United States: Under The FHA, Is A Subsequent Property Owner Liable For Design And Construction Defects In An Apartment Community? In Many Cases, The Answer Is No.

In a case decided just last week, the U.S. Court of Appeals for the 11^th Circuit provided more guidance concerning the potential liability of an apartment owner under our Fair Housing Act (FHA). Specifically, the appellate court addressed the portion of the FHA which applies to discrimination against individuals with disabilities related to the design and construction requirements in the law. In Harding v. Orlando Apartments, the court addressed the issue of whether the current owner of a community who had no role in the design and construction of that property could be held liable under the FHA for various design and construction deficiencies. In short, the 11^th Circuit held the new owner could not be held liable for design and construction claims based on a plain reading of the statute. The court looked to the fact that the FHA, in pertinent part, reads "in conncection with the design and construction" of a covered dwelling and concluded that language limited the clause to the design and construction of the property.

In addition to the court, HUD also issued a letter as well as formal guidance noting that, subject to a few exceptions, subsequent owners are not appropriate defendants for FHA claims based on the design and construction guidelines.

From my seat, this decision will help provide further clarity concerning that a subsequent owner uninvolved in the design or construction of an apartment community cannot be held liable for defects caused by someone else. Now, does this mean that the current owner can similarly ignore reasonable accommodation or reasonable modification requests sent by a disabled resident who now lives at such a property? No. The current owner and/or management company must still review and respond to a reasonable accommodation or reasonable modification request under the FHA as we would from any resident or applicant.

Just A Thought.

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