Leasor Beware: distinctions between design and lease under the Fair Housing Act's statute of limitations

A university student, who used a wheelchair because of a neuromuscular condition, filed suit against a university and others asserting that the apartment he leased was not properly accessible. The design for the building at issue was completed in 2000. Student signed a lease in December, 2005 and filed suit a year later asserting claims under the Fair Housing Act, the Americans With Disabilities Act (“ADA”), and the Rehabilitation Act of 1973 (“§ 504”). The university and others moved to dismiss the complaint as untimely. The court’s decision found the complaint was timely because the lease was a new occurrence.

The Fair Housing Act provides that a person has two years to file suit “after the occurrence or the termination of an alleged discriminatory housing practice. . . .” 42 U.S.C. § 3613(a)(1)(A). The question for the court was the meaning of “occurrence or the termination.” After addressing a few other court decisions, including the only two apparent federal appeals court decisions approaching the issue, the court concluded that two important distinctions lie in the Fair Housing Act. First, there is the “occurrence” of designing and completing the building itself, and second, there is the continuing operation and management of the building. 

As to the design portion of potential liability, the statute of limitations begins to run once the building is completed. Accordingly, the court found, the architects were previously properly dismissed from the case. As to the continuing operation and management of the building, the court concluded that each new lease of an apartment is a new “occurrence.” Unlike the architects and builders, the owners and managers continue to remain in control of the building and are in a position to correct design defects.  

The court also applied the same reasoning to, and reached the same conclusions under, the ADA and 504 claims. The court further expressly pointed out the a public university has a continuing obligation to assure that its buildings are accessible. 

The decision’s logic appears solid. Accordingly, leasor’s beware – and be sure your buildings are up to code.

Study abroad: adventure, danger, and liability

The gravest danger I encountered was a drunken Scotsman looking for a fight (no, he was not in a kilt; those are for formal occasions) at the University of Stirling.  No trouble there for me, but things seem to have changed for students overseas in the new century.

The number of American students "studying” (quotes are deliberate) overseas is growing fast. According to The Chronicle of Higher Education (“The Chronicle”)(subscription required, sorry), more than 200,000 American students studied overseas in 2004-05, twice as many eight years before.   Two-thirds of these adventurer-scholars, interestingly, are women, according to The Chronicle.  And according to a recent Newsweek blurb (get your free subscription with your WHYY membership like me), “experts predict that the number of students in overseas programs could swell from 206,000 last year [2006] to 1 million annually within a decade.”   It seems these young adventurer-scholars get into all sorts of trouble, from falling off the Great Wall of China, to being war refuges in Lebanon. 

Nonetheless, claims made to United Educators, an insurance company, have not been great in number, less than 100 between 1994-2004, with more than one-third involving sexual misconduct toward female students, followed by traffic accidents.  Frequently, alcohol seems to be a factor (see above). Current claims numbers are unknown to me, but probably have gone up.

Speaking of liability, apparently, I went about my time abroad entirely wrong, at least in terms of legal protection. I did what I suppose should be called a self-created program: I found a university to attend, made sure my college would give credit, and got myself into the overseas university. A few years later during law school I got the overseas bug again and so repeated this self-created program for an internship at the United Nations in Vienna. Turns out, all the risk of some unsafe situation would probably have be on me or the foreign institutions, according to The Chronicle. 

I suspect most students are connected to a "traditional" study abroad program, where a student enrolls in a consortium program or the student’s own college's program.  In contrast to self-created program, these programs are likely to bear the risk of trouble overseas. The Chronicle article gives a few lawsuit-examples. Fay v. Thiel College, Civ. A. 1998-2227, 2001 WL 1910037 (Pa. Mercer CCP), involved a trip abroad - three weeks in Peru with some faculty members to study "liberation theology in a Peruvian context." Prior to the trip, Fay had to sign a waiver in order to participate. During trip, Fay, who also spoke little Spanish, fell ill. The college faculty and students left her behind at a medical clinic while they continued their trip. Fay was sexually assaulted at the clinic (and subjected to some questionable surgery, as well). The court found the college had a special duty to Fay and refused to enforce a take-it-or-leave-it wavier.  (Among the lessons here is that take-it-or-leave-it waviers are almost always worthless.)

In King v. Board of Control of Eastern Michigan University, Civ. A. 00-60466, 221 F. Supp. 2d 783 (E.D. Mich. 2002) (not available on the court’s website), the federal court held Title IX’s sexual discrimination protections apply to American students participating in an American university’s study abroad program. This case involved a five week trip to South Africa during which male students were alleged to have acted rather inappropriately and the faculty allegedly failed to take appropriate action despite notice. 

The Chronicle also notes a jury verdict against a college for its failure to fulfill its duties to a disabled student while on a study abroad program in Australia. It is unclear whether the breach involved contractual promises, extraterritorial statutory application, or both.

And now to this mix of danger add terrorism. The Newsweek and The Chronicle articles discuss changes since September 11, 2001, including the growing market for kidnapping and extortion insurance coverage as well as rescue services companies such as International SOS (which announced a rate increase as of July 1, 2007, not surprisingly).

Faced with the seeming growing dangers encountered overseas, we have the proposed Senator Paul Simon Study Abroad Foundation Act of 2007, The Bill is gaining support and winding its way through the chambers and its progress can be monitored at NAFSA: Association of International Educators and at the Library of Congress page.  The Bill seeks to improve American’s “global literacy” and promote study abroad in developing nations and nontraditional places such as the Middle East. It aims to have one million undergraduates studying abroad within 10 years. Certainly activities we should promote, but at what price for trouble in such – currently – turbulent places?

The Bill, § 6(a), would give grants to students, to consortia, and institutions, which you probably noted happen to be the three sorts of liability categories identified above. Whether individuals undertaking self-study like I did would get a grant is unclear as elsewhere the Bill sets out certain program criteria. Grants to institutions are predicated on the program begin for academic credit and having “established health and safety guidelines and procedures.” § 6(f). That would seem to rule out self-study, despite the clear language in § 6(a). 

Be that as it may, I believe study abroad is valuable and all the good things said in the Bill are spot -on. But certainly circumstances today are rather different than long ago (although the Lockerbie Bombing occurred back then). The Bill could be more instructive in what health and safety measures an institution should have in place. A safe-harbor provision tied to health and safety measures might be advisable, too.  Perhaps institutions should consider student language abilities (Fay didn’t speak much Spanish), especially if they will be unsupervised; student’s past problematic behavior (is there a past indication of harassing behavior); the ability of the foreign location to meet student individual needs; insurance coverage; and of course a realistic ability to deliver on pre-trip promises made. 

I can't shake the bug.  Despite the dangers, I would consider grants to study these issues overseas.