On June 25 the Supreme Court held that FHA discrimination claims can be based on disparate impact. Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 2015 WL 2473449, at *9 (U.S. June 25, 2015). At first blush this doesn’t seem to have much to do with accessibility claims. When we talk about the policies that discriminate against those with disabilities we usually look at 42 U.S.C. Section 3604(f)(3)(B), which requires reasonable accommodation; that is, exceptions to a policy because the policy has a disproportionate impact on those with disabilities. However, Inclusive Communities Project may have its own disparate impact on claims of disability discrimination. More
U.S. v. Avatar Properties, Inc., 2015 WL 2130540 (D. New Hampshire 2015) is a little case with a big reminder: condominium and homeowners associations fail to accommodate disabilities at their own risk. The law isn’t perfectly settled, but it is safe to say based on this and other cases that ignoring an accommodation request is probably not a good idea.
A victory for common sense: 11th Circuit FHA ruling rejects subsequent owner liability in multi-family housing
In a decision issued on April 14, 2014 the 11th Circuit provided a major victory for subsequent owners of apartments and other types multi-family housing. In Harding v. Orlando Apts. LLC, 748 F.3d 1128 (11th Cir. 2014) the Court dismissed the notion that merely owning or operating an apartment complex could create liability for a failure of the apartments to meet the FHA design standards. Following the best reasoning of scattered earlier district court decisions the Court found that the clear language of the FHA imposed design and construction liability only on those involved in the original design and construction, and that the general anti-discrimination provisions of the FHA did not create an ongoing duty to bring a multi-family development into compliance with the design standards. (See my blog of November 21, 2013 for background on the pending district court cases). More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Legislation, ADA FHA Litigation General, Apartments, Condominiums, FHA, Multi-Family, Residential Development Tags: Apartments, Condominiums, FHA Litigation, private lawsuits
Until 2011 it was clear that a person who purchased an existing multi-family development or apartment complex and was not affiliated with the original owner did not have the kind of liability that would require making every unit accessible. “Design/build” liability of that kind was reserved to the original owner of the project based on 42 U.S.C. § 3604(f)(3), HUD’s informal guidance and cases like Silver State Fair Housing Council, Inc. v. ERGS, Inc., 362 F.Supp.2d 1218 (D.Nev.2005). Then, in April of 2011 the District Court in the Middle District of Florida denied a Motion to Dismiss filed by a subsequent owner, finding that it might be possible to prove that merely owning an apartment complex that did not meet FHA standards would constitute discrimination under 42 U.S.C. §3605(f)(1) or (2). Harding v. Orlando Apartments, LLC, 2011 WL 1457164 (M.D. Fla. 2011). More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Multi-Family Tags: Apartments, assistance animals, Condominiums, FHA Litigation, Pets, service animals, therapy animals
On July 1 the Department of Justice announced the filing of another lawsuit challenging what it calls discrimination based on the refusal to allow a therapy animal without a pet deposit. U.S. v Barber, 3:13-05539 (W.D. Wash). Coming on the heels of HUD’s April 25 “Notice Concerning Service Animals and Assistance Animal” the lawsuit is another reminder that this particular FHA violation is of special interest to the government regulatory agencies. It also suggests that apartment owners and managers need to tread carefully and think clearly about how they approach requests for assistance animals. After all, there is no animal more dangerous than a lawyer with a plausible claim. More