# First Occupancy requirements vs FHADM



## Mike Raphone (Jun 20, 2019)

All, this is my first thread as I just joined. Your opinion would be greatly appreciated. It is our understanding and confirmed through the ICC and Fair Housing First that only new residential construction falls under the prevue of the FHA due to the "First Occupancy" rule. I have been getting push back from some local inspectors (who continuously have opposing opinions) who want to hold GC's to the 18" center of toilet from the side wall. I exclaim that this is a converted building from office to residential and ANSI 117.1 applies not FHA. They also state that the Type A Units that are not even covered by FHA must meet the 18" criteria as the "stricter" of 16"-18". I have all kinds of verbal support for this but their "experience" tells them to hold the 18". Consequently this becomes an issue when a certification is needed by a lending agency to release funds. The ICC told me that HUD has already certified that ANSI 117.1-2009 meets or exceeds the FHA and that in all cases 16"-18" is acceptable. Does anyone have any additional written support for these assertions?  Thank you, Mike Raphone


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## cda (Jun 20, 2019)

welcome!!!

Not into toilets, but I think you will get some good potty answers, just give it a day or two.


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## ADAguy (Jun 20, 2019)

What is the "basis authority" for the inspector to make his claim? Ask him to provide a  code cite.


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## cda (Jun 20, 2019)

""I exclaim that this is a converted building from office to residential""


Already converted??  Or being converted, as in change of occupancy.


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## mtlogcabin (Jun 20, 2019)

18" is a max 16" is the minimum for ANSI 15" is the minimum under FH. There is no way the inspector can require the WC to be at 18" center-lined from the wall under either code.


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## Yikes (Jun 21, 2019)

Welcome!
To answer your question, see the "Joint Statement Of the Department of Housing and Urban Development and The Department of Justice: Accessibility (Design and Construction) requirements for Covered Multifamily Dwellings Under The Fair Housing Act" dated April 30, 2013.
It contains a series of Questions and Answers, and you want to look at #16:

*16. Do the Fair Housing Act’s design and construction requirements apply to the alteration or renovation of nonresidential buildings into residential buildings?*

*No*. First occupancy means a “building that has never before been used for any purpose.” The conversion of a nonresidential building into a residential building through alteration or renovation does not cause the building to become a covered multifamily dwelling. This is true even if the original nonresidential building was built after March 13, 1991. This situation needs to be distinguished, however, from additions of covered multifamily dwellings (see questions 12, 13 and 14, above). See 24 C.F.R. § 100.201; Questions and Answers, Q. 4, 8 and 9, 59 Fed. Reg. at 33,364-65.
Example: A warehouse built in 1994 is being rehabilitated into a small condominium residential building with two stories and a total of 12 dwelling units. This conversion of this building is not covered because at the time of its first occupancy it was not designed and constructed as a covered multifamily dwelling.​


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## Jean Tessmer-HI (Apr 29, 2021)

Mike Raphone said:


> All, this is my first thread as I just joined. Your opinion would be greatly appreciated. It is our understanding and confirmed through the ICC and Fair Housing First that only new residential construction falls under the prevue of the FHA due to the "First Occupancy" rule. I have been getting push back from some local inspectors (who continuously have opposing opinions) who want to hold GC's to the 18" center of toilet from the side wall. I exclaim that this is a converted building from office to residential and ANSI 117.1 applies not FHA. They also state that the Type A Units that are not even covered by FHA must meet the 18" criteria as the "stricter" of 16"-18". I have all kinds of verbal support for this but their "experience" tells them to hold the 18". Consequently this becomes an issue when a certification is needed by a lending agency to release funds. The ICC told me that HUD has already certified that ANSI 117.1-2009 meets or exceeds the FHA and that in all cases 16"-18" is acceptable. Does anyone have any additional written support for these assertions?  Thank you, Mike Raphone



here is a written reference on "First Occupancy"  it is published by an attorney who defends contractors and developers on FHA issues.  Here is the link - http://accessdefense.com/?p=2972 - the author is Richard Hunt.  If your building was never built as housing then conversion is is exempt.


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## Jean Tessmer-HI (Apr 30, 2021)

Mike, you are right that HUD wanted to have the FHA requirements mandated by congress as "modest adaptable accessibility" requirements run by the states by way of safe harbor building codes.  If you build it to meet the ICC 2009 which is a HUD safe harbor, according the HUD you met the requirements for FHA covered housing.   I use the 1991 Guidelines coupled with the 1986 ANSI A117.1.  You can use any safe harbor unless your local AHJ will not allow it.


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