Thirty years ago, people in the United States on both sides of the aisle came to a clear agreement: we need to build houses and apartments that are accessible to people with disabilities, including people who use wheelchairs. Laws and regulations were passed to require that accessible home design and construction. Thirty years later, these rules are still far too much theory and too little action.
The rules are not perfect, but, if followed, they would result in a sea change for wheelchair users—the percentage of accessible apartments would gradually increase and ultimately become widespread. People with disabilities could find and rent apartments at the same rates as everyone else. They could visit friends, have dinner with family, attend parties or home religious gatherings too.
A Frustrated Vision of Barrier-Free Living
Unfortunately, some thirty years after the major federal laws in this area were passed, the housing landscape has changed very little in places like New York City, where I live. Some developers simply flout the laws.
A 2019 New York City government survey of 21 randomly picked buildings found the majority were inaccessible—including 2 built after federal accessibility laws took effect. This means that housing is even more unaffordable for people with disabilities than for others in New York.
A 2015 report found that only 1% of rental units nationwide had five key accessibility features.
From luxury buildings and hip lofts to middle-class apartments to affordable housing,[1] we continue to build a world that excludes the wheelchair users—millions and growing—among us.
Legal Requirements for Housing Construction
New buildings and renovations are supposed to have ramps, room to maneuver, light switches and counters at a reachable height, and more. The law provides for a range of accessibility–some units must be fully accessible for people in wheelchairs to live in, some adaptable, and the rest accessible enough that a person in a wheelchair can visit.
These are just a few examples:
- Under Fair Housing Act (FHA), in a residential building with an elevator, all units must meet basic access requirements if it was built after March 13, 1991.
- For a post-1991 building with 4 or more units without an elevator, all ground floor units must be accessible—even one step is not permitted.
- Pre-1991 residential buildings must also often be made accessible when they are renovated.
- While the FHA does not apply to gut renovations of pre-1991 buildings that were commercial (e.g. warehouses), local laws like the New York City Human Rights Law do impose accessibility requirements on these buildings.
- And the ADA often requires that public spaces—like lobbies, stores, or restaurants—in residential buildings of any vintage be accessible.
When Can A Wheelchair User Sue?
Developers have argued that these requirements only apply if they get caught quickly enough. They have claimed that they must be sued within the statute of limitations period (2 years under the FHA) after the building is built. Some courts have accepted that argument, but others reject it. On this second view, someone can sue within two years of when they actually experience the discrimination embedded in the illegal construction.[2]
The vision of the Fair Housing Act and similar laws is worth fighting for. Many conscientious developers comply. Those who do not should be held accountable.
[1] A recent New York City initiative touted 2,000 accessible affordable units available over three years—for the tens of thousands of wheelchair users in New York City.
[2] See Fair Hous. Justice Ctr., Inc. v. JDS Dev. LLC, 443 F. Supp. 3d 494, 499 (S.D.N.Y. 2020), reconsideration denied, No. 19 CIV. 1171 (AT), 2020 WL 5018349 (S.D.N.Y. Aug. 25, 2020).
ADA Update 