In my recent blog post, I discussed the often overlooked design and construction requirements of the Fair Housing Act. In sum, if you are an owner or manager of a property “built for first occupancy” after March 13, 1991, you need to be aware that you are subject to a series of mandated accessibility requirements. However, following that blog post, a number of people have asked the same (very good) question—what does it mean to be “built for first occupancy” after March 13, 1991?
The good news is that, as with most Fair Housing related issues, HUD has given some pretty good guidance on this question. Broadly speaking though, it is important to bear in mind that the determination of first occupancy is made on a case by case basis. Which means, of course, that if you own or manage a property that was built in or around 1991, you may have some buildings on the property that are covered by the Fair Housing Act Design and Construction Guidelines, and some that are not.
HUD has made clear that “covered multifamily dwellings” (see blog for a discussion of what a covered multifamily dwelling is) will be considered to be designed and constructed on or before March 13, 1991 (and exempt from the Act’s design and construction requirements) if the last building permit (or renewal) for the covered units is issued by the State, county, or local government on or before June 15, 1990.
So if you did not obtain the final building permit on or before June 15, 1990, are you out of luck? Not necessarily. You can also prove the date of first occupancy was on or before March 13, 1991 by: (1) a certificate of occupancy; and (2) a showing that at least one unit in the building was actually occupied by March 13, 1991. This means that a resident has signed a lease and has taken possession of the unit. Note that the resident does not actually have to physically move into the unit on or before March 13, 1991, but it does mean that the resident could have taken possession, if desired. And did you catch the “and” in the proof requirements? That means that you cannot simply rely on a certificate of occupancy alone—you need to show both the certificate of occupancy and proof of actual occupancy.