It's Not Over 'til It's Over

by Nadeen Green

Years ago I wrote a fair housing article titled "It's Not Over Until the Fat Lady Sings," which talked about some of the burdens that can be placed on those who have elected to settle a fair housing case that was filed against them based on allegations that a community's day-to-day operations were not lawful. I explained that even after the settlement check has been cashed by the complainant or plaintiff, the matter is likely not over, even if that check was for lots of money. The article then went on to discuss the specifics of an actual settlement that had resulted in a number of requirements that were arguably quite onerous for the subsequent three-year period. Those requirements included but were not limited to (that makes me sound so like a lawyer!) having day-to-day operations approved in advance by the government; keeping records in accordance with standards set by the government; mandatory training, compliance testing and a report every six months to the government, with copies of education documentation, availability lists, guest cards, rental application logs, and waiting lists. Whew - burdensome indeed, and certainly a reason to manage a community in line with fair housing requirements in order to avoid this intrusion into the day-to-day operations of one's business. The fat lady was not going to be singing for a long time in this particular matter.

So, when policies, procedures or practices (such alliteration!) are not fair housing compliant, a settlement in a case often involves administrative conditions in addition to the check that is written. But what happens when the fair housing sins are not operational, but physical? The Fair Housing Amendments Act of 1988 requires builders to construct apartments accessible to people with disabilities with the goal being to increase access to housing for the growing number of people with disabilities. If it has been found that an apartment community is not fair housing compliant (or should the defendant in the resulting lawsuit elect to settle) then, of course, a check is going to be written. (Actually, as you will see, it might be a number of checks.) But instead of a settlement agreement that incorporates operational and administrative commitments on the part of the defendant, there will be commitments that are physical (renovation/ retrofitting). While these cases are a regular event these days, there have been those that stand out as examples of what non-compliance in design and construction can cost. Let's talk about one such case where noncompliance issues were discovered. Apartment doors were not wide enough for people using wheelchairs to access the various rooms, and there was not an accessible route to patios, balconies and other outside areas. There were bathrooms and kitchens without sufficient clear space for someone in a wheelchair to maneuver. The light switches, electrical outlets and thermostats were not in accessible locations. There were doors that required too much exertion to open, parking lots without designated accessible parking spaces, and a lack of accessible routes to the common areas. In short, there were multiple sins in the eyes of the fair housing groups who joined together as plaintiffs to bring this lawsuit.

Q: Who was the defendant in this case? I am not going to tell you because that is really not relevant.

Q: Can you tell me if it was a big company? Yes, I can and I will. They are really big.

Q: Were the sins widespread, or rather local? Apartment communities in fourteen states were out of compliance, with thousands of apartments involved.

Q: Ouch. Yes, indeed.

Q: How did anyone know that thousands of apartments were not built correctly? There was an undercover operation.

Q: Ouch. Yes, indeed.

Q: Did this case go to trial or was it settled? It was settled.

Q: What did the defendant have to do? Besides paying, and we will get to that in a moment, the defendant agreed to renovate some apartments.

Q: A lot of apartments? 12,300 apartments in 82 different buildings, with all of those renovations needing to be completed in 3 years and with all the costs borne by the defendant.

Q: Ouch. Yes, indeed. We can only assume that this was really costly. The actual retrofitting, the disruption to the residents, having to defer the renting of apartments during the retrofit process, and the potential for bad press.

Q: Surely the defendant didn't have to pay money, too? But of course the landlord had to pay money, too! $4.2 million over 5 years to a fund that will provide grants to those who wish to live in the 41 other buildings that could not be retrofitted because of structural or topographical complications.

Q: Ouch. Yes, indeed. And then there was the $750,000 over 3 years to establish local retrofit funds as grants for people with disabilities.

Q: Ouch. Yes, indeed. And let's not leave out the $100,000 for a national media campaign.

Q: Ouch. Yes, indeed. Oh, wait; don't let me forget to tell you about the $40,000 to support the creation of an accessibility coalition.

Q: Enough already. Surely that was all, since we're talking over $5 million here! That was all, unless of course you also count the compensatory damages, a mere $950,000 and the $1.325 million in attorney's fees (no lawyer jokes here; the lawyers are laughing on their way to the bank). So, not counting the direct and indirect costs to retrofit 12,300 apartments (!) the check writing will end up being in the total amount of $7,365,000.

So keep in mind the possible result of housing discrimination that comes not from what you do, but how your community is built - a charge or complaint or lawsuit. If your community was built for first occupancy on or after March 13, 1991, then you need to be aware of the potential liabilities and what is expected of your design and construction. Don't be fooled or complacent that all is fine for you because you received a Certificate of Occupancy; that likely provides no practical or legal defense. And if a case that involves you settles, as this one did, then it isn't just about paying a settlement (and perhaps a hefty one at that). It is also about your being required to retrofit, and all of the direct and indirect costs can be staggering. Remember that the purpose of the Fair Housing Amendments Act of 1988 is to provide to people with disabilities equal opportunity of use and enjoyment of their apartment homes.

In the words of the National Fair Housing Alliance: A person using a wheelchair or other mobility aid is just as effectively excluded from the opportunity to live in a particular dwelling by steps or thresholds at building or unit entrances and by too narrow doorways as they are by a posted sign saying "No Handicapped People allowed." Those with disabilities must be protected from the devastating impact of housing discrimination, including the architectural barriers erected by developers who fail to construct dwellings accessible to and adaptable by people with disabilities.

Nadeen Green is also known as The Fair Housing Lady. She gets to be Senior Counsel with For Rent Media Solutions™, which means that she is their attorney, not yours. So the information contained in this article is not to be considered legal advice. Both the author and FRMS strongly suggest that you consult with your own counsel as to any fair housing questions or problems you may have. Fair Housing Lady can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . You can check out Nadeen's company at forrent.com.