The Law Offices of 9 Matt Avenue P.O. Box909 Norwalk, CT 06850 Te/.203.604.0168 Fax.203.299.1513 Robert F. Frankel of Counsel Steven G. Berg sberg@frankeeandberrg.com 3000 Main Street Stratford. CT 06614 Repffy to Norwalk NEIGHBOR ON NEIGHBOR HARRASSMENT: WHEN CAN AN ASSOCIATION BE HELD LIABLE? Presented by Steven G. Berg, Esq. * AtCAI-CT's 3RD ANNUAL LEGAL & LEGISLATIVE SYMPOSIUM November 2, 2017 Legal research and writing by Arshan Shirani, J.D.
INTRODUCTION Under the Connecticut Common Interest Ownership Act ("CIOA''), homeowners associations have the authority to exercise discretion when enforcing rules. 1 CIOA goes as far as providing that when an association does enforce the rules under a certain set of circumstances, it has the discretion not to enforce the same rule, under another set of circumstances. 2 When it comes to neighbor-on-neighbor discrimination, however, this discretion is preempted by regulations promulgated by HUD pursuant to the Fair Housing Act ("FHA"). 3 Therefore, it is important for homeowners associations to understand the regulations, apply them evenly, and take the proper steps when confronted with allegations of harassment of residents by their neighbors. I. APPLYING THE FAIR HOUSING ACT TO NEIGHBOR-ON NEIGHBOR HARASSMENT A. Fair Housing Act-Relevant Provisions 1. 42 U.S.C. 3604(a) Section 3604(a) provides: [t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin. 4 As noted by the Seventh Circuit Court of Appeals: "[a]vailability of housing is at the heart of 3604(a)." 5 Section 3604(a) is designed to ensure that no one is denied the right to live 1 Conn. Gen. Stat. 47-244(g). 2 See Conn. Gen. Stat. 47-244(h). 3 See, e.g., 24 C.F.R. 100.700(a). 4 42 U.S.C. 3604(a). 5 Bloch v. Frischholz, 587 F.3d 771, 776 (7th Cir. 2009).
where they choose for discriminatory reasons. 6 Courts have construed the phrase '"otherwise make unavailable or deny' in subsection (a) to encompass mortgage 'redlining,' insurance redlining, racial steering, exclusionary zoning decisions, and other actions by individuals or governmental units which directly affect the availability of housing to minorities." 7 2. 42 u.s.c. 3604(b) Section 3604(b) prohibits the following conduct: [t]o 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. 8 The term "privilege of sale" is defined as the right to inhabit. 9 A person is deprived of that right when he or she is actually or constructively evicted for discriminatory purposes. 10 3. 42 u.s.c. 3617 Section 3617 states: [t]o coerce, intimidate, threaten, or interfere with any person in the exercise 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 section 3603, 3604, 3605, or 3606 of this title. 11 In order to prevail on a claim under 3617, a plaintiff must show that "(1) she is a protected individual under the FHA, (2) she was engaged in the exercise or enjoyment of her fair housing rights, (3) the defendants coerced, threatened, intimidated, or interfered with the plaintiff 6 Southend Neighborhood ImprovementAss'n v. County of St. Clair, 743 F.3d 1207, 1210 (7th Cir. 1984). 7!d. at 1209 n.3. 8 42 u.s.c. 3604(b). 9 Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n, 388 F.3d 327, 329 (7th Cir. 2004). to Id. II 42 U.S.C. 3617.
on account of her protected activity under the FHA, and (4) the defendants were motivated by an intent to discriminate." 12 B. HUD Regulation before Halprin and Bloc/z-24 C.F.R 100.400(c)(2) 24 C.P.R. 100.400-Prohibited interference, coercion or intimidation-provides in relevant part: (c) Conduct made unlawful under this section includes, but is not limited to, the following: (2) Threatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race, color, religion, sex, handicap, familial status, or national origin of such persons, or of visitors or associates of such persons. Prior to 24 C.F.R. 100.400( c)(2), a plaintiff could only seek relief under 3617 if that person also had a claim under either 3604(a) or 3604(b). 13 HUD has interpreted 3617 to independently prohibit "threatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race, color, religion, sex, handicap, familial status, or national origin of such persons, or of visitors or associates of such persons." 14 As the court in Halprin acknowledged, 24 C.P.R. 100.400(c)(2) "cuts loose[ ] 3617 from [ ]3604, contrary to the language of 361 7. Interference with [the] 'enjoyment of [a] dwelling,' forbidden by the regulation, is something that can take place after the dwelling has been acquired, though we know that[ ] 3604 is not addressed to post-acquisitions discrimination." 15 C. Summary-Evolution of the Case Law Prior to the Adoption of HUD Regulations 1. Halprin v. Prairie Single Family Home of Dearborn Park Ass 'n 12 Bloch, 587 F.3d at 783. 13 Halprin, 388 F.3d at 330. 14 24 C.F.R. 100.400(c)(2). 15 Halprin, 388 F.3d at 330.
In Halprin v. Prairie Single Family Home of Dearborn Park Ass 'n, 16 the question before the United States Court of Appeals for the Seventh Circuit was whether the Fair Housing Act 17 extends to post-acquisitions disputes. 18 There, Plaintiffs brought suit under 3604(a), 3604(b), and 3617 of the FHA, against their condominium housing association, all members of which were Plaintiffs neighbors. The Halprins, one of whom was Jewish, alleged that their condominium association had engaged in a campaign of discrimination that amounted to a constructive eviction under the FHA. In. support of their claim, the Halprins alleged that the president of the association had written "H-town property" 19 on the wall of their patio, damaged trees and plants with chemicals, and cut down holiday lights? 0 Additionally, when the Halprins attempted to investigate the vandalism by placing posters offering a reward for information in the neighborhood, the president of the association destroyed the posters along with the minutes of the association's board meeting and a tape recording of the president threatening to "make an example" of the plaintiffs? 1 In sum, the Halprins claimed that "the entire campaign of harassment was caused or at least influenced by the religion of the Jewish plaintiff." 22 The trial court dismissed the Halprins' case for failure to state a claim on the basis that the protections of the FHA generally 16 388 F. 3d 327 (2004), declined to follow by Committee Concerning Community Improvement v. City of Modesto 583 F.3d 690 (9th Cir. 2009); see also Mary Pennisi, A Herculean Leap for the Hard Case of Post-Acquisition Claims: Interpreting Fair Housing Act Section 3604(b) After Modesto, 37 FORDJ-IAM URB. L.J. I 083, I 085 (201 D)( explaining how the decision in Committee Concerning Commzmity Improvement v. City of Modesto by the Ninth Circuit created a circuit split on the question of whether 3604(b) extends to post acquisition claims of discrimination.). 17 Civil Rights Act of 1968 804, as amended by 42 U.S.C. 3601 et seq. 18 388 F.3d at 328. 19 "H-town" is short for "Hymie Town." Id. at 328. zo Id. 21 Jd. 22 Id.
do not extend to discrimination that occurs post acquisition, unless the discrimination also amounts to an actual or constructive eviction. 23 The Seventh Circuit affirmed in part and reversed in part. The court wrote that while it was not willing to extend the protections of 3604(a) or 3604(b) to the Halprins' case, it was willing to read 3617 in conjunction with HUD regulation 24 C.P.R. 100.400(c)(2) to include post-acquisition discrimination as pleaded by the Halprins. The court wrote "we do not want, and we do not think Congress wanted, to convert every quarrel among neighbors in which a racial or religious slur is hurled into a federal case. " 24 However, the court continued by explaining that "what is alleged in this case... is a pattern of harassment, invidiously motivated, and, because backed by the homeowners' association to which the plaintiffs belong, a matter of the neighbors' ganging up on them." 25 In other words, the court wrote that reading 3617 in conjunction with the relevant HUD regulations prohibited post-acquisition harassment when plaintiff alleged a pattern of conduct as opposed to a mere "quarrel amongst neighbors. " 26 2. Blocft v. Frisclzolz The Seventh Circuit, sitting en bane, revisited the same question in Bloch v. Frischholz, where they clarified their ruling in Halprin. 27 Like Halprin, Lynne Bloch, a Jewish condominium owner, brought action against her condominium association and its president, Frischholz, for discrimination under, amongst others, 3604(a), 3604(b), and 3617 of the FHA. The trial court ruled against Bloch on all counts. The Seventh Circuit affirmed the trial 23 Jd. at 328-29. 24 25 Jd. at 330 (emphasis in original). 26!d. 27 Bloch v. Frischholz, 587 F. 3d 771,779 (2009)(in respect to 3604(b)).
court's ruling against Bloch on 3604(a), and reversed for Bloch on her 3604(b) and 3617 claims. 28 For approximately three decades prior to the association's enactment of a rule to prohibit the display of objects outside the unit, Bloch had displayed a mezuzah in the threshold of her door. In 2004, Bloch, an observant Jew, was prohibited from displaying Jewish symbols 29 outside of her apartment because of a condominium association rule prohibiting such acts. 30 In order to enforce this new rule, the association began removing all items displayed outside of units, including mezuzahs. 31 In response to the removal of the mezuzah, Bloch reached out to the association's board members. 32 Bloch supported her position by submitting to the condominium association various letters from local Jewish organizations explaining the significance of the mezuzah to Jewish religious and cultural practices. 33 Meanwhile, the condominium association continued to remove Bloch's mezuzah, and Bloch continued to reaffix the mezuzah after retrieving it from the association. 34 This continued for approximately one year. These problems came to a head when Bloch's husband passed away. During this time, Bloch sought, and was granted, special permission from Frischholz to hang the mezuzah on her doorpost for seven days-the duration of her husband's Shivah. 35 Despite this arrangement, the 28 Id 29 Hanging a mezuzah at the threshold of your doorway is a traditional Jewish religious practice, see, OXFORD DICTIONARY OF THE JEWISH RELIGION, 460-61 (1997) (R.J. Zwi Werblowsky &Geoffery Wigoder eds., 1997). A mezuzah is a small box that contains a parchment with inscriptions of the Torah.!d. Hanging a mezuzah in the threshold of your door is both a symbol of piety and respect for God. 30 587 F.3d at 772-73. 31 Id 32 Id 33 Id 34!d. 35 In Judaism, a Shivah is a seven-day tradition of mourning.
condominium association continued to remove the mezuzah. 36 This became the subject of great embarrassment for the plaintiff when her guests, including a rabbi, found the mezuzah had been removed the day of her husband's funeral. 37 According to the complaint/ 8 Bloch was "humiliated having to explain to the rabbi why, on the day of the funeral, [her] mezuzah was not on the doorpost." 39 A lawsuit followed shortly thereafter. Under 3604(a), Bloch argued that the condominium association's behavior in regards to the hanging of the mezuzah amounted to a constructive eviction. In ruling against Bloch, the court explained that 3604(a) is only concerned with "access to housing." 40 As such, any discrimination that took place after Bloch moved in was not actionable under this section. Under 3604(b), Bloch argued that the condominium association's failure to grant a reasonable accommodation amounted to a constructive eviction, which the Seventh Circuit had recognized as a proper cause of action in Halprin. However, in ruling in favor of Bloch, the court stated that the correct analysis under 3604(b) was whether the condominium association actions affected the "terms and conditions" of the agreement according to the condominium association's declaration. 41 The court reasoned that the "Blochs' agreement to subject their rights to the restrictions imposed by the Board was a 'condition' of the Blochs' purchase; the Board's power to restrict unit owners' rights flows from the terms of the sale." As such, even rules that are neutral on their face, like the one in Bloch, are subject to the provisions of 3604(b) if those rules have a discriminatory impact on unit owners and tenants. 36 587 F.3d at 774. 37!d. 38 For purposes of the appeal, the court used Bloch's complaint, accepting the facts contained as true.!d. 39 587 F.3d at 774. 40!d. at 776. 41!d.
Lastly, under 3617, Bloch argued that the condominium association had "interfered" with their enjoyment of fair housing rights. Prior to Bloch, courts had held that a person seeking relief under 3617, needed to have been evicted actually or constructively as required by 3604(a) & 3604(b). 42 Instead, the court wrote, "[t]o prevail on a 3617 claim, a plaintiff must show that (1) she is a protected individual under the FHA, (2) she was engaged in the exercise or enjoyment of her fair housing rights, (3) the defendants coerced, threatened, intimidated, or interfered with the plaintiff on account of her protected activity under the FHA, and ( 4) the defendants were motivated by an intent to discriminate." In ruling in favor of Bloch, the court wrote that the lower court's ruling, under the circumstances, undermined the legislative intent behind the FHA. 43 D. HUD Regulation after Halpri11 and B/oc/z-24 C.F.R. 100.7 Regulation 24 C.P.R. 100.7 states: (a)direct liability. (1) A person is directly liable for: (i) The person's own conduct that results in a discriminatory housing practice. (ii) Failing to take prompt action to correct and end a discriminatory housing practice by that person's employee or agent, where the person knew or should have known of the discriminatory conduct. (iii) Failing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third-party depends upon the extent of the person's control or any other legal responsibility the person may have with respect to the conduct of such third-party. (2) For purposes of determining liability under paragraphs (a)(l)(ii) and (iii) of this section, prompt action to correct and end the discriminatory 42 Id. at 781. 43!d. at 782.
housing practice may not include any action that penalizes or harms the aggrieved person, such as eviction of the aggrieved person. (b )Vicarious liability. A person is vicariously liable for a discriminatory housing practice by the person's agent or employee, regardless of whether the person knew or should have known of the conduct that resulted in a discriminatory housing practice, consistent with agency law. Although important to the current legal landscape surrounding neighbor-on-neighbor discrimination, Halprin and Bloch left many gaps in fair housing protections. 44 These cases required that the plaintiff prove that the homeowner association acted with actual discriminatory intent. In the context of neighbor-on-neighbor harassment, proving actual discriminatory intent is can be exceedingly difficult. This is because the neighbor, not the association is engaging in the discrimination. Under the new HUD regulation 100. 7(a)(1)(iii), the fourth prong of this test is removed. Thus, a person claiming discrimination under 3617, no longer has to show that the alleged conduct was purposeful or motivated by an intent to discriminate. Additionally, actual or constructive eviction is no longer required. Therefore, under the new regulations, a homeowners association can be held liable for the discriminatory acts of a resident towards another resident, even when the homeowners association has not itself discriminated against that resident, whether that resident is actual or constructively evicted or not. E. Common Interest Ownership Act-Connecticut General Statutes 47-244(g) & (h) Connecticut General Statutes 47-244(g) & (h) states: (g) The executive board may determine whether to take enforcement action by exercising the association's power to impose sanctions or commencing an action for a violation of the declaration, bylaws and rules, which may include a determination of whether to compromise any claim for unpaid assessments or other claim made by or against it. The executive board does not have a duty to take enforcement action if it determines that, under the facts and circumstances presented: 44 See, e.g., Rigel C. Oliveri, Is Acquisition Eve1ything? Protecting the Rights of Occzpants Under the Fair Housing Act, 43 HARV. C.R.-C.L. L. REV. I, 13 (2008).
( 1) The association's legal position does not justify taking any or further enforcement action; (2) The covenant, restriction or rule being enforced is, or is likely to be construed as, inconsistent with law; (3) Although a violation may exist or may have occurred, it is not so material as to be objectionable to a reasonable person or to justify expending the association's resources; or ( 4) It is not in the association's best interests to take enforcement action. (h) The executive board's decision under subsection (g) of this section not to take enforcement action under one set of circumstances does not prevent the executive board from taking enforcement action under another set of circumstances, except that the executive board may not be arbitrary or capricious in taking enforcement action. II. Legal Analysis In a case of neighbor on neighbor harassment, a homeowners association can be held directly liable when: 1. The association knows or should have known of the discriminatory conduct of a neighbor towards another; 2. The association has the legal authority to act; 3. The association fails to take prompt action. Under the new regulations, the association must take actions that are reasonably calculated to end the discrimination. 45 What is reasonably calculated to end the discrimination turns on the amount of control or any other legal responsibility the association may have with respect to the conduct of the such third-party. Thus, in the context of a Connecticut homeowners association, if the Board of Directors of the association does not take action that would help alleviate the discrimination, the homeowners association may be held liable. 46 45 Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act, 81 Fed. Reg. 63054-01, 2016 WL 4762170 (F.R.)(Sept. 14, 2016) 46 Id., citing, Reeves v. Carrollsburg Condo. Unit Owners Ass'n, 1997 U.S. Dist. LEXIS 21762, *22 (D.D.C. 1997)(holding the association liable because "the [Carrollsburg Condo]association's by-laws
Such liability can be compensatory or punitive. 47 For example, a violation of 3604(a) for an actual or constructive eviction could result in compensatory damages for costs associated with obtaining alternative housing because of discrimination. Additionally, in extreme cases, courts award punitive damages against the defendant "sufficient to deter him from continued violation of the civil rights laws." 48 Lastly, 3612(p) allows plaintiffs to recover reasonable attorney fees associated with both the administrative process and the judicial process. specifically authorized the association to curtail conduct that contravened the law" and provided that a violation of state or federal law was a violation of the rules of the association.). 47 See, e.g., Woods-Drake v. Lundy, 667 F. 2d 1198 (5th Cir. 1982). 48 Id.
SOURCES: STATUTES: Civil Rights Act of 1968 804, as amended by 42 U.S.C. 3601 et seq. 42 u.s.c. 3604, 3612(p), & 3617. Conn. Gen. Stat. 47-244(g) & (h). REGULATIONS/ AGENCY MATERIALS: 24 C.F.R 100.400(c)(2). 24 C.F.R. 100.7. Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act, 81 Fed. Reg. 63054-01,2016 WL 4762170 (F.R.)(Sept. 14, 2016).. CASES: Bloch v. Frischholz, 587 F. 3d 771 (2009). Halprin v. Prairie Single Family Home of Dearborn Park Ass'n, 388 F. 3d 327 (2004), declined to follow by Committee Concerning Community Improvement v. City of Modesto 583 F.3d 690 (9th Cir. 2009). Reeves v. Carrollsburg Condo. Unit Owners Ass'n, 1997 U.S. Dist. LEXIS 21762, *22 (D.D.C. 1997). Southend Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.3d 1207, 1210 (7th Cir. 1984). Woods-Drake v. Lundy, 667 F. 2d 1198 (5th Cir. 1982). SECONDARY SOURCES: OXFORD DICTIONARY OF THE JEWISH RELIGION, 460-61 (1997) (R.J. Zwi Werblowsky &Geoffery Wigoder eds., 1997). Mary Pennisi, A Herculean Leap for the Hard Case of Post-Acquisition Claims: Interpreting Fair Housing Act Section3604(b) After Modesto, 37 FORDHAM URB. L.J. 1083, 1085 (2010). Rigel C. Oliveri, Is Acquisition Everything? Protecting the Rights of Occupants Under the Fair Housing Act, 43 HARv. C.R.-C.L. L. REv. 1, 13 (2008). Robert G. Schwemm, Neighbor-on-Neighbor Harassment: Does the Fair Housing Act Make a Federal Case out of It?, 61 CASE W. REs. L. REv. 865 (2011).