Because of Federal Preemption, Project Owner Cannot Seek Indemnity from Architect for Failure of Design To Meet Fair Housing Act and Americans With Disability Act Accessibility Requirements

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The United States Court of Appeals for the Fourth Circuit recently held that federal preemption precluded a project owner from seeking indemnity from its architect based upon the failure of the architect's design to meet the accessibility requirements for the disabled imposed by the Fair Housing Act2 ("FHA") and the Americans with Disabilities Act3 ("ADA"). This case has immediate impact on project owners who rely upon their design professionals to provide designs that comply with the FHA and/or ADA. No longer can project owners look to the designer for indemnity for errors and omissions in design that create FHA or ADA violations.

The Case

The case, Equal Rights Center & Archstone Multifamily Series I Trust v. Niles Bolton Associates, No. 09-1453 (4th Cir. Apr. 19, 2010) involved a suit filed by several disability advocacy groups in U.S. District Court in Baltimore against a number of defendants, including Archstone, the developer and owner of 71 apartment communities, and Niles Bolton, Archstone's architect for 15 of the apartment communities. The disability groups alleged that the defendants failed to design and construct 71 apartment buildings so they would be accessible to persons with disabilities as required by the FHA and ADA.

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