Potential Landlord Liability For Tenant-on Tenant Harassment Under Federal Fair Housing Act Is Clarified
A potentially large legal development occurred last week when the US Court of Appeals for the Second Circuit (a federal appeals court which covers NY, CT and VT), held that, under some narrow circumstances, a landlord will not be held liable under the federal Fair Housing Act (“FHA”) for a tenant’s harassment of another tenant when the tenant being harassed is a member of a protected class.
A quick summary of the facts in Francis v. King’s Park Manor, Inc. is in order. An African-American tenant (Francis) was subjected to race-based harassment by his neighbor (Endres). Francis sought police intervention, which ultimately resulted in prosecution Endres’ prosecution for aggravated harassment, Endres voluntarily vacating his apartment and pleading guilty to harassment. According to the opinion, Francis renewed his lease without objection and never sought intervention by the landlord or its managing agent.
Francis later sued the landlord claiming that the landlord’s failure to prevent tenant on tenant harassment constituted a violation of the FHA. Francis also sued for breach of contract (his lease) and intentional infliction of emotional distress. In the litigation history, the federal District Court (a trial level court) dismissed the discrimination and emotional distress claims. Francis appealed to the Second Circuit, which initially reversed the lower court and reinstated Francis’ claims. The landlord requested that the entire panel of Circuit Court Judges hear the appeal (a process known as “en banc”). Although an en banc appeal request is rarely granted, in this case the entire Second Circuit agreed to decide the case en banc.
In a bitterly divided set of opinions (a 7 Judge majority opinion and a 5 Judge dissenting opinion), the majority of the Second Circuit agreed with the District Court that Francis had not “plausibly alleged” violations of the FHA or intentional infliction of emotional distress. But in a minimally disguised warning to landlords, owners and managers of residential properties, the Second Circuit majority held:
We assume, for purposes of this appeal, that deliberate indifference may be used to establish liability under the FHA when a plaintiff plausibly alleges that the defendant exercised substantial control over the context in which the harassment occurs and over the harasser. Nevertheless, we hold that Francis has failed to state a claim because his Complaint provides no factual basis to infer that the KPM Defendants had “substantial control over [Endres] and the context in which the known harassment occur[red].” Nor can such control be reasonably presumed to exist in the typically arms-length relationship between landlord and tenant, unlike the custodial environments of schools and prisons. The typical powers of a landlord over a tenant—such as the power to evict—do not establish the substantial control necessary to state a deliberate indifference claim under the FHA.
Francis v. Kings Park Manor, Inc., No. 15-1823-cv, 2021 U.S. App. LEXIS 8761, at *10-11 (2d Cir. Mar. 25, 2021)
Thus, a majority of the Second Circuit ruled that when a landlord or property owner/manager exercised “substantial control over the context in which the harassment occurs and over the harasser” liability under the FHA can be both plausibly alleged and ultimately proved in Court.
This opinion is generally consistent with our firm’s advice over the years that landlords, property owners and managers are well advised, upon learning of tenant-on-tenant harassment, whether based upon one party’s race, disability or even on no apparent basis at all, to take affirmative steps to attempt to defuse the hostility and counsel the warring factions to take affirmative steps to avoid further confrontation. Mediation is oftentimes advisable.
The five Judge dissenting opinion believed Francis “plausibly alleged” discrimination by alleging that the owners of the management company told its property manager “not to get involved” in the tenant-on-tenant harassment and argued for a much broader reading of the FHA to apply to conduct similar to that alleged here.
The decision in Francis v. King’s Park Manor, Inc. substantially conflicts with a decision by the Seventh Circuit Court of Appeals (in the Midwest) which found the tenant being harassed had plausibly alleged a violation of the FHA. Because there exists a conflict of opinions between two Circuit Courts of Appeal, it is possible for the Supreme Court to become involved.
At Bleakley Platt & Schmidt, we continue to advise our landlord, property owner and property manager clients to intervene to prevent disputes from escalating into allegations of harassment and discrimination. Failure to intervene may result in legal liability and a charge of discrimination.
Bleakley Platt & Schmidt will continue to provide guidance to its landlord and tenant clients as laws and case law continue to evolve on the federal, state and local levels.