In keeping with a recent blog post, and in order to emphasize the importance of taking the Fair Housing Amendments Act (FHAA) seriously, I wanted to introduce a relatively recent HUD charge levied against a property in Denver to illustrate and substantiate HUD’s active concern with FHAA compliance issues.  A Denver, Colorado property was charged this past month with failing to make its property handicap accessible.  Specifically, the property was accused of large portions of its property being inaccessible to individuals with disabilities.

There are two aspects of this charge that can easily be overlooked, but I believe are crucial for property managers to be aware of.  First, let’s talk about the use of testers.  These testers, sent by HUD to investigate potential Fair Housing issues, don’t come with flashing signs or official “tester” uniforms.  Instead, they appear to be your average prospects- unassuming and unsuspicious.  It’s like an episode of undercover boss, but minus the cameras.  This means, therefore, that properties must practice constant vigilance and treat every prospective resident seriously (as someone who could turn around and file a Fair Housing complaint with HUD).  But you are doing that already, right?  It is impossible to quantify or calculate the risk that comes from taking encounters with prospects and residents lightly.

The second, easy-to-miss concern this charge highlights is found in the parties who were named in the suit.  The couple who raised this complaint named the owners, architects, and builders all in the suit. Most importantly, however, even the current owner, who was not involved in the design or the construction of the property, was named in the suit. Even though the current owner and property manager may not have been guilty of the initial design flaw, there is a potential to be held liable for correcting those defects.

So what’s the bottom line?  Property managers and owners need to avoid becoming complacent in their interactions with prospects and residents alike.  My advice is to adopt principles centered on accessibility and practice them consistently, to the point that it becomes sheer muscle memory.  When you make accessibility a habit, the likelihood of facing a Fair Housing complaint is diminished.  Similarly, present owners and property managers need to be proactive when acquiring a property.  Go ahead and look for potential design and construction issues as part of your due diligence, or correct them as you became aware of them.  While the up-front cost may seem daunting, I can guarantee it won’t be nearly as daunting as being slapped with a charge that could result in actual and punitive damages, injunctive or other equitable relief, as well as attorney’s fees for the opposing party.