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Federal Court Permits Design and Construction Claims Against Architect to Proceed on Continuing Violation Theory

On January 29, 2013, the U.S. District Court for the Western District of Virginia denied an architect's summary judgment motion on statute of limitations grounds, holding that the National Fair Housing Alliance (NFHA) and Paralyzed Veterans of America (PVA) may proceed with claims that the architect is liable for violations of the design and construction requirements of the Fair Housing Act at apartment buildings in North Carolina and South Carolina, even though the architect's work on one project ended more than two years before suit was filed.

The central question in the summary judgment proceeding was whether NFHA and PVA could employ the "continuing violation" theory to hold the architect liable for noncompliance at a North Carolina property where construction was apparently completed four and one-half years before the litigation was filed.

The court held that the Ninth Circuit's decision in Garcia v. Brockway has no bearing on a case in which there is at least one discriminatory act within the statute of limitations, and where the claims are based on that act and not on the "continuing effects" of inaccessible design or construction outside the limitations period. The decision also explicitly holds that architects are subject to the Havens continuing violation theory, just like builders, developers, owners and managers.

The decision also distinguishes "single property" design and construction cases, like Garcia, from claims involving multiple properties, holding that the continuing violations theory can apply across properties and bring otherwise time-barred properties before the court. Finally, the decision recognizes that an architect hired to administer the construction phase likely cannot have its limitation period commence until the very last elements of construction are completed.