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Federal Appeals Court Affirms Dismissal of Challenge to Inaccessible Housing

AARP filed a brief on behalf of people with disabilities who are excluded from housing because of physical access barriers, despite laws enacted to guarantee access to housing for people with disabilities.

A trial court dismissed the case, ruling that the Fair Housing organization that brought the lawsuit did not have legal standing to bring the claims on the facts asserted. An appeals court affirmed the dismissal but clarified that the organization would be able to challenge such violations of law if it could allege sufficient facts to show an injury under the Fair Housing Act.  .


The Equal Rights Center (ERC), a fair housing advocacy group in the District of Columbia, alleged that Post Properties violated fair housing laws by building more than 21,000 apartments across five states that are out of compliance with the housing design and construction standards required by fair housing law. These requirements require six basic access features such as doors and hallways of sufficient width, low thresholds and backing for grab bar installation in bathtubs, to ensure that a person who uses a wheelchair or walker can access and live in an apartment in a multifamily building.

The trial court dismissed the suit. Finding that the facts alleged in support of the lawsuit, including the expenditure of financial resources on the investigation that led to the litigation, were insufficient injuries under the Fair Housing Act, the court ruled that the plaintiff, ERC, did not have "standing" to bring the case.  

Attorneys with AARP Foundation Litigation filed AARP's brief on appeal with five other legal groups, arguing that in passing the Fair Housing Act in 1968, and amending it in 1988 to add protections for people with disabilities, Congress expressly intended private enforcement to supplement governmental actions and thus authorized broad standing to sue. The brief argued that the trial court's holding improperly narrowed standing to enforce the Fair Housing Act, contrary to law and precedent, and that adopting its rationale would preclude enforcement of fair housing laws despite Congress' intent.

While affirming the trial court's decision that in this case the plaintiff did not allege facts sufficient to show it had standing to sue, the federal appeals court clarified that the test for standing was not as narrow as the trial court had articulated, ruling that "we do not foreclose the possibility that such costs could suffice to show injury in fact." As concurring Judge Rodgers noted, narrowing the restrictions on standing was a "step in the right direction."

While the appeal in this case was pending, the U.S. Department of Justice intervened as a plaintiff in the case to ensure that the design and construction violations would be corrected.  The case brought by the DOJ continues to be litigated.  

What's at Stake

In 2007, nearly one-third of all U.S. households contained a person with a disability.  Approximately 42 percent of people over age 65 have a disability, and that incidence increases with advancing age. As the 65-and-over population expands quickly in the coming years and more veterans survive their injuries but become disabled, greater numbers of people will experience disabilities, making accessible housing a more pressing need. Already, claims of housing discrimination based on disability constitute roughly half of all fair housing complaints received by the U.S. Department of Housing and Urban Development. Courts across the country have seen an increase in claims similar to this case, alleging widespread violations of the multifamily housing design and construction standards.


Equal Rights Center v. Post Properties, Inc. was decided by the U.S. Court of Appeals for the District of Columbia Circuit.

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