On September 1, HUD announced new guidance following the August rescission of the 2013 joint HUD-DOJ “continuing violation” interpretation of the Fair Housing Act’s (FHA’s) design-and-construction accessibility requirements. The new guidance treats such design and construction violations as discrete acts that terminate upon issuance of a covered multifamily dwelling’s initial certificate of occupancy, thus starting the clock for purposes of calculating the statute of limitations. Under the updated guidance, administrative complaints alleging violations of 42 U.S.C. § 3604(f)(3)(C), which requires covered multifamily dwellings to include certain accessible features, must be filed with HUD’s Office of Fair Housing and Equal Opportunity within one year of the certificate of occupancy. HUD also added that it supports a two-year limitations period for private civil actions measured from the same date.

The guidance adopts the 9th Circuit’s en banc analysis in Garcia v. Brockway, which held that the FHA’s statute of limitations for design-and-construction claims begins to run from the date construction is completed, rejecting the prior interpretation under which complaints could be filed at any time a building remained noncompliant. HUD said the rescinded 2013 guidance had resulted in more than $110 million in additional repair costs imposed on building owners over the past five years, including subsequent owners with no involvement in the original design or construction. The guidance does not address or alter the timeframe for actions brought by the U.S. Attorney General under 42 U.S.C. § 3614(a).