Door to Liability Opened in NY Tenant-Harassment Case

MANHATTAN (CN) – Landlords with racist tenants beware: you may be liable for turning a blind eye on any bigoted tirades against other tenants.

In 2-1 opinion Monday, the Second Circuit ruled that landlords are subject to the Fair Housing Act if they have the power but fail to correct a “racially hostile housing environment” in their buildings.

The case originated in Kings Park Manor, a senior living apartment complex on Long Island.

Donahue Francis, who is black, said his next-door neighbor Raymond Endres subjected him to an escalating tirade of racism soon after he took up residence in 2010. What started with Endres repeatedly ranting about “fucking Jews” soon led to the man shouting “fuck you” at Francis’ front door as well as, “I ought to kill you, you fucking nigger,” Francis claimed.

Police warned Endres to stop his harassment, but Francis said Downing and building management did nothing in response to his repeated letters, even after Suffolk County police arrested Endres for aggravated harassment.

Ultimately, Kings Park Manor management advised building manager Corrine Downing “not to get involved.” Endres remained a tenant in the building until a state court entered a protective order forbidding contact with Francis, at which point Endres moved out.

Unhappy it took so long to get results, Francis sued Kings Park Manor, Downing and Endres under the Fair Housing Act as well as New York law.

Though a federal judge dismissed the case in 2015, the Second Circuit emphasized Monday that the Fair Housing Act was passed three decades ago, after the death of Martin Luther King, Jr., to replace racially segregated ghettos with integrated living facilities.

“With the objective of building a racially integrated society in mind, it would make no sense for Congress to require landlords to rent homes without regard to race but then permit them to harass tenants or turn a blind eye when tenants are harassed in their homes because of race,” U.S. Circuit Judge Raymond Lohier Jr. for the majority.

While the FHA does not specifically mention landlord liability for tenant-on-tenant harassment, Lohier said it also does not explicitly lay out liability for landlord-on-tenant harassment, yet such behavior is nonetheless prohibited.

The 35-page opinion cites a 2016 amicus brief from the Department of Housing and Urban Development, which advised that landlords can be held liable “in certain circumstances” for tenant-on-tenant harassment.

Both HUD and Lohier likened a landlord’s ability to stop tenant-on-tenant harassment to that of an employer stepping in to put an end to employee-on-employee racial harassment — which is also prohibited by federal anti-discrimination laws.

U.S. Circuit Judge Debra Ann Livingston chastised the majority for its “novel and expansive theory” on landlord liability, however, and warned that the ruling could open up a “limitless list of potential defendants” in such cases.

Even if the building helped mete out justice for other tenants regarding violations unrelated to race, Livingston said Kings Park Manor had no obligation in its rental agreement with Francis to monitor the conduct of other tenants, and remediate it where necessary.

“This amounts to the claim that because [Kings Park Manor] did something with regard to some incident involving some tenant at some past point, the alleged failure to intervene here must have been based on racial animus,” she wrote.

Livingston also challenged the majority’s reference to employment law, noting that landlords cannot and do not monitor tenants to the same level employers do, nor can they mandate tenants undergo harassment training or transfer a problematic tenant to another building.

“Employers simply exert far more control over not only their employees, but also the entire workplace environment, than do landlords over their tenants and the residences those tenants quite literally call their own,” the 39-page dissent states.

In a statement, Francis’ attorney Sasha Samberg-Champion, of Relman, Dane & Colfax, lauded the opinion as a “common-sense outcome” from a correct reading of the Fair Housing Act and HUD regulations.

“Today the Second Circuit 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,” Samberg-Champion said in a statement.

Stanley Somer, an attorney for the building with the firm Somer, Heller & Corwin, did not immediately return a phone call seeking comment.

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