The federal Department of Housing & Urban Development (HUD) and the Department of Justice (DOJ) are making investigations of fair housing violations in three specific areas a priority for 2019. Those areas are sexual harassment, tenant-on-tenant harassment, and policies regarding criminal background checks. Last week I provided an article on sexual harassment. Part two of the three part series will deal with tenant-on-tenant harassment.
Tenant-on-Tenant Harassment in Housing
Most fair housing cases against property owners are a result of the actions of the owner or agents of the owner. However, HUD regulations and a recent court ruling make it clear that under certain circumstances, an owner may be liable for the actions of a tenant when that tenant harasses another tenant due to a protected characteristic.
Under HUD regulations, property owners may be liable under fair housing law for failing to take action to correct and end discriminatory conduct by one tenant against another tenant. This may be the case when an owner knows of or should have known of the discriminatory conduct and has the power to correct it. A recent court case outlines the risk an owner faces in this type of situation.
Francis v. King Park Manor, Inc., March 2019
In March 2019, a New York court ruled that a community could be liable under the Fair Housing Act (FHA) for an alleged campaign of racial harassment against an African-American resident by his neighbor.
The resident claimed that his next-door neighbor began a relentless campaign of racial harassment, abuse, and threats directed toward him. The resident said he feared for his personal safety, so he contacted the police and the site management to complain.
His first call was in March 2012 and as a result, the police in the hate crimes unit visited the site, interviewed witnesses, and warned the neighbor against making threats to the resident. The resident told management that he filed a police report and a police officer told management about the neighbor’s behavior. Management did not respond and took no action.
Two months later, the resident called the police again and filed another complaint. The resident also provided written notice to management about the harassment and racial slurs being directed toward him. Management still took no action.
The neighbor’s conduct persisted to the point that he was arrested by the police for aggravated harassment. In August 2012, the resident sent a second letter to management informing them of the continued racial slurs and the fact that the neighbor had recently been arrested for harassment.
In September, the resident contacted the police and sent management a third letter complaining about the continuing harassment. At this point, the management company advised the site manager “not to get involved.” The resident claimed that the harassing neighbor was allowed to stay in his unit until his lease expired and he moved out in January 2013. A few months later, the neighbor pled guilty to harassment and the court entered an order of protection prohibiting him from contacting the resident.
The resident sued the building owner, accusing the owner and manager of violating fair housing law by failing to take action to address a racially hostile housing environment created by his neighbor. A district court ruled against the resident and dismissed the case.
An appeals court reversed the lower court ruling. The court cited HUD regulations, which specifically state that an owner may be liable under the FHA for “failing to take prompt action to correct and end a discriminatory housing practice by a third-party” tenant where the owner “knew or should have known of the discriminatory conduct and had the power to correct it.”
According to HUD guidance, the owner may be held liable only in circumstances where the landlord had the power to take correction action yet failed to do so. In this case, the resident’s complaint adequately alleged that the owner and manager engaged in intentional racial discrimination by tolerating and/or facilitating a hostile environment, even though they had authority to “counsel, discipline, or evict the neighbor due to his continued harassment of the resident.” The owner had also “intervened against other tenants regarding non-race related violations of their leases or of the law.”
The complaint alleged that the owner and manager had actual knowledge of the neighbor’s criminal racial harassment of the resident but, because it involved race, intentionally allowed it to continue even though they had the power to end it.
This case once again makes it clear that owners and managers should take all necessary steps to prevent – and address – discriminatory behavior at the community. All onsite employees should be properly trained with regard to how to handle tenant complaints of harassment. This training should include not only managers and leasing personnel, but maintenance staff and anyone else who interacts with the public or with residents. Owners should also have a policy regarding outside contractors, whereby those contractors agree to abide by all applicable fair housing laws.
All complaints of harassment should be promptly investigated and, if warranted, adequate steps should be taken to stop the offensive behavior. Owners should seek legal advice in these cases and document exactly what has been done at each step of the process.