The United States Department of Justice (DOJ) may be after you. Recently, the DOJ has stepped up enforcement of the Fair Housing Act's (FHA) design and construction requirements. While DOJ has long enforced the FHA's restrictions against race and age discrimination, only recently has it focused on enforcing the very technical requirements for accessible housing for persons with disabilities.

If you are a builder, developer, architect, manager or owner of multifamily housing, including condominiums and town houses, then you could find yourself exposed to liability for violations that you may not even know exist. The DOJ is now directing significant attention to enforcing these new requirements. Such enforcement has led to costly retro-fitting, fines, and large damage awards levied against builders, developers, architects, and managers of covered units.

The FHA covers multifamily housing designed or constructed for first occupancy after March 13, 1991. Obviously, multifamily housing includes apartment complexes. Not so obviously, it also includes condominiums and townhouses if they have four or more ground-level dwelling units or units serviced by an elevator.

The reason you could be in peril under the FHA and not even know it is that the various FHA safe harbor provisions either contradict each other or are not written in the precise "codespeak" of the Americans with Disabilities Act Accessibility Guidelines (ADDAG).

Although none of the FHA safe harbors has the force of law and you need not comply with any one to have accessible housing, according to the DOJ, if you don't comply with one, you cannot prove your housing is accessible. And, even if you comply with one safe harbor, DOJ may still find you in violation for not complying with another.

For instance, thermostats, switches and environmental controls are defined as accessible in one safe harbor if they are 54 inches high. In another they are defined as accessible if they are 48 inches high.  So, even if you have thermostats at 54 inches under one safe harbor, DOJ may still find you in violation for not having them at 48 inches under another.

This is just the tip of the iceberg. Some safe harbors define an accessible slope at a landing as 2 percent, while others define it as 1 percent. So, which is it? And, what's to say that either percentage actually relates to accessibility? Why is a 1 percent slope accessible in one case, but 2 percent in another? And, for that matter, why is 2 percent accessible at all, while 2.1 percent is, by definition, inaccessible? That's only a difference in elevation of one-eigth of an inch over a foot.

You shouldn’t think you are safe just because you have a local permit or even a state certification, because the federal government enforces the FHA at the federal level. So, the bottom line is that even if you have been careful, you may find yourself in violation of the FHA's design and construction requirements.

The DOJ, as well as HUD (Department of Housing and Urban Development), seeks these violations by using testers to pose as potential residents. These testers, often paid by the federal government, pose as tenants to get inside units and obtain information concerning accommodation and modification issues. The testers are trained to identify key design and construction violations and discriminatory policies and procedures.

So, why is the DOJ suddenly focusing on accessibility discrimination issues instead of race and age discrimination?  Simply put, race and age discrimination, in the context of the FHA, are easy to enforce because race and age are apparent at a glance, while disability discrimination relies on obscure technical criteria.  In fact, according to HUD’s 2006 annual fair housing report to Congress, disability discrimination complaints exceeded race discrimination for the first time in 2005.

The confusion concerning the FHA leaves architects, developers, management firms, investors and owners (past as well as present) subject to potential  liability. While this is a lot to take in, you would be well served to do so, and to seek guidance on the FHA's requirements for design and construction, reasonable accommodation and reasonable modification. In this case, what you don't know could hurt you.

		G. Alan Wallace is an associate with the litigation department of Fraser Trebilcock Davis & Dunlap, PC’s Lansing office.