HUD Limits Time to Sue for Fair Housing Act Design Flaws
Federal housing regulators now say the clock for FHA design-and-construction accessibility claims starts at project completion, rescinding the 'continuing violation' theory and aligning with the 9th Circuit.
The Department of Housing and Urban Development (HUD) has issued new guidance that rescinds a prior interpretation treating violations of the Fair Housing Act’s (FHA) design-and-construction accessibility requirements as “continuing violations.” The new guidance instead classifies these violations as discrete acts that conclude upon the issuance of a building's initial certificate of occupancy, which starts the clock on the statute of limitations.
This change offers significant relief and predictability for developers, builders, and current and subsequent owners of multifamily properties. Under the previous guidance, liability exposure could be indefinite, subjecting owners to costly repairs for non-compliant features decades after construction, even if they were not involved in the original design. HUD noted the rescinded policy had led to over $110 million in additional repair costs for building owners in the past five years.
Under the new framework, which adopts the 9th Circuit’s reasoning in Garcia v. Brockway, administrative complaints must be filed with HUD within one year of the certificate of occupancy, while private civil actions must be filed within two years of that date. The guidance does not alter the timeframe for enforcement actions brought by the U.S. Attorney General.