Endless liability under the FHA – another court weighs in

March 15, 2020 By Richard Hunt in Accessibility Litigation Trends, FHA, FHA design/build litigation, Statute of Limitations Tags: ADA defense, Fair Housing Justice Center, FHA Defense, FHA statute of limitations, Havens Realty Corp. Design/build litigation, JDS Development, tester standing

I wrote back in 2014 about the problem of endless FHA liability for design/build defects* and have covered other statute of limitations cases as well** but a recent decision from the Southern District of New York is worth noting for both its summary of existing law and the fundamental error it embraces.

In Fair Hous. J. Ctr., Inc. v. JDS Dev. LLC, 2020 WL 1126556 (S.D.N.Y. Mar. 9, 2020) the plaintiff, an advocacy group, dispatched testers to several of the defendant’s developments where they discovered various failures to meet the design/build requirements in 42 U.S.C. §3604(f)(3)(C). The defendant moved to dismiss the plaintiff’s lawsuit on the grounds that the statute of limitations on design/build claims had run. The court disagreed. More

FHA design/build claims – how safe is your harbor?

April 5, 2019 By Richard Hunt in Accessibility Litigation Trends, Apartments, Building Codes, Design Build Discrimination, FHA design/build litigation, FHA renovation, Residential Development Tags: Design/build liability, FHA Defense, FHA experts, FHA statute of limitations

Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Est. Investments, LLC,2018 WL 4690790, at (S.D. Ohio Sept. 28, 2018) is not a brand new case, but it contains so much of interest it is worth a close second look by both defendants and plaintiffs in FHA design/build cases.

The Court’s principal holding is the obvious but often overlooked rule the various safe harbors for the design and construction of multi-family dwellings are a shield, not a sword. In Miami Valley the plaintiffs produced a typical expert report in this kind of case. It listed several hundred supposed accessibility barriers based on deviations from the original FHA Guidelines promulgated by HUD in 1991 along with the assertion that because the Guidelines are the least restrictive of the HUD recognized safe harbors the apartments did not meet any safe harbor standard. Based on this evidence the plaintiffs sought summary judgment. More

The statute of limitations for FHA design/build cases – a guide for the perplexed.

October 22, 2017 By Richard Hunt in Accessibility Litigation Trends, Statute of Limitations Tags: Fair Housing Act, FHA statute of limitations, Garcia v Brockaway, Havens Realty, Village of Olde St. Andrews

Maimonides, author of the Guide for the Perplexed.

The Fair Housing Act requires that private lawsuits brought under 42 U.S.C. §3613 be filed within two years “after the occurrence or the termination of an alleged discriminatory housing practice.” Courts are not in universal agreement about what this means when applied to a failure to design or build apartments according to the standards in 42 U.S.C. §36014(f)(3)(C), so a developer or owner’s defense in a design/build case may depend on where the apartments are located. How can a national statute have regional variations? Well, somebody’s wrong. Here’s a brief “guide for perplexed.”