The apartment industry scored a victory on May 12, 2008 when the U.S. Court of Appeals for the Ninth Circuit ruled in favor of a multifamily developer in a very important fair housing accessibility case.

At issue is the statute of limitations governing when “aggrieved persons” can file private civil actions alleging violations of the Fair Housing accessibility regulations. 

According to this ruling, such cases must be filed within two years of when the last certificate of occupancy is issued (Garcia v. Brockway, 503 F. 3d 1092 (Sept. 20, 2007)).  NMHC/NAA had submitted a "friend of the court" brief arguing in support of such a ruling. 

The court rejected the plaintiffs’ argument that private litigants could file civil actions within two years of “encountering” an accessibility design violation (e.g., within two years of leasing or trying to lease an apartment) under the “continuing violation” theory. 

The court ruled that if the continuing violation theory were upheld the Fair Housing Act’s statute of limitations “would provide little finality for developers who would be required to repurchase and modify (or destroy) buildings containing inaccessible features in order to avoid design and construction liability for every aggrieved person who solicits tenancy from subsequent owners and managers.”   

The full decision is available at here.  The ruling clarifies an important area of legal theory concerning the continuing nature of accessibility violations. 

The ruling applies to the states covered by the Ninth Circuit, which include:  Alaska, Arizona, Northern California, Central California, Eastern California, Southern California, Hawaii, Idaho, Montana, Nevada, Oregon, Eastern Washington, Western Washington, the U.S. Territory of Guam and the Commonwealth of the Northern Mariana Islands.

Yesterday’s ruling affirmed an earlier decision by a three-judge panel and was the result of a request by the plaintiff that the entire court rehear the case.  It is not clear whether the plaintiffs will pursue this case further by seeking Supreme Court review.

Apartment firms are advised to seek counsel for specific applications of this decision on their business operations.   

Also firms should know that this decision does not affect the Department of Justice’s ability to bring a civil action if a defendant has engaged in a “pattern or practice of resistance” to Fair Housing rights.  There is no statute of limitations for those actions.