In our summer issue we discussed liability of architects and contractors under the Americans with Disabilities Act. In this issue we will discuss their liability under the federal Fair Housing Act (FH Act), 42 USC §3604 et seq.

Section 3604(f) of the FH Act prohibits discrimination in the sale or rental of a dwelling and defines discrimination “in connection with the design and construction of covered multifamily dwellings” as “the “failure to design and construct those dwellings” so they are accessible. Numerous courts have held that an entity is not required to both design and construct a housing facility to be liable.

In United States v. Hartz Construction Co., Inc., 1998 U.S. Dist. LEXIS 973 (N.D. Ill 1/26/98) the court stated that interpreting the FH Act so entities could insulate themselves from liability by segregating the design and construction “is a frank absurdity”. In 2001, the court in Doering v. Pontarelli Builders, Inc., 2001 U.S. Dist. LEXIS 18856 (N.D. Ill 11/16/01) discussed all of the prior reported court decisions and concluded that the correct interpretation is that the FH Act applies to entities who either design or construct inaccessible facilities.

While the courts are more consistent in holding that architects and contractors are liable under the FH Act as long as they were involved in either the design or construction, the controversy under the FH Act seems to be when liability for the violation ends. Some courts have deemed a violation of FH Act to be a continuing violation which does not expire until the violations are corrected, Silver State v. ERGS., 362 F. Supp. 2d 1218 (2005) and Eastern Paralyzed Veterans Ass’n v. Lazarus Burman Associates, 133 F. Supp. 2d 203 (2001). Other courts have deemed a two year statute of limitations and have held different triggering events for when the two years begins to run.

Two decisions in 2008 found different triggering events when the two year statute of limitations begins to run under FH ACT in design and construction cases. The 9th U. S. Circuit Court of Appeals held that the two year limitations period started when the last certificate of occupancy for the development was issued, Garcia et al., v. Brockway, et al., 526 F.3d 456 (9th Cir. 2008). The Garcia court noted its decision was contrary to HUD guidance but noted they were not required to follow HUD’s guidance.

The United States District Court in Maryland in Kuchmas, et al. v. Towson University, et al., 553 F. Supp. 2d 556 (D. Md. 2008) refused to cut off FH ACT liability after specific events occurred. It specifically refused to follow an earlier decision rendered in 2002 in Moseke v, Miller & Smith, Inc., 292 F. Supp. 2d 492 (E.D. Va. 2002) which held that the existence of a FH ACT non-compliant building is not a continuing violation of the FH ACT and therefore claims brought against developers, architectural firms and community associations more than two years after the completion of the building’s construction were time barred. The Kuchmas court noted that all the defendants, other than the architect, remained involved in leasing the noncompliant apartments and continued to benefit from renting inaccessible units.

What these decisions provide is some guidance on when various jurisdictions begin to run the two year statute of limitations and what factors need to be considered in determining when the time begins to run.

One last word of caution, the United States Attorney General has the right to bring lawsuits in pattern and practice cases against a developer or architectural firm.

Again, the best course of action an architect or builder can take is to ensure that the design and/or construction of the housing development comply with the FH Act.