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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