24 CFR Part 100—Fair Housing Accessibility Guidelines, Preamble

II. Statutory and Regulatory Background

Title VIII of the Civil Rights Act of 1968 makes it unlawful to discriminate in any aspect relating to the sale, rental or financing of dwellings, or in the provision of brokerage services or facilities in connection with the sale or rental of a dwelling, because of race, color, religion, sex or national origin. The Fair Housing Amendments Act of 1988 (Pub.L. 100-430, approved September 13, 1988) (Fair Housing Act or the Act) expanded coverage of Title VIII (42 U.S.C. 3601-3620) to prohibit discriminatory housing practices based on handicap and familial status. As amended, Section 804(f)(3)(C) of the Act provides that unlawful discrimination includes a failure to design and construct covered multifamily dwellings for first occupancy after March 13, 1991 (30 months after the date of enactment) in accordance with certain accessibility requirements. The Act defines "covered multifamily dwellings" as "(a) buildings consisting of 4 or more units if such buildings have one or more elevators; and (b) ground floor units in other buildings consisting of 4 or more units" (42 U.S.C. 3604).

The Act makes it unlawful to fail to design and construct covered multifamily dwellings so that:

(1) Public use and common use portions of the dwellings are readily accessible to and usable by persons with handicaps;

(2) All doors within such dwellings which are designed to allow passage into and within the premises are sufficiently wide to allow passage by persons in wheelchairs; and

(3) All premises within such dwellings contain the following features of adaptive design:

     (a) An accessible route into and through the dwelling;

     (b) Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations.

     (c) Reinforcements in bathroom walls to allow later installation of grab bars; and

     (d) Usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

The Act provides that compliance with (1) the appropriate requirements of the American National Standard for Buildings and Facilities--Providing Accessibility and Usability for Physically Handicapped People (commonly cited as "ANSI A117.1"), or (2) with the laws of a State or unit of general local government, that has incorporated into such laws the accessibility requirements of the Act, shall be deemed to satisfy the accessibility requirements of the Act. (See Section 804(f)(4) and (5)(A).) The Act also provides that the Secretary of the Department of Housing and Urban Development shall provide technical assistance to States and units of local government and other persons to implement the accessibility requirements of the Act. (See Section 804(f)(5)(C).)  

Congress believed that the accessibility provisions of the Act would (1) facilitate the ability of persons with handicaps to enjoy full use of their homes without imposing unreasonable requirements on homebuilders, landlords and non-handicapped tenants; (2) be essential for equal access and to avoid future de facto exclusion of persons with handicaps; and (3) be easy to incorporate in housing design and construction. Congress predicted that compliance with these minimal accessibility design and construction standards would eliminate many of the barriers which discriminate against persons with disabilities in their attempts to obtain equal housing opportunities. (See H.R. Rep. No. 711, 100th Cong. 2d Sess. 27-28 (1988) ("House Report").)

The Fair Housing Act became effective on March 12, 1989. The Department implemented the Act by a final rule published January 23, 1989 (54 FR 3232), and which became effective on March 12, 1989. Section 100.205 of that rule incorporates the Act's design and construction requirements, including the requirement that multifamily dwellings for first occupancy after March 13, 1991 be designed and constructed in accordance with the Act's accessibility requirements. The final rule clarified which multifamily dwellings are subject to the Act's requirements. Section 100.205 provides, in paragraph (a), that covered multifamily dwellings shall be deemed to be designed and constructed for first occupancy on or before March 13, 1991, 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 January 13, 1990. The Department selected the date of January 13, 1990 because it is fourteen months before March 13, 1991. Based on data contained in the Marshall Valuation Service, the Department found that fourteen months represented a reasonable median construction time for multifamily housing projects of all sizes. The Department chose the issuance of a building permit as the appropriate point in the building process because such permits are issued in writing by governmental authorities. The issuance of a building permit has the advantage of being a clear and objective standard. In addition, any project that actually achieves first occupancy before March 13, 1991 will be judged to have met this standard even if the last building permit or renewal thereof was issued after January 13, 1990 (55 FR 3251).

Section 100.205 of the final rule also incorporates the Act's provisions that compliance with the appropriate requirements of ANSI A117.1, or with State or local laws that have incorporated the Act's accessibility requirements, suffices to satisfy the accessibility requirements of the Act as codified in ?100.205 [sic]. In the preamble to the final rule, the Department stated that it would provide more specific guidance on the Act's accessibility requirements in a notice of proposed guidelines that would provide a reasonable period for public comment on the guidelines.