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This Week in Real Estate: The Fair Housing Act and Accessible Parking

The international markings for a handicapped parking stall in a parking lot.This week a client raised the issue of accessible parking in housing settings, like apartments and condominiums, so this week’s edition of This Week in Real Estate focuses on the accessible parking requirements and regulations in the Fair Housing Act (“FHA”). It’s important to first note that the requirements of the FHA differ from the requirements of the Americans with Disabilities Act (“ADA”).

First, the ADA rarely applies to parking areas for residents in housing sites, unless the site falls under Title II of the ADA, where state and/or local government funding is involved in the project. The ADA would apply to a parking area on a residential site that is considered a place of public accommodation (i.e. a leasing office in an apartment complex or another space open to the public). If a place of public accommodation is located on a residential site, like a leasing office, the parking area that serves the leasing office is required to comply with the ADA Standards for parking. For both public and privately owned and developed sites, like apartments and condos, FHA likely applies. The FHA accessibility guidelines apply to sites that contain buildings consisting of four or more dwelling units if the buildings have one or more elevators; and ground floor dwelling units in other buildings consisting of four or more dwelling units.

According to the FHA’s design and construction requirements, a minimum of two percent of the number of parking spaces serving dwelling units governed by the FHA must be made accessible and they must be located on an accessible route. In addition, if different types of parking are offered, for example, surface parking, garage parking, or covered parking spaces, a sufficient number of each type must be made accessible, in order to provide parking options for residents with disabilities. While the total number of spaces required to be accessible is only two percent, at least one space for each type of parking must be made accessible, even if this number exceeds two percent.

It is important to note that in addition to the design and construction requirements for accessible parking above, the FHA requires that landlords and owners make what are known as reasonable accommodations for residents with disabilities. A specific example of a reasonable accommodation is the need for a parking space that is located closest to a resident’s unit entrance. A resident may have a right under the FHA to file a request for a reasonable accommodation in the form of a reserved parking space with the landlord or condominium, if needed because of the disability.  In this case, a parking spot can be assigned to a specific unit or unit owner or designated as reserved. However, a parking spot that is designated as a handicapped spot cannot be so assigned.  Those parking spaces designated as handicapped are required to be available to anyone who so needs them.

Questions regarding the FHA and ADA are often complicated.  If someone manages or controls residential units that are covered by either the FHA or ADA, they should consult with the United States Department of Housing and Urban Development or their jurisdiction’s equivalent or an attorney who is versed in this area.

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Jim Landon has practiced real estate law since 2002 and has been involved in real estate investment and construction for most of his life. Jim’s practice focuses on real estate transactions and land use.

Jim represents individuals and privately and publicly held companies in the purchase, sale, leasing, financing, and development of real property. He also represents title insurance companies on commercial purchases and refinancing transactions, as well as providing third-party legal opinions regarding Delaware law related to Delaware entities.







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