Summary of Court Case Involving Accessibility Testing
On August 10, 2020, the court issued an order granting partial summary judgment in favor of the plaintiffs and against the defendants in Ability Center, et al. v. Moline Builders, et al. (N.D. Ohio). At issue was whether, under the Fair Housing Act’s accessibility requirements for newly-constructed multifamily dwellings, the front door and walkway leading to a covered unit are required to be accessible to persons with disabilities. Defendants argued that their only obligation was to provide an accessible route into the unit, which, they alleged, they had done by providing an accessible route through the garage. The United States filed a Statement of Interest arguing that, under the Act, the front doors and walkways are “public use and common use portions” of covered dwellings and therefore required to be accessible, regardless whether there is another accessible route into the unit. The court agreed, finding that the failure to provide “unimpeded access” to the front door to persons who use wheelchairs, including not just those who live in the unit but also a “neighbor, friend, or family member, a political candidate, or a repairman,” is “in effect, to send them away as if unwelcome,” and “precisely the discrimination the FHAA forbids.”
Case Open Date:
Monday, August 10, 2020
Ability Center, et al. v. Moline Builders, et al. (N.D. Ohio)
Fair Housing Act; fha; multifamily dwellings; disabilities; accessible route
Civil Rights Division
Civil Rights – Housing and Civil Enforcement Section
Statement of Interest – The Ability Center of Greater Toledo v. Moline Builders, Inc. (N.D. Ohio)
Order – Ability Center, et al. v. Moline Builders, et al. (N.D. Ohio)
There is a huge amount of accessibility testing being conducted on properties subject to FHA accessibility requirements (those constructed for first occupancy after March 13, 1991). This is largely because of the ease in discovering exterior violations like in this case; only a car and a camera are needed.
Anyone involved with the design and construction of a multifamily dwelling covered by these FHA requirements can be held liable for violations, even if they aren’t discovered until years later. In a 2013 Joint Statement, HUD and the DOJ clarified that even though there is a 2-year statute of limitations to file a lawsuit under the FHA, for accessibility-related cases, the statute of limitations won’t begin to run until someone is actually harmed by such a violation. In other words, even if a property was constructed in 1992, if an FHA compliance issue was not discovered until 2020, the individual or agency would still be able to file a complaint.
The good news for owners is that generally, this type of liability can only attach to those involved in the design and construction of the covered property. Subsequent owners typically do not fall into that category, even if they were aware of the issue when they acquired the property, but may still be required to maneuver around the disruption of any remediation following an enforcement action or court order against the developer, architect, etc.
If a subsequent owner is aware that its property was designed with features that are not compliant with the FHA accessibility requirements, it may not be worth backing out of a purchase. However, the owner should make it a priority to ensure that all tenants are aware of their rights to request reasonable modifications. (Remember, if a resident requests a modification that should have already been in place under FHA requirements, the owner/agent is required to pay for it, even in private market properties.)
There are great benefits to retaining fair housing legal counsel to make sure you are ready if a fair housing tester comes to call.