CHICAGO – Though architects must pass a rigorous certification process, a string of recent court decisions -including one involving the Chicago Housing Authority - indicates building owners and developers aren’t able to hold them responsible if their finished building doesn’t meet federal access laws.
“The duty to comply with the law trumps everything,” real estate attorney James Wright, or Arizona, told the Cook County Record.
Recent cases have held building owners responsible for violations of American with Disabilities Act design requirements, even when the project was certified beforehand by an architect.
The string of court decisions has left owners unable to recoup from architects the post-project costs ordered by the courts and paying for the additional work themselves.
“There is definitely a line of cases that shows this is happening,” Wright said.
One of the recent cases involved the CHA's attempt to recoup costs on a public housing project that, through a U.S. Housing and Urban Development audit, was found to not meet ADA accessibility guidelines.
The CHA was forced to spend $3.5 million in redesign and retrofitting costs, but the court did not allow it to collect those costs from the project’s design firm.
“Because there were health/safety issues involved, the courts are ruling that meeting the requirements is a non-delegable duty,” he said. “They are saying that holding someone else responsible diminishes the owner’s duty to comply with the law.”
That goes even when there are certifications in place, such as that offered by an architect, who must complete six years of training and three years of practice before becoming registered. Wright said it’s a matter of federal law trumping state law, though there still are ways to hold architects responsible if they are found to have been negligent in their work.
Wright said the responsibility is being considered the same by the courts whether the owner is a private owner, or whether other government agencies are involved in a building project.
He said restaurants, hotels, multi-family housing projects and commercial buildings are among the most popular targets for enforcement.
It’s still important for developers to seek out certified professionals to advise on projects requiring ADA certification, Wright said. But increasingly, because of the “non-delegable duty” clause being used by the courts, the developers themselves need to go the extra mile to ensure that the project is compliant.
“Owners have to know that they have this duty that cannot be delegated away,” he said. “It’s a matter of being more vigilant and taking more responsibility to ensure ADA compliance.”
Carl Lewis, an architect professor at the University of Illinois at Urbana-Champaign, said even if the architect isn’t found financially responsible, making serious mistakes still can lead to the loss of his license to practice.
“In Illinois, the architect is responsible to at least tell their client what they’re supposed to do to meet the ADA,” Lewis said. “By being a registered architect, you are telling the public they can have trust that you know these complicated, comprehensive codes to design a building. If you are found not to have performed your duty, you can have your license taken.”
ADA requirements, which are governed by the U.S. Justice and Transportation departments, are usually “mirrored” in state law to assure compliance and are updated every few years by the U.S. Access Board, Lewis said. The government uses formulas to determine whether an ADA accommodation is financially reasonable based on the project’s cost.