Friday, August 30, 2019
A local news station recently ran an article about the impact of a broken elevator on the residents who live on top floors in 8 On Your Side gets results for seniors in building with broken elevator. Knowing my colleague and dear friend, Professor Bauer, had written an article on 55+ housing that included a discussion of accessibility issues, I asked him if he'd write a guest post for us on this topic. Here it is:
Would You Please Just Fix It?
Mark D. Bauer
Stetson University College of Law
A recent news story in Tampa Bay reported that the single elevator in a mid-rise apartment building stopped working in late May and would not be repaired until October. That alone is surprising and seems wrong. But what makes this story particularly shocking is it occurred in an age 62 and older HUD subsidized building. Even more shocking: there are no federal laws regulating elevator repairs in federally managed or sponsored elder housing.
The story was made for television. A local news station interviewed numerous tenants with disabilities incapable of walking down staircases. One elder tenant interviewed said she had not been able to leave her home in two months and she found it very depressing. I have little doubt that most anyone would feel the same way.
The good news is that by airing this story and providing publicity to the tenants, the company managing the apartment complex arranged for free hotel rooms for any resident desiring one. The elevator still will not be repaired until October because a part needs to be manufactured abroad. But at least the elder tenants now have an alternative to remaining prisoners in their own homes.
The bad news is that while this particular situation may be extreme, elder residents of multi-story apartment buildings are often trapped in their homes with little warning and no real alternative. The fact that most elevator repairs take less than six months is little comfort.
Department of Housing and Urban Development regulations require only the most basic life safety features in elder housing, such as smoke detectors. Most state and local laws covering elevators require that they be inspected and remain in good repair. It is always hard to search for the absence of a law or a case, but I have found nothing in the United States that regulates how long a repair may take. Unfortunately, I suspect the answer is “as long as needed.”
I did find one relevant case in Indiana where residents of elder housing suffered without elevators for over a month and then sued. On procedural grounds, the federal court held that the residents might have a viable argument under the Americans with Disabilities Act but could not sue under traditional landlord-tenant law (here the residents claimed that the broken elevator “constructively evicted” them). And as you might imagine, once the judge opened the door just a crack for possible litigation, the owners of the elder housing complex immediately fixed the elevator and settled with the residents.
It is ironic that the government sponsors or subsidizes elder housing without ensuring the physical safety of the residents, particularly when private entities often profit through participation in these programs. In researching this issue, a simple Google search produced literally hundreds of news stories about elders all over the country being trapped in multi-story buildings during lengthy elevator repairs. Like the situation here in Tampa Bay, the elevators were often repaired quickly after a local news story.
Even elevators in good repair cannot function without electricity. After many elders were killed or injured in Florida after a major hurricane in 2005 made their apartments inaccessible, a state law was passed requiring all 55 and older housing to add emergency generators for elevators. The real estate lobby was particularly effective here and got the state legislature to repeal the law a short time later.
Subsidized or government-owned congregate housing for elders is aging; few units have been added since the 1980s, and certainly not enough to replace housing demolished or converted to other uses. Five elevator companies remain after industry consolidation, and only one is located in the United States. It is no surprise then that elevators installed in the last century are difficult to repair. Cities and counties with large elder populations often spend extraordinary amounts of money responding to emergency calls requiring firefighters to carry elders down staircases.
It is easy to ignore a problem like stranded elders in high-rises because any single building has these problems infrequently, and with no publicity. But nationally we are putting lives in danger and wasting precious public funds by ignoring the problem. Currently it is very unlikely that HUD will take any corrective action. But in the long-run, it would be much cheaper to plan for broken elevators by requiring elder communities to provide for temporary accessible housing, or coordinate services necessary for daily living, or require emergency generators in mid- or high-rise buildings with only one elevator.
Professor Bauer's law review article on 55+ housing is available here. Thanks Professor Bauer!