Property Law Developments—Joseph William Singer

HUD issues final regulations defining disparate impact claims under the Fair Housing Act

Posted on February 9th, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act, Real estate transactions.

The Department of Housing & Urban Development (HUD) has issued final regulations defining the standards to make a claim that a neutral policy has a disparate impact on a protected group in a manner that constitutes unlawful discrimination under the federal Fair Housing Act, 42 U.S.C. §3601 et seq. The regulations are at 24 C.F.R. 100.500 and can be found here. The rule affirms that disparate impact claims are available under the Fair Housing Act and identifies an approach to proving them to respond to the variation that exists among Circuits on what the legal test is for disparate impact in this area. Here is the test:

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Rhode Island passes Homeless Bill of Rights

Posted on June 17th, 2012 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act, Personal property, Trespass.

The Rhode Island legislature passed a statute likely to be signed by the Governor called the “Homeless Bill of Rights.” The act amends Rhode Island’s fair housing law by adding “housing status” to the list of prohibited kinds of discrimination and defines housing status to mean “the status of having or not having a fixed or regular residence, including the status of living on the streets or in a homeless shelter or similar temporary residence.” It guarantees access to public spaces (including sidewalks and public buildings) on the same terms as others and grants a certain amount of protection for the personal property of the homeless. The law also ensures that public services are available to homeless persons. The bill is S 2052 Substitute B (2012) and it will amend R.I. Gen. Laws ch. 34 by adding §§34-37.1-1 to 34-37.1-5 and amending §§34-37-1 and 34-37-3.

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$2 million settlement agreement by landlord & building superintendent for systematic sexual harassment of tenants

Posted on May 9th, 2012 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act, Leaseholds, Trespass.

On May 8, 2012, the U.S. Attorney’s office in Manhattan announced a $2 million settlement by a landlord, his building superintendent and the superintendent’s son to pay fines to tenants who were sexually harassed by the superintendent. The building superintendent was a convicted sex offender who served 14 years in prison for molesting or raping 3 girls and a woman before being hired by the landlord to run three buildings. The superintendent would enter women’s apartments while drunk and demand sex, retaliating when he did not get his way. Both the landlord and the superintendent are also barred by the agreement from owning or managing occupied properties. read article

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Ninth Circuit holds that the Fair Housing Act does not regulate roommate choices or advertisements

Posted on February 9th, 2012 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act.

The Ninth Circuit ruled in Fair Housing Council of San Fernando Valley v. Roommate, LLC, 2012 U.S. App. LEXIS 1971 (9th Cir. 2012), that the Fair Housing does not regulate roommate choices or advertisements expressing preferences with respect to roommates, dismissing a claim against Roommate.com, a website that allowed individuals to place ads stating preferences based on sex, sexual orientation, religion, and familial status in connection with roommate searches. The opinion by Judge Alex Kozinski noted that the Fair Housing Act regulates “dwellings” which are defined to include “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.” 42 U.S.C. §3602(b)(emphasis added by this editor). Despite the “or portion thereof” language, the court noted that the constitution protects rights of intimate association and that it would be unconstitutional to restrict roommate choices so the statute should be read to preclude such regulation if possible. Since the statute could be interpreted to regulate only the transfer of an “independent living unit” rather than shared space, and doing so would avoid constitutional problems, that is how the court interpreted the “portion thereof” language. The court also held that advertisements that express preferences that would otherwise be discriminatory are lawful in the roommate context since §3604(c) prohibits ads that “indicate any [discriminatory] preference…with respect to the sale or rental of a dwelling” and “dwelling” does not include shared living space, there is no prohibition against discriminatory roommate ads. This suggests that it is lawful to place an ad that expresses racial preferences as well as preference with respect to sex, sexual orientation, religion or familial status as long as the space is shared rather than transferred. At the same time, that fact situation was not addressed by the court because Roommate.com does not seek such information.

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Court holds that an Alabama immigration law violates the Fair Housing Act

Posted on January 12th, 2012 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act.

A recent Alabama immigration statute was held preempted by the Fair Housing Act because it required many mobile home owners to pay for a government-issued decal while prohibiting undocumented residents from making payments to government officials. In Central Alabama Fair Housing Center v. Magee, 2011 U.S. Dist. LEXIS 142788 (D. Ala. 2011), the federal District Court judge found a violation of the federal fair housing law because there was sufficient evidence of discriminatory intent by legislators against Latino residents (including legal residents) and because the law had a disparate impact on the Latino population without any legitimate government justification. Because the law made it illegal to drive or possess a mobile home without a decal and registration and because it was illegal for undocumented residents to obtain the decal, the law effectively made such persons homeless. The court found the law preempted by federal immigration laws but also found a fair housing violation because the judge interpreted the FHA to protects any person without regard to immigration status. Because a greater percentage of Latinos would be affected by the statute than others, a disparate impact was present and because the Constitution gives the federal government (and not the states) the power to regulate immigration, the state could not demonstrate a legitimate government interest that could justify the disparate impact.

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Third Circuit finds prima facie evidence of disparate impact from municipal redevelopment plan

Posted on September 28th, 2011 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act.

The Third Circuit has ruled in Mount Holly Gardens Citizens in Action Inc. v. Mount Holly, N.J., 2011 U.S. App. LEXIS 18840 (3d Cir. 2011) that plaintiffs presented sufficient statistical evidence to constitute a prima facie case that displacement of low-income residents from an area slated for redevelopment would have a disparate impact on African American and Latino residents. The court clarified that no evidence of intent to discriminate was needed to bring a disparate impact claim, clarifying ambiguities on this score created by the Third Circuit’s earlier decision, Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977). The court accepted the town’s justification that its redevelopment plan was geared to remove blight but held that the town had a duty to show that no less discriminatory alternative could achieve that goal.

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Massachusetts Attorney General settles lawsuit with subprime mortgage lender, requiring $115 million of loan modifications

Posted on August 10th, 2011 by Joseph William Singer.
Categories: Antidiscrimination law, Consumer protection, Fair Housing Act, Mortgages, Real estate transactions.

Attorney General Martha Coakley announced that the Commonwealth of Massachusetts settled a lawsuit with a subprime mortgage lender that originated subprime mortgages it knew were likely to fail and which not only targeted African American and Latino borrowers but gave its employees discretion to charge higher fees to such borrowers. The company will pay a penalty of almost $10 million to the Commonwealth and will direct its mortgage servicer to modify $115 million in loans either by writing down the principal balance of lowering interest rates. read article The settlement is based on the legal ruling in the earlier case of Commonwealth v. Fremont Inv. & Loan, 897 N.E.2d 548 (Mass. 2008), which held that it might violate the state consumer protection act to market mortgages that were almost certain to end in foreclosure.

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Eighth Circuit upholds finding that landlord sexually harassed a tenant in violation of the Fair Housing Act but affirms the trial court’s reduction of the jury’s punitive damages award

Posted on June 3rd, 2011 by Joseph William Singer.
Categories: Antidiscrimination law, Due process, Fair Housing Act, Leaseholds.

In Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010),the Eighth Circuit upheld a trial court ruling that landlord sexually harassed tenant in violation of the Fair Housing Act (FHA), but it affirmed the  trial court’s reduction of the jury’s punitive damages award. The jury awarded $13,685 in compensatory damages and $250,000 in punitive damages. The trial court reduced the punitive damages award to $20,527.50.

The landlord engaged in a variety of inappropriate behavior, rubbing tenant’s arm, standing close to her and rubbing his genital area, following tenant and her sister into the bedroom while conducting an inspection and they were in their pajamas and then refusing to leave until asked to do so three times, calling tenant while drunk at 2:30 or 3:00 am.  The Eighth Circuit held that a claim for hostile housing environment created by sexual harassment is actionable under the FHA, that there was sufficient evidence to find that landlord’s conduct in tenant’s home rose to that level, and that landlord had engaged in quid pro quo harassment by suggesting tenant undress for him to get her security deposit back. The court also found a violation of 42 U.S.C. §3617 when landlord engaged in coercion, intimidation, and interference with tenant’s enjoyment of her housing rights.

However, the court approved the trial judge’s reduction of the punitive damages award from $250,000 to $$20,527.50 on the basis of Supreme Court precedents holding it violates due process to award punitive damages claims that are out of proportion to actual damages. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003);  BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). While the court found landlord’s conduct “reprehensible,” it did not find the degree of reprehensibility to justify a punitive damages award eighteen times the compensatory damages. The Eighth Circuit agreed with the trial judge that an award one and a half times the compensatory damages sufficiently reflected the reprehensibility of landlord’s conduct.

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Supreme Court holds that Congress did not authorize damages judgments against state or municipal officials for violations of RLUIPA

Posted on May 4th, 2011 by Joseph William Singer.
Categories: Fair Housing Act, Zoning.

The Supreme Court ruled in Sossamon v. Texas, 2011 U.S. LEXIS 3187 (U.S. 2011), that Congress did not waive the sovereign immunity of the United States when it passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). This means that the only relief available against federal officials for violating the statutorily protected religious freedom rights of federal prisoners is prospective injunctive relief; no damages can be awarded for federal violations of the act. A similar result would apply to land owners whose land use rights are violated by federal officials. The case, however, was not against federal office but state prison officials in a state that accepted federal money to fund its prisons. The precise holding in the case was that prisoners cannot sue such states for damages when those states deprive inmates in state prisons of religious free exercise rights. A similar result could be expected for claims for damages against states and municipalities; such relief appears now to be foreclosed. Of course, states are free to waive their sovereign immunity by clear legislation if they wish to do so.

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Tenant allowed to keep emotional support dog

Posted on April 25th, 2011 by Joseph William Singer.
Categories: Fair Housing Act, Leaseholds.

A tenant with AIDS and related illnesses won $25,000 in emotional distress damages from his landlord for refusing to make an exception to a no-pets policy to allow the tenant to live with his emotional support dog. The Massachusetts Commission Against Discrimination made the award and ordered the landlord to allow the dog as a reasonable accommodation to his disability which included depression and anxiety. The landlord was also fined $5,000. read article

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Federal judge denies summary judgment in case alleging town interference in granting permits for housing for homeless persons

Posted on September 28th, 2010 by Joseph William Singer.
Categories: Fair Housing Act.

South Middlesex Opportunity Council, Inc. v. Town of Framingham, 2010 WL 3607481 (D. Mass. 2010).

In this case, Judge Douglas Woodlock allowed a suit to proceed against a town and individual members of the town meeting, the board of selectmen and the town planning board in both their individual and official capacities alleging that defendants violated the Fair Housing Act by blocking plaintiff non-profit organizations from obtaining necessary approvals to establish housing to provide residential treatment and support to homeless and at-risk families, some of which were undergoing substance abuse rehabilitation and some of which may have had criminal histories. The court found that the town had repeatedly delayed in issuing permits and created other procedural hurdles and that evidence supported the allegation that the town did so for discriminatory reasons. The court found evidence of discriminatory statements by individual defendants and evidence of disparate treatment of similarly situated projects by the town. The court found sufficient evidence that could justify a finding that the town interfered with the plaintiff’s housing project in violation of §3617 of the Fair Housing Act. Finally, the court found that the defendants’ proffered justifications for their conduct were sufficient to send the question to the jury of whether the town had legitimate nondiscriminatory reasons for its actions but that the town’s evidence was not sufficient to conclude decisively that the town acted for nondiscriminatory reasons. The court found some of the proffered justifications to be illegitimate and others to be pretextual.

Following the summary judgment denial, the town settled with the plaintiffs for $1 million, although refusing to acknowledge any wrongdoing. Read article.

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Craigslist seeks to prevent discriminatory housing ads

Posted on March 10th, 2010 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act, Sexual orientation.

Craigslist.org now is seeking to prevent discriminatory housing ads (including roommate ads) on its website by posting the following message before one is allowed to fill out a classified housing advertisement:

“Stating a discriminatory preference in a housing post is illegal, is prohibited on craigslist, and can be expensive:  you can be fined more than $10,000 for each discriminatory ad, plus damages in court, plus loss of license if you are a professional. Avoid phrases which could be interpreted as discriminating by race/color/origin (e.g. ‘hispanic area’), religion (e.g. ‘christian home’), age / familial status (e.g. ‘no kids’), disability, sexual orientation, or source of income. The words you choose can cost you – get the facts and avoid being prosecuted under fair housing law.”

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Co-ops accused of racial bias

Posted on February 22nd, 2010 by Joseph William Singer.
Categories: Antidiscrimination law, Co-ops, Fair Housing Act, Restraints on alienation.

Two Bronx communities organized as co-ops require references from three co-op members in order to buy units. After using testers, the Fair Housing Justice Center has filed a lawsuit arguing that this requirement has a discriminatory effect when existing co-op members are overwhelmingly white and when the requirement was not consistently applied. Read article.

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Town faces Fair Housing Act lawsuit for moratorium on multi-family housing

Posted on November 15th, 2009 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act.

A nonprofit organization named Mano en Mano that sought to build multi-family housing affordable by farm workers was stymied by a change in the town’s zoning law placing a moratorium on all multi-family housing. That change in the law may have been motivated by racially discriminatory motives (by at least some townspeople) against the mostly Latino farm worker population and the nonprofit organization has sued the town of Milbridge, Maine claiming that the change in the law violates the Fair Housing Act. For background on the case see here.

Perhaps in response to both the lawsuit and the publicity generated by the moratorium, the town voted on Nov. 16, 2009 to rescind the moratorium, allowing the construction of the housing project to go forward. Read article.

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Circuit split over whether Fair Housing Act regulates post-acquisition discrimination

Posted on November 14th, 2009 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act.

The federal courts cannot agree on the question of whether the Fair Housing Act (FHA) applies only to discrimination in acquiring or renting property or also applies to post-acquisition discrimination in provision of services. The Fifth Circuit held, in Cox v. Dallas, 430 F.3d 734 (5th Circ. 2005), that African American residents of a neighborhood afflicted with an illegal dump had no remedy against the city that failed to clean it up. The court held that the dump merely made the housing less habitable but did not make it “unavailable” as required by 42 U.S.C. §3604(a) and that the prohibition against discriminatory terms in the sale or rental of a dwelling was inapplicable to city actions when the city was not the seller or renter of the property. For background on the case see here.

Similarly, the Seventh Circuit ruled in Halprin v. Prairie Single Family Homes of Dearborn Park Assoc., 388 F.3d 327 (7th Cir. 2004), that §3604(a) of the FHA gave no remedy to Jewish condo owners against the homeowners association or other members of the association for harassment that took place after they bought and moved into their home. Judge Posner’s opinion was similarly skeptical about whether §3617 provided a remedy; that section makes it unlawful to “coerce, intimidate, threaten, or interfere with any person in the exercise of or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the FHA].” The court found a potential violation of §3617 only because of a HUD regulation interpreting §3617 to encompass such activity; the court intimated, however, that the regulation exceeded the agency’s powers because it prohibited conduct not within the statutory language.

However, the full Seventh Circuit rejected the view expressed in Halprin when the court en banc reversed an earlier ruling of a three judge panel in the case of Bloch v. Frischholz, 2009 WL 3789996 (7th Cir. 2009).  In the earlier opinion, Judge Frank Easterbrook wrote for the majority that §3617  does not reach post-acquisition conduct. That ruling was reversed by the full court on November 13, 2009.

The Ninth Circuit has recently rejected the rulings in these cases, holding that the FHA does apply to post-acquisition discrimination in provision of services. In Committee Concerning Community Improvement v. Modesto, Cal., 583 F.3d 690 (9th Cir. 2009), the court ruled that residents of primarily Latino neighborhoods did have FHA claims against the city for discriminatory provision of municipal services. The court found that the language in §3604(b) prohibiting discrimination “in the terms, conditions, or privileges of sale or rental of a dwelling, or in provision of services or facilities in connection therewith” did not only apply at the moment of renting or purchasing but “implicated continuing rights, such as the privilege of quiet enjoyment of the dwelling.”

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