Have the Fair Housing Act requirements for Design and Construction changed?
Yes, there has been a recent update to the FHA Design and Construction requirements. HUD has adopted 5 new safe harbors, the first update of safe harbors since 2005. Effective March 8, 2021 the following standards are considered safe harbors under the FHA in addition to the 10 currently existing safe harbors:
- 2009 edition of the International Code Council (ICC) Accessible and Usable Buildings and Facilities (ICC A117.1-2009) standard. This standard is a technical standard for the design of facilities that are accessible to persons with disabilities.
- The 2009, 2012, 2015 and 2018 editions of the International Building Code (IBC).
It should be noted that the new HUD guidelines point out that the IBC is a model building code and is not law. The IBC has been adopted and/or modified by various states and cities. The IBC safe harbor applied for FHA compliance must be the model version of the IBC, not a modified local IBC code.
As background, The Fair Housing Act (FHA) requires all covered multifamily dwellings designed and constructed for first occupancy after March 13, 1991 to be accessible to and usable by people with disabilities. The FHA requires seven basic requirements that must be met to comply with the access requirements of the Act. It cannot be assumed that design and construction compliance with local building codes is FHA compliant. There can be conflicts with local codes, new standards, and FHA requirements that create confusion, non-compliance, and possible removal and remediation of non-compliant FHA construction. Generally when there is a conflict between a FHA requirement and applicable local code, the most stringent requirement is required. However there can be conflicts in which neither requirement is more stringent than the other. HUD previously established 10 safe harbors to remedy conflicts. The safe harbor, once selected must be applied to the entire design and construction to establish FHA compliance. Following the requirements of the chosen safe harbor by the entire design and construction team will result in an FHA compliant project.