Checklist · Real Estate

Auditing a Property and a Website for Accessibility and Fair Housing Compliance: A Practical Checklist

42 U.S.C. § 3602(b)

Type
Checklist
Jurisdiction
National
Date
2024-11-11
Topic
Real Estate

A working audit checklist covering both halves of the accessibility problem, physical and digital, for housing providers and public accommodations. Phases one and two scope which statutes apply and assemble the drawings, permits, policies, and vendor records the audit depends on. Phases three through six survey the physical facility from the site arrival point through interior elements, apply the readily achievable analysis with the documented cost and resource evidence a defense requires, and separately review new construction and alterations against the far stricter standard including the path of travel obligation. Phases seven and eight cover the Fair Housing Act design and construction requirements for multifamily housing and the stricter Section 504 accessible unit percentages that federally assisted housing must meet. Phases nine through twelve audit the policy layer: reasonable accommodation and modification procedures, assistance animal rules, occupancy standards and screening criteria including criminal history, and advertising including digital ad targeting. Phases thirteen and fourteen audit the website, distinguishing the automated scan that finds a minority of issues from the manual assistive technology testing that finds the rest. Phases fifteen through eighteen build the remediation plan, the documentation that changes settlement posture, the training program, and the response sequence when a demand letter arrives.

Auditing a Property and a Website for Accessibility and Fair Housing Compliance: A Practical Checklist

Real Estate > Fair Housing and Accessibility | Published 11 November 2024 - Updated 17 May 2026 | UpLaw - uplaw.us

An automated accessibility scan finds a minority of the issues on a website. The rest require someone to navigate the site with a keyboard and a screen reader and try to complete an actual task. The same is true of buildings: a walkthrough with a tape measure finds what a checklist cannot. Audits that consist of running a tool and filing the report produce a document that will be used against the client.

Keywords: facility survey, 2010 Standards, readily achievable, path of travel, FHA seven requirements, § 504 accessible units, accommodation procedure, assistance animals, occupancy standards, advertising review, WCAG manual testing, remediation plan

Work this in order. The doctrinal treatment is in Fair Housing and Public Accommodations: A Comprehensive Guide to the FHA and ADA Title III. The narrative overview is The Website Is the Storefront.

Our running examples. Harborview Grocers, Inc. (fictional), fourteen supermarkets plus a website with online ordering and pharmacy refills. Alderwood Commons (fictional), a 96-unit apartment community built in 2014 with a HUD-assisted set-aside, managed by Ridgeline Property Management, LLC (fictional).

Phase 1 — Scope: which statutes apply

  • [ ] Is the property a dwelling under the Fair Housing Act? 42 U.S.C. § 3602(b).
  • [ ] Is any portion a place of public accommodation under ADA Title III — a rental office, a fitness room open to the public, a retail space? 42 U.S.C. § 12181(7).
  • [ ] Is the entity a public entity covered by Title II?
  • [ ] Does the entity receive federal financial assistance, triggering § 504? 29 U.S.C. § 794.
  • [ ] Is it a commercial facility covered only by the new construction and alteration rules?
  • [ ] Identify state and local accessibility and fair housing laws, including added protected classes (source of income, sexual orientation, gender identity, criminal history) and any state technical standard.
  • [ ] Identify any state statute providing statutory damages for ADA violations — California's Unruh Act, Cal. Civ. Code § 51, and the New York human rights laws are the principal ones.
  • [ ] Determine whether the entity is a landlord, tenant, or both for leased public accommodation space — both are liable, and the lease allocation binds only the parties.
  • [ ] Write the scope memo. Everything downstream cites it.

Phase 2 — Assemble the record

  • [ ] As-built drawings and the original construction permits with dates.
  • [ ] Certificate of occupancy date — this determines whether new construction standards apply.
  • [ ] Records of every alteration, with scope, cost, and date.
  • [ ] Any prior accessibility survey, remediation plan, or expenditure record.
  • [ ] Any prior complaint, demand letter, or lawsuit and its resolution.
  • [ ] Leases, with the ADA allocation provisions.
  • [ ] Policies: tenant selection criteria, occupancy standards, pet policy, accommodation procedure, guest policy, and house rules.
  • [ ] Advertising across all channels, including digital ad targeting parameters.
  • [ ] Website and app technology stack, including third-party components, widgets, and vendors.
  • [ ] Financial statements — needed for the readily achievable analysis, which is resource-dependent.
  • [ ] Applicable safe harbor documentation for elements that complied with the 1991 Standards and have not been altered.

Phase 3 — Physical survey: arrival and exterior

Measure. Do not estimate. Use the 2010 ADA Standards for Accessible Design.

  • [ ] Accessible parking: correct number by total spaces; van-accessible spaces at the required ratio; dimensions and access aisles; slope not exceeding 1:48 in all directions; signage at the required mounting height; and location on the shortest accessible route.
  • [ ] Passenger loading zones where provided.
  • [ ] Accessible route from parking, public sidewalks, and public transportation stops to the accessible entrance: minimum clear width, running slope, cross slope, changes in level, and surface firmness and stability.
  • [ ] Curb ramps: slope, width, flares, detectable warnings, and landing at the top.
  • [ ] Ramps: slope not exceeding 1:12, maximum rise per run, landings, handrails on both sides, and edge protection.
  • [ ] Entrance doors: clear width, maneuvering clearance on both sides, threshold height, opening force, closing speed, and hardware operable without tight grasping, pinching, or twisting of the wrist.
  • [ ] Exterior signage and directional signage to accessible entrances where not all are accessible.
  • [ ] Exterior stairs, walkways, and site amenities.
  • [ ] Photograph every deficiency with a measurement reference in frame.

Phase 4 — Physical survey: interior

  • [ ] Interior accessible route to all areas where goods and services are available: width, slope, level changes, and protruding objects.
  • [ ] Doors throughout: clear width, maneuvering clearance, threshold, opening force, and hardware.
  • [ ] Restrooms: entry route and door; turning space; toilet clearances and centerline; grab bar locations and lengths; lavatory height, knee and toe clearance, and insulated pipes; mirror height; dispenser reach ranges and operation; and accessible stall dimensions where multiple stalls exist.
  • [ ] Sales and service counters: portion at the required maximum height and length, or an equivalent facilitation.
  • [ ] Checkout aisles: required number accessible, with signage.
  • [ ] Aisles and circulation: minimum clear width maintained in practice — merchandise, displays, and seasonal stock routinely block accessible routes, and this is the single most common finding in retail.
  • [ ] Seating: dispersed accessible seating and companion seats where applicable.
  • [ ] Elevators and lifts: call button height, door timing, car dimensions, control heights, raised and Braille characters, and audible and visual signals.
  • [ ] Drinking fountains: high and low units or equivalent.
  • [ ] Signage: raised characters and Braille at permanent room identification, mounting height and location, visual character sizing and contrast, and the International Symbol of Accessibility where required.
  • [ ] Alarms: audible and visual notification appliances where required.
  • [ ] Assistive listening systems in assembly areas.
  • [ ] Self-service kiosks, point-of-sale devices, and ATMs: reach ranges, operable parts, speech output, and input privacy.
  • [ ] Recreational elements under the 2010 Standards: pools, spas, play areas, exercise machines, and golf facilities.

Phase 5 — The readily achievable analysis

  • [ ] For each barrier, estimate the cost of removal with a contractor quote or a documented basis.
  • [ ] Document the facility's financial resources, number of employees, and the effect of the expenditure on operations.
  • [ ] Document the parent entity's overall resources, size, and structure. 42 U.S.C. § 12181(9).
  • [ ] Apply the priority order of 28 C.F.R. § 36.304(c): (1) access from sidewalks, parking, and transit; (2) access to goods and services; (3) restrooms; (4) other measures.
  • [ ] Where removal is not readily achievable, identify alternative methods that are — curbside service, home delivery, retrieval of merchandise, or relocating an activity to an accessible space. § 36.305.
  • [ ] Record the determination and its date, and calendar a reassessment, because readily achievable is a continuing obligation that changes as resources and costs change.
  • [ ] Note that a determination made years ago does not settle the question today.

Why it matters, and the traps. "Not readily achievable" is an affirmative defense that must be proved with evidence. A defendant asserting it without cost estimates and financial data has asserted nothing. Build the file during the audit, not during discovery.

Phase 6 — New construction and alterations

  • [ ] Identify every element designed and constructed for first occupancy after January 26, 1993 — these must be readily accessible to and usable by individuals with disabilities, with only the narrow structural impracticability exception. 42 U.S.C. § 12183.
  • [ ] Identify every alteration and confirm it was made accessible to the maximum extent feasible.
  • [ ] For any alteration to an area containing a primary function, confirm the path of travel to that area — plus the restrooms, telephones, and drinking fountains serving it — was made accessible, unless the cost exceeded 20% of the alteration cost. 28 C.F.R. § 36.403.
  • [ ] Document the alteration cost and the path of travel cost separately, because the 20% disproportionality test depends on both.
  • [ ] Confirm whether the elevator exemption applies — buildings under three stories or under 3,000 square feet per story, unless a shopping center, shopping mall, health care provider's professional office, terminal, station, or airport passenger terminal.
  • [ ] Identify safe harbor elements that complied with the 1991 Standards and have not been altered.
  • [ ] Note that the 2010 Standards added scoping for recreational facilities that did not exist in 1991 — pools, play areas, exercise equipment, golf, boating, and amusement rides — and there is no safe harbor for elements not previously covered.

Phase 7 — FHA design and construction (multifamily housing)

For covered multifamily dwellings built for first occupancy after March 13, 1991 — all units in elevator buildings, and ground floor units in buildings without an elevator, in buildings with four or more units:

  • [ ] 1. Accessible building entrance on an accessible route.
  • [ ] 2. Accessible public and common use areas — leasing office, mail area, laundry, community room, pool, fitness room, and parking.
  • [ ] 3. Usable doors sufficiently wide for wheelchair passage, throughout the unit and at the entrance.
  • [ ] 4. Accessible route into and through the dwelling unit.
  • [ ] 5. Light switches, outlets, thermostats, and environmental controls in accessible locations.
  • [ ] 6. Reinforced bathroom walls for later grab bar installation.
  • [ ] 7. Usable kitchens and bathrooms with sufficient maneuvering space.
  • [ ] Identify which safe harbor the design used — the HUD Fair Housing Act Design Manual, the HUD guidelines, a specified edition of ANSI A117.1, or the International Building Code as adopted with the required provisions — and verify actual compliance rather than the designer's assertion.
  • [ ] Survey a statistically meaningful sample of units, not one model unit.
  • [ ] Note that liability runs to the owner, developer, architect, engineer, and builder, and that there is generally no statute of repose — an old building is a live claim.

Why it matters, and the traps. The seven requirements are frequently missed at the design stage and discovered only after a complaint, when correction means retrofitting occupied units. The cheap fix is a third-party plan review before construction. Alderwood Commons, built in 2014, should have had one; whether it did is the first question.

Phase 8 — Section 504 accessible units

If the property receives federal financial assistance:

  • [ ] Apply HUD's § 504 regulations at 24 C.F.R. Part 8.
  • [ ] Confirm at least 5% of units (minimum one) are accessible to persons with mobility impairments.
  • [ ] Confirm at least an additional 2% of units (minimum one) are accessible to persons with hearing or vision impairments.
  • [ ] Confirm accessible units are distributed across unit types and sizes.
  • [ ] Confirm the occupancy preference procedures give priority for accessible units to households needing the features.
  • [ ] Confirm common areas and the leasing office are accessible.
  • [ ] Note that this standard is stricter than the FHA's design and construction requirements and is routinely overlooked by developers who satisfied the FHA and stopped.
  • [ ] Confirm a § 504 self-evaluation and a designated coordinator where required.

Phase 9 — The reasonable accommodation and modification procedure

  • [ ] Adopt a written procedure with a designated recipient, an intake form (optional for the requester), a response timeline, and documentation requirements.
  • [ ] Confirm the procedure accepts requests in any manner and does not require magic words.
  • [ ] Distinguish the two obligations clearly:
    • [ ] Reasonable modification — a physical change, at the tenant's expense, § 3604(f)(3)(A), with permissible conditions on restoration of the interior, workmanlike performance, and permits.
    • [ ] Reasonable accommodation — a change to rules, policies, practices, or services, at the provider's expense, § 3604(f)(3)(B), unless an undue financial and administrative burden or a fundamental alteration.
  • [ ] Require an interactive process: engage, ask only what is necessary, propose alternatives if the request is unreasonable, and document each step.
  • [ ] Limit documentation requests: where the disability and the need are readily apparent, request nothing; otherwise request reliable documentation of the disability and the disability-related need — not medical records or a diagnosis.
  • [ ] Set a response deadline internally that is shorter than what a court would consider reasonable.
  • [ ] Train staff that an unreasonable delay is a denial.
  • [ ] Log every request, the response, and the outcome.

See Handling an Accommodation Request Under the ADA: A Practical Checklist and The Interactive Process: How Reasonable Accommodation Actually Works Under the ADA.

Phase 10 — Assistance animals

  • [ ] Distinguish service animals (dogs individually trained to do work or perform tasks, under the ADA definition at 28 C.F.R. § 36.104) from support animals (the broader FHA category, no training required).
  • [ ] For a public accommodation, confirm staff ask only the two permitted questions where the need is not obvious: is the animal required because of a disability, and what work or task has it been trained to perform. § 36.302(c).
  • [ ] For housing, confirm the policy: no pet fees or deposits, no breed or weight restrictions, and no certification or registration requirement — no such credential legitimately exists.
  • [ ] Confirm documentation is requested only where the disability and the disability-related need are not readily apparent, and that the request seeks reliable documentation rather than medical records.
  • [ ] Confirm denials rest on individualized assessment of direct threat or substantial physical damage, not on breed or general policy.
  • [ ] Confirm the tenant remains responsible for the animal's behavior and damage — that obligation is preserved.
  • [ ] Train leasing and maintenance staff, because this is where the violations occur.

Phase 11 — Occupancy standards and screening criteria

  • [ ] Set occupancy at two persons per bedroom absent a documented reason grounded in unit size or configuration.
  • [ ] Confirm no policy counts children differently from adults or restricts by age or sex beyond bedroom-sharing conventions.
  • [ ] Review screening criteria for disparate impact: income multiples, credit thresholds, rental history requirements, and employment verification.
  • [ ] Review criminal history screening against HUD guidance: no blanket exclusions; arrests should not be a basis for denial; convictions assessed individually considering the nature and severity of the offense, time elapsed, and evidence of rehabilitation.
  • [ ] Confirm compliance with any state or local fair chance housing ordinance.
  • [ ] Confirm source of income is not used as a basis for denial where state or local law protects it — which effectively requires accepting housing choice vouchers.
  • [ ] Confirm criteria are applied consistently, and that every exception is documented and reviewed.
  • [ ] Confirm any algorithmic tenant screening or pricing tool has been tested for disparate impact, with a documented search for less discriminatory alternatives.
  • [ ] Confirm FCRA compliance for consumer reports: permissible purpose, adverse action notices, and the dispute process. See Running Background Checks Under the FCRA: A Practical Checklist.

Phase 12 — Advertising review

  • [ ] Review all advertising against 42 U.S.C. § 3604(c) and the ordinary reader standard — intent is not required, and the exemptions in § 3603(b) do not apply to advertising.
  • [ ] Screen for phrases indicating a preference: "perfect for a single professional," "adult community," "no children," references to religion, "ideal for empty nesters," "walking distance to [house of worship]," and similar.
  • [ ] Review photographs for whether they depict a non-diverse community in a way an ordinary reader would read as a preference.
  • [ ] Review digital advertising targeting parameters across every platform — audience exclusions by age, gender, ZIP code, parental status, or interest categories that proxy for protected classes.
  • [ ] Confirm the equal housing opportunity logo and statement appear where required.
  • [ ] Review listing service descriptions and syndicated feeds, which frequently carry legacy language.
  • [ ] Confirm third-party marketing agencies are contractually bound to these standards and audited.

Phase 13 — Website: the automated pass

  • [ ] Run an automated scan against WCAG 2.1 Level AA across a representative page sample including every template.
  • [ ] Scan the critical paths: home, search, product or listing detail, cart, checkout, account creation, login, forms, and contact.
  • [ ] Scan the mobile app and mobile web separately.
  • [ ] Catalog findings by WCAG success criterion and by page template.
  • [ ] Identify issues introduced by third-party components — chat widgets, payment iframes, mapping, video players, and analytics overlays — and identify the vendor responsible for each.
  • [ ] Understand that automated tools detect only a minority of accessibility issues. The scan is the starting point, not the audit.
  • [ ] Do not treat an overlay widget as remediation; courts have not treated it as a defense and accessibility practitioners uniformly criticize it.

Phase 14 — Website: the manual pass

This is the audit.

  • [ ] Keyboard-only navigation: complete every critical task using only the keyboard. Confirm no keyboard traps, a logical focus order, and a visible focus indicator throughout.
  • [ ] Screen reader testing with at least two combinations (for example NVDA with a Windows browser and VoiceOver with a Mac or iOS browser): can a user complete checkout, create an account, and submit a form?
  • [ ] Magnification and reflow: content usable at 200% zoom and reflowing at 320 CSS pixels without horizontal scrolling.
  • [ ] Text alternatives: images have meaningful alt text; decorative images are marked as such; complex images have long descriptions; and icons conveying meaning are labeled.
  • [ ] Forms: every field programmatically labeled; errors identified in text and not by color alone; error suggestions provided; and required fields indicated non-visually.
  • [ ] Color and contrast: contrast ratios meet AA thresholds for text and for user interface components; information is not conveyed by color alone.
  • [ ] Media: captions for prerecorded video, transcripts for audio, and audio description where required.
  • [ ] Timing: time limits adjustable or extendable; no content that flashes more than three times per second.
  • [ ] Structure: correct heading hierarchy; landmark regions; page titles; language declared; skip-navigation link present and functional.
  • [ ] Dynamic content: ARIA live regions announce updates; modals trap focus appropriately and return it on close; custom components expose correct roles, states, and properties.
  • [ ] Testing by users with disabilities, which finds what neither tools nor practitioners find.
  • [ ] Record each finding with the WCAG criterion, the location, the user impact, and a reproduction path.

Phase 15 — The remediation plan

  • [ ] Prioritize by user impact, not by scan count — a broken checkout outranks a hundred missing decorative alt attributes.
  • [ ] Fix blocking issues first: keyboard traps, unlabeled form fields on critical paths, inaccessible authentication, and inaccessible error handling.
  • [ ] Assign owners and dates for each item.
  • [ ] Budget the work and obtain documented funding approval — a funded plan is materially different evidence from an aspirational one.
  • [ ] For physical barriers, sequence by the § 36.304(c) priority order and by cost.
  • [ ] Build accessibility acceptance criteria into the development lifecycle so new features do not regenerate the problem: design review, component library conformance, automated checks in the build pipeline, and manual testing before release.
  • [ ] Impose accessibility obligations on vendors and third-party components by contract, with conformance reporting.
  • [ ] Set a re-audit cadence — annually, and after any significant redesign.
  • [ ] Track completion and retain the record.

Phase 16 — Documentation and the accessibility statement

  • [ ] Retain the audit reports, dated, including the manual testing methodology.
  • [ ] Retain the remediation plan, the funding approval, and the completion record.
  • [ ] Retain the readily achievable analysis with its cost and resource evidence.
  • [ ] Publish an accessibility statement describing the conformance target, known limitations, and a monitored contact channel — and answer it. An unanswered accessibility contact is worse than none.
  • [ ] Establish a feedback and request procedure with a response timeline.
  • [ ] Retain records of accommodation requests and their resolution.
  • [ ] Retain training records.

Why it matters, and the traps. A defendant with a dated third-party audit, a funded remediation plan, and demonstrated progress settles on materially different terms than one with a demand letter and nothing. The documentation is the leverage.

Phase 17 — Training

  • [ ] Fair housing training for everyone who touches applicants or residents — leasing, management, maintenance, and call center staff — at hire and annually.
  • [ ] Cover the seven protected classes, the three disability obligations, assistance animals, occupancy standards, advertising, and the accommodation procedure.
  • [ ] ADA training for public-facing staff: service animal questions, effective communication and how to request an interpreter, policy modification, and maintaining clear accessible routes.
  • [ ] Developer and designer training on WCAG and on the component library's accessibility requirements.
  • [ ] Procurement training so accessibility conformance is an evaluation criterion for vendors.
  • [ ] Document attendance and content.

Phase 18 — Responding to a demand letter or complaint

  • [ ] Calendar every deadline: a HUD complaint must be answered on HUD's schedule; a private FHA suit has a two-year limitations period; and Title III borrows the state personal injury period.
  • [ ] Preserve documents and issue a litigation hold, including for website code versions.
  • [ ] Capture the current state of the website or facility immediately — remediation after the complaint changes the evidence, and a defendant needs a record of what the plaintiff actually encountered.
  • [ ] Assess standing: for Title III, whether the plaintiff has alleged a concrete injury and an intent to return — noting that Acheson Hotels, LLC v. Laufer, 601 U.S. 1 (2023), was vacated as moot without resolving tester standing, so the question remains open and district-dependent.
  • [ ] Assess coverage: is this a place of public accommodation, and in this circuit does the website theory require a nexus?
  • [ ] Assess the substantive defenses: not readily achievable (with evidence), fundamental alteration, undue burden, direct threat, structural impracticability, or safe harbor.
  • [ ] Evaluate remediation as a settlement path — it is usually cheaper than litigation and it is what the plaintiff can obtain anyway, since Title III provides no damages.
  • [ ] Assess state law damages exposure separately, because that is where the money is.
  • [ ] Determine whether a consent decree or settlement agreement with a remediation schedule and monitoring is preferable to an ongoing dispute.
  • [ ] Check insurance: general liability, employment practices, and any cyber or media policy may respond, at least to defense costs. See Tendering a Claim and Preserving Coverage: A Policyholder's Checklist.

Worked example — Harborview and Alderwood

Harborview Grocers. The physical survey across fourteen stores finds a consistent pattern: accessible parking access aisles used for cart corrals at nine locations, merchandise blocking accessible routes at all fourteen, and one store with a checkout counter above the maximum height installed during a 2019 remodel. The 2019 remodel was an alteration to a primary function area, so the path of travel obligation applied and the restroom serving that area was never brought into compliance — a finding with no readily achievable defense, because the work was an alteration governed by the stricter standard.

The website audit: the automated scan returns 340 issues, mostly decorative images. The manual pass finds the actual problem — the pharmacy refill flow cannot be completed with a screen reader, because the prescription selection component is a custom widget with no accessible name and the confirmation step relies on a color change. That is the case, and the scan did not find it.

Alderwood Commons. Built 2014, 96 units, elevator building, so all units are covered multifamily dwellings. A sample of twelve units finds bathroom walls reinforced (requirement 6, satisfied) but environmental controls mounted above the accessible reach range in all sampled units (requirement 5, violated throughout). Because there is no statute of repose and liability runs to the developer and architect as well as the owner, counsel notifies both and reviews the construction contract's indemnity provisions.

The HUD-assisted set-aside triggers § 504: 96 units require at least 5 mobility-accessible and 2 hearing/vision-accessible units. The property has three, all mobility, all in one building. That is a separate and more serious finding than the FHA issue.

The policy audit finds a $300 pet deposit applied to assistance animals, an occupancy standard of "two persons per unit" regardless of bedroom count, and a listing describing the property as "perfect for young professionals." All three are straightforward violations, all three are free to fix, and all three would have been the first exhibits in a complaint.

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