By Tracy M. Evans, Esq., Associate, Saxon Gilmore & Carraway, P.A.
Published in FAHROgram September/October 2017
All housing providers, both private and public, should be aware of the laws protecting the rights of the disabled, including which laws may apply to the providers’ properties. Ensuring compliance with disability rights laws can be difficult, especially when these laws are commonly misapplied by auditors, inspectors and regulatory agencies. This article distinguishes between the three federal disability laws, the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act (Section 504), to help housing providers determine which laws may apply to their properties, and to provide information on key provisions of each law. Rather than providing an exhaustive list of requirements under the ADA, the FHA and Section 504, this article provides a general overview of each law as applied to housing providers.
Americans with Disabilities Act
The ADA prohibits discrimination and ensures equal opportunity, including equal access and equal accessibility, for all persons with disabilities in employment, state and local government services, public accommodations, commercial facilities and transportation. In general, the ADA’s physical accessibility requirements apply only to places of public accommodations, such as restaurants, retail stores, office buildings and hotels, to name a few. Residential housing units are generally not considered public accommodations unless the housing is provided or made available by a public entity. A public entity under the ADA includes any state or local government and any of its departments, agencies or other instrumentalities, and in Florida, includes public housing authorities. Housing provided or made available by a public entity must meet the ADA’s requirements for accessibility.
To the extent that a housing provider’s property includes areas of public accommodations, these areas are required to meet the ADA accessibility standards, regardless of whether the property is owned by a public entity. Examples of public accommodation areas include a leasing office, parking areas and common use areas, to the extent that these areas are accessible to the general public. To ensure compliance with the ADA, all housing providers, both public and private, should determine whether their properties contain any elements that may be considered public accommodation areas, and review the ADA standards to determine whether any modifications are necessary to make these areas equally accessible.
Fair Housing Act
The FHA prohibits discrimination based on race, color, religion, sex, familial status, national origin and/or disability in the sale or rental of most housing. Discrimination based on disability includes the failure to comply with the design and construction requirements set forth in the FHA, the failure to make reasonable accommodations in rules and policies to accommodate a person with a disability and the failure to allow reasonable modifications to a dwelling unit necessary to accommodate a person with a disability. The FHA applies to both private and public housing with very few exceptions, regardless of whether the unit is for rent or sale.
Under the FHA, housing units located in a building with four or more units and built for first occupancy after Mar. 13, 1991, must meet the FHA accessibility requirements. Property providers of housing units built prior to Mar. 13, 1991, are not required to retroactively bring units into compliance, but are required to make reasonable access-related modifications to private living spaces and common use spaces if requested by a renter or a buyer with a disability.
The FHA also requires housing providers to make reasonable accommodations in their policies and operations for people with disabilities. For instance, a disabled person needing a service animal may request a reasonable accommodation to allow the animal to live in the property, despite a “no pets” policy. In evaluating whether a requested accommodation or modification is necessary, the housing provider is entitled to obtain verification of the disability, if it is not obvious or otherwise known to the housing provider. Verification can come from a number of sources including the requesting individual, a peer support group or a reliable third party. Medical records or detailed information about the disability are generally not necessary for verification.
A housing provider may refuse a request for a reasonable accommodation if there is no disability-related need for the accommodation, or if the accommodation is not reasonable in that it would impose an undue financial and administrative burden on the housing provider.
If a housing provider denies an unreasonable request, the housing provider should reach out to the requester to determine if there are alternative accommodations that could address the disability-related needs without causing undue burden on the housing provider.
Section 504, Rehabilitation Act
Section 504 prohibits discrimination on the basis of disability in any program or activity receiving financial assistance from a federal agency. Any housing provider receiving federal financial assistance for the construction, operation, renovation or purchase of property that is sold or rented is subject to Section 504. Each federal agency has its own set of Section 504 regulations that apply to its own programs, including the Department of Housing and Urban Development (HUD).
Under HUD’s Section 504 regulations, newly constructed or renovated projects containing five or more units require at least one unit or 5% of the units (whichever is greater) to be accessible to those with physical disabilities, and at least one unit or a minimum of 2% of the units (whichever is greater) to be accessible to people with hearing or vision disabilities. In addition, Section 504 requires common elements of covered properties to be fully accessible. Properties built prior to the implementation of Section 504 regulations are not required to be brought retroactively into compliance. However, as also required under the FHA, housing providers are required to meet reasonable accommodation requests made on or behalf of a disabled person, unless the accommodation will result in an undue financial and administrative burden or a fundamental alteration in the nature of the program, service or activity.
Whether the ADA, the FHA or Section 504 applies to a housing provider depends on a number of factors including the nature of the entity (private or public), whether the property contains components open to public access, whether the property is new construction or newly renovated and whether the housing provider receives federal funding. To help ensure compliance with these laws and other local laws that may apply, housing authorities should always consult legal counsel on any questions on the applicability of disability rights laws.
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