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2007-07-10 12:52:00

Fair Housing Issues: Handicap Parking Requirements

How do owners and managers of residential rental properties comply with all the applicable laws regarding parking for the disabled? There are federal laws, state laws, and sometimes local laws which may conflict with one another, and may apply to different areas of the property or different users of the parking spaces. This article is designed to help clarify the current state of the law so readers can begin the process of determining whether there need to be changes made to on-site parking spaces in order to reduce the risk of non-compliance.

Public Parking

The federal law called the Americans with Disabilities Act (ADA) requires that any area to which a member of the public is invited, must be "accessible" to disabled persons. There must be curb cuts, ramps, wide doorways, lever door handles, etc. on the routes that a disabled person might take in order to contact a representative of the owner of the property.

Under California law, properties with 16 or more residential rental units must have a representative of the owner on-site. If that representative interacts with the public, for instance, conducting tours and taking applications from prospective residents, the office (or the portion of the representative's unit which is used to conduct business) is controlled by the ADA. In addition, if a property allows public use of amenities (such as pools or recreation rooms), the ADA would require that those areas be accessible as well.

But what about parking? If there is no parking on the property … or all parking is reserved for residents, then there is no "public" parking and the ADA does not apply to parking on that property. If there is prospective resident or guest parking on-site, the ADA applies and there must be a blue-striped space with the blue wheelchair sign designated for the use of persons with disability placards or license plates. The ADA requires at least one designated handicap space for every 25 parking spaces.

The ADA focuses only on public parking, so the rule can be interpreted to mean that there must be one designated handicap space for every 25 public spaces. There are few rental communities which have 25 or more spaces for public parking. Therefore, the requirements of the ADA should be able to be met on properties which have public parking by establishing at least one designated handicap parking space near the area (or each area) to which the public is invited. The first designated space must be a van-accessible space. In parking lots with numerous handicap spaces, one out of eight such designated spaces must be van-accessible.

Take note that all public places must be accessible to the extent possible. It is a common misconception that older properties are "grandfathered in" and do not have to comply with ADA guidelines. Many landlords have been sued for failure to comply with the ADA in recent years and have found out the hard way that their properties were not exempt.

Federal Fair Housing Act, 24 CFR 100.205

This is the law that mandates certain accessibility features for all new residential construction that was built after March of 1991. With respect to the parking requirements, at least 2% must be made accessible, and be located on an accessible route. Accessible means there are no barriers; in other words, it must be constructed in such a manner that a disabled person could access and use it. If the development contains different types of parking, such as surface parking, garage or covered spaces, there must be accessible spaces located in each type of parking. Local government codes may require a greater or lesser number of accessible spaces, and if this is so, the laws which provide the greatest benefit to disabled persons should be followed.

These requirements are distinguishable from the ADA, in that they do not require actual "handicapped" (blue striped, signed) spaces.

Disability Accomodations For Residents

Federal and California fair housing laws require that landlords make "reasonable accommodations" (exceptions to the rules, policies, procedures and services of the community) for disabled residents. The reservation of a space that is close to a disabled resident's unit is generally considered to be reasonable. The expense and effort of the reservation of the space is often minimal and usually borne by the landlord.

The request from the disabled person and its approval or denial should be processed in accordance with fair housing guidelines. Please see our resource library for information on proper conformance with current rules.

If the property has no reserved parking spaces, a space would be reserved pursuant to the resident's request, as an exception to the rules. Since it is not for the public, it should be designated in some way other than with blue stripes and a wheelchair sign (for instance, by using white paint and/or striping and a "reserved" sign). Note that if other residents ask why someone was given a reserved space, the confidentiality of the disabled person must be maintained. An owner or manager should just indicate that although the reason for the reservation cannot be disclosed, the action was taken in compliance with the law. If the party questioning the action files a discrimination complaint, the documentation regarding the accommodation should support the reasonableness of the landlord's position.

If all of the spaces on a property are assigned to residents, making a reasonable accommodation can be very challenging. Other residents can be asked to trade spaces voluntarily … without disclosing the reason. If no one will cooperate, someone who is on a month-to-month agreement may be given notice of change of terms of tenancy to exchange spaces with the disabled resident, but there will be a delay of at least 30 days. If the residents who have the right to the desired space are on a lease, the landlord is unable to force cooperation until the lease expires. When a request for accommodation is considered to be unreasonable or impossible, the landlord should attempt to negotiate an alternative accommodation. In the case of parking, if the resident can wait and is willing to do so, he or she can be put on the waiting list for parking (ahead of any non-disabled residents). If he or she cannot wait for the next available space which would suit his or her needs, the resident should be offered an opportunity to terminate the tenancy without penalty.

Residents often think that they should be able to use ADA parking spaces on a regular basis. They will argue that you should assign them such a space because they have a handicap placard or license plate. However, such spaces must be available on a first come, first served basis for members of the public who come to the property to transact business. They can't be assigned to anyone. Offer an opportunity for a reasonable accommodation as described above. It is important that there be written documentation of such interactions.

Local Building Codes

Many cities and counties in California have their own statutes regarding parking spaces on residential rental properties. These codes may prevent a community from being built unless they have blue-striped spaces designated throughout the "resident-only" parking area, or they may require more blue-striped spaces near the office than the ADA calls for. If so, the spaces within the resident parking areas would be available on a first-come, first-served basis to any resident with a handicap placard or license plate. It can be confusing to have spaces which look like ADA (public) spaces, located in the resident-only area. If there are any questions or concerns about compliance with federal, state and local laws, or if there are plans to make any changes in parking designation, it is wise to seek legal advice before taking action. 

If you don't already have forms designed to address requests for assignment of parking based on disability, KTS has a complete packet of policies, procedures and forms for dealing with both disability accommodation and modification requests. The forms are for sale on this website or by calling Curtis Weldon at (800) 338-6039. KTS can also recommend compliance experts who can perform an evaluation of the risk of ADA non-compliance for properties throughout the state.

This article is for general information purposes only. Before acting be sure to receive legal advice from our office. If you have questions about this article, please contact Kathleen Belville at (800) 338-6039. For past articles on other related topics, please consult the resource library section of this web site.

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