24 CFR Part 100—Supplement to Notice of Fair Housing Accessibility Guidelines: Questions and Answers about the Guidelines
Section 1: Dwellings Subject to the New Construction Requirements of the Fair Housing Act.
The issues addressed in this section concern the types of multifamily dwellings (or portions of such dwellings) designed and constructed for first occupancy after March 13, 1991 that must comply with the design and construction requirements of the Fair Housing Act.
1.1 Q. Are townhouses in non-elevator buildings which have individual exterior entrances required to be accessible?
A. Yes, if they are single-story townhouses. If they are multistory townhouses, accessibility is not required. (See the discussion of townhouses in the preamble to the Guidelines under Section 2--Definitions [Covered Multifamily Dwellings] at 56 FR 9481, March 6, 1991, or 24 CFR Ch. I, Subch. A, App. III.)
1.2 Q. Does the Fair Housing Act cover four one-story dwelling units that share common walls and have individual entrances?
A. Yes. The Fair Housing Act applies to all units in buildings consisting of four or more dwelling units if such buildings have one or more elevators; and ground floor dwelling units in other buildings consisting of four or more dwelling units. This would include one-story homes, sometimes called single-story townhouses, villas, or patio apartments, regardless of ownership, even though such homes may not be considered multifamily dwellings under various building codes.
1.3 Q. What if the single-story dwelling units are separated by firewalls?
A. The Fair Housing Act would still apply. The Guidelines define covered multifamily dwellings to include buildings having four or more units within a single structure separated by firewalls.
2.1 Q. If a building includes three residential dwelling units and one or more commercial spaces, is the building a covered multifamily dwelling under the Fair Housing Act?
A. No. Covered multifamily dwellings are buildings consisting of four or more dwelling units, if such buildings have one or more elevators; and ground floor dwelling units in other buildings consisting of four or more dwelling units. Commercial space does not meet the definition of dwelling unit. Note, however, that title III of the ADA applies to public accommodations and commercial facilities, therefore an independent determination should be made regarding applicability of the ADA to the commercial space in such a building (see the introduction to these questions and answers, which provides some background on the ADA).
3.1 Q. Are condominiums covered by the Fair Housing Act?
A. Yes. Condominiums in covered multifamily dwellings are covered by the Fair Housing Act. The Fair Housing Act makes no distinctions based on ownership.
3.2 Q. If a condominium is pre-sold as a shell and the interior is designed and constructed by the buyer, are the Guidelines applicable?
A. Yes. The Fair Housing Act applies to design and construction of covered multifamily dwellings, regardless of whether the person doing the design and construction is an architect, builder, or private individual. (See discussion of condominiums in the preamble to Guidelines under Section 2-- Definitions [Dwelling Units] at 56 FR 9481, March 6, 1991, or 24 CFR Ch. I, Subch. A, App. III.)
4.1 Q. If an owner adds four or more dwelling units to an existing building, are those units covered by the Fair Housing Act?
A. Yes, provided that the units constitute a new addition to the building and not substantial rehabilitation of existing units.
4.2 Q. What if new public and common use spaces are also being added?
A. If new public and common use areas or buildings are also added, they are required to be accessible.
4.3 Q. If the only new construction is an addition consisting of four or more dwelling units, would the existing public and common use spaces have to be made accessible?
A. No, existing public and common use areas would not have to be made accessible. The Fair Housing Act applies to new construction of covered multifamily dwellings. (See section 804(f)(3)(C)(i) of the Act.) Existing public and common use facilities are not newly constructed portions of covered multifamily dwellings. However, reasonable modifications to the existing public and common use areas to provide access would have to be allowed, and the Americans with Disabilities Act (ADA) may apply to certain public and common use areas. An independent determination should be made regarding applicability of the ADA. (See the introduction to these questions and answers, which provides some background on the ADA.)
5.1 Q...Would the first story of single-story dwelling units over the parking level be required to be accessible?
A. Yes. The Guidelines adopt and amplify the definition of ground floor found in HUD's regulation implementing the Fair Housing Act (see 24 CFR 100.201) to indicate that . . .where the first floor containing dwelling units is above grade, all units on that floor must be served by a building entrance on an accessible route. This floor will be considered to be a ground floor. (See definition of ground floor in the Guidelines at 24 CFR Ch. I, Subch. A, App. II, Section 2.) Where no dwelling units in a covered multifamily dwelling are located on grade, the first floor with dwelling units will be considered to be a ground floor, and must be served by a building entrance on an accessible route. However, the definition of ground floor does not require that there be more than one ground floor.
5.2 Q. If a building design contains a mix of single-story flats on grade and single-story flats located above grade over a public parking area, do the flats over the parking area have to be accessible?
A. No. In the example in the above question, because some single-story flats are situated on grade, these flats would be the ground floor dwelling units and would be required to be accessible. The definition of ground floor in the Guidelines states, in part, that ground floor means a floor of a building with a building entrance on an accessible route. A building may have one or more ground floors. . . Thus, the definition includes situations where the design plan is such that more than one floor of a building may be accessed by means of an accessible route (for an example, see Question 6, which follows). There is no requirement in the Department's regulations implementing the Fair Housing Act that there be more than one ground floor.
6.1 Q...do the dwelling units on both the first and second stories have to be made accessible?
A. Yes. By defining ground floor to be any floor of a building with an accessible entrance on an accessible route, the Fair Housing Act regulations recognize that certain buildings, based on the site and the design plan, have more than one story which can be accessed at or near grade. In such cases, if more than one story can be designed to have an accessible entrance on an accessible route, then all such stories should be so designed. Each story becomes a ground floor and the dwelling units on that story must meet the accessibility requirements of the Act. (See the discussion on this issue in Question 12 of this document.)
7.1 Q. Do the new construction requirements of the Fair Housing Act apply to continuing care facilities which incorporate housing, health care and other types of services?
A. The new construction requirements of the Fair Housing Act would apply to continuing care facilities if the facility includes at least one building with four or more dwelling units. Whether a facility is a dwelling under the Act depends on whether the facility is to be used as a residence for more than a brief period of time. As a result, the operation of each continuing care facility must be examined on a case-by-case basis to determine whether it contains dwellings. Factors that the Department will consider in making such an examination include, but are not limited to:
1. the length of time persons stay in the project;
2. whether policies are in effect at the project that are designed and intended to encourage or discourage occupants from forming an expectation and intent to continue to occupy space at the project; and
3. the nature of the services provided by or at the project.
8.1 Q. The Fair Housing Act applies to covered multifamily dwellings built for first occupancy after March 13, 1991. What is acceptable evidence of first occupancy?
A. The determination of first occupancy is made on a building by building basis. The Fair Housing Act regulations provide that covered multifamily dwellings shall be deemed to be designed and constructed for first occupancy on or before March 13, 1991 (and therefore exempt from the Act's accessibility requirements) if they are occupied by that date or if the last building permit or renewal thereof for the covered multifamily dwellings is issued by a State, county or local government on or before June 15, 1990.
For buildings that did not obtain the final building permit on or before June 15, 1990, proof of the date of first occupancy consists of (1) a certificate of occupancy, and (2) a showing that at least one dwelling unit in the building actually was occupied by March 13, 1991. For example, a tenant has signed a lease and has taken possession of a unit. The tenant need not have moved into the unit, but the tenant must have taken possession so that, if desired, he or she could have moved into the building by March 13, 1991. For dwelling units that were for sale, this means that the new owner had completed settlement and taken possession of the dwelling unit by March 13, 1991. Once again, the new owner need not have moved in, but the owner must have been in possession of the unit and able to move in, if desired, on or before March 13, 1991. A certificate of occupancy alone would not be an acceptable means of establishing first occupancy, and units offered for sale, but not sold, would not meet the test for first occupancy.
9.1 Q. If a building was used previously for a nonresidential purpose, such as a warehouse, office building, or school, and is being converted to a multifamily dwelling, must the building meet the requirements of the Fair Housing Act?
A. No, the Fair Housing Act applies to covered multifamily dwellings for first occupancy after March 13, 1991, and the Fair Housing Act regulation defines first occupancy as a building that has never before been used for any purpose. (See 24 CFR 100.201, for the definition of first occupancy, and also 24 CFR Ch. I, Subch. A, App. I.)
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