I’ve observed that in many ADA and FHA cases there is little dispute about the existence of barriers to access, but this isn’t always true. A decision from the Seventh Circuit in the first week of January serves as a reminder that sometimes the outcome of a case turns on the nitty gritty of the regulations about accessibility rather than on procedural battles over standing or limitations. More
By richardhunt in ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Multi-Family, Residential Development Tags: Apartments, Condominiums, developers, FHA Litigation, mental health disabilities, real-estate, service animals, support animals
Support animals for individuals with mental health disabilities present special problems for the owners and managers of residential properties. A complaint filed on New Year’s Eve, Intermountain Fair Housing Council, Inc. v. Michael’s Manor, LLC, illustrates some of those problems and shows why requests for an accomodation to allow a support animal must be handled with care.
The first issue faced by owners and managers is whether an untrained support animal has to be allowed at all. In Michael’s Manor the plaintiff alleges that the leasing agent flatly refused to permit a support animal for the treatment of a mental disability A decade ago that refusal might have worked, for a number of courts held that an apartment or condominium complex was only required to permit trained service animals based on the ADA definition of “service animal.” The FHA does not mention service or support animals in its provisions concerning reasonable accommodations and most recent decisions agree that refusal to allow a mental health support animal can constitute illegal discrimination. Requiring proof that the tenant’s animal qualifies as a “service animal” for a physical disability almost certainly violates the FHA. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Hospitality, Hotels, Multi-Family, Residential Development, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants, retail
2012 brought with it the final effective date for the 2010 Accessibility Standards and with that new possibilities for claims under the ADA and FHA. The most significant change in the standards from a litigation standpoint was the imposition of long pending requirements for ATM’s, which brought a wave of new cases around the nation. There were important trends for more traditional claims that will continue in 2013.
There will be an increased emphasis by plaintiffs on claims based on alleged policies regarding regarding FHA and ADA compliance as opposed to incidents of non-compliance. Once of the basic economic problems for ADA and FHA plaintiffs is that the barriers to access encountered by any individual plaintiff may be modest, and once such modest barriers are remediated the case may become moot. Unless there is a substantial controversy the fees awarded even by a generous court may be less than what is needed to justify the lawsuit in the first place. Alleging a policy of discrimination allows an individual plaintiff to assert claims based on barriers to access he or she does not know exist and may never encounter. The case law in this area is mixed at best, and plaintiffs can be expected to expand the availability of policy and practice claims in the accessibility context. More
Last week I described how liability for design/build claims under the FHA can last forever. The same problem exists with design/build claims under the ADA, as shown by the decision in Frame v. City of Arlington. There are even surprises with the statute of limitations for barrier removal cases. For example, after a plaintiff encounters an access barrier he can wait as long as he wants before filing suit. In Pickern v. Holiday Quality Foods the Ninth Circuit said that as long as the plaintiff is aware of the discriminatory condition and is deterred from returning to the building the violation of the ADA continues. In Pickern the plaintiff had driven to the store within the limitations period, and although he remained in his car there was some evidence of real deterrence. Nonetheless, the rule stated in Pickern would allow a plaintiff to stew at home for as many years or decades as she chose before filing suit. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, FHA, Statute of Limitatinos Tags: FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement
This week two district courts, one in Oregon and one in Florida, confronted defendants determined to make sure that no one would be allowed to know whether they had violated the FHA or ADA. One seems to involve only a pointless squabble that increased legal expenses for no good purpose. The other shows how a battle over discovery can provide a real victory for the property owner. More