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

Fact: A few months after a Section 8 resident moved into his unit, his next-door neighbor began a relentless campaign of racial harassment, abuse, and threats directed toward him. From the start of the harassment, the resident, “fear[ing] for his personal safety,” contacted the police and the site’s management to complain. His first call to the police in March 2012 prompted the local 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 management about the neighbor’s conduct. The management did nothing.

In May 2012, the resident called the police again and filed another police report. This time, the resident notified management by letter about his neighbor’s racist conduct between March and May 2012. The letter reported the racial harassment and racial slurs directed toward him. It also provided contact information for the police officers responsible for investigating the neighbor. Again, the management took no action and didn’t even respond to the resident’s letter.

The neighbor’s conduct persisted to the point that the police arrested the neighbor for aggravated harassment. In August 2012, the resident sent a second letter informing management of the continued racial slurs directed to him and the fact that the neighbor had recently been arrested for harassment.

In September, the resident contacted the police and the following day sent the management group a third letter complaining about his neighbor’s continued harassment. After receiving the letter, the management group advised the site manager “not to get involved,” and the management group declined to respond or follow up. As a result, the resident stayed at the site until his lease expired and then moved out.

The resident filed a discrimination lawsuit against the owner and manager for failing to take action to address a racially hostile housing environment created by one tenant targeting another. A district court ruled against the resident and dismissed his claims against the owner and manager. The resident appealed.

Ruling: The Second Circuit Appeals court reversed the lower court’s dismissal of the resident’s claims under the Fair Housing Act (FHA) and sent the case back for further proceedings.

Reasoning: HUD’s regulations specifically state 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 or should have known of the discriminatory conduct and had the power to correct it” [24 C.F.R. §100.7(a)(1)(iii)].

The court acknowledged that the owner’s ability to control a given tenant is relevant to determining the owner’s liability. In some cases, an owner may not have enough control over its tenants to be held liable for failing to intervene. According to HUD, the owner can be held liable only in circumstances where the landlord had the power to take corrective action yet failed to do so. But the landlord escapes liability under the FHA if the appropriate corrective action is “beyond the scope of its power to act.”

The court ruled that the resident’s complaint plausibly and adequately alleges 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 [neighbor] due to his continued harassment of [resident],” and also had “intervened against other tenants at [the site] regarding non-race-related violations of their leases or of the law.” The resident alleged that the owner and manager had actual knowledge of the neighbor’s criminal racial harassment of him but, because it involved race, intentionally allowed it to continue even though they had the power to end it. The court conceded that it may turn out that the owner tried but failed to respond. Or it may be that the owner was powerless to evict or otherwise deal with the neighbor. But the resident is entitled to a trial that considers at least the level of control the owner actually exercised over tenants and whether they had the power to act to stop the neighbor’s abuse.

·         Francis v. King Park Manor, Inc., March 2019