Like most of you I’ve been working from home for the last couple of months, meaning primarily that my dogs are getting a lot of exercise. There has been no sign of any slowdown in the ADA and FHA litigation business, so there is plenty to cover in this Quick Hits edition.
Owners liability for leased premises – you can’t rely on your tenant.
Dunbar v. Empire Szechuan Noodle H. Inc., 2020 WL 2132339 (S.D.N.Y. May 5, 2020) perfectly illustrates the overriding responsibility of a property owner for the accessibility of a leased premises. The tenant defendant, Empire Szechuan, was evicted for non-payment of rent and went out of business. The Court had no trouble finding claims against it were moot since there was no possibility of effective injunctive relief. The property owner, New Gold Equities, did not fare so well. The court rejected its argument that claims were moot because the new tenant was contractually obligated to comply with the ADA because that compliance was in the future and therefore far from certain. The Court also noted that the ADA lease provision didn’t add much because the new tenant and owner were already obligated to comply with the ADA. A property owner who relies on their tenant may find themselves with continuing liability regardless of any lease provision.
I wrote back in 2014 about the problem of endless FHA liability for design/build defects* and have covered other statute of limitations cases as well** but a recent decision from the Southern District of New York is worth noting for both its summary of existing law and the fundamental error it embraces.
Christmas is over with lumps of coal and sugar plums distributed in ways that often seem unrelated to who has been naughty or nice. Regular readers will see just how little has changed in the course of 2019 despite some important defense victories in the Sixth and Eight Circuits. With most ADA litigation centered in New York, California and Florida the serial litigation business will almost certainly continue to thrive in 2020.
A hodgepodge, I just learned, is a not just a word for a confusing mixture, but also the name of a vegetable stew. The FHA and ADA decisions of the last few weeks may not be tasty, but they are varied. I’ve put the FHA case first because it involved an unforced error and illustrates why landlords of all sizes need to be aware of what the FHA permits and denies.
I’ve been posting a lot of blogs in the last few days in an effort to catch up with a backlog of important or at least interesting cases. Just as I was wrapping up this Quick Hits blog the Sixth Circuit handed down its decision in Brintley v. Aeroquip Credit Union, precipitating the blog’s publication. Subscribers who feel they are being spammed can rest assured the pace of posts will slacken – assuming the pace of ADA and FHA accessibility developments slackens, of course.