See Part II (soon to follow) and learn more about some big myths regarding FHA and ADA compliance for new apartment projects (and other projects, in general).