Sixth Circuit on Statute of Limitations for Fair Housing Act Accessibility Claims

Joan Magagna passed along this interesting unpublished decision the Sixth Circuit just issued in Fair Housing Council v. Village of Olde St. Andrews, Inc.. In addition to an interesting question of organizational standing, the court also addressed an issue I've recently touched on in the ADA context: When does the statute of limitations begin to run in cases challenging the inaccessible construction of facilities? The Sixth Circuit's answer, under the Fair Housing Act, is "it depends":

We therefore find that in cases where the plaintiff alleges that the owner of a multi-family housing development failed to design and construct the development so as to make it accessible to disabled individuals, the [two-year] limitations period will depend on the specific circumstances of each case. For example, where a disabled individual seeks to buy a particular unit and discovers that the unit is inaccessible because it was not designed in conformity with the FHA, the limitations period for that individual’s claim would begin to run from the date that the individual attempted to buy the unit and discovered the nonconforming conditions. However, in a case such as the instant case, where the plaintiff alleges that the owner or developer engaged in a policy or practice throughout the entire development of constructing housing units that fail to comply with the FHA, the continuing violations doctrine applies to toll the statute of limitations until the sale of the last unit in that development. Along those same lines, where the plaintiff can show that the owner of several housing developments engaged in a continuous policy or practice with regard to the noncompliant design and construction of each of the developments, the continuing violation doctrine may toll the running of the limitations period until the last unit of all of the implicated developments is sold.

This seems fairly sensible to me, though I'd have to think about it more. But I think there is a big difference between a Fair Housing Act case like this -- where once the developer sells the last unit it's plausible to say the developer's duty to make the premises accessible is done -- and an ADA Title II case like the SEPTA case I blogged about -- where the law is more plausibly read to impose a continuing duty on state and local governments to make their premises accessible.