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Multi-Family Housing — Which regulations pertain?

Janis Kent, FAIA, CASp © January, 2015, revised June, 2021

In the last few years I have noticed more and more projects for both new and altered multi-family dwellings some of which are mixed-use as well. These projects are both privately funded and publicly funded leading to the question – which regulations are applicable. There is no simple answer since, as usual, it depends. It depends on whether it is totally privately funded or whether it has some public funding or program of a public entity. It also depends on whether it is new construction, a conversion from lofts or something similar, or whether it is an older building. And if there is federal funding, that would also have an impact.

Be aware that dormitories are considered transient lodging with an exception of graduate or faculty housing meeting specific criteria. Basically there are about 5 different regulations which could apply – and it could be all five or just a couple. We will have a brief look at each of the regulations to get an overview of which ones pertain to what.

ADA Standards

The ADA Standards pertain to all multi-family housing as well as the common-use spaces built, operated by or for a public agency or public program — in other words any Title II agency even if the project is privately owned. Since March 15, 2012, this now includes the dwelling units. It also always includes public spaces such as rental offices and its supporting spaces, used by the public, or common-use spaces used by the tenants and employees. ADAS does not pertain to privately owned multi-family housing if there is no public agency involvement with the exception of rental offices, etc. Other federal agencies may have their own housing criteria such as DoD or GSA. In the past, public entities generally referred to ADA for transient lodging and UFAS for multi-family residential.

HUD – Section 504

HUD is the last of the 5 federal government agencies to accept the 2010 ADA Standards as being equivalent. As of May 23, 2014 HUD came out with a document that temporarily allows, but does not require, the use of the ADA Standards as an alternative to UFAS until they revise Section 504. There are 11 exceptions, though, to the full acceptance of equivalency. So if you are using ADAS as an alternative, two things to be aware of – you can not pick and choose – it is either ADA with the exceptions or it is UFAS. You should also be aware of which 11 points you can not use ADA as equivalent since HUD interprets these as providing less access that UFAS. If you have a HUD-funded project, whether full or partially funded, where the funds are dispersed thru a city or other public agency, be aware that you will need to meet ADAS for the public agency and also need to meet HUD’s criteria from their Deeming Notice of May 23, 2014 with the 11 exceptions to ADA.

FHA

FHA is one of those regulations which tends to get skipped over in the design world since many incorrectly feel that local building codes have incorporated FHA requirements. Currently, FHA has designated 10 very specific Safe Harbors. For those in California, the California Building Code is not one of those Safe Harbors. FHA has a number of criteria which they use to determine whether a residential facility is covered under FHA and applies to covered multi-family dwellings regardless of whether it is a publicly or privately funded project and whether it is an apartment complex or a condo project. If the building was built March 13, 1991 or earlier, FHA does not pertain. Nor does it pertain if there are less than 4 dwelling units. If there are multi-storied dwelling units in non-elevatored buildings FHA does not apply. There are other exceptions and definitions within the Fair Housing Act Design Manual to become familiar with if working on multi-family housing projects.

 California Building Codes

If you are lucky enough to be working on projects in California, the CBC has two portions which address Access in multi-family housing and it is dependent upon funding. If the project has any public funds it will need to comply with 11B for its Mobility and Communication feature dwelling units as well as its common spaces. If the building is totally privately funded then you would look to 11A for your Access questions and answers (with the exception of public spaces such as leasing offices). As of July 1, 2021, the CBC Supplement has moved the portion for adaptable dwelling units into 11B for multi-family housing built, operated, or sponsored by a public entity, so you would use CBC 11B only – no more overlap of 11A.

In Summary
If you have a new construction project where there is HUD funds channeled thru a city agency, you may very well have to comply with all of the above regulations. In which case you would use the regulation that provides for the most access on an item by item basis if there is a conflict. If the project is an alteration to a building built before March 13, 1991 in most cases you would eliminate FHA. If the funds are not HUD funds but come from a different source you would eliminate UFAS – and note that other federal entities now have their own version of ABA. If the project is totally privately funded with no public involvement then you would eliminate ADAS (except for rental offices and other public spaces) and UFAS.

Be aware that any multi-family housing projects built, operated, or sponsored by a public agency should have a Transition Plan if built before January 26, 1992 particularly if the agency has 50 or more employees and structural modifications need to be undertaken. Due to new Supplemental requirements in the ADAS, it might be necessary to update these Transition Plans – particularly for pools, spas, exercise rooms, playgrounds, and sports areas if they exist in the project. And also note, under ADA, there is a definition for substantial alteration to a dwelling unit that impacts how much needs to be altered for that unit. There are many twists and turns for multi-family housing dealing with alterations or additions depending on which regulations apply too numerous to go into with this article, but do be aware that they do exist.

Be aware that your local City or County may have additional requirements that are more restrictive than the State or Federal requirements. Also, this article is an interpretation and opinion of the writer. It is meant as a summary – current original regulations should always be reviewed when making any decisions. 

© Janis Kent, Architect, CASp 2015