Owner May Be Liable for Resident-on-Resident Racial Harassment

Facts: A few months after a resident moved into his apartment, his next-door neighbor began a relentless campaign of racial harassment, abuse, and threats. From the start of his neighbor’s several-month campaign of harassment, the resident, “fear[ing] for his personal safety,” contacted the police and the owner to complain. His first call to the police prompted the county’s Police Hate Crimes Unit officers to visit the site, interview witnesses, and warn the neighbor to stop threatening the resident with racial epithets. That day the resident also filed a police report, and a police officer told the owner about neighbor’s conduct. The owner did nothing.

A month later, the resident called the police again and filed another police report. This time, by letter, the resident notified the owner directly about his neighbor’s racist conduct. The letter reported his neighbor for racial harassment and for making racial slurs directly to him. It also provided contact information for the police officers responsible for investigating the neighbor. Again, the owner didn’t do anything, even as little as respond to the resident’s letter.

The neighbor’s conduct persisted. His escalating racial threats to the resident finally prodded police to arrest the neighbor for aggravated harassment. The resident sent a second letter. It informed the owner that the resident continued to direct racial slurs at him. It also disclosed that the neighbor had recently been arrested for harassment.

The neighbor then tried to photograph the resident’s apartment. This was the last straw, and the resident contacted the police and the following day sent the owner a third and final letter complaining about his neighbor’s continued racial harassment. After receiving the letter, the owner advised the manager “not to get involved,” and the owner declined to respond or follow up, even though the owner and manager had “intervened against other tenants at [the site] regarding non-race-related violations of their leases or of the law.” As a result, the neighbor remained a tenant at the site.

The resident sued the owner for failing to investigate or attempt to resolve his complaints of racial abuse and allowing the neighbor to live at the site without reprisal. The neighbor had pleaded guilty to harassment in violation of state penal law and the state court entered an order of protection prohibiting him from contacting the resident. A lower court dismissed the resident’s discrimination claim, and the resident appealed.

Ruling: The Second Circuit Appeals Court reversed the lower court’s dismissal and sent the case back for further proceedings.

Reasoning: The court concluded that an owner may be liable under the Fair Housing Act (FHA) for intentionally discriminating against a tenant by choosing not to take any reasonable steps within its control to address racially based tenant-on-tenant harassment of which it has actual notice, even though it chooses to take steps to address other forms of tenant misconduct unrelated to race. The Seventh Circuit, which is the only other circuit to rule on a similar issue, held that 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.”

The owner argued that even if a hostile housing environment claim were recognized under the FHA, the resident failed to allege that the owner intentionally discriminated against him. In response, the court, without deciding that intentional discrimination is an element of an FHA violation, concluded that the resident’s complaint adequately and plausibly alleged both that the owner was actually aware of the neighbor’s criminal racial harassment of the resident—harassment so severe that it resulted in police warnings and the arrest and eventual conviction of the neighbor—and that the owner intentionally refused to address the harassment because it was based on race, even though the owner had addressed non-race-related tenant-on-tenant harassment issues in the past.

The court said that during preparation for a trial it may be shown that the owner in fact tried but failed to address the resident’s complaints. Or it may be that the owner also declined to address other, similar complaints unrelated to race, or that the owner was powerless to address the neighbor’s conduct.

The court also noted that HUD’s interpretation of the FHA more broadly imposes liability on owners arising out of tenant-on-tenant harassment based on race or other protected characteristics even without a showing of intentional discrimination. In 2016, HUD published a final rule amending its rules for discriminatory conduct under the FHA (“Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act”). The rule defines hostile environment harassment in violation of the FHA as referring to “unwelcome conduct that is sufficiently severe or pervasive as to interfere with: The availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction” [24 C.F.R. § 100.600(a)(2)]. HUD’s regulations, as clarified by the rule, specifically provide that an owner may be liable under the FHA for “[f]ailing to take prompt action to correct and end a discriminatory housing practice by a third-party” tenant where the owner “knew . . . of the discriminatory conduct and had the power to correct it” [24 C.F.R. § 100.7(a)(1)(iii)].

• Francis v. Kings Park Manor, Inc., December 2019