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GT Alert

New Access Claims Against Residential Communities

July 2005

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Recent claims and settlements confirm the growth of residential access disputes and illustrate the complexity of issues related to accommodating the needs of residents with disabilities.

The Renaissance Settlement for $1.4 M

A disabled homeowner's complaint that his downtown San Diego condominium failed to meet federal accessibility standards has resulted in a $1.4 million settlement by the developers of the 221-unit high-rise. The Department of Housing and Urban Development (HUD) negotiated this settlement on behalf of the disabled resident of The Renaissance complex in downtown San Diego.

The complex is less than 3 years old and is subject to both state and federal design requirements for multi-unit housing. The homeowner filed the complaint alleging he had to request and pay for accessibility modifications that, by law, should have been included in the complex when it was constructed. Among the modifications that the homeowner made were modifications to the master bathroom and its threshold, widening of the master bathroom entryway, and installation of a roll-in shower, instead of the tub and shower that appeared in the original plans.

The homeowner asked the developer to make alterations to his unit to accommodate his mobility impairment. He filed his complaint with HUD because he felt the developer was not responsive. The homeowner spent $15,000 of his own money to make his two-bedroom condo wheelchair-accessible. The work focused on major alterations to his master bathroom. He will receive $95,000 as part of the settlement.

Under the terms of the settlement, the developer is paying both damages and contributing money toward making common-area improvements and retrofitting individual units. The agreed upon retrofits include modifying the building entrances, creating more accessible mail receptacles in the mailroom, modifying doors in the corridors, exercise room, and public bathrooms, and making the common-area kitchen and bathrooms wheelchair accessible. Other dwelling unit retrofits may involve widening doors, lowering thresholds, making lavatories accessible, creating more clear floor space in bathrooms for wheelchairs, and reinforcing walls to enable the installation of grab bars as needed in some toilet and bathtub areas. $1.2 million will go toward making improvements, upon request, to individual units, such as widening doors, lowering thresholds, making lavatories accessible, and reinforcing walls to allow the installation of grab bars as needed in some toilet and bathtub areas.

The California Fair Housing Offices have been actively pursuing access discrimination claims against residential developers. More than half the cases handled by this regional Fair Housing office are related to disability discrimination complaints. Given the high volume of development in California and Nevada, local HUD representatives believe that there are many multi-family buildings in this region that are not in compliance with the disability provisions of the federal law.

The Archstone Settlement for $20 M

Archstone is a developer of multi-unit housing, including apartment communities across the nation. Three advocacy groups representing individuals with disabilities sued Archstone for violations of the Fair Housing Act (FHA) and American with Disabilities Act (ADA) at its apartment communities nationwide. Archstone agreed to pay $20 million in access retrofits at 12,000 apartment units and $1.4 million in fees and costs. This is the largest settlement of a lawsuit challenging defects in the design and construction of multi-family housing under the ADA and FHA.

The settlement requires the survey of 71 apartment complexes developed by Archstone-Smith Trust and located in 16 states around the country, which contain approximately 36,000 apartment units. The features of the complexes, Archstone’s expense, that operated as barriers to the full use and enjoyment of these facilities by people with disabilities are to be retrofitted at Archstone’s. Although surveys of the properties have not concluded, the cost of remediation is estimated to exceed $20 million. Archstone will also pay $1.4 million in damages and attorneys’ fees and litigation expenses.

The lawsuit resulted from an investigation undertaken by civil rights testers from the Equal Rights Center of Archstone apartment complexes around the country. The testing found evidence that Archstone apartment complexes had steps at entryways, doorways that were too narrow, insufficient turning space in kitchens and bathrooms, and other barriers that prevented persons who use wheelchairs from entering or fully using the apartment units and facilities.

The Consent Decree also requires, for the three year period it is in effect, that Archstone-Smith Trust certify that in future construction of apartment complexes they will comply with the accessibility requirements of the FHA and the ADA and educate their personnel on the design and construction requirements of those laws.

One of the problems Archstone will have to face going forward is the conflict between the interpretation of the federal access codes (the FHA and the ADA) and the state building codes. Local building officials do not check for compliance with the federal law. Unfortunately, there continue to be conflicts between what the federal law requires and what is required in some states. In some of those states (California, for example) failure to comply with the state access code exposes the developer to statutory damages.

Archstone may also have to continue to litigate these access issues. Neither the U.S. Department of Justice nor the U.S. Department of Housing and Urban Development was a party to this consent decree, and those agencies are not bound by its terms. Also, this is not a class action settlement that would bind and limit future claims by disabled residents. The settlement is only with these advocacy groups, and may not bind their members or current or future residents of these communities.

Illinois Developers Agree to Pay $275,000

In January of this year, Illinois developers agreed to pay the equivalent of $275,000 to retrofit nine existing apartment buildings, redesign all future buildings planned for construction, and satisfy damage claims from the two plaintiff organizations. Further accessible housing violation claims are still pending against three other builders in the subdivision as well as the two architects, who allegedly designed many of the inaccessible buildings.

The plaintiffs cite design barriers of one or more steps from outside every one of the defendant’s buildings and other violations regarding the design of the individual apartment bathrooms, kitchens, interior doorways, and electrical and environmental controls that they contend are not in compliance with the FHA’s accessibility standards.

The relief agreed upon will require these defendants to modify and retrofit the entrances, common areas, and interiors of ground floor apartments in nine buildings to meet the technical requirements of wheel chair accessibility set by HUD. Defendants have also agreed to have their employees, contractors and agents attend fair housing and accessible design standard training based on the HUD Fair Housing Design Manual and ADA. Defendants will be required to report documentation pertaining to their new construction activities to the plaintiffs for a period of four years.

Nevada Homebuilder Charged with HUD Violations for Discriminating Against Residents with Environmental Sensitivities

For those of us who practice in the area of residential accessibility the most difficult issues relate to accommodating the needs of individuals with environmental sensitivities, mental illness, and those recovering from drug or alcohol dependency.

In an example of a recent action involving environmental sensitivity, HUD brought a charge against a Nevada homebuilder for discriminating against a family because of the children’s environmental sensitivities. The children suffered from asthma and are hypersensitive to mold.

The family agreed to purchase a five-bedroom home to be built in Las Vegas by the developer. During a visit the family noticed what appeared to be mold growing on two studs in the middle of the property. The family demanded that all studs be tested for mold. The developer could not accommodate this request and ultimately cancelled the contract stating in writing that he “did not contemplate being required to build a completely mold-free or sterile home to accommodate the hypersensitivity of the children.”

HUD’s position in this matter is that, “By refusing to grant the family reasonable accommodation request that the suspected mold be tested and treated, if harmful, and by refusing to discuss any other reasonable accommodations, the developer discriminated against the family and their children.“ Housing discrimination charges brought by HUD carry a maximum civil penalty of $11,000 for a first offense in addition to actual damages for the complainant, injunctive or other equitable relief, and attorney fees. Sanctions can be more severe if the respondent has previously violated the Fair Housing Act.

Royalwood Cooperative Apartments Jury Verdict Regarding Comfort Animal

In another reasonable accommodation case, on February 18, 2005, a jury returned a verdict of $314,209 ($14,209 in compensatory damages and $300,000 in punitive damages) for the United States and plaintiff-intervenor Joyce Grad in United States & Joyce Grad v. Royalwood Cooperative Apts., Inc., et al. (E.D. Mich.).The complaint alleged that the defendants violated the Fair Housing Act by refusing to waive a no-pets rule to allow the complainant to keep an emotional support dog in her unit despite a written request with supporting medical documentation that Ms. Grad suffered from a “severe and debilitating depressive disorder.” The case was handled primarily by the U.S. Attorney’s Office in Detroit. The case was referred to the Department of Justice after HUD received a complaint, conducted an investigation and issued a charge of discrimination.

Recent Settlements and Judgments

The number and size of these recent claims shows a trend towards increased litigation and liability over residential access. Several commentators expect that residential access claims will follow the growth of private ADA Title III access claims against retail establishments. In California alone last year, more than 2,000 access claims were filed, resulting in an estimated liability of more than $75 million.

 

This Alert was written by Gregory F. Hurley and Robert S. Fine, Co-Chairs of Greenberg Traurig’s National Access Group. Please contact Mr. Hurley at (714) 708-6614, Mr. Fine at (305) 579-0826 or your Greenberg Traurig liaison if you have any questions regarding the subject matter of this Alert.

© 2005 Greenberg Traurig


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This GT ALERT is issued for informational purposes only and is not intended to be construed or used as general legal advice. Greenberg Traurig attorneys provide practical, result-oriented strategies and solutions tailored to meet our clients’ individual legal needs.