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Full Ninth Circuit Court of Appeals Affirms Lower Court's Holding in Garcia v. Brockway

In a case that is being closely watched in the multi-family housing industry, the Ninth Circuit Court of Appeals this week released its opinion affirming the lower court's holding that the 2-year statute of limitations for a private civil action alleging violation of the Fair Housing Act's accessibility requirements for design and construction is triggered, i.e., the violation is complete, at the conclusion of the design and construction phase, which occurs on the date the last certificate of occupancy is issued.

The plaintiffs had asserted three theories to extend the limitations period: (1) that the violation was a continuing one that did not end until the defects were corrected; (2) that the statute did not begin to run until the aggrieved person encountered the design and construction defect; and (3) that the statute did not begin to run until the aggrieved person discovered the design and construction defect.

As to the first theory, the Court said that the plaintiffs (and HUD) confused a continuing violation with the continuing effects of a past violation, and that a failure to design and construct in accordance with the FHA accessibility requirements was not an indefinitely continuing practice but instead a discrete instance of discrimination that ended when design and construction were complete.

The Court treated the second and third theories as essentially the same, and failing for the same reason --- that the FHA's limitations period does not start when a particular person encounters, discovers, or even is injured by a housing practice, but rather the limitations period starts when there is an "occurrence or termination of a discriminatory housing practice," 42 U.S.C. 3613(a)(1)(A). (This entry published by Karen Estelle Carey, member of the Construction and Real Estate Development practice team.)

Full post as published by Womble Carlyle Constrution Industry Blog on May 16, 2008 (boomark / email).