Landlord’s Inaction in Tenant-on-tenant Harassment: Second Circuit says no more

Zhihao (Amy) Zhang, CLS ’21

The Second Circuit recently grappled with the scope of a landlord’s duty to intervene in tenant-on-tenant racial harassment under the Fair Housing Act (“FHA”), and the decision may have significant consequences for the future of landlord-tenant litigation.

In Francis v. Kings Park Manor, Inc., the plaintiff, after moving into an apartment complex owned by the defendants, soon became the victim of “a brazen and relentless campaign of racial harassment, abuse, and threats.”[1] While the plaintiff sought help from the police several times and reported the incidents to his landlord, the landlord failed to respond to his complaints, let alone taking any substantive steps to resolve the conflict or evict the harasser from the property. The harasser eventually pled guilty to harassment charges, and the plaintiff subsequently filed this suit against his landlord.

One of the grounds on which the harassed tenant sued his landlord is alleged violation of section 3604 (b) of the FHA[2] and section 3617 of the Act.[3] The plaintiff argued that in failing to remedy a racially hostile housing environment, the landlord’s behavior amounted to intentional discrimination prohibited by the FHA. While the district court dismissed the plaintiff’s FHA claims, the Second Circuit took a different position and reinstated the claims. Noting that the defendants were “actually aware” of the discriminatory behavior and had a history of “[intervening] against other tenants regarding non‐race‐related violations of their leases or of the law,” the Second Circuit concluded that the landlord’s conduct evinced intentional discrimination that is cognizable under the FHA.[4]

In reinstating the plaintiff’s claims, the Second Circuit joined the Seventh Circuit in deeming landlords liable when they fail to intervene in situations concerning tenant-on-tenant harassment on the basis of a protected class.[5] This ruling can lead to a significant increase in litigation attempting to hold landlords accountable even when they themselves are not the primary perpetrators of discrimination. Tenants under the jurisdiction of other circuit courts may cite to this opinion and urge their courts to follow suit.

There is, however, some concern with the actual impact of the Second Circuit’s decision and the legal uncertainty it may create. First, since the court determines that landlord liability in the racial discrimination context can be predicated on a finding of past interventions by the landlord in non-race-related disputes, this may create perverse incentives for landlords to stop addressing all disputes going forward, thus diminishing the quality of housing services. Furthermore, as Judge Livingston points out in her dissent, the court provides no “parameters of the necessary intervention.”[6] The question remains as to what responses landlords must produce to tenants’ complaints in order to avoid a finding of intentional discriminatory practice. In the face of mounting threats of litigation, they may well pass along the burden to those seeking protection under the FHA through more onerous housing costs, further rendering housing inaccessible to those who need it the most.[7]


[1] 944 F.3d 370, 373 (2d Cir. 2019).

[2] Section 3604(b) of the FHA makes it unlawful “[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.” 42 U.S.C. § 3604(b).

[3] “It shall be unlawful to 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 [the Act].” 42 U.S.C. § 3617.

[4] Francis, 944 F.3d at 379.

[5] Joseph William Singer, Landlord may be liable for fair housing violation if no response to one tenant’s racial harassment of another, Property Law Developments (Dec. 7, 2019),

[6] Id. at 395 (Livingston, J., dissenting).

[7] Id. (cautioning that “this decision . . . is but another stumble along the path to ever more litigation that increases housing costs for those who rent, renders affordable housing more scarce, and risks the loss of housing for some of the most vulnerable among us”).