Requirements of the Fair Housing
Act in Multifamily Construction
The construction industry should
be aware of FHA requirements. Failure to design and construct
buildings covered by the FHA in accordance with its requirements
has resulted in significant penalties.
The Fair Housing Act prohibits discrimination by direct providers of housing,
such as landlords and real estate companies as well as other
entities based on race, color, religion, sex, familial status
and national origin. However, it is the provisions regarding
discrimination based on a handicap that can directly affect
those involved in the construction process. Generally, the
FHA applies to any building or structure that is occupied
as, designed as or intended for occupancy as a multifamily
residence. The FHA also applies to vacant land sold or leased
for such construction.
The FHA contains many accessibility and design requirements.
They include: public use and common use portions that are
readily accessible to and usable by handicapped persons; doors
designed to be sufficiently wide to allow passage by handicapped
persons in wheelchairs; an accessible route provided into
and through the dwelling; light switches, electrical outlets,
thermostats, and other environmental controls in accessible
locations; reinforcements in the bathroom walls to allow later
installation of grab bars; and usable kitchens and bathrooms
such that an individual in a wheelchair can maneuver about
Failure to comply with these requirements constitutes discrimination
under the FHA and subjects the violating parties to civil
penalties in an amount not exceeding $55,000 for the first
violation and in an amount not exceeding $110,000 for any
subsequent violation. Monetary damages may be awarded to aggrieved
persons and the court may award injunctive relief on a temporary
or permanent basis.
While recent increases in enforcement and education efforts
concerning the FHA have resulted in a greater awareness of
the act, those formerly and currently involved in the construction
of multifamily buildings should understand that the FHA applies
to any structures built in or after 1991. Enforcement efforts
may be brought by the Department of Housing and Urban Development,
private parties or the Department of Justice. When the Attorney
General has reasonable cause to believe that a pattern or
practice of discrimination is being engaged in or that any
group has been discriminated against to a degree that raises
an issue of general public importance, the Attorney General
may commence a civil action.
HUD adopted the Fair Housing Accessibility Guidelines to provide
builders and developers with technical guidance on how to
comply with the specific accessibility requirements of the
FHA. However, the DOJ has characterized compliance with these
guidelines as mandatory. Design professionals and builders
should be well versed as to guidelines and acceptable alternatives.
For example, compliance with the American National Standard
for buildings and facilities providing accessibility and usability
for physically handicapped people, commonly cited as "ANSI
A117.1," satisfies the requirements of the FHA.
The costs of retrofitting a multifamily building to fully
comply with the FHA are often prohibitive. When the DOJ brings
an action against an owner or developer, the contractors,
subcontractors and design professionals will almost certainly
be brought into the lawsuit. A resolution of the claims will
generally involve monetary payment and may include additional
requirements. For example, the DOJ has entered into consent
decrees requiring parties to agree that all future construction
projects will fully comply with the FHA. The DOJ may even
require the parties to provide a fund for aggrieved individuals
and former tenants and may require notice that the fund is
Due to issues surrounding exposure to damages, often the
main concern for defendants in an FHA action is minimizing
damages. However, contesting the claims may be a viable option
for certain parties and under certain facts. One practical
consideration is the manner in which the violations are classified.
Various industry and consumer groups as well as the DOJ publish
information concerning enforcement actions. From a public
relations perspective, taking a position that seeks to justify
or waive "discriminatory" practices may be detrimental,
or destructive, to a construction business.
Case law on such discriminatory practices is sparse because
of the recent enforcement of the FHA accessibility and design
requirements. This provides some latitude in formulating creative
defenses and arguments on behalf of all parties involved.