dissenting.
[¶ 20] I respectfully dissent. The district court erred by holding the State’s action is barred by the two-year statute of limitations of 42 U.S.C. § 3613(a) and N.D.C.C. § 14-02.5-39.
I
[¶ 21] The district court relied upon Garcia v. Brockway, 526 F.3d 456 (9th Cir.2008) to hold that the issuance of a certificate of occupancy began the two-year statute of limitations. The majority follows the district court in this holding. The majority opinion applies a cramped interpretation of the statutes that effectively denies the relief that the housing statutes were designed to give.
[¶ 22] There is no evidence in this record that a certificate of occupancy has any relationship to the requirements of adaptive design of the federal and state statutes. Rather, the certificate of occupancy merely shows that under the municipal codes, the premises may be occupied, which presumably implies that construction is at an end. The Garcia court and majority here view construction and design as a limited occurrence that determines a starting point for the application of the statute of limitations. Garcia, 526 F.3d at 463.
[¶ 23] The Garcia court applied such a notion largely in reliance on Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), superseded by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5 (Jan. 29, 2009). Garcia, 526 F.3d at 462-63. Ledbetter has since been determined by Congress to be contrary to congressional intent in its analysis of the statute of limitations. Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111— 2, 123 Stat. 5 (Jan 29, 2009).
[¶ 24] In Ledbetter, prior to retirement from Goodyear Tire & Rubber Company, Ledbetter filed a claim with the Equal Employment Opportunity Commission (“EEOC”) alleging pay discrimination based on sex. 550 U.S. at 621-22, 127 S.Ct. 2162. Subsequently, Ledbetter filed suit, alleging a Title VII pay discrimination claim and an Equal Pay Act of 1963 claim. Id. at 622, 127 S.Ct. 2162. As for Ledbet-ter’s Title VII claim, Goodyear asserted the statute of limitations time-barred her claim, because the alleged discriminatory acts did not take place within 180 days of the filing of the complaint with the EEOC. Id. at 622, 127 S.Ct. 2162. On appeal to the United States Supreme Court, Ledbet-ter contended each paycheck she received was a separate act of discrimination, and the string of violations amounted to a continuing violation. Id. at 624, 127 S.Ct. 2162. The United States Supreme Court disagreed, holding her claim was a discrete act time-barred by the statute of limitations, rather than a continuing violation. Id. at 628, 127 S.Ct. 2162.
[¶ 25] Congress has since enacted the Lilly Ledbetter Fair Pay Act of 2009, which states in relevant part:
an unlawful employment practice occurs, with respect to discrimination in compensation in violation of [Title VII], when a discriminatory compensation de-*299cisión or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5 (Jan. 29, 2009). The Act provides a new claim may be filed each time a paycheck is issued, and it also indicates pay discrimination is a continuing violation. The Act includes the specific congressional finding:
The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbet-ter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.
Id. (emphasis added).
[¶ 26] While this Act addresses pay discrimination, rather-than discriminatory housing practices or discrimination claims in general, the rationale behind this Act is that the United States Supreme Court erred in its analysis of the statute of limitations. I find this persuasive.
II
[¶ 27] I disagree with the majority’s holding, “[i]n the context of a design and construction case, it is the completion of the construction, rather than the mere existence of a noncompliant building, which constitutes the act that triggers the limitation period.” Majority Opinion at ¶ 14. As the majority notes, our housing statutes were designed to mimic the federal statutes. The clear indication of Congress that the United States Supreme Court has misinterpreted congressional intent on the limitations period to be applied in Ledbet-ter should now inform our decisions about the period of limitations. We should not be basing a decision on the flawed reasoning of Garcia, which incorporated the incorrect reasoning of Ledbetter.
[¶ 28] The undermined Ledbetter decision is also out of step with the United States Supreme Court’s prior interpretation of the Fair Housing Act. Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), was decided under the Fair Housing Act before the amendments that are at issue in this case were enacted. Nevertheless, Havens indicates that the position urged by the State in this appeal is the appropriate position, namely that there can be a continuing violation of the statute and that the period of limitations does not run while the violation continues. Id. at 380, 102 S.Ct. 1114. This doctrine of continuing violation is fully supported by the language of both state and federal statutes:
An aggrieved person may file a civil action in district court not later than the second year after the date of the occurrence or the termination of an alleged discriminatory housing practice or the breach of a conciliation agreement entered under this chapter, whichever occurs last, to obtain appropriate relief with respect to the discriminatory housing practice or breach.
N.D.C.C. § 14-02.5-39(1); see 42 U.S.C. § 3613(a)(1)(A).
*300[¶ 29] Under similar language in the federal statute, courts have held that the ongoing offering for sale or lease of properties which are noncompliant with the adaptive design requirements constitutes a continuing violation.
42 U.S.C. § 3613(a)(1)(A) provides “an aggrieved person may commence a civil action ... no later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice ... whichever occurs last.” Pub.L. No. 100-430, adding the phrase “or the termination ... whichever occurs last,” confirmed application of the continuing violations doctrine in fair housing cases. See H.R.Rep. No. 711, 100th Cong., 2d Sess., 18, 22 (June 17, 1988), reprinted at 1988 U.S.C.C.A.N. 2173. Under Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), the continuing violations doctrine requires that at least one incident of discrimination must fall within the statute of limitations period. The pivotal date is thus the date of the last alleged violation.
Montana Fair Housing, Inc. v. American Capital Dev., Inc., 81 F.Supp.2d 1057, 1063 (D.Mont.1999) (alterations in original); see also Kuchmas v. Towson Univ., 553 F.Supp.2d 556, 561 (D.Md.2008); Eastern Paralyzed Veterans Ass’n, Inc. v. Lazarus-Burman, Assocs., 133 F.Supp.2d 203, 212 (E.D.N.Y.2001); Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 40 F.Supp.2d 700, 710 (D.Md.1999).
[¶ 30] Some courts have treated the owner/lessor differently from the architects and contractors who constructed non-compliant buildings. See Moseke v. Miller and Smith, Inc., 202 F.Supp.2d 492 (E.D.Va.2002), relied upon by the Majority at ¶ 10. There is some logic in this approach since the actions of the architects and builders and their control over the buildings is arguably terminated upon completion of the construction phase. However, the result in Moseke could only be applicable to one defendant here and even the courts which recognize Moseke indicate that the holding is not applicable to owners/lessors who continue to benefit from non-compliant construction by offering it for sale or lease to persons with disabilities.
Plaintiffs argue that the relevant provision of the FHA, 42 U.S.C. § 3604, is ambiguous. They note that the statute refers to two different events in time— the design and construction process and the sale or rental of a unit to an individual. Thus, they argue, the statute of limitations in a design and construction claim under section 3604(f)(3)(C) may be interpreted to begin in several ways: 1) the completion of construction; 2) the time an individual encounters and is injured by the noncompliant structure; and 3) when a potential defendant either ceases to have control over accessibility or brings the housing into compliance with the law. Plaintiffs contend that the third interpretation is consistent with the history and purpose of the FHA as well as this Court’s previous Memorandum Opinion dismissing the claim against PGAL Architects. Specifically, this interpretation would establish an ongoing duty on the part of the entities in control of a building to make corrections to bring it into compliance with the FHA while limiting the liability of entities whose involvement and control over the accessibility of a building ends once the building is complete.
Plaintiffs’ interpretation of the FHA is consistent with Moseke, the case this Court relied on in its September 11, 2007 Memorandum Opinion, and supports drawing a distinction between the present Defendants and PGAL Architects. Unlike PGAL Architects, which *301took no action after it designed Millennium Hall sometime in 1999-2000, the current Defendants — Collegiate Housing Foundation, Capstone Development Corp., Capstone Properties Corp., and Capstone On-Campus Management, LLC — continue to be involved in the leasing of noncompliant apartments. Thus, even if the true cause of the noncompliance was mere neglect or oversight during the design and construction phases, the remaining Defendants continue to benefit from that oversight by-renting inaccessible units while PGAL Architects ceased all involvement with the building in 2000.
Kuchmas v. Towson Univ., 553 F.Supp.2d 556, 562-63 (D.Md.2008).
[¶ 31] Most fundamentally wrong with the majority’s analysis is its separation of a single subsection from the interpretation of the statute as a whole. A construction violation is a form of discrimination that violates the general prohibition against discrimination contained in the overarching provisions of the statutes, which in North Dakota are contained in N.D.C.C. § 14-02.5-06, subsections (1) and (2). Subsection (3) is a definitional section that gives content to subsections (1) and (2), not a section totally divorced from the rest of the statute. 42 U.S.C. § 3602(f) and N.D.C.C. § 14-02.5-01(7) indicate a discriminatory housing practice includes actions prohibited by 42 U.S.C. § 3604(f) and N.D.C.C. § 14-02.5-06. Section 14-02.5-06(l)-(3), N.D.C.C., provides in relevant part:
1.A person may not discriminate in the sale or rental of, or make unavailable or deny, a dwelling to any buyer or renter because of a disability of the buyer or renter; of an individual residing in or intending to reside in that dwelling after it is sold, rented, or made available; or of any individual associated with the buyer or renter-.
2. A person may not discriminate against an individual in the terms, conditions, or privileges of sale or rental of a dwelling or in the provision of services or facilities in connection with the dwelling because of a disability of that individual; of an individual residing in or intending to reside in that dwelling after it is sold, rented, or made available; or of any individual associated with that individual.
3. In this section, discrimination includes:
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c. The failure to design and construct a covered multifamily dwelling in a manner that allows the public use and common use portions of the dwellings to be readily accessible to and usable by individuals having a disability[.]
42 U.S.C. § 3604(f) is substantially similar.
[¶ 32] In Garcia, 526 F.3d at 469, the dissent discussed concerns that I hold:
The most natural reading of these provisions is that the FHA’s statute of limitations is triggered when someone is aggrieved by one of the unlawful actions specified by § 3604(f)(1) [and N.D.C.C. § 14-02.5-06(1)] or § 3604(f)(2) [and N.D.C.C. § 14-02.5-06(2)], with the two-year period running from the occurrence or termination of the offending practice. The limitations period for a disabled would-be buyer or renter or tester thus begins (at the earliest) when that individual first attempts to buy or rent or tests a FHA-noncompliant unit.... Analogously, the limitations period for an actual tenant begins (at the earliest) when the individual first moves into a FHA-noncompliant unit.
(Alterations in original). (Comparable North Dakota law references inserted into text). The Garcia dissent further ex*302plained it was at these points that it could be said a person with a disability has been discriminated against by a real estate developer or landlord. Id. The definition of an “aggrieved person,” “any person who claims to have been injured by a discriminatory housing practice,” supports this notion. N.D.C.C. § 14-02.5-01(1). Although a building constructed after 1991, when the adaptive design provisions became applicable, has been completed for more than two years, a person may not have attempted to rent it until years later. Such a person is aggrieved by the lack of adaptive design required by the statute, but has no remedy under the majority’s interpretation.
[¶ 33] Applying 42 U.S.C. § 3604(f)(3)(C) and N.D.C.C. § 14-02.5-06(3)(c), the majority holds the completion of the construction triggers the statute of limitations. Majority Opinion at ¶ 14. However, an owner who continues to offer for rent or sale a non-conforming unit has not yet terminated a discriminatory housing practice and it is the termination of the discriminatory housing practice that would start the period of limitations. N.D.C.C. § 14-02.5-39(1); 42 U.S.C. § 3613(a)(1)(A). As the Garcia dissent notes:
The activities specified by § 3604(f)(1) [and N.D.C.C. § 14-02.5-06(1)] and § 3604(f)(2) [and N.D.C.C. § 14-02.5-06(2)] — all of which involve taking action against a disabled person “because of’ that person’s “handicap” — are clearly “unlawful” “discriminatory housing practices” that begin the FHA’s limitations period. In contrast, § 3604(f)(3)(C) [and N.D.C.C. § 14-02.5-06(3)(e) are] best read as [] specific examples] of the discrimination that in fact become[ ] actionable under § 3604(f)(1) [and N.D.C.C. § 14-02.5-06(1)] and § 3604(f)(2) [and N.D.C.C. § 14-02.5-06(2)] when that discrimination takes place “in the sale or rental ... to any buyer or renter,” § 3604(f)(1) [and N.D.C.C. § 14-02.5-06(1)], or “against any person in the terms, conditions, or privileges of sale or rental ... or in the provision of services or facilities,” § 3604(f)(2) [and N.D.C.C. § 14-02.5-06(2)]. Section [] 3604(f)(3)(C) [and N.D.C.C. § 14-02.5-06(3)(c) are] definitional provision^], stating that “discrimination includes ... the [faulty] design and construction of covered multifamily dwellings,” rather than [] provisions] that actually sets forth a cause of action. The construction of a FHA-noneompli-ant building thus no more triggers the FHA’s statute of limitations than the creation of any other latent discriminatory condition or policy (e.g., a landlord’s policy — as yet unenforced — not to rent to disabled people). It is only when that latent condition or policy results in an action prohibited by § 3604(f)(1) [and N.D.C.C. § 14-02.5-06(1)] or § 3604(f)(2) [and N.D.C.C. § 14-02.5-06(2) ] that the limitations period begins. Beforehand, the improperly designed building (and the landlord’s unimplemented rental policy) are much like a potentially dangerous ditch into which no one has yet fallen — capable of inflicting harm and violating the law, but not yet actually doing either.
526 F.3d at 470-71. (Comparable North Dakota law references inserted into text).
[¶ 34] It appears from the record Johnson rented the apartment in March 2005 and moved out of the apartment in October 2005. Johnson’s claim was timely.
Ill
[¶ 35] The majority notes amici curiae contend affirming the district court’s decision turns the statute of limitations into a statute of repose. Majority Opinion at ¶ 15. However, the State did not raise this *303issue on appeal; therefore, the majority does not address this issue. Id. Even though the State did not raise this issue on appeal, affirming the district court decision turns the statute of limitations into a statute of repose; therefore, discussion of this issue is necessary.
[¶ 36] This Court has distinguished statutes of repose and statutes of limitation:
Statutes of repose are different from statutes of limitation, although they have comparable effects. A statute of limitation bars a right of action unless it is filed within a specified period of time after an injury occurs. The purpose of a statute of limitation is to prevent “plaintiffs from sleeping on their legal rights to the detriment of defendants”. A statute of limitation period commences either upon the occurrence of an injury, or when the injury is discovered. A statute of limitation must allow a reasonable time after a cause of action arises for the filing of a lawsuit.
A statute of repose terminates any right of action after a specific time has elapsed, regardless of whether or not there has as yet been an injury. A statute of repose period begins to run from the occurrence of some event other than the event of an injury that gives rise to a cause of action and, therefore, bars a cause of action before the injury occurs. A person injured after the statutory period of repose is left without a remedy for the injury.
Hoffner v. Johnson, 2003 ND 79, ¶ 9, 660 N.W.2d 909 (quoting Hanson v. Williams County, 389 N.W.2d 319, 321 (N.D.1986)) (citations omitted).
[¶ 37] While I agree with the majority that statutes of repose are not invariably unconstitutional, interpreting the statute of limitations at issue in this case as a statute of repose is contrary to the plain language of the statutes. 42 U.S.C. 3613(a)(1)(A) and N.D.C.C. § 14-02.5-39(1) provide an “aggrieved person” may file a civil action. An “aggrieved person” is defined as “any person who claims to have been injured by a discriminatory housing practice or believes that the person will be injured by a discriminatory housing practice that is about to occur.” N.D.C.C. § 14-02.5-01(1); see 42 U.S.C. 3602(i). To qualify as an aggrieved person, a person has to have been injured or has to foresee a future injury. N.D.C.C. § 14-02.5-01(1); see 42 U.S.C. 3602®. This Court has held the termination of a statute of repose is not contingent on whether a person has been injured. Hoffner, 2003 ND 79, ¶ 9, 660 N.W.2d 909 (citation omitted). Therefore, the outcome of this case leaves our precedent and the plain language of the statute contradicting one another. See Garcia, 526 F.3d at 472 (Fisher, J., dissenting).
TV
[¶ 38] The district court erred by holding the State’s action is barred by the two-year statute of limitations of 42 U.S.C. § 3613(a)(1)(A) and N.D.C.C. § 14-02.5-39(1). If, as the majority opinion permits, an owner of a building can simply survive two years after the construction without litigation, the owner can continue to reap the benefits of noncompliant construction and persons with disabilities are denied the protections that were intended by federal and state statutes. Modifying the explicit finding of the United States Congress in January 2009, “[t]he limitation imposed by the Court on the filing of discriminatory [housing] claims ignores the reality of [housing] discrimination and is at odds with the robust application of the civil rights laws that Congress intended.” Lilly Ledbetter Fair Pay Act of 2009, Pub.L. *304No. 111-2, 123 Stat. 5 (Jan. 29, 2009). Therefore, I respectfully dissent.
[¶ 39] MARY MUEHLEN MARING, J., concur.