In 2010 Donahue Francis, as a residential tenant, signed a Lease for a Long Island apartment with Kings Park Manor using the House Choice “Section 8” Voucher Program. Things went well. Until they didn’t.
In 2012 Francis’ next-door neighbor Raymond Endres began to torment Francis with racial harassment, abuse and threats. Here is a sample:
February: Jews, effng Jews. Effng [n word].
March 3: Damn effng Jews. Effng a-hole.
March 10: [N word]. Effng [n word], close your god darn door, effng lazy, goddamn effng [n word].
March 20: [N word].
May 14: F you.
May 15: Keep your door closed you effng [n word].
May 22: I oughta kill you, you effng [n word].
August 10: Effng [n word]. Black bastard.
From the start, Francis contacted the police and Kings Park Manor to complain. Officers from the Suffolk County Police Hate Crimes Unit inspected, interviewed witnesses, and warned Endres to stop. One of the police officers also spoke to Kings Park.
Kings Park Manor did nothing.
Francis called the police again and filed another report in May 2012. This time, Francis sent Kings Park Manor a letter of May 23, 2012, notifying Kings Park of Endres’ racist conduct over the previous months.
Kings Park did not respond.
Endres’ conduct persisted. Finally the Suffolk County Police Department arrested Endres for aggravated harassment.
On August 10, 2012, Francis sent Kings Park another letter. It informed Kings Park that Endres continued to direct racial slurs at Francis, and anti-Semitic, derogatory slurs against Jewish people. Francis also disclosed to Kings Park that Endres had been recently arrested for harassment.
Kings Park ignored it.
Endres’ attempt to photograph Francis’ apartment on September 2 was the last straw. Francis contacted the police and the next day sent Kings Park a third and final letter complaining about Endres’ racial harassment. On receipt of the letter, Kings Park advised its property manager not to get involved.
So, again, Kings Park did not reply.
The situation was resolved only when Endres’ lease expired and he relocated in January 2013. In April 2013 Endres pleaded guilty to harassment, and the NY State Court entered an Order prohibiting him from contacting Francis.
In June 2014 Francis sued Kings Park Manor and Endres, claiming that they had violated the federal Fair Housing Act and Civil Rights Act. Other claims related to violations of NY State laws.
Raymond Endres never appeared or defended.
The federal District Court made short work of Francis’ claims against Kings Park, dismissing what had not been voluntarily withdrawn. Francis appealed.
The federal Circuit Court started by reviewing the Fair Housing Act, which makes it unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status or national origin. The appellate Court determined that it would give the FHA a “generous construction,” once reminded that the purpose of the Act is to “eliminate all traces of discrimination within the housing field.”
No surprises yet. The fundamental issue here, for those that follow FHA cases, is whether this Court would punish a landlord for choosing not to control tenant-on-tenant harassment. This claim is similar to tolerating or facilitating a hostile environment by purposeful inaction.
Yes indeed, says this federal Circuit Court. Donahue Francis has a legitimate claim against his landlord Kings Park Manor, not for the landlord’s discrimination against Francis but instead based on the theory that Kings Park had notice of discrimination by one tenant disparaging and harassing another, and Kings Park failed to respond.
Francis wins; Kings Park loses; Raymond Francis is cleared to prosecute his case. See Francis v. Kings Park Manor, Inc., US Court of Appeals; 2nd Circuit; Docket No. 15-1823-cv; March 4, 2019: http://www.ca2.uscourts.gov/decisions/isysquery/d43720d6-f19f-477d-93bb-1fe2e0326eb7/1/doc/15-1823%20Complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d43720d6-f19f-477d-93bb-1fe2e0326eb7/1/hilite/.
Note however that the opinion was withdrawn for unstated reasons shortly after it was released, so perhaps we’ll get more clarity soon: https://www.courthousenews.com/wp-content/uploads/2019/04/francis-ca2.pdf.
Lessons Learned / Questions Asked (assuming the Opinion is not overhauled):
1. Lesson: Here is what we know now that we didn’t know before. After the lease is signed, Fair Housing laws continue. Landlords must now police the actions of their tenants to be sure none are engaging in harassing and discriminating behavior against other tenants, applicants, residents or occupants.
2. Lesson: This case will put a spotlight on fair housing claims insurance and its availability to multi-family owners and property managers. This decision will also spotlight fair housing education and seminars for those professionals who deal with these issues.
3. Question: Does your Lease form allow you to forcibly move or evict a tenant who harasses others? If not then your request of the Judge to remove this tenant may fall on deaf ears. In that situation, you cannot comply with Fair Housing Act laws – as interpreted by this decision – because you do not have the legal right to abate this situation.
4. Coda: Oy vey ist mir.
Stuart A. Lautin, Esq.*
* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,
Texas Board of Legal Specialization
Licensed in the States of Texas and New York
Higier Allen & Lautin, PC
2711 N. Haskell Avenue, Suite 2400
Dallas Texas 75204