Fair Housing Act requires landlords to deal with tenant-on-tenant racial harassment

The Court of Appeals has expanded the scope of the Fair Housing Act, holding that landlords can be held liable for failing to deal with racist neighbors who create a racially hostile housing environment.

The case is Francis v. Kings Park Manor, Inc., issued on March 4. The Fair Housing Act contains two provisions relevant to this case: (1) Section 3604(b) makes it unlawful to discriminate in the "terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities therewith, because of race" and other protected characteristics; and (2) Section 3617 makes it unlawful to "coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment, or on account of his having exercised" any right under the FHA. Plaintiff invokes these provisions against his landlord, who did nothing after plaintiff repeatedly complained about his neighbor's racist comments and threats, which resulted in the neighbor's arrest and issuance of an order of protection.

The Second Circuit (Lohier, Pooler and Livingston [dissenting]) says the FHA gives plaintiff a claim. First, the Court holds the FHA provides "post-acquisition protection" for renters who have already moved in, as the "privileges" language in the Act implicates continuing rights. The Court draws from the Seventh Circuit's ruling in Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009), for this proposition. The Court of Appeals further draws from Title VII's prohibition against employment discrimination, which promotes similar goals and requires management to protect employees from co-worker harassment. While "the analogy between the employer-employee relationship and the landlord-tenant relationship is imperfect and goes only so far, it nevertheless would be strange indeed if the nearly identical language of the FHA did not also impose liability for post-acquisition discrimination on landlords under certain circumstances."'We conclude that the FHA reaches conduct that, as here, “would constitute discrimination in the enjoyment of residence in a dwelling or in the provision of services associated with that dwelling' after acquisition."

The Circuit next determines the scope of the post-acquisition remedy, holding that under Section 3617, the coercion and threats prohibited under that provision creates rights distinct from Section 3604(b). The Court also relies on HUD regulations that require landlords to protect tenants from racist intimidation and threats from other tenants. The Seventh Circuit has already held that the FHA creates liability against landlords who have actual notice of tenant-on-tenant racial harassment but fails to take any reasonable steps to stop it. While the Second Circuit notes the FHA does not directly speak to this issue, "we have never required every last detail of a legislative scheme to be spelled out in a statute itself—especially a civil rights statute. After all, the FHA also makes no explicit reference to liability for actual or constructive eviction, or for landlord-on-tenant intentional harassment, even though both forms of liability are widely recognized."

Under the new rule announced in this case, drawing from HUD regulations, the Second Circuit says this:

a plaintiff “must prove ... to establish a housing provider’s liability for third-party harassment: (1) [t]he third-party created a hostile environment for the plaintiff ...; (2) the housing provider knew or should have known about the conduct creating the hostile environment;” and (3) notwithstanding its obligation under the FHA to do so, “the housing provider failed to take prompt action to correct and end the harassment while having the power to do so.”

Under this new framework, plaintiff states a claim against the landlord, and the lawsuit is reinstated.

In dissent Judge Livingston writes that "The majority justifies its novel and expansive theory of landlord liability for tenant-on-tenant harassment by invoking the 'broad language' of the FHA. But I can find no support for the majority’s decision in the FHA’s text, our precedent, or the background tort principles that informed Congress at the time the FHA was enacted." She adds:

the case is not about the heinous conduct of horrible neighbors, nor whether to condone it. Instead, the question here is whether this Court properly construes Title VIII of the Civil Rights Act of 1968, referred to as the Fair Housing Act, to impose a duty on landlords to monitor and remediate the behavior of one’s neighbors, on pain of incurring liability for damages and litigation costs, including attorney’s fees. The majority does not properly construe the FHA to impose such third-party liability for the conduct of neighbors. Instead, it steers the FHA into “unchartered territory,” where courts improbably discover new causes of action in half-century-old provisions, and heedless of the deleterious consequences for parties, courts, and the housing market.

we conclude that the FHA reaches conduct that, as here, “would constitute discrimination in the enjoyment of residence in a dwelling or in the provision of services associated with that dwelling” after acquisition

Francis v. Kings Park Manor, Inc., No. 15-1823-CV, 2019 WL 1006554, at *5 (2d Cir. Mar. 4, 2019)