It may not be as sexy as a request for an assistance pig, or as routine as a request for grab bars, but one of the most important—and overlooked—parts of the Fair Housing Act is the design and construction guidelines. Indeed, some of the largest settlements and penalties issued by the DOJ over the past few years have been a result of alleged violations of the Fair Housing Act Design and Construction Guidelines. For example, in May 2013 the DOJ settled a case concerning violations of the Guidelines for a total of $925,000. This settlement arose out the defendants’ violations of the Guidelines in the design and building of multifamily housing complexes in Louisiana, Mississippi, and Tennessee.
The Design and Construction Guidelines apply to “covered” buildings built for first occupancy after March 13, 1991. For purposes of the Guidelines, “covered” multifamily dwellings are: 1) all units in buildings containing four or more dwelling units if such buildings have one or more elevators; and 2) all ground floor dwelling units in other buildings containing four or more units. In other words, if you own or manage a building with four or more units that was built after March 13, 1991, all of the ground floor units in non-elevator buildings are covered, and all units in an elevator building are covered. It should be noted, however, that to be a covered unit, all of the finished living space must be on the same floor—given this, multistory townhomes are not covered.
So what does it mean if the Design and Construction Guidelines apply to your building? Well, stated broadly, it means that the property must meet seven requirements. The property must have: 1) an accessible building entrance on an accessible route; 2) accessible and usable public and common use areas; 3) usable door; 4) accessible route into and through the covered dwelling unit; 5) light switches, electrical outlets, thermostats and other environmental controls in accessible locations; 6) reinforced walls for grab bars; and 7) usable kitchens and bathrooms. Clear as mud? Luckily HUD has issued a lengthy Fair Housing Act Design Manual that provides detailed specifications on compliance.
So what can you do? Well, if you already own or manage the property, understand that you may be at risk for a Fair Housing Act complaint. If you are purchasing the property—and despite the fact that there is some uncertainty over whether subsequent owners not involved in the construction of the property are liable for Design and Construction violations—I would recommend that, as part of your due diligence, you have a property evaluation report conducted that includes a Fair Housing Act Design and Construction compliance review.