“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.
private litigants
The Blob – FHA Litigation that is just too big to finish
By richardhunt in Accessibility Litigation Trends, Apartments, FHA, Residential Development Tags: FHA Litigation, private lawsuits, private litigants
On April 30, 2008 a group of institutional plaintiffs sued a collection of architects and owners of mixed use properties claiming violations of the accessibility provisions of the Fair Housing Act. Miami Valley Fair Housing Center, Inc. et al v. Steiner + Associates, Inc. et al, Case No. 3:08-cv-00150 (S.D. Ohio). More than four years later, on December 10, 2012, the parties entered into a stipulated judgment that called for an agreed scope of remediation of the three properties named in the original complaint. The case is an example of what I think of as the “too big to finish” problem in FHA litigation. The case as filed was so big, and included so many parties, that it became a procedural quagmire instead of an efficient means to resolve accessibility problems.
In September of 2008, five months after the case was filed the parties all requested that the Court stay the litigation while their respective experts inspected the properties at issue. The stay was extended for an additional 90 days by a stipulation filed on January 29, 2009. It isn’t clear what the delays accomplished, but on August 8, 2009, more than a year after the case was filed, the Court finally entered a pre-trial order setting the case for trial in December of 2010. More
Testers and the ADA — does motive matter?
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail, Shopping Centers Tags: ada litigation, ADA standing, private lawsuits, private litigants
Most lawsuits brought under the ADA are brought by “testers” that is, individuals whose primary motivation is not to take advantage of particular goods and services, but rather to discover whether a particular facility complies with the ADA. This fact offends many defendants, and seems to defy the constitutional requirement that the plaintiff have suffered an actual injury. As a result, motions to dismiss that are based on the plaintiff being a tester are common. It took me very little time to find four decisions in 2013 that discuss tester standing, and more than 10 in 2012. In some of these cases the complaint was dismissed for lack of standing, but not in all. While some defendants raise the “tester” argument as if it were a generic fault, in fact its application requires careful analysis because ADA claims require not only a past injury, but also a likely future injury. More
The yin and yang of ADA defense. Perilous settlements and temporary victories
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Hospitality, Hotels, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ADA standing, ada violation, mental health disabilities, private lawsuits, private litigants, real-estate, restaurants, retail
A couple of district court decisions from late February should both comfort and warn ADA defendants. Gutierrez v. Chung, 2013 WL 655141 (E.D. Cal. 2013) reminds us that settlement alone doesn’t resolve an ADA violation. The only permanent solution is remediation. National Alliance for Accessibility, Inc. v. Millbank Hotel Partners, 2013 WL 653955 (D. Md. 2013), on the other hand, shows how to attack the boilerplate pleadings found in almost all ADA lawsuits. More
Booths, tables and discrimination beyond the ADA Standards.
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Hospitality, Hotels, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, private lawsuits, private litigants, restaurants, retail
A few careless words in an opinion can spawn dozens of lawsuits and may create precedents that cost property owners and operators tens of thousands of dollars in legal fees if not in remediation costs. The question of whether compliance with ADA Standards and Guidelines is sufficient to avoid an ADA claim illustrates just how this can happen. More