Fair Housing Issues: Disability Access Lawsuits Are on the Rise
Now is the time to be proactive about accessibility issues for the disabled on commercial or residential rental properties! The number of lawsuits being brought against owners and property managers has risen to a level that is receiving national attention. In recent years, accessibility lawsuits have focused primarily on large public venues such as recreation and shopping areas. Lately, however, the rental housing industry has become a target of these lawsuits as well.
These cases are expensive and time-consuming to defend, even if the defense is successful. Therefore, good business planning involves attempts to reduce the risk that a suit will be filed in the first place. It is seldom worth the plaintiff's effort to sue when there is clearly no legal basis for a suit. Even so-called "nuisance" lawsuits, which are designed primarily to make the defendant pay to settle (rather than actually create access) usually have some type of non-compliance issue to cite. Knowledge is the key to avoiding non-compliance.
There are several laws that deal with disabled access to real property. This article is in-tended only as an overview to address, in general terms, the requirements in commercial and conventional rental housing. It does not address individual disability accommodations or subsidized housing requirements.
The Americans with Disabilities Act (ADA) is commonly used as the generic name for disability issues (like the brand name Kleenex® is often used to mean facial tissue). The ADA only applies to one portion of rental properties -- the areas to which the public is invited. The federal Fair Housing Act (as well as other Federal, state and local laws) applies to accessibility in the private common areas of the property and the individual rental units. The following list of "Do's and Don'ts" may help reduce your risk of monetary liability for access issues:
- Don't Assume.
ADA: The ADA was enacted in 1990. Many owners and managers of residential and commercial rental property assume that if their buildings pre-date the passage of the law, they are "grandfathered in" and need not comply with the ADA. That is an incorrect assumption and has proved to be costly for uninformed landlords. All areas of a property to which the public is invited need to be accessible to the extent that access is "technically feasible" and "readily achievable." The public areas of properties even include the rental office (or residential manager's unit) in properties with 16 units or more (which must have an agent of the owner on-site). Remember that in a lawsuit, feasibility and achievability will be determined by a judge or jury, so be prepared to defend whatever position you take!
Fair Housing Act: For residential property, the Fair Housing Act (FHA) established construction guidelines to provide access to common areas and dwelling units. Those guidelines became applicable in early 1991. Unlike the ADA, if a rental property was built prior to the application of the accessibility requirements, the property might not have to be brought into compliance. But don't assume that there is nothing to be done just because of the date of construction.
- Don't Procrastinate.
Accessibility lawsuits are sometimes called "drive-by" cases because they can be filed with little investigation and no notice. A potential plaintiff can simply pass by the property or visit it briefly and cite suspected violations, Consequently, every day is a new opportunity for a drive-by to occur. If you wait to take steps to be sure the property is compliant, tomorrow may be too late.
- Do Evaluate.
Even if a property was designed by a licensed architect, built by a licensed contractor and approved by building inspectors, it may not be compliant with all ADA or FHA accessibility requirements. Several large rental housing companies and many small business owners have recently found that the properties they had operated without incident for years were legal time bombs ready to explode! Although the owner and management company may have a cause of action against those who built the property incorrectly (if they are still in business), it usually involves a separate lawsuit and significant attorney's fees to prosecute. Being proactive can save a lot of expense. It is critically important to have every commercial or residential rental property audited by a contractor knowledgeable in the many applicable laws. The experts we have consulted say they have never found a property to be in perfect compliance with all laws. One reason is because there are conflicts between the requirements in the various codes; however, an evaluation will usually point out the most dangerous discrepancies. Get a written report with detailed recommendations for becoming compliant.
- Do Formulate a Plan.
Establish a written plan. Create priorities. What changes would be most helpful to disabled persons seeking access, and which changes would be the most cost-effective? Include projected completion dates and explain any delays that might be questioned. All potential problems should be mentioned in the plan. If a lawsuit is settled with regard to one non-accessible issue, the same or a different party could still sue for any remaining unaddressed issues. Be thorough.
- Execute the Plan.
Start work on your first priority immediately. Sometimes even if there is a suit filed, the agency or court will take into consideration that efforts are being made to come into compliance when determining the extent of the penalties to assess. Remember, this type of lawsuit is difficult to defend. A slope or a measurement for an opening is either correct or not. There is no gray area for something which is "substantially" compliant. The only arguments owners and managers can make relate to whether cor-rection of a physical deficiency is technically feasible or readily achievable.
- Don't Count on Insurance Coverage.
You may have seen articles about lawsuits against large property owners/management companies that resulted in fines in the million dollar range. If you are the owner of a small number of residential units or an owner or manager of a small commercial business, the fines may be less, but could still be significant to you. Check your insurance coverage and be sure that the assurance of coverage is in writing. Remember that the fines are the tip of the iceberg. Even if you successfully defend a case, the attorney's fees can be significant. Added to that is the cost to retrofit every deficiency, all at once and in a hurry in order to avoid further penalties.
Everyone wants disabled persons to have equal access to properties and businesses in order to obtain housing, goods and services. The challenge is to make property owners and managers aware of accessibility deficiencies and to be able to bring them into compliance as cost-effectively as possible.
Your industry representatives have had only limited success in their attempts to get legislation passed that would establish some protections for owners and managers with regard to accessibility. There have been laws proposed that would require that an owner or manager receive notice and the opportunity to cure deficiencies before a lawsuit can be filed. Those bills have consistently failed. There is a bill in the California legislature this year to require that building code inspectors be knowledgeable about ADA and FHA accessibility issues so they can catch problems before the building is completed. If that passes, it would at least be of some help. Please take every opportunity to contact your legislative representatives on the local, state and federal level to make them aware of this issue.
(Attorney J. Kathleen Belville is the managing partner of the Fair Housing Training and Defense Department at the Law Offices of Kimball, Tirey and St. John, LLP (KTS). KTS is a full service real estate firm, representing owners and managers of properties throughout California. The information provided in this article is general in nature and not intended to be legal advice. For consultation on specific legal issues or referrals to contractors with expertise in accessibility requirements, please contact the author at (800) 338-6039.)