Last week I described how liability for design/build claims under the FHA can last forever. The same problem exists with design/build claims under the ADA,  as shown by the decision in Frame v. City of Arlington. There are even surprises with the statute of limitations for barrier removal cases. For example, after a plaintiff encounters an access barrier he can wait as long as he wants before filing suit.  In Pickern v. Holiday Quality Foods the Ninth Circuit said that as long as the plaintiff is aware of the discriminatory condition and is deterred from returning to the building the violation of the ADA continues.  In Pickern the plaintiff had driven to the store within the limitations period, and although he remained in his car there was some evidence of real deterrence. Nonetheless, the rule stated in Pickern would allow a plaintiff to stew at home for as many years or decades as she chose before filing suit.

The design/build issues with the statute of limitations in FHA and ADA cases arise out of a disconnect between the the statutory definition of “discrimination” and the private enforcement mechanism. Under both the FHA and ADA design/build discrimination is the “failure to design and construct” an accessible building.  No victim is required for this kind of discrimination, and it can lie dormant until a victim appears. Because private enforcement is driven by victims, years may pass before a suit is filed.  With a few rare exceptions courts hold that the original design/build team can be compelled to make a facility completely ADA/FHA compliant almost regardless of expense while a current owner is required only to remove barriers (in the case of the ADA) or to permit individual tenant modifications (in the case of the FHA).  For a design/build plaintiff there is a very large incentive to sue the original design/build team, and for the original team there is a prospect of enormous liability.

The prospect of endless design/build  liability distorts the original business arrangements between the parties and inhibits sales regardless of the existence of actual problems. This is because several courts have compelled the current owner of a property to allow remediation at the expense of the original design/build team. The prospect of that kind of interference with ownership and especially with leasing in retail and residential projects, is bound to affect the salability of any project.

This is a case in which there is a simple legislative solution that fairly balances the interests of all the parties.  The problem of long term liability for unknown design or construction defects is nothing new. Most states have statutes of repose that require suits for injuries arising out of such conditions be brought within a reasonable time after the project is complete. The FHA and ADA need to be amended to provide a statute of repose that cuts off design/build liability after some period. These statutes are usually longer than ordinary statutes of limitation, but certainly not eternal. In Texas, for example, the statutes of repose for architects and contractors prohibit actions after 10 years. The addition of a statute of repose to the ADA and FHA would not require extensive tinkering with any existing provisions or with the definitions of discrimination they contain.

Disability rights groups will certainly oppose this kind of legislation, but if a decade passes without a disabled person encountering design/build discrimination in an apartment complex or condominium development it is probably safe to say that the discrimination need not be a matter of serious public concern. A statute of repose would give reasonable comfort to the original design/build team as well as future owners and would not weaken the requirement of accessible accomodations for the disabled.