The Federal Fair Housing Act (42 U.S.C Section 3604) (“FHA”) prohibits discrimination against persons with handicaps. The Florida Civil Rights Act contains similar provisions (F.S. Section 760.23). One provision of the FHA prohibits discrimination in connection with the design and construction of dwellings (42 U.S.C. Section 3604(f)(3)(C)). Applicable dwellings must be readily accessible to and usable by handicapped persons. Examples include wheelchair accessibility – wider doors, maneuverability in the kitchen area, and accessible light switches and electrical outlets. A violation of the FHA could lead to the award of actual and statutory damages, punitive damages, and attorney’s fees and costs, as well as injunctive relief in favor of an aggrieved private plaintiff.
If a building is designed and/or constructed in violation of the handicap accessibility guidelines, but the building is then sold, is the new owner of the building liable for the violations, or obligated to remedy the violations, which were created by the prior owner who designed and constructed the building? The 11th U.S. Circuit Court of Appeal recently held that the legislative history of the FHA and the FHA’s clear meaning impose liability exclusively on a defendant who was involved in the design and construction of the building. If the subsequent owner had no such involvement, then it cannot be held liable. The Court commented that if the FHA were interpreted to impose liability on subsequent owners, the “potential owners would need to thoroughly investigate compliance with the guidelines prior to purchasing a covered dwelling or risk liability.” The Court had sympathy with the plaintiff, but not enough sympathy to expand the scope of the FHA beyond Congress’ intent. See Harding v. Orlando Apartments, LLC, 24 Fla. L. Weekly Fed. C1245 (11th Cir. April 14, 2014).