Federal Fair Housing accessibility requirements for new multifamily buildings should be written in building code language certified as Fair Housing compliant by the Department of Housing and Urban Development (HUD). HUD should be vigilant in compliance education and assistance as is NAHB. Use of Fair Housing Initiatives Program funding for enforcement actions should be curtailed. Any enforcement actions should be reasonable and reflect the lack of clear guidance available for complying with the Act.

Background

The Fair Housing Amendments Act of 1988 requires new multifamily buildings constructed for first occupancy after March 13, 1991 and consisting of four or more units to be accessible to disabled persons. HUD issued accessibility guidelines on March 6, 1991 and a supplementary design manual in August 1996 to provide guidance on complying with the law. But HUD's guidelines were poorly promulgated and not written in building code language, making it impractical for builders and local officials to define compliance, which has led to conflicting interpretations and inadvertent failures to meet certain requirements.

In response, building code language was cooperatively developed by NAHB, HUD, the International Code Council, and disability advocates and completed in May 2000. HUD has certified that the building code language satisfies the accessibility requirements of the Fair Housing Act and NAHB is promoting state and local adoption of the compliant code language. Federal promulgation of the requirements must still be intensified, however, if compliance is to be improved.

Addressing noncompliance of existing covered buildings (constructed for occupancy after March 13, 1991) remains contentious. Federally funded private advocacy groups and state and local housing agencies, HUD, and the Department of Justice are all actively involved in current enforcement actions and will continue to be. These actions are often threatening, based on questionably broad interpretations of federal requirements, fail to reflect the lack of compliance assistance at the time of construction, and divert resources that could otherwise be applied to more proactive solutions.

Solutions

Urge HUD to maintain compliance education as a priority and to actively participate in the building code amendment process to help ensure building code requirements are compliant with Fair Housing accessibility requirements. Further, urge HUD’s timely review of compliant building codes and approval of them as a safe harbor for compliance with Fair Housing accessibility requirements and to develop a more reasonable approach to addressing non-compliance.

Continue to support and actively participate in ongoing education and training efforts to inform builders about accessibility requirements under the Fair Housing Act.

Maintain NAHB’s Fair Housing Accessibility Education Accord with HUD as a demonstration of NAHB’s commitment to improving compliance through education and continue participation in HUD funded compliance initiatives.
Support the nationwide adoption of model accessibility building codes endorsed by HUD as providing a safe harbor for complying with the accessibility requirements of the Fair Housing Act.

Work with other interested groups, including building product manufacturers, disability advocates, real estate, and multifamily design and construction groups to promote education, outreach, and compliance with the accessibility requirements of the Fair Housing Act.

Urge HUD to prohibit the use of Fair Housing Initiatives Program funding for litigation.

Work with the Department of Justice to develop clear criteria for enforcing the accessibility requirements of the Fair Housing Act.

Support legislative or regulatory changes that would limit liability for industry members who were involved in the design and construction of non-compliant buildings due to a lack of clear guidance, and who made a good faith effort to meet the requirements of the law.