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
P:
972.716.1888
No comments:
Post a Comment