2nd Circuit Rules FHA Landlord Can Be Liable for Tenant-on-Tenant Harassment
The split decision relied on a HUD briefing on appeal that found the housing agency itself saw landlord liability for not dealing with certain kinds of tenant harassment.
March 05, 2019 at 01:20 PM
4 minute read
Landlords may be held responsible for certain tenant-on-tenant harassment under the federal Fair Housing Act, the U.S. Court of Appeals for the Second Circuit ruled Monday.
The decision from a split panel brought the Second Circuit in line with an evolving area of liability recognized in other circuits, such as the Seventh Circuit.
Circuit Judges Rosemary Pooler and Raymond Lohier Jr. ruled that, with post-acquisition harassment liability for landlords under the FHA now virtually universally recognized among appellate courts—”there is no circuit split” the majority wrote—the substance of the appeal turned on how far that liability reached.
The underlying dispute arose from allegations that a tenant in a Long Island housing complex engaged in what the majority described as “a brazen and relentless campaign of racial harassment, abuse, and threats” against the appellant, Donahue Francis, that included a regular battery of racial epithets and slurs.
Francis called the police on multiple occasions against his neighbor and informed the owners of the housing facilities at Kings Park Manor of the ongoing harassment. After the third such incident, the on-site manager was told not to “get involved” by the owners, and the company continued to decline to even respond to Francis' letters, let alone address the claims he made.
The offensive resident was allowed to continued to live in the housing complex next to Francis until his lease expired. He went on to plead guilty to state harassment charges.
Francis filed a lawsuit against KPM for violations of the FHA, Civil Rights Act and state human rights law violations. U.S. District Judge Arthur Spatt of the Eastern District of New York granted partial final judgment in favor of KPM, allowing him to bring his appeal in June 2015.
Having agreed with their sister circuits on the issue of post-acquisition liability for landlords, the appellate panel majority tackled the critical issue of whether that liability extends under the FHA if the landlord fails to address tenant-on-tenant racial harassment.
The majority acknowledged Circuit Judge Debra Ann Livingston's issue in her dissent that the FHA does not explicitly address the tenant-on-tenant issue. Nor, the majority noted, does it explicitly reference liability in a number of areas that have become widely accepted liabilities under the act.
More than even the text of the statute and what can be justifiably implied, the majority's decision to extend liability in these circumstances was pinned to an Obama-era Housing and Urban Development filing made at the court's request just days before President Donald Trump was elected.
The federal housing authority itself had found, and promulgated rules that found, a hostile harassment environment between tenants to be a violation under federal housing rules—and that a housing provider can be held liable, as the authority said in its amicus brief filed in the case, “in certain circumstances for failing to address tenant‐on‐tenant harassment.”
“The Rule, HUD's other implementing regulations for §§ 3604(b) and 3617 [of the FHA], and the views expressed in its amicus brief only reinforce our textual interpretation, reflect the Act's broad scope and purpose, comport with the holdings of several of our sister circuits, and further persuade us that a landlord may be liable under the FHA for failing to intervene in tenant‐on‐tenant racial harassment of which it knew or reasonably should have known and had the power to address,” the majority wrote in remanding the case.
Relman, Dane & Colfax counsel Sasha Samberg-Champion represented Francis on appeal. In a statement, he said the majority's decision “properly held that it was impermissible for a landlord to turn a blind eye to known racial harassment, just as it cannot permit tenants to live in intolerable conditions created by noise or flooding or pests.”
“This common-sense outcome is based on correct application of long-standing Fair Housing Act precedent and agency regulations,” Samberg-Champion said.
Somer & Heller name attorney Stanley Somer led the firm's team representing the property owners on appeal. He did not respond to a request for comment.
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