The Court’s principal holding is the obvious but often overlooked rule the various safe harbors for the design and construction of multi-family dwellings are a shield, not a sword. In Miami Valley the plaintiffs produced a typical expert report in this kind of case. It listed several hundred supposed accessibility barriers based on deviations from the original FHA Guidelines promulgated by HUD in 1991 along with the assertion that because the Guidelines are the least restrictive of the HUD recognized safe harbors the apartments did not meet any safe harbor standard. Based on this evidence the plaintiffs sought summary judgment. More
By Richard Hunt in Accessibility Litigation Trends, Animals, Apartments, FHA, FHA Emotional Support Animals Tags: Fair Housing Act Emotional Support Animals, Fair Housing Act medical verification. Emotional Support Animals
Nobody likes fake Emotional Support Animal letters, but a recent DOJ consent decree should remind apartment owners that reasonable verification of a disability can spill over into unreasonable discriminatory demands.
The DOJ press release, and a link to the decree, can be found HERE. The apartment managers’ sin was requiring that an individual claiming to be disabled provide a “prescription” for the emotional support animal that included an assumption of liability by the health care provider for damage caused by the animal. You don’t have to be a mind reader to understand what management was thinking. If the health care provider is taking a risk, he or she will be more honest about the existence of a disability. HUD, DOJ, and any court would see it differently. They saw threatening a health care provider as a way of keeping those with disabilities from exercising their rights. More
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, FHA, FHA Reasonable Accommodation, Reasonable accommodation Tags: City Vision, dialing for dollars, Fair Housing Advocates, HUD complaint, Patrick Coleman, Texas Workforce Commission
I’ve written before about the dialing for dollars phenomenon in Fair Housing Act claims (click here) and about how cheap standing facilitates litigation aimed more at profit than progress (click here). There is good news on both fronts from the Texas Workforce Commission, which recently dismissed several FHA complaints because the organization that filed them, a private corporation called Fair Housing Advocates, could not demonstrate it had standing. Fair Housing Advocates is operated by Patrick Coleman, one of the two owners of City Vision, a similar organization devoted to making money by means of HUD complaints. Citi Vision appears to have abandoned the dialing for dollars business earlier this year, probably because TWC started dismissing its complaints for lack of standing. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Policies, Apartments, Condominiums, Public Facilities, Restaurants, Retail, Shopping Centers Tags: accessible parking, ada litigation, parking lots, Public accommodation
What’s wrong with this picture? You can be excused if you don’t immediately think, “no accessible parking,” but that might be the first thing that would come to mind for the defendant in Langer v. G.W. Properties, L.P., , 2016 WL 3419299, (S.D. Cal. June 21, 2016). Langer serves as a reminder that a business not usually covered by the ADA can become a “public accommodation” based on temporary use, and that this may lead to requirements for permanent changes. Commercial enterprises and apartment complexes should pay attention, as should any owner of raw land that allows it to be used for parking from time to time.
Guidance from HUD and DOJ is nice to have, but ultimately the courts are responsible for deciding what the Fair Housing Act means. In Fair Hous. Rights Ctr. in Se. Pennsylvania v. Post Goldtex GP, LLC, 2016 WL 2865733 (3d Cir. May 17, 2016) the Third Circuit confirmed HUD and DOJ’s position that FHA accessibility standards do not apply to pre-1991 buildings, even if they have been for the first time converted to residential use. This will help urban project developers who want to preserve historic structures but find it impossible to make new residences meet all of the FHA accessibility guidelines. More