Common Misconceptions Regarding Accessibility at LIHTC Properties

Contact: Jeff Augello
AVP, Association Counsel
(202) 266-8490

By Greg Proctor, Windsor Compliance

Let’s start out by blowing away the most common misunderstanding about accessibility at LIHTC properties. They do not have ADA units. Zero. Zip. Zilch. When people want to talk about their ADA units, that’s your signal that they do not have an understanding of accessibility laws.

The Americans with Disabilities Act (ADA) applies to public accommodations. Dwelling units are not public accommodations. Hotel rooms, restaurants, convention centers and the like are public accommodations. While the ADA regulations refer to dwelling units, they are referring not to Low-Income Housing Tax Credit (LIHTC) units, but to publicly owned accommodations such as dormitories and married student housing at public universities.

The ADA was signed into law in 1991 and while it does apply to LIHTC properties, it does not apply to the dwelling units. All areas of public accommodation must be fully accessible. Public areas at an LIHTC property include the rental office. A community room might fall under ADA if it is available to more than the residents and their guests (i.e. used for town meetings or leased out).

The ADA also applies to the parking areas at leasing offices. The act requires that a certain percentage (1/8) of the accessible parking spaces be van accessible. The access aisle for a van-accessible space is required to be 96 inches or 8 feet wide. Standard accessible spaces have to be 60-inches or 5-feet wide. You are also required to have “Van Accessible” signage at the space. If you do not have a van-accessible space at your property, chances are darn good that you are out of compliance. A Fair Housing tester needn’t get out of the car at your property to determine that you are not abiding by Fair Housing laws.

Another common misconception is that Section 504 of the Rehabilitation Act of 1973 applies to your property if you have a government subsidy. While parts of Section 504 are going to apply to you, they do not necessarily apply to your property as built. The design requirements of Section 504 were implemented for newly constructed rural development properties in 1982 and for HUD properties in 1988. Properties built under these programs prior to those dates are not required to provide 5% fully accessible units and 2% hearing and visually impaired units. Properties constructed before those dates are encouraged to provide 5% fully accessible units during renovation/rehabilitation/repair.

Section 504 also requires that common areas be fully accessible. If a property was built prior to the implementation dates, the owner is under no obligation to make the dwelling units or common areas accessible. Fair Housing laws do require an owner to make reasonable accommodations or modifications if requested by an applicant or a resident. So even though an owner is not required to make wholesale changes to a property, it is likely that he will have to make changes due to a reasonable request by an applicant or resident.

Another misunderstanding is the difference between accessible units and adaptable units. The Fair Housing Amendments Act of 1988 (FHAA) added disability and familial status as federally protected classes. FHAA requires that buildings built after 3/13/91 be constructed with seven specific design features, and to be adaptable. All ground-floor units and all units in elevator buildings must be adaptable. All common areas must also be completely accessible, just as they are under Section 504.

The seven design features of these adaptable units allow an owner to quickly adapt a unit if someone with a physical disability needs accessible features. For example: An adaptable unit has reinforced walls at the toilets and tub/showers to accommodate the installation of grab bars if needed by the resident, while a fully accessible unit has those grab bars already installed. Another interesting twist is that townhouses (or units with living spaces on multiple floors) are not covered by these regulations (unless the building they are in has an elevator).

It is quite common for auditors, inspectors and regulatory agencies to misapply each of these laws. Owners will sometimes find themselves with findings of noncompliance due to the misinterpretation of the regulations and will spend thousands of dollars correcting the noncompliance. It is essential for the owner and manager of a LIHTC property to understand which regulations apply to their property by understanding when the property was built and whether there is some sort of regulatory requirement or federal subsidy. Understanding those requirements will help reduce the risk of Fair Housing lawsuits and will provide a properly accessible property to the residents and their guests.

Greg Proctor and his company, Windsor Compliance, provide tax credit compliance and monitoring to property management companies throughout the country, assisting them in the initial certification of tax credit units, repairing files in noncompliance, developing procedures for proper tax credit management and monitoring for ongoing compliance. Windsor also develops accessibility plans to assist owners and managers in keeping their properties in compliance with federal regulations and mandates.