HUD’s latest guidance supersedes all prior contrary guidance, including the inconsistent portions of the 2013 Joint Statement issued by HUD and the U.S. Department of Justice (DOJ). Under the 2013 Joint Statement, HUD considered accessibility related design and construction failures as “... violations that [do] not terminate until the building is brought into compliance with the [FHA].” HUD’s previous interpretation allowed complaints to be filed for years after construction had been completed. Under the new Guidance, HUD emphasizes that subsequent owners who neither designed nor built the property are not subject to an ongoing duty under the FHA to retrofit accessible features solely because the original construction did not comply with HUD’s design and construction accessibility standards.
HUD’s memorandum notes that courts have not uniformly accepted the agency’s previous position that design and construction violations under the FHA constitute continuing violations. The Guidance acknowledges that the 2013 HUD-DOJ Joint Statement itself recognized that several courts disagreed with that interpretation. According to HUD, only two federal appellate courts, the Sixth and Ninth Circuits, have directly addressed the issue, and both rejected the theory that design and construction violations remain actionable indefinitely until corrected.
The Ninth Circuit, in Garcia v. Brockway, held that the Fair Housing Act prohibits the act of designing and constructing inaccessible housing, and that the violation terminates when construction is completed. The court identified the issuance of a certificate of occupancy as evidence that construction has been completed.
The Sixth Circuit, in Fair Housing Council, Inc. v. Village of Olde St. Andrews, likewise rejected the continuing-violation theory, although it concluded that the violation is completed when the noncompliant unit is sold or rented.
HUD specifically adopts the Ninth Circuit’s reasoning that a design and construction violation ends when construction is completed, with the issuance of a certificate of occupancy marking that point.
HUD’s new guidance establishes a more predictable and defined timeframe for determining when a FHA design and construction accessibility claim becomes time-barred for administrative enforcement purposes.
HUD also takes a position favorable to current owners and operators who were not involved in a property’s original design or construction, stating that the FHA does not impose an ongoing duty to retrofit properties solely because accessibility deficiencies stemming from original construction remain. According to the memorandum, HUD’s prior approach imposed “substantial burdens on subsequent innocent owners,” including situations in which financing was withheld unless alleged violations were remedied. HUD further observed that it was a “remarkable proposition” to require owners who neither designed nor built a property to cure alleged design and construction violations they did not create.
The Guidance does not alter the timeframe within which the U.S. Attorney General may bring actions against builders for violations of the FHA’s design and construction requirements. It also does not alter any other FHA obligations. However, the Guidance does signify the importance of compliance with the design and construction requirements of the FHA.
To evaluate statute of limitations issues effectively, housing providers should consider maintaining records that establish certificate of occupancy dates for covered multifamily dwellings. Housing providers should also consider ensuring staff understand the difference between design and construction accessibility claims that may be subject to statute of limitation defenses and their ongoing fair housing obligations related to accommodations and modifications. Housing providers should also contact their local counsel if they have any questions regarding their specific operations or compliance obligations.
NAA continues to serve as a resource to its members to help them understand their fair housing responsibilities. Access NAA’s Accessible Design Toolkit for additional design and construction compliance requirements.
NAA appreciates HUD’s swift action on these issues, which align with our advocacy objectives of bolstering the nation’s housing supply, lowering costs and protecting the long-term viability of rental housing. NAA will continue to work with the Trump Administration on responsible and sustainable housing policies, including equal housing opportunity for all. NAA continues to monitor and seek out opportunities to engage on federal issues impacting rental housing.
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