Complex Issues in Fair Housing and Individuals with Disabilities


Thursday, November 11, 2021
2:00 PM - 3:30 PM Eastern Time Zone

Description

This legal webinar will focus on some of the more complex issues under the Fair Housing Act (FHA) and related ADA/504 laws. Topics will include Service Animals and Emotional Assistance Animals, tenant release from a lease due to disability, elevators in disrepair, student dormitory issues, accessible parking, and other topics as time permits. Review and discussion will include any significant FHA-related case law and HUD/DOJ Settlement Agreements and Conciliations.

Continuing Education Recognition Available

Certificate Credit hours
ACTCP 1.5
Certificate of Attendance 1.5

Speakers:

Diego, JD Demaya, Legal Specialist, Southwest ADA Center at ILRU

Questions for presenters:

1 If the Owner/Developer provides electric vehicle charging parking spaces do some of these have to be accessible? Is there a difference between a EV Charging Station vs. a EV Parking space, and would 1 EV Charging Station comply (where a person can only stay 1-4 hrs and then req'd to move car)? Is it better to provide online registration for the parking space/charging station for a certain duration of hours and would that comply vs. a dedicated accessible EV parking space?
2 To follow up on question 1: For FHA compliance, is the EV charging stations (EVCS) classified as a common-use amenity (shared by all residents using rules) (required to be accessible) or is a "type of parking" that is also required to be accessible by FHA design and construction requirements? What about condo and apartment projects that "bundle" the parking spaces with the units and there are some, parking spaces with EVCS, but not all of them have it? What if resident with functional needs in a unit that has bundled parking space that doesn't have an EVCS and wants one...will building management have to provide them with an accessible parking space with an accessible EVCS...on the shortest accessible route to the accessible building entrance?
3 For both apartments and condominiums, particularly where there is limited parking and it is "bundled" with the unit, what if the number of individuals requesting accessible parking exceeds the number of available accessible parking spaces?
4 For apartments and condos, what about circumstances where multiple common-use elements are provided, that were not scoped by ANSI A117.1-1986 in The Guidelines and Fair Housing Act Design Manual (FHADM), or any of the other potential "safe harbors" for FHA compliance, such as 2000-2018 editions of the IBC and its accompanying accessibility standard ICC A117.1 (1998-2009). For example: An apartment project built in 2001, subject to the 2000 IBC and FHA (using the FHADM and ANSI A117.1-1986 as its safe harbors for FHA compliance), has resident storage "pens", however it does not have any accessible resident storage pens (even though 2000 IBC in section 1108.8 required it). In this type of circumstances, does item 9 on paged 2.12. of the FHADM mandate that accessible storage units be provided, such a minimum of 5% of resident storage pens? Would this be similar at other common-use elements that aren't addressed in the IBC and FHADM?
5 For apartment and condo projects, what about accessibility requirements for operable windows at common-use areas, where residents are allowed to operate the window? Technically, per any of the FHA approved "safe harbors" (notably The Guidelines, Fair Housing Act Design Manual, ANSI A117.1 1986, ICC A117.1-2003, ICC A117.1-2009, and 2000-2018 editions of the IBC) operable windows at common-use areas required to be accessible. Most importantly, this includes window hardware with a maximum operating force of 5 lbs. This is impossible and was identified as such by the window manufacturers when it came to the operability requirements for operable windows providing ventilation in Type 'A' units in the 2003 edition of ICC A117.1 (for IBC compliance). Because of the outcry from the window manufacturers, the 5 lb. requirement was eliminated in the 2009 edition of ICC A117.1 for Type 'A' unit windows....but not for windows at common-use areas.
6 Could someone please provide a list or provide a link to some location that can provide clear guidance on exactly what HUD programs represent a form of "government assistance" triggering compliance with section 504? This is very, very challenging! See my follow up question.
7 Does Section 504 or other Federal accessibility statutes apply to Low Income Housing Tax Credits (LIHTC) administered by the IRS. According to some documentation it appears that IRS has stated that tax credits are not a form of "federal financial assistance". However, many states have Housing Finance Agencies (HFAs) that are quasi government entities administering programs for the LIHTC. Given this, would the LIHTC programs or any program offered by HFAs be subject to ADA Title II? In 42 USC Subchapter II-Public Services, 12131(1) a public entity is identified in item (B) as "any department, agency, special purpose district, or other instrumentality of a State or States or local government...". Do HFAs represent an "instrumentality" of a State government, therefore effectively being a Public Entity, subject to ADA Title II?
8 Note that the previous question about windows in common-use areas would also be applicable to public-use areas in apartments and condos, such as a leasing office/welcome center with operable windows. So the previous question about windows also applies to the ADA. Per the scoping and technical requirements found in the 2010 ADA Standards, operable windows at areas for residents/resident guests/prospective residents (think lobby/welcome area) where these individuals are allowed to operate the windows, would be required to comply with the technical standards for windows found in the 2010 ADA Standards. Would you agree with this?
9 If, Under the Uniform Residential Landlord Tenant At (URLTA), a landlord has a preexisting duty to maintain, repair, and keep safe the common areas, and a tenant asks for repairs of these common areas because of a disability, would this really be considered a modification, or an accommodation, considering the landlord already had a duty? Or would a request for an accommodation only compound the duties on the landlord?
10 If a multifamily-residential complex have a commercial area and the master deed does not describe any limitations to access and use communal/recreational areas, all ADA requirements must be over imposed to the FHA requirements, right?!
11 If a multifamily-residential complex have a commercial area and the master deed does not describe any limitations to access and use communal/recreational areas, all ADA requirements must be over imposed to the FHA requirements, right?!

Session Questions

This session is accepting questions from registered users. After you have registered to participate in this session you can submit your questions on your Account Manager page. Please note: the number of questions will be limited and submissions will be closed well before the session starts to provide time to prepare answers.