Accessibility litigation under the ADA and FHA always seems to have a moral component. This is partly because plaintiffs almost always preface their complaints with a lengthy and unnecessary recitation of Congressional intent about the ADA and FHA, frequently accompanied by statistics about the number of disabled Americans and the discrimination they suffer. Defendants for their part are almost always outraged at being sued without notice over what they regard as purely technical violations that have often been present for decades without complaint. More
FHA Litigation
The Elephant in the Room
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General Tags: ada litigation, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, FHA Litigation, private lawsuits, private litigants
In the last few weeks there has been a vigorous discussion in various blogs and other forums concerning disability law about the pool lift requirement in the 2010 ADA Standards. These discussions were prompted by the January 31, 2013 deadline for compliance. Hotel and motel owners are concerned with the expense of compliance and in particular what constitutes a “readily achievable” barrier removal for a small business with limited resources. This prompted me to look back at the cases defining what is “readily achievable.”
What I found was of little practical help. The ADA itself outlines the factors to be considered, including cost, but doesn’t say just how to balance them. Various district courts have looked at revenues, gross profits and net profits to determine if the cost of barrier removal was excessive, but always end up saying that the inquiry is “fact intensive.” That, of course, is shorthand for there will be an expensive trial of the case. More
The Nitty Gritty – regulatory details that matter in the defense of ADA and FHA lawsuits
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, FHA Tags: ada litigation, ada violation, FHA Litigation
I’ve observed that in many ADA and FHA cases there is little dispute about the existence of barriers to access, but this isn’t always true. A decision from the Seventh Circuit in the first week of January serves as a reminder that sometimes the outcome of a case turns on the nitty gritty of the regulations about accessibility rather than on procedural battles over standing or limitations. More
Beware of Dog – Mental Health Support Animals and the FHA
By richardhunt in ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Multi-Family, Residential Development Tags: Apartments, Condominiums, developers, FHA Litigation, mental health disabilities, real-estate, service animals, support animals
Support animals for individuals with mental health disabilities present special problems for the owners and managers of residential properties. A complaint filed on New Year’s Eve, Intermountain Fair Housing Council, Inc. v. Michael’s Manor, LLC, illustrates some of those problems and shows why requests for an accomodation to allow a support animal must be handled with care.
The first issue faced by owners and managers is whether an untrained support animal has to be allowed at all. In Michael’s Manor the plaintiff alleges that the leasing agent flatly refused to permit a support animal for the treatment of a mental disability A decade ago that refusal might have worked, for a number of courts held that an apartment or condominium complex was only required to permit trained service animals based on the ADA definition of “service animal.” The FHA does not mention service or support animals in its provisions concerning reasonable accommodations and most recent decisions agree that refusal to allow a mental health support animal can constitute illegal discrimination. Requiring proof that the tenant’s animal qualifies as a “service animal” for a physical disability almost certainly violates the FHA. More
What 2013 will bring for ADA and FHA accessibility litigation
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Hospitality, Hotels, Multi-Family, Residential Development, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants, retail
2012 brought with it the final effective date for the 2010 Accessibility Standards and with that new possibilities for claims under the ADA and FHA. The most significant change in the standards from a litigation standpoint was the imposition of long pending requirements for ATM’s, which brought a wave of new cases around the nation. There were important trends for more traditional claims that will continue in 2013.
There will be an increased emphasis by plaintiffs on claims based on alleged policies regarding regarding FHA and ADA compliance as opposed to incidents of non-compliance. Once of the basic economic problems for ADA and FHA plaintiffs is that the barriers to access encountered by any individual plaintiff may be modest, and once such modest barriers are remediated the case may become moot. Unless there is a substantial controversy the fees awarded even by a generous court may be less than what is needed to justify the lawsuit in the first place. Alleging a policy of discrimination allows an individual plaintiff to assert claims based on barriers to access he or she does not know exist and may never encounter. The case law in this area is mixed at best, and plaintiffs can be expected to expand the availability of policy and practice claims in the accessibility context. More