Foran Glennon Palandech Ponzi & Rudloff

May 2017

The Design Professional’s Exposure Under the Fair Housing Amendments Act

Federal accessibility requirements have had, and will continue to have, a significant impact on design professionals. It is imperative that design professionals make themselves aware of the potential legal implications of federal accessibility requirements and take all reasonable steps to protect themselves from the multiple risks and consequences under the Fair Housing Act (“Act”) and the Fair Housing Amendments Act (“FHAA”) whose shared goal is the elimination of housing discrimination and the promotion of residential integration. The Act was created to protect against discrimination based on race, religion, national origin and sex. The FHAA amended the Act to extend protections to persons with disabilities. Importantly, it creates a right of action for these private individuals and various organizations against design professionals, developers, builders and contractors who are involved in the construction of multifamily dwellings and violate the Act.

All participants in the design/build process have a non-delegable duty to follow the FHAA. Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 3 F. Supp. 2d 661, 665 (D. Md. 1998). Each defendant involved in design and/or construction has an independent duty to comply with the FHAA requirements. Quality Built 209 F.Supp.2d at 761-62; United States v. Pacific Northwest Elec., Inc., 2003 WL 24573548 at 14 (D. Idaho 2003). A participant cannot escape liability merely by showing reliance on the experience or assurances of another participant.

The U.S. Department of Housing and Urban Development (“HUD”) has published Fair Housing Accessibility Guidelines (“FHAG”) which incorporate the American National Standards Institute’s (“ANSI”) standards and describe minimum compliance with the specific FHAA accessibility requirements. Design professionals may reduce their exposure by remaining in strict compliance with ANSI, FHAG, and state and local accessibility requirements to ensure accessibility for disabled persons. However, compliance with standards is not a safe haven as potential exposure to claims persists due to many “grey areas” caused by conflicting authorities, inconsistent versions of ANSI and overlapping state and federal regulations. To navigate and clarify these potential pitfalls, design professionals should consider retaining an independent accessibility consultant to peer review the initial design plans for FHAA accessibility compliance prior to construction. In addition, if the owner/developer client disregards the design professional’s compliance recommendations, the design professional should document this in his or her file. If the construction team disregards the design intent, the design professional should raise this issue with the owner and also document these instances in writing.

Defending these claims is uniquely challenging. In addition to the grey areas mentioned above, the traditional defenses such as compliance with professional standards of care, industry custom and practice, third party intervention, contribution and indemnity will not relieve the design professional from liability (although cross-claims between defendants for non-FHAA grounded violations are allowed in limited circumstances). Prior state or local government review and approved of plans and dwelling construction for standards and applicable ordinance compliance will not provide a blanket defense in subsequent FHAA enforcement proceedings.

The FHAA provides a host of damages and possible remedies for civil enforcement suits.  Courts may award actual and punitive damages, temporary restraining orders and/or temporary or permanent injunctions. Remedial relief may include orders to retrofit non-compliant conditions, the creation of and contribution to a retrofit fund, compensation for diversion of resources and frustration of mission and even exemplary damage awards where a pattern and practice of violations is established. The FHAA also provides for the recovery of attorney fees and costs, consulting expert expenses and travel costs, which can be significant in multi-party litigation. Settlement and post-judgment agreements typically require the execution and publication of a Global Consent decree reflecting the violations committed and the required retrofits as well as a future compliance commitment. Accordingly, design professionals are best served by counsel that are familiar with the Act and FHAA and have prior experience defending these types of claims.

By Douglas A. Lange and Kristen C. Leppert