Fair Housing Act Accessibility: Examples of Covered Multi-Family Dwellings

As litigation over Fair Housing Act (FHA) design and construction accessibility requirements continues to increase around the country, we are getting more and more questions about what kinds of multi-family housing are, in fact, subject to these requirements.

To start with, the accessibility design and construction requirements apply to all buildings built for first occupancy after March 13, 1991, that fall under the definition of "covered multifamily dwellings (CMFDs)". CMFDs are:

1. all dwelling units inside buildings that have one or more elevators if there are at least four dwelling units in the building, and
2. all ground floor dwelling units in buildings without an elevator that have at least four dwelling units.

If a dwelling unit falls into one of the above two categories, it is a CMFD. This is true regardless of whether it is an apartment, condominium, townhouse, vacation timeshare unit or college dormitory.

Continuing care retirement facilities (CCRCs) (a fast-growing sector in our aging society) are covered even if they include health care facilities, providing that the CCRC has at least one building with four or more dwelling units ---- but there is a nuance here. To be a "dwelling" under the FHA, the unit must be intended to be used as a residence for more than a brief period of time. It is possible, therefore, for some units in a CCRC to be deemed CMFDs while others are not. While this nuance might be useful to a CCRC encountering an accessibility challenge, certainly the safest approach would be to design and construct each unit about which there could be a question as if it were a CMFD. (This entry posted by Karen Estelle Carey, a member of the Real Estate and Construction practice.)