Tenant-on-Tenant Discrimination in Housing: Co-op and Condo Boards Can Be Liable

Co-Op, Condo & Real Estate Advisor

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PUBLISHED ON: March 15, 2019

On March 4, 2019, the U.S. Court of Appeals for the Second Circuit in Francis v. King Park Manor, Inc., 2019 U.S. App. LEXIS 6486, *15 (2d Cir. 2019) concluded that a landlord (and by implication, a co-op board) may have liability under the Fair Housing Act found at 42 U.S.C. §3604 for intentionally failing to address tenant-on-tenant racial discrimination.

As we have noted previously, the Fair Housing Act does allow for discrimination claims where another tenant, and not the landlord itself, is the source of the harassment.

In the Francis case, a Long Island tenant had been subjected to horrific and relentless racial abuse consisting of threats, harassment and completely unacceptable language from another tenant for a period of several months. The plaintiff feared for his personal safety and contacted the police and the landlord to complain on a regular basis. The court was troubled that the landlord did nothing, even “as little as respond to Francis’s letter.” 
This lack of response by that landlord should be an example of what not to do in these situations.

The Court of Appeals noted that in the event of unacceptable behavior by tenants, “courts will of course consider that housing providers ordinarily have a range of mechanisms at their disposal to correct discriminatory tenant-on-tenant harassment, such as ‘issuing and enforcing notices to quit, issuing threats of eviction and, if necessary, enforcing evictions.’” These notices and threats of eviction were recognized by the Francis court as being “powerful tools” available to a landlord to curtail harassment.

The takeaway for co-op and condo boards is that as housing providers, they can be held liable if other tenants are harassing a resident, tenant or applicant to the building, and they fail to take action to stop it.

There are a number of practices that co-op and condo boards can undertake to avoid such liability. Such practices include:

  • Adopting a policy against harassment of all kinds.
  • Developing a process for applicants and tenants to report harassment.
  • Establishing sanctions for those who engage in harassment.
  • Educating employees, contractors and residents about your harassment policy and the Fair Housing Act.
  • Enforcing your harassment policy, including issuing notices to cure, notices of eviction, and other default notices and letters in a condominium.

Should you have any further questions about how to implement such practices, Anderson Kill is here to help.