2008-05-20, 13:48

Garcia v. Brockway: Wait-and-See Gamble Can Be Risky for Fair Housing Plaintiffs

By: WOMBLE CARLYLE TEAM

In a ruling significant to fair housing-related litigation, the US Court of Appeals in San Francisco, in a rare en banc (all the judges in the Circuit who aren't on "senior status") decision, has ruled that private plaintiffs have to file suit to complain about Fair Housing Act issues, including those involving design features to accommodate tenants and applicants with disabilities, within two years of the date on which the claim "accrues" -- which, in most cases, means the date of issuance of the certificate of occupancy for the property.

The plaintiffs, as well as the advocacy groups supporting them who often file their own FHA suits as plaintiffs, had argued that the time for filing was not triggered until the plaintiff "encountered" a violation by leasing or attempting to lease an apartment, but the 9-judge majority was not persuaded by this "continuing violation" concept. The three dissenting judges strongly disagreed with their colleagues, and it is not unlikely that the Supreme Court will be asked to resolve the question. As it stands now, this ruling is binding authority only in the 9 states (AK, AZ, CA, HI, ID, MT, NV, OR and WA) and two territories (Guam and the Northern Marianas) in the Ninth Circuit, but it is already being brought to the attention of judges in cases pending nationwide. Read more about these significant developments and their impact on fair housing litigation here.

(This entry was posted by Charlie Edwards, a member of the Labor and Employment practice.)

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