Construction Today 2018 - Volume 16, Issue 3 - 17
'Few are aware
of the FHAA
and its application to private,
allowed to transfer liability under the FHAA and the ADA to third
parties (e.g., the architect), it would interfere with the purpose of
these acts by disincentivizing developers from ensuring compliance.
The Archstone decision made clear that a developer could not rely
upon contractual indemnification provisions to avoid liability where
a project fails to comply with the FHAA and/or the ADA.
However, a recent decision from U.S. Court of Appeals for the
Fourth Circuit may provide developers with needed relief while
denying architects and contractors the "Archstone shield." In City
of Los Angeles vs. AECOM Services, Inc., the appellate court held
that the city could bring its claim against the designer and contractor on a bus terminal facility arising out of their alleged breach of
their duties to design and construct an accessible facility. Interestingly, the AECOM court made no mention of the Archstone court's
reliance on the fact that the FHAA and ADA placed non-delegable
duties on an owner.
It remains to be seen how the courts sort out the apparent conflict
between the Archstone and AECOM decision.
Developers, architects and contractors are now faced with two
inconsistent federal court decisions and there does not appear to be
any certain solution to this problem. The best course, therefore, is
to be proactive and to heed the old adage to "measure twice and cut
once." Developers should consider implementing a compliance program involving a knowledgeable third-party review of not only the
architect's plans but also the contractor's work to ensure accessibility
requirements under the FHAA and the ADA.
design and construction agreements with
third-party architects and contractors. The
developer reasonably expects that these
third parties will perform their tasks in
accordance with applicable laws and will be
responsible if the project is found not to comply by one of these testers.
Consistent with this expectation, each contract will invariably include indemnification
language to ensure that the developer is held
harmless for any violation of applicable law
or damage arising out of the design or construction. The same goes for the architect's
and contractor's contracts should any other
party's deficient performance lead to an
alleged violation of the FHAA and the ADA.
This belief may be incorrect.
A highly experienced
attorney and licensed
architect who practiced
architecture for several
years, Scott Fradin
works closely with individual and institutional
and specialty subcontractors to guide projects
from inception through
completion and dispute
resolution. He is the
co-chair of Much Shelist's
construction law group.
Developers, architects and
contractors should be
proactive in legal matters.
Since 2010, the rule has been that no
third-party indemnification claim can be
brought to transfer liability for FHAA and
ADA violations. In the Equal Rights Center v.
Archstone-Smith Trust case, a developer, an
architect and a contractor of a multifamily
project were sued for violating the FHAA and
ADA. The developer sued the architect for
indemnification for the cost of retrofitting,
plus their attorney's fees.
The court held that the developer could
not sue the architect concluding that the
developer's obligation to comply with the
FHAA and the ADA was absolute and could
not be delegated through indemnification.
The court reasoned that if an entity was
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