Landlord may be liable for fair housing violation if no response to one tenant's racial harassment of another


In the case of Francis v. King's Park Manor, Inc., 2019 WL 6646495 (2d Cir. 2019), a tenant engaged in a vicious campaign of abuse and intimidation of another tenant, coming to his door and threatening to kill him and repeatedly yelling at him and calling him the "n-word" and "fucking Jews." The victim called the police several times and notified the landlord of the harasser's behavior, which persisted. The victim sued the landlord, claiming that it failed to investigate or attempt to resolve the problem and allowed the harasser to continue to live in his unit without reprisal. The harasser was convicted of the crime of harassment in violation of New York Penal Law §240.26(1).


The Second Circuit agreed with other Circuits that have addressed the question that post-acquisition claims are cognizable under the federal Fair Housing Act (FHA), 42 U.S.C. §§3601 et seq.. Section §3604(b) prohibits discrimination in the "terms, conditions, or privileges" of rental of a dwelling because of race or religion, and that includes post-acquisition conduct and conditions. See Bloch v. Frischholz, 587 F.3d 771, 779-780 (7th Cir. 2009), Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 713 (9th Cir. 2009), Neudecker v. Boisclair Corp., 351 F.3d 361, 364-365 (8th Cir. 2003). The court noted that constructive eviction claims are widely held to be available under the FHA and those obviously occur after acquisition of the housing. The Second Circuit also found a claim under §3617 which prohibits coercion, intimidation, threats, or interference with any person in the exercise of their rights under the FHA.


The court explained: "We therefore conclude that §3604(b) 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." 2019 WL 6646495, at *4.


The harder question was whether a landlord could be liable for failing to act when one tenant engages in racial harassment of another. The Second Circuit agreed with the Seventh Circuit's ruling in Wetzel v. Glen St. Andrew Living Cmty., LLC 901 F.3d 856, 866–867 (7th Cir. 2018), the the FHA "creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment," citing Wetzel, 901 F.3d at 859. The court rejected the landlord's claim that it did not engage in "intentional racial discrimination" when it merely failed to intervene in a situation caused by another.


However, the court "assume[d] without deciding" that the plaintiff need to prove "intentional" discrimination on the part of the landlord and that this could be done by proof that the landlord had intervened in non-racial disputes among tenants in the past but did not intervene in this one.


There was a long and vigorous dissent by Judge Debra Ann Livington who would have held that landlords are not liable under the Fair Housing Act for intentional racial discrimination merely because they fail to intervene to stop one tenant from engaging in racial harassment of another. Landlords, she wrote, should not be liable for intentional racial discrimination for failing to intervene in a tenant/tenant dispute just because they have intervened in at least one non-racial dispute in the past. She also noted that the text of the FHA do not explicitly make landlords liable for tenant-on-tenant harassment, and argued that the Seventh Circuit's decision in Wetzel was incorrect. She also argued that, as a practical matter, landlords are not equipped to engage in investigation, fact-finding, and dispute resolution among tenants and could face liability themselves if they evict a tenant without adequate reason.