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Landlord Are Not Liable for Racial Discrimination or Harassment by Their Tenants, Federal Appeals Court Holds

In January 2020, we reported on a recent decision by the Second Circuit Court of Appeals (the federal appeals court for New York) addressing racial harassment of a tenant by fellow tenants. Landlords have a clearly established legal duty not to harass tenants based on their race or any other legally protected characteristics. But what if the person committing the harassment is not the landlord, but someone else, such as a neighbor? If the landlord knows of the harassment, does it have a duty to protect the tenant? The answer is generally no, according to a recent decision by the Second Circuit, which is the federal court of appeals sitting in New York.

The plaintiff in this case, who is African-American, alleged that a neighbor subjected him to a “brazen and relentless” pattern of racial harassment, including abuse and threats. The plaintiff filed a lawsuit under the Fair Housing Act (FHA) and other federal and state laws, naming not only the neighbor but also the landlord and the property manager. A three-judge panel allowed the plaintiff to proceed with the lawsuit, given the allegations that plaintiff was subjected to a “brazen and reckless” pattern of racial harassment by a neighbor, and that the landlord knew of the harassment but did nothing to stop it.

This decision was considered important enough that the entire Second Circuit reconvened in what is termed an “en banc sitting” to reconsider it. By a vote of 7 to 5, the full Court disagreed with the panel decision and held that the landlord was not legally responsible for harassing or discriminatory actions or statements by one tenant against another. The court held that “a landlord cannot be presumed to have the degree of control over tenants necessary to impose liability under the FHA for tenant-on-tenant harassment” and that the plaintiff did not have a valid claim against the landlord under the federal and state civil rights laws. The decision is Francis v. Kings Park Manor, Inc., No. 15-1823-cv, 2021 U.S. App. LEXIS 8761 (2d Cir. Mar. 25, 2021).