ADA defense requires more than insults

By in ADA FHA Litigation General No Comments

By Richard Hunt

“Drive-by litigation.” That is how two major real estate trade groups referred to abusive ADA litigation in a letter to Congress. Do we really think a guy in a wheelchair who couldn’t get into the bathroom is like a murderous gang member killing for sport? To be fair, many members of the plaintiffs’ bar use equally strong language when describing real estate developers and owners. I’d like to suggest that if both sides focused on real problems instead of rhetoric we would have more progress and less litigation. More


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What Kind of Place Is Cyberspace?

By in Accessibility Litigation Trends, ADA FHA General No Comments

By Richard Hunt

Two decisions from opposite ends of the country highlight an unresolved issue that should be of real concern to many businesses. In the Northern District of California Netflix persuaded the Court to dismiss an ADA complaint based on the lack of subtitles on its streaming video content. The reason was simple – a “place of public accomodation” within the meaning of the ADA only applies to physical, not virtual places. Thus, as a practical matter services offered through the web are exempt from the accessibility provisions in Title III of the ADA.  At almost the same time the District Court in Massachusetts refused to dismiss an ADA claim against Netflix. The Massachusetts court had no trouble finding that cyberspace can be a “place” covered by the ADA.  More


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Practical Responses to Accessibility Litigation

By in ADA FHA Litigation General No Comments

By Richard Hunt

Sooner or later, almost every owner of a commercial or multi-family residential property will receive a demand letter or be served with a lawsuit claiming violations of the Americans with Disabilities Act or Fair Housing Act accessibility standards. Although the accessibility standards are now more than 20 years old, accessibility lawsuits continue to increase, and surveys indicate that almost all commercial and multi-family properties have some accessibility violations.

Accessibility lawsuits are always irksome. More


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Caveat Emptor – Buyers of post 1991 properties may take on design/build liability

By in Accessibility Litigation Trends No Comments

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. More


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The ACCESS Act – A statutory quick fix that needs some fixing.

By in ADA FHA General, ADA FHA Legislation No Comments

By Richard Hunt

In a letter to the Subcommittee on the Judiciary the National Multi Housing Counsel and National Apartment Association expressed support for HR 3356 as a solution to abusive litigation under the ADA and FHA. The goals of the ADA Compliance for Customer Entry to Stores and Services (“ACCESS”) Act, as HR 3356 are good, but it does not address the problem in a manner consistent with the goals of the ADA and FHA. More


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