What does the Fair Housing Act have to do with building codes?

If you follow our blog, you may already know that federal, and often state, law protects people from housing discrimination. The federal Fair Housing Act is the key law that is designed to provide fair housing throughout the United States. Other laws, like the Americans with Disabilities Act and the Rehabilitation Act, provide protections as well.

When it comes to assisted living and recovery homes, residents fall within a legally protected category because they are considered to have disabilities that impact one or more major life activities. In assisted living, it is their disabilities – not their age – that qualifies residents for special protection. In recovery homes, people recovering from addiction are also considered to be disabled.

Federal and state civil rights laws make it unlawful to discriminate against or “otherwise make unavailable or deny, a dwelling” to any buyer or renter because of that person’s disability or the disability of a person who will reside in or intends to reside in the home. [1]  It is also unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of either a [disability] of that person or a person residing in or intending to reside in that dwelling.”[2]

And even if there is a facially neutral law, there are times when exceptions need to be made so that people with disabilities have an equal opportunity to live in the home. This type of exception is called “reasonable accommodation.” A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling.

We often help clients with reasonable accommodation requests when zoning codes or HOAs try to keep them out of residential neighborhoods or unreasonably limit the number of residents that can live in the home. But what a lot of people don’t know is that the Fair Housing Act – and its reasonable accommodation requirement – apply to building codes as well.

Fair housing problems in the building permit realm generally arise when building code officials don’t fully understand the nature of residential assisted living and try to characterize the use as “commercial” (a term not actually included in the International Building Code) or “institutional” or “medical”. All of these designations are incorrect and can result in the imposition of costly construction requirements that are not actually needed to keep residents safe.

If this occurs, the first step is to properly educate the building officials about the nature of the use. This can help them apply appropriate standards that don’t result in unnecessarily high construction costs that can doom a project. If that doesn’t work, getting an attorney involved to explain the protections afforded by the Fair Housing Act and to make a reasonable accommodation request is the next step.

A city ignores a reasonable accommodation request at its peril, with consequences that can include intervention by the Department of Housing and Urban Development and the Department of Justice, a federal lawsuit, and payment of your costs and attorney’s fees.

Its best to address oppressive building code requirements early in the process. Talk to lawyers who understand this area of law to advise you before you get too far down the road and building officials become entrenched in their positions.  

Look for more weekly blog posts on topics of interest to Assisted Living, Recovery Home, and Behavioral Health operators.  The information herein is intended to be educational and an introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional or reach out to our firm if you would like specific advice on this topic. We welcome topic suggestions!  Write to michelle@pinkowskilaw.com if you are curious to learn more about a certain topic impacting assisted living or other group housing concerns.

[1] 42 U.S.C. § 3604(f)(1)(A)–(B).

[2] 42 U.S.C. § 3604(f)(2)(A)–(B).