Condominium, Apartment and Resort Design under Attack
 
June 1, 1999
 
Christopher B. "Chris" Hanback- Washington

The mail arrives. It includes a letter from the local fair housing council stating that your recently completed Springfield complex does not comply with the Fair Housing Act design requirements. The council wants to meet with you before filing a lawsuit. Also, they want to talk with you about your Maplewood property that was completed in 1993. You call your architect. He has never heard of Fair Housing Act accessibility design; he says he built your properties in compliance with the "local code."

This scenario is being reported weekly across the country. Sometimes, however, the letter comes from the Department of Justice or the Department of Housing and Urban Development (HUD). What's going on?

The Fair Housing Act Amendments

In 1998, the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. (Act), was amended for apartments and condominiums built for first occupancy after March 13, 1991. Buildings consisting of four or more units must incorporate certain design features to make the dwellings accessible by persons with disabilities. All persons involved in developing a property may be held liable for violations including: developers, architects, contractors and engineers.

The Act and the regulations issued by HUD, identified seven general areas for compliance: building entrance on an accessible route; public and common use areas; doors and passages; accessible routes into and through the dwelling; light switches, electrical outsets, thermostats and other environmental controls; reinforcement of bathroom walls to permit installation of grab bars; and maneuvering or clearance space for wheelchairs in bathrooms and kitchens. 42 U.S.C. § 3604(f)(3)(c); 24 C.F.R. §100.205. Technical guidelines were issued in 1991 by HUD (24 C.F.R. Ch. I, Subchapter A, Appendix II) and a more complete design manual was issued in 1996 and reissued in 1998.

The Act requires that all units in an elevator building and all first floor units in nonelevator buildings meet certain design standards. Developers have discovered that the Act's design requirements may make certain desirable features difficult or impractical to construct - particularly in upscale units. Such features, which are in demand by purchasers and residents, include kitchen islands, pantries, walk-in closets, enclosed toilet stalls and balcony doors.

Americans with Disabilities Act

The Fair Housing Act design requirements are completely separate from the requirements of the more familiar Americans With Disabilities Act, 42 U.S.C. §§12181 et seq. (ADA). The ADA applies to the "public accommodations" such as "transient lodgings" including hotels but requires only that percentages of units (not all units) must contain certain design features. In addition, accessible routes or certain paths of travel through a building must be barrier free. The ADA also applies to certain common areas of apartments and condominiums that are open to the general public such as sales or rental offices, swimming pools and community rooms.

Increasing Litigation and Redesign Costs

The federal government and disabilities advocacy groups have documented widespread non-compliance with the Fair Housing Act's design requirements. The architectural community, upon which developers rely, is not fully aware of the requirements. As a result, design retrofits may be extremely costly and sometimes impossible. As senior management of many multifamily developers and owners is learning, six-figure settlements are being extracted by the federal government and disability advocacy groups to resolve these claims. The ultimate dollar amounts of recent settlements may not be readily calculable because they depend on future events. Nevertheless, reasonable estimates of settlements have been as high as $1.5 million including per unit settlements as high as approximately $7000.

What to Do If You Have a Design Problem

Take these design issues seriously. The dollars involved, additional design and construction costs and potential adverse publicity, necessitate involvement of senior management. These are not garden variety fair housing or personal injury complaints.

Retain competent counsel to guide and represent you. Be sure that counsel is familiar with The Fair Housing Act design issues and, if possible, has defended and settled recent fair housing cases. Let your counsel retain expert architectural consultants (not any architect will do) so that their advice may be protected from discovery by your adversaries.

Develop a strategy with your counsel to work with your original design architect. You will likely have a professional liability claim against the design architect, but both the developer and design architect will fair better if they work together.

Understand what can and cannot be done to an existing structure; expect that dollars will have to be paid in damages to fair housing organizations to the extent that retrofitting cannot be accomplished.

Condominium Hotels and Timeshares

While recent attention has focused on traditional condominium and apartment projects, the Fair Housing Act design requirements may also be applicable to other types of developments. For example, to the extent that condominium hotels and timeshares are owned and operated with characteristics of a dwelling as distinguished from a transient lodging, the Act may apply. Some condominiums, hotels and timeshares have characteristics of both a residential dwelling and a public accommodation and may be subject to the design requirements of both the Fair Housing Act and ADA.

Christopher B. Hanback is a Partner in the Washington, D.C., office and can be reached at 202-457-7157, or at chanback@hklaw.com.