Fair Housing Defense : Fair Housing Lawyer & Attorney : Fox Rothschild Law Firm : Federal Fair Housing Act (FHA), Discrimination Complaints

Does the Statute of Limitations for FHA Claims Arising from Design and Construction Claims Expire Two Years After the Last Certificate of Occupancy is Filed?

Not Always.

A recent case from the U.S. District Court for the Western District of Washington serves as a healthy reminder to all involved in the design, construction, and operation of multifamily dwellings covered by the Fair Housing Act (“FHA”). The case explored how the statute of limitations for FHA claims arising from the design and construction of such buildings does not always expire when you think it should. 

Generally, civil court actions under the FHA are subject to a two year statute of limitations, which begins to run on the date of the last occurrence of discrimination. ¹ For claims arising from design and construction, courts have ruled that the “last occurrence of discrimination” is the date of the issuance of the last applicable certificate of occupancy. See e.g. Garcia v. Brockway, 526 F.3d 456, 460-461 (9th Cir. 2008). 

In Fair Housing Counsel of Oregon v. Cross Water Development, LLC, et al., 2009 U.S. Dist. LEXIS 24542, the plaintiff first filed a complaint with HUD on May 9, 2005, more than one year from the date of the issuance of the last applicable certificate of occupancy of September 23, 2003. HUD dismissed the complaint because the applicable statute of limitations had clearly passed. Subsequently, the plaintiff filed a complaint in U.S. District Court on December 17, 2008, asserting that the statue of limitations was tolled while the HUD proceedings were pending. The court found that there was no basis for application for the statutory tolling provision because the plaintiff failed to timely file its administrative complaint with HUD. Although this case correctly resulted in a favorable outcome for the developers, the court was quick to note that there are two circumstances where the two year statue of limitations may be tolled.

First, the statute of limitations may be tolled under a theory known as “equitable tolling,” which allows the court to determine if the plaintiff’s delay was excusable. This doctrine applies when “a plaintiff is unable to obtain vital information bearing on the existence of his claim.” Garciaat 465. The court in such a circumstance examines whether “a reasonable plaintiff would not have known of the existence of a possible claim within the limitations period.” Fair Housing Counsel of Or. at *8. If the court finds delay excusable, the statute is tolled until the plaintiff can gather what information he needs.

Second, the doctrine of “equitable estoppel” or “fraudulent concealment” will toll the statute of limitations when the defendant, in this case a party involved in the design, construction or operation of a multifamily structure covered by the FHA, takes action to prevent a plaintiff from filing suit by misleading the plaintiff in some way. 

So, what should we take from all of this? In most circumstances, a complainant will indeed either file soon after the alleged discriminatory incident took place. However, if a complainant misses the date, it can be a challenge to get the non-lawyer investigators at an agency to pay attention to a missed deadline. We always raise the issue and you should as well. 

Just A Thought.

Article by Christian Moffitt

[1] A collateral statute of limitations applies when an aggrieved party opts to file a complaint with the United States Department of Housing and Urban Development (“HUD”), rather than initially file suit in court. That rule provides that a person filing an administrative complaint with HUD must do so within one year after the alleged discriminatory housing practice occurred or terminated. 42 U.S.C. § 3610(a). While such a complaint is pending with HUD, the two year statute of limitations on FHA claims is tolled by statute. 42 U.S.C. § 3613(a)(1)(B).

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A "reasonable accommodation" is a change, exception, or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling. To show that a requested accommodation may be necessary, there must be an identifiable relationship – or nexus – between the requested accommodation and the individual’s disability. 

Relatively simple reasonable accommodation requests are those that seek a designated handicapped parking spot or waiver of a "no pets" policy.

The harder decisions come when a request has nothing whatsoever to do with the claimed disability. Additionally, a reasonable accommodation can be denied if providing the accommodation is not reasonable – for example, if it would impose an undue financial or administrative burden on the housing provider or if it would fundamentally alter the nature of the provider’s services.

Also, a housing provider has an obligation to provide prompt responses to a request for a reasonable accommodation. An undue delay in responding to a requested accommodation may be deemed to be a failure to provide that reasonable accommodation.

A reasonable modification is a structural change made to existing premises occupied (or to be occupied) to a person with a disability in order to afford such a person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of communities as well as to common and public use areas. A request for a reasonable modification can be made at any time during a residency.

As with a reasonable accommodation, to show that a requested modification may be necessary, there must be an identifiable relationship – or nexus – between the requested modification and the individual’s disability. Furthermore, the requested modification must be reasonable. Examples of modifications includes grab bars in bathrooms or lowering of kitchen cabinets to a height suitable for persons in a wheelchair.

The general rule concerning costs involving reasonable modifications is that the resident is required to pay for them at conventional communities and that management is required to pay for them at affordable communities. To be sure, there are many times when management at a conventional property will work with a resident and engage in some type of cost sharing in an effort to further attempt to meet the needs of our valued residents.

The bottom line is to work with your residents and engage in the interactive process contemplated under the FHA and its implementing regulations. If management cannot grant the request for an accommodation or modification, is there an alternative accommodation or modification that would effectively address the requester’s disability-related needs? If there is, you should propose it. And you should document in writing your proposed solution.

Just A Thought.

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