Harassed Tenant Gets OK to Hold Landlord Liable

MANHATTAN (CN) – Landlords can be held liable under the Fair Housing Act if they fail to reasonably address tenant-on-tenant race discrimination in their buildings, the Second Circuit ruled Friday, reaffirming a decision it made and withdrew earlier this year.

The 2-1 opinion today comes over three years after Manhattan-based panel heard oral arguments. No explanation was given for the abrupt withdrawal in April of the initial opinion, where the judges had split in the same manner.

“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 or otherwise discriminate against tenants because of race,” U.S. Circuit Judge Raymond Lohier, an Obama appointee, wrote for the majority.

Judge Debra Ann Livingston issued a fiery dissent, saying in fact landlords should often be excluded from liability.

“The majority errs in its treatment of the plain language of this provision which, as already noted, prohibits discriminatory conduct by the defendant, and not the failure to prevent harassment by third parties,” wrote Livingston, who was appointed by President George W. Bush.

Donahue Francis brought the underlying lawsuit against his senior living facility Kings Park Manor and the apartment complex’s unit manager, claiming they did nothing when his neighbor harassed him for being black. 

“We’re very pleased that the Second Circuit agreed with us that the landlord here had a duty to do more for Mr. Francis than it did,” Sasha Samberg-Champion, an attorney for Francis with the firm Relman, Dane & Colfax said in a phone interview Friday. 

“Mr. Francis endured egregious discriminatory harassment and we look forward to him having his day in court to address it,” Samberg-Champion continued.

Friday’s opinion returns the case back to U.S. District Court. 

Francis said he had barely moved into to the Long Island senior-living community in 2010 when he faced an escalating, expletive-laden tirade of racism from his next-door neighbor, Raymond Endres.

Police warned the neighbor to stop, eventually arresting the man for aggravated harassment, but Francis said his tormentor remained a tenant in the building until a state court entered a protective order forbidding contact with him.

Endres finally moved out when KPM did not renew his lease.

“Discovery may show that the KPM defendants in fact tried but failed to address Francis’s complaints,” Lohier wrote. “Or it may unfold that the defendants also declined to address other, similar complaints unrelated to race, or that they were powerless to address Endres’s conduct. But Francis is entitled to discovery regarding these issues.”

U.S. Circuit Judge Rosemary Pooler, a Clinton appointee, concurred.

The majority ruling hewed closely today to the Fair Housing Act’s prohibition against discrimination in the “terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith.”

After a person rents a home, the court found, he has the right to the benefits and protections of that law, which also serves to prevent discrimination in the rental and eviction processes. And where landlords take action on non-race-related issues, they should also respond to racially motivated ones, the panel added.

“For example, a landlord who fines tenants for creating fire hazards or for littering on the premises, or who responds to complaints of certain forms of tenant‐on‐tenant harassment, but then watches silently as white tenants burn a cross or dump trash in front of the home of recently arrived black tenants, may be said to intentionally interfere with the tenant’s rights under the FHA on the basis of race,” Lohier wrote.

A federal judge in Brooklyn had initially dismissed Francis’ case. 

The March 2019 ruling from the Second Circuit cited a 2016 amicus brief from the Department of Housing and Urban Development, which advised that landlords can be held liable under the Fair Housing Act “in certain circumstances” for tenant-on-tenant harassment. 

The first ruling also leaned on the expectations of employer liability to correct racial discrimination in the workplace, an argument the majority eventually sidelined but Livingston still skewered in her dissent Friday.

Livingston noted that even if landlords were to invade their tenants’ privacy and monitor their behavior, they lack the tools to take action — they can’t exactly haul everyone in for harassment training. 

Additionally, Livingston wondered, what could the landlord even have done to halt Endres’ behavior?  

Stanley Somer, an attorney for Kings Park Manor and the apartment complex’s unit manager, did not immediately return a request for comment Friday. Somer is an attorney with Somer, Heller & Corwin LLP.


Editor’s note: Stanley Somer, an attorney for Kings Park Manor and the apartment complex’s unit manager, praised the dissent in a Dec. 10 phone interview.

“The dissent hit it right on the head,” said Somer, of the firm Somer, Heller & Corwin. “The dissent is 100% correct in their analogy of the facts of the law, and that the majority totally missed the point that a landlord does not have the ability to simply evict a tenant based on a complaint of another tenant, nor can they or should they interfere with a police investigation regarding alleged criminal activity.”

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