2008-03-25, 14:39

More on Fair Housing Accessibility and the Statute of Limitations Issue

By: Multifamily Real Estate Industry Team
Today's Ninth Circuit en banc hearing on the Fair Housing statute of limitations for design and construction (see earlier blog) is being closely followed by litigants in other Fair Housing cases in which the statute of limitations for design and construction complaints also is an issue. For example, mega-developer A.G. Spanos is a defendant in a Fair Housing accessibility case filed in June, 2007 (amended complaint filed October 12, 2007) in federal district court for the Northern District of California. The complaint alleges violations of the accessibility requirements of the FHA and the ADA in more than 10,000 individual dwelling units in apartment properties located in numerous states.

Spanos and the other defendants filed motions to dismiss based in part on the bar of FHA's 2-year statute of limitations, and citing the Ninth Circuit's earlier panel decision that the running of the statute of limitations cannot be avoided by invoking the "continuing violation" doctrine. Spanos' brief quoted the Ninth Circuit's observation that a non-compliant building is "more akin to a continuing effect than a continuing violation under the FHA" and that "if Congress wanted to leave developers on the hook years after they cease having any association with a building, it could have phrased the statute to say so explicitly." (Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss Plantiffs' First Amended Complaint (Case NO. C07-03255-SBA)).

At least one defendant's motions to dismiss was heard on March 11, 2008 and among the proposed orders submitted to the judge was an order staying the lawsuit as to that defendant pending the Ninth Circuit's en banc decision on today's hearing.

(This entry published by Karen Estelle Carey, a member of the Real Estate Development group)

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