Wednesday, June 17, 2015

Fair Housing Act - disability case will go to trial

You don't see a lot of Fair Housing Act cases in the Court of Appeals This lengthy opinion involves a real estate agent who tried to talk people out of renting a house because their child was disabled.

The case is Rodriguez v. Village Green Realty, decided on June 2. Plaintiffs were renting a house in Saugerties, N.Y., near my neck of the woods. When the house was put on the market, they had the option to continue renting there. Plaintiff's child then suffered two grand-mal seizures. The realtor sent text messages suggesting the buyer was "very concerned about continuing your lease with you Childs [sic] medical situation and will probably not want to rent to you. ... The new owner has decided not to continue to rent to you because your daughter should be in a more convenient location to medical treatment." In fact, the buyer did not say this to the realtor; the realtor fabricated all of this. The house sale fell through, but plaintiffs began looking for new housing when it became "very apparent that they were not wanted."

First things first. Electrornic discovery is the latest craze, and this case tells us why. These damaging text messages from the realtor were never written in memo form. This is why parties have to save their ESI (electronically-stored information) and electronic devices that store them.

While the district court dismissed the case on summary judgment, the Court of Appeals (Livingston, Droney and Nathan [D.J.]) reinstates the case. First, the FHA prohibits housing discrimination based on disability. The Court of Appeals finds the child is disabled Epilepsy substantially limits the major life activity of learning. The child's Autism Spectrum Disorder is also covered under the Act because it substantially impacts social interaction. Along the way, citing cases from other Circuits, the Second Circuit says that medical evidence is not necessary to to show an impairment is substantially limiting. Plaintiff's non-medical evidence is enough to defeat summary judgment.

The Court also explores whether the medical records that plaintiffs did submit were admissible. They were, even though the records were not authenticated, as "their appearance, contents, and substance are what one would expect of such records and support plaintiffs' claim that they are what they appear to be" (This reasoning will be of interest to litigators who fight over authenticity and admissibility issues). The daughter's special education services further establish that she is disabled under the FHA. At a minimum, the realtor perceived the daughter as disabled, and that is enough under the Act.

Plaintiffs also prevail on appeal because the jury could find that the realtor represented to them that the housing was not available because of their daughter's disability. That is apparent from the text messages. A reasonable person, viewing the text messages, would believe the realtor did not want to rent the house to someone with the daughter's limitations.

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