In the Fair Housing Amendments Act of 1988 (“FHAA”), Congress added “handicap” to the bases of discrimination outlawed by the federal Fair Housing Act (“FHA”) and also enacted three special provisions to further insure equal housing opportunity for persons with disabilities. One of these special provisions—§ 3604(f)(3)(C) —mandates that all new multi-family housing be designed and constructed with seven specified accessibility features.
Despite the accessibility requirements of § 3604(f)(3)(C)—and similar requirements in scores of state and local fair housing laws—a great deal of the multi-family housing built since §3604(f)(3)(C) became effective has failed to include the features mandated by this provision. While the precise degree of noncompliance with the FHAA's “design and construction” requirements is hard to pin down, it is clearly substantial. Virtually every § 3604(f)(3)(C) testing program has found that the vast majority of multi-family complexes contacted do not comply with the FHAA’s accessibility requirements, and other evidence, including studies commissioned by the United States Department of Housing and Urban Development (“HUD”), also confirms the high degree of noncompliance. Meanwhile, in the years since the FHAA’s accessibility requirements have been in effect, hundreds of thousands of new multi-family units have been constructed, and a quarter million more are being built every year. To the extent that these units do not comply with § 3604(f)(3)(C), they not only amount to discrimination against the tens of millions of Americans with disabilities, but they also stand as lawsuits waiting to happen.
Litigation involving § 3604(f)(3)(C) was slow to develop, but its pace has accelerated in recent years. From a substantive perspective, much of this litigation is fairly simple-either a multifamily housing complex has the features mandated by § 3604(f)(3)(C) or it does not. The real difficulty in these cases has turned out to be three other issues that may be raised by builders and owners of noncompliant dwellings. These issues are:
(1) Who are proper defendants in an action based on a building's noncompliance with § 3604(f)(3)(C)?
(2) Who are proper plaintiffs in such an action? and,
(3) When does the statute of limitations expire on such an action?
The courts have occasionally ruled for defendants on the basis of these issues, particularly the statute-of-limitations defense, thereby providing “repose” for some illegally constructed buildings and also encouraging the multi-family housing industry to continue to ignore the requirements of § 3604(f)(3)(C). The result has been the frustration of Congress’s intent that virtually all modern multi-family housing be made accessible to people with disabilities.
This article addresses the problems encountered in litigation involving the FHAA’s accessibility requirements. Part II sets forth the requirements of § 3604(f)(3)(C) and related laws mandating accessibility in housing and also surveys the relevant enforcement provisions of the FHA. Part III reviews the evidence of noncompliance with § 3604(f)(3)(C) and examines some of the reasons for this noncompliance. Part IV analyzes the three main enforcement issues that arise in § 3604(f)(3)(C) litigation and offers suggestions for how they should be resolved.
Robert G. Schwemm, Barriers to Accessible Housing: Enforcement Issues in “Design and Construction” Cases under the Fair Housing Act, 40 U. Rich. L. Rev 753 (2006).