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Frequently Asked Questions (FAQs)


AMERICANS WITH DISABILITIES ACT

Do any accessibility requirements apply to detached single-family homes?

Detached single family homes that are funded in any way by federal, state, or local funds may be required to be accessible under laws other than the Fair Housing Act. These laws, particularly Section 504 of the 1973 Rehabilitation Act and Title II of the Americans with Disabilities Act, have requirements for accessibility. For example, detached single family houses funded through the HOPE VI program operated by the Department of Housing and Urban Development (HUD), whether for sale or rental, must comply with HUD's requirements for Section 504. This includes making at least 5% of the units accessible to persons with mobility impairments and at least 2% of the units accessible to persons with vision and hearing impairments. The applicable standard for compliance is the Uniform Federal Accessibility Standard or UFAS.

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Are the public and common use areas of a newly constructed development that consists entirely of buildings that have no covered dwelling units required to be accessible under the Fair Housing Act?

If there are no covered multifamily dwellings on a site, then the public and common use areas of the site are not required to be accessible under the Fair Housing Act. Supplement to Notice of Fair Housing Accessibility Guidelines: Questions and Answers about the Guidelines, 59 FR 33362-33368, June 28, 1994, question 13.

However, the Americans with Disabilities Act (Title III) may apply to certain areas that serve the public. The Americans with Disabilities Act (Title II) may apply to housing that is operated by public entities such as state or local governments. Section 504 of the 1973 Rehabilitation Act may apply to public and common use areas of properties that are operated by entities that receive federal financial assistance. An independent determination should be made regarding whether or not the ADA or Section 504 may apply and require accessibility when the Fair Housing Act does not apply.


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If the Americans with Disabilities Act Accessibility Guidelines (ADAAG) and the Fair Housing Act requirements both apply to the same property, which standard should be used?

Title III of the ADA, in relevant part, applies to commercial facilities and public accommodations. Inns, hotels, motels, and other places of lodging are public accommodations under Title III of the ADA, as are dormitories, homeless shelters, nursing homes, and some timeshares. See 28 CFR 36.104. In addition, the common areas that are for public use at "covered multifamily dwellings" under the Act must meet the ADA Standards for Accessible Design (ADA Standards). For example, a rental office in a multifamily residential development or a convenience store located in that development would be covered under Title III of the ADA. 28 CFR 36.104. Common use areas that are for use only by the residents and their guests would not be covered by the ADA.

The Fair Housing Act's design and construction requirements do not preempt the ADA and in those cases where a development is subject to more than one accessibility standard, the laws and the standards must be read together and followed together.

There are certain properties, or portions thereof, that are covered by both the Act and Title II and/or Title III of the ADA. These may include certain timeshares, dormitories, residential hotels, boarding houses, nursing homes, homeless shelters, congregate care facilities, public use portions of private multifamily dwellings, and public housing. These properties must be designed and built in accordance with the accessibility requirements of both the Act and the ADA. In addition, to the extent that the requirements of these various laws overlap, the more stringent requirements of each law must be met, in terms of both scoping and technical requirements.

In the preamble to its rule implementing Title III, DOJ discussed the relationship between the requirements of the Fair Housing Act and the ADA. The preamble noted that many facilities are mixed use facilities. For example, a hotel may allow both residential and short term stays. In that case, both the ADA and the Fair Housing Act may apply to the facility. The preamble to the Title III rule also stated that residential hotels, commonly known as "single room occupancies," may fall under the Fair Housing Act when operated or used as long term residences, but they are also considered "places of lodging" under the ADA when guests are free to use them on a short term basis. The preamble also discussed a similar analysis with respect to homeless shelters, nursing homes, residential care facilities, and other facilities where persons may reside for varying lengths of time. The preamble concluded that such facilities should be analyzed separately under both the Fair Housing Act and the ADA. 56 FR at 3551-52.


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What are the federal access requirements for rental offices?

(a) Are rental offices required to be accessible under the Fair Housing Act?

Rental offices serving buildings that are covered by the design and construction requirements of the Fair Housing Act must comply because they are public and common use areas.

(b) What requirements apply to rental offices that are not covered by the Fair Housing Act's design and construction requirements?

If the buildings are not covered by the Fair Housing Act's design and construction requirements (for example, because they were built for first occupancy before March 13, 1991), the Fair Housing Act's general requirements of non-discriminatory treatment and reasonable accommodations apply. If a rental office is not accessible, a person with a disability must still be accommodated.

In addition, rental offices that serve the public must comply with the access requirements of the ADA, Title III (that is, if they are constructed for first occupancy after January 26, 1993), they must be constructed to comply with ADAAG; if constructed before that date, architectural barriers must be removed if doing so is "readily achievable." 36 U.S.C. 36.401.

A housing provider is covered by Section 504 of the 1973 Rehabilitation Act if the provider is a recipient of federal financial assistance. Section 504 requires that "programs and activities" such as a rental office be accessible. When physical accessibility cannot be provided, access to rental office services must be made available in some other way.

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A resident of a condominium is deaf and needs a sign language interpreter to interpret Homeowner Association (HOA) meetings that affect the resident's legal and/or financial obligations as a homeowner. Does the HOA have an obligation to provide and pay for a sign language interpreter?

A request for a sign language interpreter falls under the reasonable accommodation requirements of the Fair Housing Act. If a person requires a sign language interpreter in order to participate in important decision-making activities at a HOA meeting affecting their legal rights or financial obligations as a homeowner, then a request for provision of a sign language interpreter as a reasonable accommodation may be made. If the request is found to be an undue financial and administrative hardship, an interactive process should be engaged in between the parties to develop an agreed upon strategy to provide an effective alternative means of enabling the homeowner to participate in the Homeowner's Association meetings and protect his/her legal and financial rights. If the provision of a sign language interpreter is not a financial and administrative hardship, the HOA should provide and pay for the services.

A potential purchaser, who has a hearing disability, of a single-family house from a developer requires a sign language interpreter in order to communicate with construction staff during construction of the house. Does the Fair Housing Act require the builder/developer to provide and pay for the interpreter service?

A request for a sign language interpreter falls under the reasonable accommodation requirements of the Fair Housing Act. If a person with a hearing disability needs an interpreter in order to participate in critical stages of a construction activity, a request for a reasonable accommodation may be made. Interpreter services should be provided and paid for by the builder/developer unless providing them constitutes an undue financial and administrative burden. If the request for an interpreter is an undue financial and administrative hardship for the builder or developer, the parties should enter into an interactive process to develop a communication strategy that will provide a meaningful exchange of necessary information between the person with a disability and the builder. Alternative solutions could entail establishing a regular meeting to be held for several hours every two weeks, at which the builder provides interpretative services. Communications of a brief or interim nature could then be handled through a TTY relay system telephone call. The Americans with Disabilities Act likely also applies to this situation, as the builder is serving the public in the context of selling a commodity, and thus the right to request a reasonable accommodation also extends from the ADA.

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