ADA and FHA Defense

On August 31, 2026 HUD issued a memorandum to its various divisions with instructions on “The Statute of Limitations Under the Fair Housing Act as Applied to Design and Construction Cases.” You can read it here. The memo is, strictly speaking, for internal use only. It tells HUD officials how HUD interprets the one year statute of limitations for adminstrative complaints alleging violations of 42 U.S.C. §3604(f)(3)(C), the design and construction requirements for covered multi-family housing. It is still important though, because HUD internal memoranda with no official importance often have an outsized influence on private FHA litigation. For example, HUD decided in September 2006¹ that a plaintiff in a design/build case could meet their burden of proof by showing that the housing did not meet a HUD safe harbor and that the burden then shifted to the defendant to prove it was accessible. Courts that are not bound by such HUD decisions have nonetheless assumed this was true. Similarly, in comments to the adoption of new safe harbors HUD stated its “position” that a developer or builder had to comply with a safe harbor “in its entirety” to claim safe harbor status.² HUD’s “position” is just that, a position, but plaintiff’s experts and some courts have accepted the idea that “accessibility” is equivalent to compliance with a single safe harbor.

So, HUD’s pronouncements matter even though they are not binding on the courts. In this case the pronoucement is:

effective immediately, the U.S. Department of Housing and Urban Development (HUD or the Department) will treat an alleged violation of 42 U.S.C. § 3604(f)(3)(C) as a distinct discriminatory housing practice that ends when the design and construction of a covered multifamily dwelling is completed.

HUD acknowledges that this is a change in position. In its 2013 Joint Statement on design and construction requirements HUD opined that the limitations period did not start until a disabled person was affected by the violation, meaning that owners and contractors had eternal liability. The Ninth Circuit disagreed in Garcia v. Brockway, 526 F.3d 456, 462 (9th Cir. 2008) (en banc), holding that the two year limitations period for civil actions began to run when the project was completed, with completion determined by the issuance of a certificate of occupancy. That opinion is generally accepted in FHA design/build cases, but other theories are in circulation. In Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 Fed. Appx. 469, 480 (6th Cir. 2006), for example, the Sixth Circuit suggested that limitations began to run when the last covered unit was first sold or rented.

For developers, contractors and architects concerned with private litigation HUD’s general agreement with Garcia v Brockway is generally helpful, especially since HUD specifically withdraws all of its prior guidance on this subject:

The Department’s prior guidance concerning when to file administrative or private fair housing complaints alleging design and construction violations, including any contrary guidance in HUD’s Design Manual, is superseded and has no further force or effect.

HUD notes that courts will reach their own decisions on these matters, but as noted above, HUD’s pronouncements have an effect, even in the post Loper v. Bright era.

That is not the end of good news for those with potential Section 3604(f)(3)(C) liability. HUD seems to disagee with one part of the holding in Garcia v. Brockway . In Garcia v. Brockway the Court found that limitations began to run “on the date the last certificate of occupancy is issued.” 526 F.3d at 461.  For an apartment complex with multiple buildings this is often claimed to mean the last certificate of occupancy for the entire complex, not the date of the individual certificates of occupancy that may be issued for each building. HUD’s memorandum seems to take a different position, stating that limitations begins to run: “upon completion of construction, as evidenced by the issuance of the certificate of occupancy for the covered dwelling,” as well as referring to limitations running from the “covered dwelling’s initial certificate of occupancy.” A “covered dwelling” is a building, and this very strongly suggests that when each building in an apartment complex receives its own certificate of occupancy limitations for claims related to that building run from the date of its certificate. In multi-building complexes this may mean that a plaintiff who sues within two years of the “final” certificate of occupany may be too late with respect to many of the covered dwellings. This in turn will limit the scope of injunctive relief and its cost.

HUD’s position makes sense, because for larger developments it is not uncommon for leasing to begin in completed buildings while other buildings are still under construction, and for developers faced with private lawsuits having limitations run for each building could significantly reduce litigation risk. For those who develop, own and build condominiums, apartments and other “covered multi-family dwellings” HUD’s latest memo is good news even if, on its face, it governs only HUD’s internal investigations.

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¹ Order on Secretarial Review, HUD v. Brent Nelson et al, FHEO Case 08-04-0056-8 (2006)

² 72 FR 39438 July 18, 2007.