1280-iphone-pothole-season---stunt-002“All things are subject to decay and when fate summons, monarchs must obey,” wrote John Dryden, the English playwright and poet. He probably wasn’t thinking of potholes and buckled sidewalks, but the sentiment remains true. Even if you build the perfect FHA compliant facility, time will create barriers to access that were never intended. Although the FHA does not have a barrier removal provision like the ADA, the failure to maintain a multi-family housing project can violate the FHA’s provisions concerning program discrimination.

A useful discussion of the entire issue can be found in Reyes v. Fairfield Properties, 661 F.Supp.2d 249 (E.D.N.Y. 2009). The plaintiff was the mother of a child with cerebral palsy who was required to use a wheelchair. Her claims included a demand that the apartment complex where she and her daughter lived construct ramps, widen walkways and otherwise make it easier to navigate in a wheelchair. The property was built before the 1991 effective date of the accessibility requirements of the FHA, so the lack of accessible routes, narrow doorways and other similar items did not violate the design/build provisions of the FHA. Instead, the plaintiff sued for a “reasonable accomodation in rules, policies, practices or services” under 42 U.S.C. §3604(f)(3)(B).

After an exposition of the relevant case-law the District Court concluded that the requirement for a reasonable accommodation did not require any kind of new construction, or even require that renovations comply with FHA accessibility standards. In two areas though, potholes and parking, the Court found that the reasonable accommodation provision did require consideration of the plaintiff’s disability. While new construction was not a “practice or service,” maintenance was. If the plaintiff’s travel across the parking lot with a wheelchair was made dangerous or even just difficult and uncomfortable the failure to perform maintenance to correct these problems was a failure to provide a reasonable accommodation. It reached a similar conclusion with respect to parking. Assigning parking spaces or deciding not to assign them is a policy matter, and so the plaintiff could request, as a reasonable accommodation, a reserved parking space near her apartment. And, since a reasonable accommodation may require the owner to incur minor costs or take “modest affirmative steps” she could also request a sign showing that the parking spot was reserved.

For those who don’t think the risk of a lawsuit is reason enough to defer maintenance there is a strong warning of the possible consequences in a case from southern Florida.  Unlike the ADA, the FHA allows for recovery of damages, including mental anguish. In Davis v. Lane Management, 524 F.Supp. 2d 1375 (S.D. Florida) the landlord failed to repair an elevator for 7 months, causing significant embarrassment and pain to a quadriplegic tenant on an upper floor. The Court, in a decision that doesn’t conceal its disgust, awarded the plaintiff $420,000 for mental anguish and an equal additional amount as punitive damages.

Instant repair of an elevator or potholes isn’t possible, but somewhere between tomorrow and seven months later is the tipping point where the failure to maintain turns into a claim not just for repairs, but for damages as well.  When maintenance affects disabled tenants deferring it may not be an option.