based on specifications from the
American National Standards Insti-
tute (ANSI).

Common design and construc-
tion violations include building en-
trances having only steps but no
ramps, door thresholds being too
high and without a bevel, outlets
placed too low, and switches placed
too high. Unlike other provisions of
the NCFHA, proof of a violation
doesn’t require a showing of dis-
criminatory intent or effect; failure
of the dwelling to meet the stan-
dards is enough.

Broad liability for owners, designers,
and contractors
Who in the construction process
is responsible for complying with
the design and construction stan-
dards? The owner? The designer?
The contractor? The statute doesn’t
say explicitly. Federal courts have
long held that a defendant doesn’t
need to both “design and construct”
a covered building in order to be li-
able. If a building is inaccessible to
handicapped residents, you’d expect
the residents to seek relief against
the owner or the landlord. You’d
then expect the owner or landlord to
go after the designer as the party re-
sponsible for designing the project
and ensuring accessibility.

Accessibility would seem to be
entirely a question of design. A con-
tractor, on the other hand, would
seem to have no liability for accessi-
bility. Under the venerable Spearin
doctrine a contractor is only re-
quired to build the project according
to the plans designed the by archi-
tect and provided by the owner. A
contractor is seemingly the least
culpable party when design stan-
dards aren’t met.

But the current practice of the
N.C. Human Relations Commission
staff, supported by federal case law,
is to seek relief against all the major
parties involved in the project—
owner, designer, and contractor.

Neither the North Carolina statute
nor state decisional law specifically
authorizes this practice. However,
federal courts interpreting the fed-
eral act have determined that a con-
tractor can (surprisingly) be held li-
able even if the contractor did noth-
ing more than build the project
according to plans designed by
someone else.

The rationale for this approach is
that the Fair Housing Act is remedial
in nature and a strict interpretation
of the act will result in compliance
with the law and an increase in
available housing for handicapped
individuals. Even so, this approach
totally upends the traditional divi-
sion of responsibilities on a design-
bid-build construction project.

Despite this persuasive authority,
a contractor facing a claim under
the NCFHA should still raise a de-
fense based on the implied war-
ranty of plans and specifications.

This defense is well established
under North Carolina law.

Two key defenses
There are two key NCFHA de-
fenses: (1) showing the project is
exempt from the accessibility stan-
dards and (2) showing the project
was designed and built according to
a safe harbor building code.

The strongest defense is to show
a project isn’t subject to the act.

While most multifamily projects will
be covered, the design standards
don’t apply to single-family homes,
duplexes, or triplexes. Commercial
buildings like offices, stores, ware-
houses, etc., are also explicitly ex-
empt. The other important defense is
compliance with the safe harbor de-
sign standards, which applies if a
state adopts one of 10 design
codes recognized by HUD without
any changes and the project is built
2018-2019 edition
The North Carolina Construction News — February – March 2019 — 11