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 In Expert Witness, Housing, Multi-Family Housing

Expert Witness: Lessons Learned

multifamily housing under construction

KMA serves as an expert witness for a national developer of multifamily housing in its defense of an FHA discrimination case by an advocacy group. A ruling last week from the United States District Court for the District of Maryland set a very low bar for establishing violations of the FHA’s accessible design and construction requirements and set very narrow parameters for including defendant’s expert testimony.

Establishing Compliance:

  • Compliance is based only on an objective standard – those recognized as safe harbors by HUD or “compliance with a recognized, comparable, objective measure of accessibility.”
  • A violation exists if a condition “falls outside” of any recognized safe harbor.
  • A single violation of the objective standard can be the basis of a successful claim under the FHA
  • No allowance for “industry accepted tolerances” despite their inclusion in a safe harbor.

Expert Testimony:

  • Allowed
    • Disputation of material fact based on an objective standard. For example:
      • Whether or not an object protruded into a circulation route and therefore constituted a protruding object.
      • Plaintiff’s expert cited as a door where the clear maneuvering space was not within 8” of the door plane – a requirement that is not contained within all safe harbors.
    • Excluded:
      • Any statement, reference or opinion:
        • Addressing settlement agreements or consent decrees in other cases. Even though a condition has been accepted by the plaintiff in an earlier settlement agreement, it was not accepted in this case.
        • Regarding the usability of a space or element despite not fully conforming to an objective standard. Even though a person using a wheelchair could navigate all the contested conditions, it was not allowed.
        • Regarding the defendant’s efforts to comply with the FHA design and construction requirements. Due diligence was not a defense.

A ruling by a district court does not set national precedence, but it does suggest that in mounting a defense to future complaints developers will face a significant challenge. The ruling is available for reading in pdf format.