WASHINGTON, D.C. — The Department of Housing and Urban Development is imposing a one-year deadline tied to completion of construction for administrative Fair Housing Act complaints alleging inaccessible design in covered multifamily housing, narrowing an earlier enforcement interpretation that allowed such claims while accessibility violations remained uncorrected.
Under guidance effective Aug. 31, HUD will treat alleged violations of the Fair Housing Act’s design and construction requirements as discrete rather than continuing violations. Administrative complaints must be filed with HUD’s Office of Fair Housing and Equal Opportunity within one year after issuance of the building’s initial certificate of occupancy.
The change supersedes HUD guidance that treated inaccessible design and construction as a continuing violation until a building was brought into compliance.
HUD and the Department of Justice had already rescinded the conflicting statute-of-limitations portion of their 2013 joint guidance on Aug. 13. The new HUD memorandum establishes how the department will apply the limitations period going forward.
The policy affects covered multifamily dwellings subject to the Fair Housing Act’s accessibility requirements, including buildings with elevators and four or more residential units, as well as ground-floor units in certain buildings without elevators.
The Fair Housing Act establishes a one-year limitations period for administrative complaints and a two-year period for private civil actions. HUD said it supports applying the same construction-completion principle to private claims, with the two-year period beginning when the initial certificate of occupancy is issued.
The department based its revised administrative interpretation in part on federal appellate decisions rejecting its previous continuing-violation theory. HUD adopted the approach of the U.S. Court of Appeals for the Ninth Circuit, which determined that the alleged discriminatory act ends when construction is completed.
The new guidance also changes the potential exposure of property owners that acquired buildings after their construction.
HUD said its previous interpretation had resulted in the department withholding financing from owners that had no involvement in a property’s original design or construction unless they agreed to accessibility modifications or retrofits.
The department said more than $110 million in repair costs had been imposed on building owners during the past five years under the previous approach, including owners that did not contribute to the alleged design and construction violations.
“Congress wrote a clear statute of limitations into the Fair Housing Act,” Assistant Secretary for Fair Housing and Equal Opportunity Craig Trainor said.
HUD Secretary Scott Turner said the change eliminates liability that the administration contends increased costs for builders and, ultimately, buyers and renters.
The guidance does not eliminate the Fair Housing Act’s accessibility requirements for covered multifamily housing. Designers and builders remain subject to requirements that qualifying properties be constructed with specified accessible features.
It also does not change the timeframe under which the U.S. attorney general may bring actions against builders for alleged violations of the Fair Housing Act’s design and construction requirements.
The new interpretation applies immediately to HUD administrative enforcement and supersedes contrary guidance in the department’s Design Manual and other prior materials.
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