HUD Releases Guidance on Fair Housing Act Statute of Limitations for Design and Construction Claims

HUD released a memorandum analyzing when the statute of limitations starts to run for administrative claims alleging violations of the Fair Housing Act’s design and construction requirements.

The Fair Housing Act prohibits, among other things, housing-related discrimination based on “handicap” (i.e., disability).  The Act requires that most multifamily dwellings built after March 1991 include various features which make them accessible to people with disabilities.  Failure to comply with these design and construction requirements is considered to be a discriminatory housing practice.  Persons who are aggrieved by a violation may file an administrative complaint with the Secretary of HUD not later than one year after the alleged discriminatory housing practice has occurred or terminated, or may file a civil action in federal court to seek relief not later than 2 years after the occurrence or termination of the alleged discriminatory housing practice.

In 2013, HUD released guidance stating that the statute of limitations begins to run when a person is injured by a violation of the design and construction requirements—such as when a disabled person is unable to obtain an otherwise available housing unit due to the lack of accessibility features.  Such an injury could occur any time after construction until the violation is corrected and the building is brought into compliance with the Act.

HUD’s new guidance notes that the statute of limitations language in the Act does not reference injury to a person, but instead is triggered based on when the alleged discriminatory housing practice has occurred or terminated.  In turn, the violation occurs during the building’s design and construction phase and terminates after construction is completed.  This is a rejection of the view that the Act treats a violation as continuing post-construction until it is remedied.

Accordingly, administrative complaints alleging design and construction violations must now be filed with HUD within one year after the allegedly unlawful design and construction practice terminates.  That occurs upon completion of construction, as evidenced by the issuance of the certificate of occupancy for the building.  The continued existence of an inaccessible feature does not restart or extend the limitations period, since HUD now considers a failure to design and construct a multifamily dwelling in compliance with the Act to be a discrete, rather than continuing, violation.