The Department of Justice announced in late July a settlement with a substantial multi-family developer in West Virginia that had managed over a decade or so to construct 23 apartment complexes that did not comply with the accessibility requirements of the Fair Housing Act (see the DOJ press release here). In addition to remediation costs, which appear to be substantial, the developer will pay $205,000 in damages and penalties and construct new accessible units. Like most FHA cases, it is a big deal.
One of my fellow bloggers has helpfully suggested that if the DOJ investigates a situation like this you need a lawyer “like me.” What developers “like you” really need is not to be investigated in the first place, and if investigated to not be liable. You can find a link to the consent decree in the DOJ press release, and the problems it lists are the same problems that appear over and over again in FHA lawsuits. Lawyers didn’t cause them, and lawyers really can’t prevent them. Developers, however, can.
We can start with the plans. These complexes were built more than a decade after the effective date of the Fair Housing Act, and the plans should have complied with the FHA. It appears, however, that in many cases they didn’t. For example, one complex seems to have had 30 inch standard interior doors. The narrowest standard door that will satisfy the FHA is 34 inches. Although the required clearance is 32 inches, for technical reasons 32 inch doors don’t meet this requirement. Here’s the first thing a developer can do to avoid FHA liability; have the plans reviewed by a third party consultant specializing in FHA compliance. This is an added expense, but the frequency with which non-compliant apartment complexes are going up suggests that the money won’t be wasted.
(By the way, you can’t rely on local code enforcement to help with this, even if the local code includes the FHA standards. Meeting local codes is not a defense to FHA liability, and as a practical matter local code enforcement probably won’t concentrate on FHA requirements. There’s no safety net, and developers need to recognize this from the start.)
Next, think about just how much the subcontractors and laborers are likely to understand that the FHA’s requirements allow for almost no slack. Have you ever seen a perfectly square room in an apartment complex? A perfectly flat wall? The people who actually put up the walls, pour the concrete, mount the light switches and so on operate on the theory that a little give is both o.k. and unavoidable. If the plans specify that counters in a galley kitchen should be exactly as far apart as the FHA requires then it is almost certain that many of the kitchens, as built, will be too narrow by an inch or more (I’ve seen this many times.) If the counters are perfectly built no one will have realized that the handle of the oven and refrigerator protrude into the required clear space. The same kind of thing happens with bathroom sinks and toilets. If everything is specified to the closest tolerance permitted by the FHA Design Manual it is almost certain that many units will not comply when the construction is finished.
Even if the plans allow the needed leeway, post-construction, and even mid-construction surveys of the work are critical. This kind of review needs to concentrate on the most common problems: threshold heights, switch and thermostat heights, bathroom and kitchen clearance, and slopes. Almost every problem in construction is easier and cheaper to fix if caught early, and while this kind of review is an added expense, the near certainty that problems will come up justifies it.
When do you need a lawyer? When you get sued, of course, but also when a construction review turns up problems that would be expensive to fix. At that point a lawyer with FHA experience can help evaluate the risk of non-compliance and the possible legal remedies. However, your first goal as a developer should be to never need a lawyer at all. That means hiring the experts with tape measures and laser levels to make sure the plans are right and the construction follows them.