Providing accessible housing can help ensure equal housing opportunity for persons with disabilities and is required by law.
Several federal laws require that private and federally-assisted housing be accessible to persons with disabilities. These laws and their implementing regulations set out the requirements for physical accessibility:
Both privately owned and publicly assisted multifamily housing built for first occupancy after March 13, 1991, regardless of whether it is for sale or rental, must meet the design and construction requirements of the Fair Housing Act. In an elevator building with four or more units, all units must meet the Act’s design and construction requirements, and in a building without elevators, only ground-floor units must meet these requirements. Failure to design and construct covered multifamily housing in accordance with the requirements is illegal discrimination because of disability.
The design and construction requirements include accessible public and common use areas, doors that are wide enough to allow passage by people using wheelchairs, accessible routes into and through the units, accessible light switches, electrical outlets, and thermostats, reinforcements in bathroom walls for grab bars; and usable kitchens and bathroom.
To help builders and architects comply with these requirements, in 1991 HUD issued its Fair Housing Accessibility Guidelines. In 1994, the Department responded to questions on the Guidelines by issuing a Question and Answer Supplement to the Guidelines. In 1996, HUD provided further guidance on ways to design and construct housing that complies with the Fair Housing Act by issuing the Fair Housing Act Design Manual, which is filled with detailed illustrations and sample room designs. Additional guidance is available in the Joint Statement on Accessibility (Design & Construction) Requirements (April 30, 2013). HUD has designated the Fair Housing Act Accessibility Guidelines, when used in conjunction with the Question and Answer Supplement, the Fair Housing Act Design Manual, and other recognized standards as safe harbors for compliance with the Fair Housing Act accessibility requirements. For more information on the requirements and the seven safe harbors for compliance, visit Fair Housing Accessibility FIRST.
For more information on Reasonable Modifications under the Fair Housing Act, visit Reasonable Accommodations and Modifications.
Section 504 requires that recipients of federal financial assistance ensure that their programs and activities are readily accessible to and usable by individuals with disabilities.
As of July 11, 1988, newly-constructed housing and non-housing facilities must be designed and constructed to be readily accessible to and usable by persons with disabilities. In new construction multifamily housing projects, a minimum of 5 percent of the total dwelling units (or at least one unit, whichever is greater) must be made accessible for persons with mobility impairments. An additional 2 percent of the total units (or at least one unit, whichever is greater) must be made accessible for persons with hearing or vision impairments. In circumstances where greater need is demonstrated, HUD may prescribe higher percentages or numbers.
Physical accessibility requirements also apply to any alterations of existing housing and non-housing facilities. Under HUD’s Section 504 regulation, alterations include any change in a facility or a change to its permanent fixtures or equipment. If alterations are undertaken to a multifamily housing project that has fifteen or more units and the cost of the alterations is 75 percent or more of the replacement cost of the completed facility, this qualifies as “substantial alteration,” in which all of the new construction provisions of HUD’s Section 504 regulation apply.
All other alterations, to the maximum extent feasible, are required to be made accessible. If alterations of single elements or spaces of a dwelling unit, when considered together, amount to an alteration of a dwelling unit, the entire dwelling unit shall be made accessible. An example of when an alteration would amount to an alteration of an entire unit is when at least all of the following individual elements are replaced: (1) renovation of whole kitchens, or at least replacement of kitchen cabinets; (2) and renovation of the bathroom, if at least bathtub or shower is replaced or added, or a toilet and flooring is replaced; and (3) replacement of entrance door jambs. For all other alterations, each altered element must be made accessible, to the maximum extent feasible, until 5 percent of the total dwelling units are accessible. This means that 100 percent of the single elements being altered must be made accessible until 5 percent of the units are accessible. However, the Department strongly encourages a recipient to make 5 percent of the units readily accessible to and usable by individuals with mobility disabilities, since that will avoid the necessity of making every element altered accessible, which often may result in having partially accessible units which may be of little or no value for persons with mobility impairments. It is also more likely that the cost of making 5 percent of the units accessible up front will be less than making each and every element altered accessible.
Moreover, under Section 504, recipients must operate each existing housing program or activity receiving federal financial assistance so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. In order to achieve program access, a recipient may be obligated to make alterations to existing facilities. This program access obligation applies to all recipients of HUD funding. For additional information on program access, visit Section 504 Frequently Asked Questions.
Designated accessible units must be made accessible in accordance with HUD’s Section 504 architectural accessibility standards. The accessibility standard under HUD’s Section 504 regulation is the Uniform Federal Accessibility Standards (UFAS). Departures from particular technical and scoping requirements of UFAS by the use of other methods may be permitted where substantially equivalent or greater access to and usability is provided. HUD recipients may also use the 2010 ADA Standards for Accessible Design under Title II of the ADA, except for certain specific identified provisions, as detailed in HUD’s Notice on “Instructions for use of alternative accessibility standard,” published in the Federal Register on May 23, 2014 (“Deeming Notice”). This option exists until HUD formally revises its Section 504 regulation to adopt an updated accessibility standard. Refer to HUD’s Deeming Notice for more information.
Accessible units must be distributed throughout projects and sites and be available in a sufficient range of sizes and amenities so that a qualified individual with disabilities’ choice of living arrangements is, as a whole, comparable to that of other persons eligible under the same program. In addition, entities must take reasonable steps to maximize the utilization of accessible units by individuals with disabilities who need the accessibility features of the units. This includes establishing a process by which a unit would first be offered to a qualified individual with disabilities currently residing in a non-accessible unit in the same project or comparable projects, under common control, who requires the accessible features. If there are no such persons currently residing in the recipient's projects, the recipient shall then offer the unit to the next available qualified individual with disabilities on its waiting list, provided that the person requires the accessibility features of the unit.
These affirmative physical accessibility requirements are in addition to any structural changes that may be needed as a reasonable accommodation under Section 504. For more information, visit Reasonable Accommodations and Modifications and Section 504 Frequently Asked Questions.
Title II of the ADA covers housing provided or made available by public entities (state and local governments and special purposes districts). Title III of the ADA prohibits private entities that own, lease, and operate places of public accommodation from discriminating on the basis of disability and requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with established accessibility standards. Public accommodations at housing developments include any public areas that are open to the general public, such as a rental office. Public accommodations would also include, for example, shelters and social service establishments.
New construction and alterations must be designed and constructed in accordance with the 2010 ADA Standards for Accessible Design. Title II of the ADA also includes a program access requirement, while Title III of the ADA requires readily achievable barrier removal.
Please visit the Department of Justice ADA page for more information on the ADA, the Department of Justice’s implementing regulations at 28 C.F.R. part 35 (Title II) and part 36 (Title III), and application of architectural accessibility standards.
More information on Reasonable Accommodations / Modifications under the ADA is available here.
The ABA requires that buildings or facilities that were designed, built, or altered with federal dollars or leased by federal agencies after August 12, 1968 be accessible. Facilities that predate the law generally are not covered, but alterations or leases undertaken after the law took effect can trigger coverage. HUD ABA regulations require compliance with the Uniform Federal Accessibility Standards. Additional information on the ABA is available here.
Most entities are subject to more than one federal accessibility law and architectural standard in the operation of their housing services, programs, and activities. Here are some common examples in the housing context:
- A public housing agency receiving HUD funding and operating public housing and voucher programs may be subject to the Fair Housing Act, Section 504 as a recipient of federal financial assistance, and Title II of the ADA as a public entity.
- A private homeless shelter operator may receive HUD funding and therefore be subject to the Fair Housing Act as a provider of housing, Section 504 as a recipient of federal financial assistance, and Title III of the ADA as a private business operating a place of public accommodations.
- A City may receive HUD funding in its operation of its housing program, and therefore be subject to the Fair Housing Act, Section 504 as a recipient of federal financial assistance, and Title II of the ADA as a public entity.
In addition, state and local laws may also apply and provide for greater protections. Entities must be aware of all applicable laws and ensure that they and any subrecipients comply with such laws. This may require applying multiple federal accessibility laws and architectural standards, e.g., the Fair Housing Act accessibility guidelines, UFAS or HUD’s Deeming Notice, and the 2010 ADA Standards for Accessible Design, to ensure physical accessibility for individuals with disabilities. Additional state and local requirements may also apply.