Handicap Parking Requirements At-a-Glance
The history of regulations regarding handicap parking in commercial and residential environments has its roots in the desire to provide individuals with mobility impairments the ability to access and utilize public spaces. In the United States, these regulations have evolved over the last four decades and continue to be an active area of the law, particularly in light of a recent push by the Department of Justice ("DOJ") to enforce these rules more stringently. The overarching goal of the laws is to ensure equal access for all individuals. As the DOJ has emphasized, "[t]he purpose of the requirements is to create an accessible environment where individuals with disabilities have access to goods and services that are comparable with the access afforded to other members of the public." The DOJ’s Findings on the Accessibility of Apartment Complexes for People with Impairments (Feb. 20, 2013). To that end, local and state governments have adopted a variety of laws that impose obligations on both owners and managers of private, residential apartment complexes. Similar laws, though more detailed, exist at the federal level.
The Fair Housing Act ("FHA"), as originally adopted in 1968, made no mention of handicap accessibility specifically. However, amendments to the FHA in the early 1980s began to tackle accessibility issues by prohibiting discrimination, including by making it unlawful to discriminate against individuals with handicaps "in connection with the design and construction of covered multifamily dwellings." Such discrimination includes failure by the builder and lessor to design and construct buildings so as to utilize accessible features in the common and public use areas. As amended in 1988, the FHA requires that "covered multifamily dwellings" (those built after March 13, 1991) must include certain structural features for persons with disabilities in either the public or common use areas, including accessible entrances, living spaces and bathroom facilities.
While the aforementioned features are all public and common use space features , the FHA also imposes certain obligations on "covered dwellings," specifically those buildings built after March 13, 1991, to include overriding accessibility features within the walls of individual units themselves. These features include accessible doors, environmental controls, light switches and adaptable kitchens and bathrooms.
The FHA also imposes obligations on apartment managers and owners who have a duty to respond to requests for "reasonable accommodations" under the law. This co-extensive obligation extends to apartment managers and owners under a variety of state and municipal statutes. These laws generally reflect the following principles: The distinguishing factor across all of these provisions is that they do not require "reasonable accommodation" where the request would impose an "undue burden" on the landlord or apartment provider.
Along with the general regulations discussed above, the DOJ issued the Americans with Disabilities Act ("ADA") in 1990 to further codify the aforementioned principles into a more detailed framework in order to ensure that individuals with disabilities have the same access and ability to work as any other person. Importantly, under the ADA, the duty to ensure accessibility is not one that applies solely to residential structures or to sole owners or operators of apartment complexes, but rather to all entities involved in a complex, from developers to subsequent purchasers, designers and engineers, housing owners, facility managers and operators, to general contractors and others responsible for either building new or altering existing structures. Further, the ADA contains provisions that will apply to existing apartment complexes, requiring that owners and managers be mindful of their duty to continue to make their apartment complexes accessible.
Thus, while the laws concerning accessibility may involve intricate rules and regulations, apartment owners and managers should take comfort in the fact that these regulations stem from the larger goal of ensuring access to individuals with disabilities that they enjoy to the fullest extent.
Apartments Must Comply with ADA
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination based on disability and, therefore, requires most private apartment operators and owners to go above and beyond Florida’s mandatory minimum requirements outlined in the Florida Accessibility Code. The ADA standards (which impact public accommodations in addition to residential) provide far more specific requirements for accessible parking spaces beyond what is required in the Florida Accessibility Code. It’s important to note that in most instances, the ADA requirements will apply to apartments even though the ADA itself does not apply to residential portions of buildings in most circumstances.
It’s critical that apartment communities understand their obligations under the ADA when it comes to handicap parking spaces. As it relates to residential apartment communities and buildings, the ADA requires that minimum of two (2) percent of all parking spaces are required to be van accessible and the remainder of the accessible spaces are required to be "regular" spaces. Van accessible handicap parking spaces are designated spaces that are wider to accommodate wheelchair vans and vans with lifts, which are required to be more than double the width of regular accessible spaces. There are many other specific requirements for accessible spaces under the ADA.
Local or Federal Requirements
When it comes to handicap parking requirements for apartment complexes, one of the biggest concerns operators have is regarding the difference between local apartment laws and federal apartment laws. When required to comply with both local and federal laws, often, operators are confused about which laws require what, which is more strict, and how much flexibility there is when it comes to compliance. The good news is that federal ADA requirements for parking spaces in apartment communities is less strict than most apartment building laws on the subject. The bad news is that, when a parking space is not required by federal law to be able to accommodate vans, local laws usually do require it be able to accommodate vans. Additionally, there are local ordinances with far fewer provisions for van accessibility than federal ones. Even worse, many apartment building laws are open to interpretation, so it is important to check with local experts before making any decision about handicap parking spaces in property management. Complying with federal ADA laws alone will not guarantee compliance with more stringent local and state laws. In fact, although two laws may seem to be saying the same thing when it comes to handicap parking, frequently, many local fair housing laws are actually more strict than federal ADA laws. Therefore, it is important to consult experts who are familiar with the fair housing landscape in your locales.
Designated Apartment Parking Spaces
The VA Apartment Complex also needs to designate spaces for handicap parking. Please keep in mind that it terms of common spaces, parking could fall into two categories: visitors and general parking. Visitors would include family, friends, contractors and apartment leasing officers. General parking would include all other employees, certain service staff (including landscaping, maintenance, and pest control), and the mailman when it comes to apartment complexes in Virginia. In Virginia, the Federal law (ADA) does not apply to non-public places of lodging (including apartments) but the under the under the similar provisions of the Fair Housing Act, apartment complexes must designate handicap parking (if they provide parking for the general public). Also, Commonwealth of Virginia laws outline the size and location of this designated parking. The general rule of thumb is that if your apartment complex allows residents to park in a common parking lot or garage, those spots need to be designated as described below.
- Must be at least 96" wide.
- If a van accessible spot, they should be at least 132" wide.
- Must display a sign indicating that it is a "handicap" space.
- Must be located next to an accessible entrance (sometimes this will not be the main entrance and sometimes it may require an additional set of accessible doors to reach [for larger complexes, the primary entry point is often at the front of the complex with the parking area in the back of the complex). We would recommend an accessible route from the designated parking space either directly to the main entry point or to the additional set of accessible doors required.
Enforcement and Fines
Enforcement and penalties for handicap parking laws in apartment complexes typically revolve around the obligation for property owners or management companies to enforce these regulations consistently and fairly or be subject to penalties from state or federal agencies. Common enforcement measures include:
Common penalties and fines include:
- Fines Issued by State or Local Agencies. The penalty for failure to enforce handicap parking laws can be steep, as penalty amounts can range from $500-$2,000 per violation—within a community with multiple violations, these penalties can quickly add up.
- Discrimination Claims. Particularly in the case of a disability-based fair housing claim , property owners and management companies may be subject to enforcement by both state and federal agencies. In addition to having to pay damages, property owners and managers could also face allegations of unlawful discrimination under federal law—an allegation which carries a minimum monetary amount of $16,000—because the failure to enforce handicap parking is discriminatory towards the handicapped.
- Fines Issued by the Department of Fair Employment and Housing: The California Department of Fair Employment and Housing (DFEH) enforces state housing discrimination laws, including the ADA. Property owners who fail to comply with housing discrimination laws can be penalized up to $100,000 per person or $1 million per occurrence.
Tenant Rights and Responsibilities
The rights and responsibilities of tenants when it comes to handicap parking are fairly straight forward. Essentially, if your lease guarantees you a designated space, you are entitled to that space. However, landlords do have the right to determine where parking spaces get allocated and continue to enact reasonable traffic rules. Furthermore, while a tenant is free to park anywhere in the complex they wish, tenants with handicap permits must move their vehicles should they be parked illegally, or in handcap spots that are not assigned to them.
It’s important for tenants to be proactive in their communications with their landlord. Should you need an accommodation due to a handicap, you should notify the landlord or property management as soon as possible. They are likely not aware of the need for your accommodation unless you specifically inform them, and once they are aware, they may service those needs under the guidelines of your lease.
If there are no available spots, either due to prior assignments, or possible repair of curbs as discussed previously, the landlord is not responsible for providing a parking space to a tenant. If your designated space is not available, an alternative parking arrangement can be difficult in a tight parking area. Either way, tenants are expected to work with their landlord and treat them with respect in every situation.
How to Handle Violations
A tenant or renters association may bring a private lawsuit to enforce apartment handicap parking laws. An action may be brought in federal or state court depending on the relief sought. The ADA and HOPA ban discrimination in employment and housing. The FHA is enforced by HUD but applicants, tenants, and resident associations can sue for injunctive relief.
Tenants should contact their local housing authority and request a formal investigation into the alleged violation. If the landlord refuses to make parking accommodations, tenants should inquire what accommodations are being made in lieu of assigning a specific parking space. It is unlawful for a landlord to retaliate against or punish a tenant for making a complaint. If an accommodation is requested, a housing provider must not only consider the opinion of the resident who requires the accommodation but also the opinion of other tenants who will be affected. For example, if a tenant wants a designated parking space close to their apartment, all the affected tenants should agree that it would not be a problem for the tenant to use the space.
During a formal investigation, housing authorities will typically contact the involved parties and determine whether the housing provider is in compliance or not. The housing authority may issue an informal ruling or require a hearing. At the hearing, a written decision will be issued . If the complaint is resolved, the housing authority will send the tenant written confirmation. If the policies are not relaxed, a tenant can seek judicial enforcement.
Apart from a tenant complaint, a landlord may also receive a complaint from a non-tenant.
A landlord could also monitor the parking area. If they have granted permission, then tenants are likely to have accompanying "visitors" or "guests" more often than not. It would be up to the tenant not violating occupancy regulations to be the "guest." If a tenant has complained and a violation has been found, the apartment manager should consider providing a designated parking space as soon as possible. An apartment manager might place an advertisement or flyer in their complex notifying all tenants about available parking accommodations for persons with disabilities. This is not only a defensive action but might help a tenant make the best use of their unit.
Any tenant who feels that they have been discriminated against because their landlord has failed to accommodate their request for a specific parking spot can file a disability discrimination complaint with the HUD and their state’s fair housing office. If a tenant feels they have been retaliated against because of the complaint filled, they can file a retaliation complaint with HUD and their state’s fair housing enforcement office.