That may be a bit extreme, but recent cases from Florida and Indiana hold that merely owning an apartment complex that is not in compliance with the accessibility requirements of the Fair Housing Act will require the owner to bring the entire complex into compliance with the ADA Standards for Accessible Design (“SAD”). In National Fair Housing Alliance v. S.C. Bodner Co. the Court put the matter plainly, holding that a property owner can be found liable “for merely offering to rent apartments that were designed and built out of compliance with the disabilities access standards.” Harding v. Orlando Apartments, LLC reached the same conclusion, holding that “failure to remedy” deficiently constructed apartments constituted illegal discrimination.

Until the decision in Harding, which was published in April of 2011, it was widely understood that liability for a failure to comply with SAD came in two flavors. Initial owners and designers had “design/build” liability that could require bringing multi-family housing into complete compliance with SAD requirements. Subsequent owners were liable only for a failure to allow tenants to make reasonable modifications at the tenant’s expense. Some decisions nibbled around the edges of these principles. There could be discrimination, for example, where a condominium association had a renovation budget but refused to spend it on making common areas accessible. In the main, however, courts agreed that, as the district judge wrote in Fair Housing Council v. Village of Olde St. Andrews, “The mere existence of a non-compliant building, however, is not an act [of discrimination].”

Harding and Bodner reject the idea that “the mere existence” of a non-compliant building cannot constitute discrimination. They argue instead that by “offering to rent” non-compliant apartments the owner has discriminated against those with disabilities. Bodner goes even farther, with the court rejecting the idea that the FHA requires an “affirmative act” of discrimination. Instead,according to Bodner, liability exists if the owner intends to discriminate, whether or not such discriminatory intent is ever acted on.

These cases will certainly be exploited by attorneys seeking new targets for FHA litigation. The difference in the scope of work between allowing modification of one unit and bringing an entire complex into compliance is also the difference between a small award of attorneys fees and a large one. The cases create an incentive to litigate. For buyers of apartments or other multi-family housing these cases dramatically increase the risk of future litigation. Statistical surveys indicate that few if any multi-family projects are completely SAD compliant, meaning that almost every purchase of such housing is the purchase of a possible lawsuit. Unless and until the cases are reversed on appeal they are a dangerous precedent that will undoubtedly be used to support new lawsuits under the FHA.