Of all the potential violations of fair housing law, the one that gives me the most heartburn—and occasionally wakes me up at night in a cold sweat—is a violation of the design and construction guidelines of the Fair Housing Amendments Act (FHAA). Why am I so worried about that particular violation? Well, because—as I have written about before—the potential liability for housing providers from a design and construction violation can be catastrophic.
Which is why a recent charge from the Department of Housing and Urban Development (HUD) alleging discrimination against a New York developer, owner, construction company, and architect (yes, HUD really ran the gamut there) caught my attention. As everyone knows by now (right?), the FHAA requires that multifamily housing built after 1991 contain accessibility features for people with disabilities (known as the design and construction requirements). In its charge, HUD has alleged that the (very prominent) developer, construction company, owner, and their architect violated the FHAA by failing to provide safe and accessible routes that persons with disabilities (and others) could use to travel between their units and common areas. HUD also alleges that there were widespread violations inside the units, such as inaccessible doors, bathrooms, kitchens, and environmental controls. If these allegations are found to have merit, not only can the complainant be awarded damages, the judge can also order retrofits, civil penalties, and other injunctive or equitable relief. Now that’s enough to give anyone heartburn!
So what’s the bottom line? First off, you should know that, generally speaking, if you are involved with the design and construction process for developing or building multifamily housing, you can be held liable for a design and construction violation of the FHAA (just look at all the parties named in this charge). Second, as referenced above, the remedy for a design and construction violation can be a judicial order to correct the deficiencies—and, as you can imagine, the cost to correct the deficient construction can be stratospheric. So make sure it is done right the first time!