City, State and Feds Ban Tenant on Tenant Harassment Claims, but Boards Can Still Promote Civil Conduct

Andrew B. Freedland and Deborah Koplovitz wrote an article for the New York Law Journal's Condominium and Cooperative column discussing an en banc decision in which the United States Court of Appeals for the Second Circuit recently addressed the question of whether a New York landlord that does not curtail "tenant-on-tenant" harassment could be subject to a claim for housing discrimination under the Federal Fair Housing Act and the New York State Executive Law pursuant to a "deliberate indifference" theory. Francis v. Kings Park Manor, Inc., 992 F.3d 67, 75 (2d Cir. 2021). The Francis court explained that while "deliberate indifference may be used to establish liability under the FHA [and the New York State Executive Law] when a plaintiff plausibly alleges that the defendant exercised substantial control over the context in which the harassment occurs and over the harasser," Mr. Francis provided no factual basis to infer that his landlord had substantial control over other tenants. Id. Nor could any such control be presumed "in the typically arms-length relationship between landlord and tenant, unlike the custodial environments of schools and prisons. Id."

The Francis case did not, however, include a claim under New York City’s Human Rights Law. Therefore, for the past two months there has been an open question as to whether a New York City plaintiff could still bring a housing discrimination claim where the conduct at issue is alleged tenant-on-tenant harassment, and the relationship between landlord and tenant is an arm’s length one.

Although, a condominium board is not a landlord, because most condominium by-laws and house rules also prohibit unreasonably annoying others in the building, if complaints about racial slurs are made by a resident in a condominium, and if the complaints continue even after cease and desist letters are sent, it is possible for a condominium board to seek an injunction to stop the offending behavior.

In either a co-op or a condominium building, as occurred in the Francis case, the conduct can be reported to the police, and the tenant who is the victim of such conduct can press criminal charges.

This is discussed in the full analysis that originally appeared in the June 11, 2021 publication of the New York Law Journal. Access may require a subscription.

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For more information on condominium and cooperative law matters, please contact:

Andrew B. Freedland at +1 212 592 1623 or [email protected]