2008-03-26, 10:47

Latest Regulatory Guidance Regarding Accomodations to Individuals with Disabilities

By: Multifamily Real Estate Industry Team
The attached link contains the latest regulatory guidance regarding accommodations to individuals with disabilities which are required in multi-family rental housing units governed by the Fair Housing Act Amendments, as well as those accommodations which are required of public accommodations under the Americans With Disabilities Act. We caution you that the recitation of legal requirements found in the HUD/Justice interpretations goes well beyond the actual language of the federal statutes upon which they rely; however, not all judges seem to be impressed with that distinction.

As a further cautionary note, many state and local building codes attempt to impose similar requirements on multi-family properties which are constructed primarily or exclusively for private ownership, such as condominiums. Not all of the state and local requirements have a sound foundation in enforceable legislation, but proceed on the theory that multi-family occupance by owners renders the properties "commercial" for regulatory purposes. Given the potential for properties to "revert" to rental status, as well as the potential for owners' renting their units, this regulatory attitude may have at least some basis in fact rather than simply representing an unwarranted expansion of power.

Nonetheless, vast discretion is given to the regulators in the interpretation and enforcement of the law, and special interest groups are likely to raise legal challenges even in situations in which governmental intervention is not forthcoming. When the expense of litigation is considered, it may be prudent to consider compliance with these broad interpretations rather than attempting a narrow approach since, based on a cost-benefit analysis, it can be more effective to avoid doing battle with those who have no concern for economic issues.

http://www.nmhc.org/Content/ServeFile.cfm?FileID=6206

(This entry published by Charlie Edwards, a member of Womble Carlyle's Labor and Employment group)

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