Be Cautious When Making Decisions about Handicapped Member

September 28, 2017
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Q: I manage a condominium building that was previously owned before the current association took it over. A handicapped unit owner claims that some elements of the building—namely, some doors—are difficult, but not impossible, for him to use as a result of his disability. He is suing the association under the Fair Housing Act (FHA) and asking that the association spend what would be a considerable amount of time and money redoing the design and construction of the building to accommodate him. The association is operating on a tight budget, and it would be very difficult to do this. What are the chances that the association would prevail in court?

A: It’s possible that the association could win the lawsuit because the original owner didn’t construct the building in a way that’s handicap accessible, while the association unfortunately more or less inherited the problem.

According to a Florida appeals court, the problem with your member’s type of fair housing claim is that although he’s facing difficulties that seem unfair because they hinder his movement in and out of the building, the law doesn’t allow him to “visit his accessibility problems arising from the design and construction of his building upon a subsequent owner of his building”—that is, an association that wasn’t the original owner or developer.

The Florida appeals court made that observation in a case with facts similar to yours, where a condo unit owner complained that the doors in the building made it difficult for him to get around. The court there noted that, “to be sure, the Act forbids discrimination connected with ‘the design and construction’ of a covered dwelling, but in this case the association did not design or construct the building, nor make any alterations to the disputed door pressures after assuming ownership of the building.”

The appeals court noted that the condominium building in that case was developed by a corporate entity and the association was a successor in interest; the association had no role in the design or development of the condominium; and, although some aspects of the door design were out of compliance, the association didn’t install the doors and the evidence was insufficient to show that the association altered the doors since it took over operations. In that case an expert even showed that the doors weren’t adjustable, so it was impossible for the association to make them more convenient for handicapped members, although it had asked its maintenance team to try to adjust them.

The Florida appeals court concluded that because the association had nothing to do with the design and construction of the condominium’s doors, the FHA’s discrimination provisions did not apply to it, or require it to fix the nonconforming doors. “The FHA’s terms squarely visit design-and-construction discrimination on entities that discriminate ‘in connection with the design and construction,’” said the appeals court, which also specified that the court was “not at liberty under the statute to turn subsequent property owners into guarantors of noncompliant designs and construction” [Harbour Pointe of Perdido Key Condo. Ass’n v. Henkel, April 2017].

In making its decision, the appeals court called on the decision in an earlier case, in which a condominium resident also attempted to bring an FHA design-and-construction claim against a subsequent owner of his apartment complex.

The court in that case unanimously rejected the claim, finding the law not to visit design-and-construction discrimination liability on subsequent owners. The court noted that, despite the fact that the association wasn’t involved in the design or construction of the building, all of the member’s claims that the association violated the FHA are alleged through the lens of the design-and-construction guidelines in that statute. The member had alleged a series of inaccessible conditions resulting from the association’s initial failure to comply with the guidelines and argued that its failure to remedy those conditions constituted an independent act of discrimination prohibited by the FHA.

The member in that case argued that the FHA not only requires designers and builders to adhere to certain standards of accessibility but also imposes an ongoing duty on subsequent owners to ensure that a dwelling conforms to those standards. But the court in that case pointed out that FHA’s plain text demonstrated that that argument was erroneous.

It noted that the statute’s text connects liability for design-and-construction-related discrimination explicitly to a dwelling’s actual design and construction: “discrimination includes in connection with the design and construction of a covered dwelling, a failure to design and construct those dwellings in a non-accessible manner” [Harding v. Orlando Apartments, LLC, April 2014].

In both court cases, the courts found that the associations had no role in the design or development of the condominium and hadn’t altered the doors since they took over operations, so although it was a difficult situation for both members to deal with, the text of the FHA prevented the courts from finding the condo associations liable for discrimination and forcing them to modify or replace the doors.