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
FHA Litigation
A green card is no red light when it comes to ADA and FHA litigation
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Building Codes Tags: ada litigation, FHA Litigation, private lawsuits
Many modern building codes incorporate accessibility requirements that parallel or even exceed the requirements of the FHA and ADA. In fact, the regulations implementing the accessibility provisions of the Fair Housing Act identify as safe harbors the provisions of several versions of the International Building Code. It is hardly surprising then that property owners and contractors believe that getting a certificate of occupancy means the building complies with the FHA or ADA. Nonetheless, getting a C.O. is no guarantee of compliance with the law and no proof against litigation. The reasons are largely practical, but there is a legal dimension as well when it comes to placing the blame for a failure to comply. More
TASA Webinar – “Understanding, Avoiding and Defending Accessibility Lawsuits”
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General Tags: ada litigation, FHA Litigation, private lawsuits, private litigants
Have you ever wondered just why certain kinds of ADA lawsuits recur so often, while others are rare? Or how a business owner can be proactive in avoiding ADA and FHA Litigation? On Thursday, March 13, at 1:00 Eastern Time I’ll be presenting a webinar for the TASA Group on “Understanding, Avoiding and Defending Accessibility Lawsuits.” You can register at http://www.tasanet.com/forAttorneys.aspx.
What were they thinking? Indemnity and accessibility under the ADA and FHA
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, ADA indemnity contribution, ADA Insurance, FHA indemnity contribution, FHA Insurance Tags: ada litigation, FHA Litigation, Indemnity and Contribution, private lawsuits
The rule is simple, but crazy. A contractual indemnity provision that shifts liability for FHA or ADA violations is unenforceable. Equal Rights Center v. Niles Bolton Ass., 602 F.3d 597 (4th Cir. 2010). Owners, operators, contractors and others who may have independent liability for ADA or FHA violations cannot contract among themselves to determine who will ultimately be responsible. More
FHA liability for subsequent purchasers – what’s next?
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