BLOG | Counsels’ Corner In the Middle of Tenant-on-Tenant Harassment
By: Kenneth J. Finger, Esq., Dorothy M. Finger, Esq., Carl L. Finger, Esq., and Daniel S. Finger, Esq.
(WHITE PLAINS) One of the many difficult situations facing landlords, cooperatives, and condominiums occurs when residents don’t get along and, even worse, find themselves at odds.
This can be particularly troubling when racial, ethnic and/or other “protected class” issues arise. Federal, State and Westchester County laws set forth protected classes, such as race, age, sex, religion, national origin, disability and familial status. The remedies pursuant to the various laws can involve injunctive relief and monetary damages, including punitive damages and legal fees.
With the above in mind, what responsibility does a landlord, board of directors, or board of managers have in the event of a resident against resident situation in general and, more particularly, in the event of an allegation that a disagreement includes reference to or is based on one party’s membership in a protected class? A recent United States Second Circuit Court of Appeals decision discussed this issue and provides some guidance as to the responsibility of landlords and boards in such circumstances.
In Francis v. Kings Park Manor, Inc. (KPM), the facts were that within a few months of moving in, Francis’ neighbor, Raymond Endres (“Endres”), began to subject Francis to racial harassment, abuse, and threats. Endres regularly directed at Francis racial and anti-Semitic slurs, obscenities, derogatory terms, and even death threats. Francis alerted both the police and KPM about Endres’ harassment of him. The police also notified KPM about Endres’ conduct.
As the harassment continued, between May of 2012 and September of 2012, Francis provided three written notifications to KPM as to Endres’ conduct. One of those letters notified KPM that Endres had been arrested for aggravated harassment. KPM took no action and did not respond to Francis’ letters. Endres remained a tenant at the apartment complex until his lease expired in January of 2013. In April of 2013, Endres pleaded guilty to harassment, and a protection order was issued from the court, prohibiting Endres from contacting Francis.
In June of 2014, Francis sued KPM and the apartment complex manager, Corrine Downing (collectively, the “KPM Defendants”). Francis alleged that the KPM Defendants’ failure to investigate or attempt to resolve Francis’ complaints of racial harassment by Endres was, among other things, a violation of the Fair Housing Act of 1968 (“FHA”).
Under § 3m604(b) of the FHA, it is unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” Under § 3617 of the FHA, it is “unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed” any right protected by the Act.
The KPM Defendants argued that “even if a hostile housing environment claim were cognizable under the FHA, Francis failed to allege that they intentionally discriminated against him.” They maintained that intentional discrimination was a necessary element of an FHA violation, and that since Francis failed to allege such intentional discrimination by the KPM Defendants, his claims against them should be dismissed. The district court agreed with the KPM Defendants and dismissed Francis’ claims under the FHA.
Opinions
This case generated four separate opinions. The first, from the trial court, found the landlord was not liable for not taking sufficient steps to address the matter. Three additional opinions by various components of the Court of Appeals held that the black tenant did not state a Title VIII claim for intentional discrimination based on allegations that the landlord failed to respond to reports of a fellow tenant’s race-based harassment. The Court reasoned that the typical powers of a landlord over a tenant, such as power to evict, do not establish the substantial control necessary to state a deliberate indifference claim against a landlord for the tenant’s conduct under Title VIII, even assuming that the deliberate indifference theory applies to Title VIII claims.
The ultimate holding was that (1) the tenant failed to state an FHA claim against the landlord for intentional discrimination based on allegations that the landlord failed to respond to reports of the fellow tenant’s race-based harassment; (2) the tenant failed to state a housing discrimination claim against the landlord under aiding and abetting provisions of the New York State Human Rights Law (HRL); and (3) that the tenant failed to state a claim against the landlord for negligent infliction of emotional distress, under New York law.
In its opinion, that Court said that for the plaintiff (complaining tenant) to survive a motion to dismiss, he must plausibly allege that he “[1] is a member of a protected class, … [2] suffered an adverse … action, and [3] has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent.” The Court found that it would be speculation to presume that there was “discriminatory intent.”
If there was proof that the Landlord exercised “substantial control over the [offending tenant]” and established that the “substantial control existed that was necessary to state a deliberate indifference claim under the FHA” then the decision might have been different. However, the Complainant would also have to show that even if the Landlord had “substantial control” the Landlord’s “inaction” was “clearly unreasonable” under the known circumstances.
The Court also found that there were no facts showing that the Landlord “actually participated in or incited” the unlawful conduct. The conclusion by the Court was that “a landlord cannot be presumed to have the degree of control over tenants necessary to impose liability under the FHA for tenant-on-tenant harassment” and thus is not required to take any action to address tenant against tenant.
The authors are attorneys with Finger and Finger, A Professional Corporation. The firm, based in White Plains, is Chief Counsel to The Building and Realty Institute of Westchester and the Mid-Hudson Region (BRI) and its seven component associations.