I’ll be presenting a two hour live webinar titled “What Real Estate Lawyers Need to Know About the ADA, FHA, and CT Accessibility Laws” for the Connecticut Bar Association on April 4, 2023 at noon Eastern Time. If your clients buy, sell or manage shopping centers, commercial properties, multi-family housing, single family housing developments, or home owners associations you need to understand their obligations under the Americans with Disabilities Act, Fair Housing Act, and Connecticut’s fair housing and public accommodation accessibility laws. Even if you don’t practice in Connecticut you’ll find this presentation helpful because so much of Connecticut law tracks the equivalent federal statutes. Sign up at the link above.
FHA
Murder or just a misunderstanding? The Fifth Circuit on disparate impact discrimination
ICP v Lincoln Properties and its “progeny.”
In the last days of the Trump administration HUD promulgated a new regulation concerning disparate impact claims under the Fair Housing Act whose intent was very clearly to make such claims difficult even to plead, let alone prove.¹ Its implementation remains stayed by a federal court, but in the Fifth Circuit that may not matter because earlier Fifth Circuit cases are even more restrictive. Prompted by the discussion in Treece v. Perrier Condo. Owners Assn., Inc., 2021 WL 533720 (E.D. La. Feb. 12, 2021) I decided to take a hard look at the Fifth Circuit’s decision in Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 895 (5th Cir. 2019), cert. denied, 140 S. Ct. 2506 (2020). That turned out to be a bigger project than I expected, because as interpreted Lincoln Properties is incredibly restrictive, but those interpretations are almost certainly wrong. Clarification seems inevitable even with the existing conservative Supreme Court. Here’s why. More
HUD’s new Guidance on assistance animals will encourage emotional support animal fraud.
On January 28, 2020 HUD issued its “Guidance on Reasonable Accommodations under the Fair Housing Act Relating to Assistance Animals.”† Over the course of 19 poorly written and poorly organized pages HUD provides one crumb of help for housing providers faced with bogus requests for emotional support animals. The bulk of the “Guidance” is a confused repetition of various earlier HUD positions that defy common sense and the law.
What’s useful.
For landlords the most important part of this Guidance is HUD’s acknowledgement that letters purchased on the internet are not reliable evidence of a disability or a disability related need for an emotional support animal. We’ve known this for years, but it’s nice that the bureaucrats have finally recognized it as well. However, this means almost nothing as I’ll discuss below. More
Quick Hits – All the news for April 2018
April was a busy month for courts confronting ADA lawsuits and some of the news is good for business; at least for business outside the Ninth Circuit. Of the cases we discuss, the two website cases are the most interesting, for they show how website accessibility cases are pointing the way back to a requirement of real rather than merely hypothetical injuries as a prerequisite to filing suit. More
Obvious but often overlooked – it takes more than an impairment to be disabled under the ADA (or FHA)
The March 13 decision in Johnson v. NYS Office of Alcoholism and Substance Abuse, 1:16-cv-9769 (S.D.N.Y. March 13, 2018) shouldn’t be particularly interesting. The plaintiff claimed to be disabled because he was a recovering alcoholic. The Court dismissed the complaint because the plaintiff did not allege that his alcoholism interfered with a major life activity, explaining:
Although alcoholism is considered an ” impairment” under the ADA and the Rehabilitation Act , “more than a physical or mental impairment is required ” to satisfy the definition of “disability. ” Because ” [m]ere status as an alcohol or substance abuser does not necessarily imply a limitation under the anti-discrimination statutes, a plaintiff who alleges that he is disabled “must demonstrate not only that he . . . was actually addicted to drugs or alcohol in the past, but also that this addiction substantially limits one or more of his . . . major life activities. ” (quoting an earlier case). More