Online Harassment and Risk of Liability Under Fair Housing Laws
By David Silver
My colleagues and I have blogged about the importance of recognizing requests for reasonable accommodations/modifications, carefully and thoughtfully considering them, and properly responding in a timely manner. We like to think our posts on this topic have helped a few association boards make better decisions, but if the case discussed below is any indication, more information and discussion is needed.
In yet another example of less-than-civil behavior at a community association, the US Court of Appeals for the Third Circuit recently published its opinion in the case of Revock v. Cowpet Bay West Condominium Association, et al., 853 F.3d 96 (2017). In Revock, two homeowners brought an action against their condo association and several individual owners, claiming that the association failed to provide a reasonable accommodation by approving their request for emotional support animals, and that the individual owners interfered with the fair exercise of their fair housing rights, in violation of the Fair Housing Act (FHA). The two owners suffered from disabilities, for which each was prescribed an emotional support animal. Each owner obtained a dog. Their condo had a no-pet policy.
We have previously blogged about how failure to respond to a request for an accommodation may amount to a constructive denial. The Revock court recognized prior court rulings on this topic. This case is in interesting in another regard, however. The plaintiffs also sued several individual owners (their neighbors) who had posted negative, derogatory, and harassing comments about them, their requests for emotional support animals, and the veracity of their claims to need for support animals. On this topic, the court held that a reasonable jury could find that this conduct was sufficiently severe to interfere with plaintiffs’ fair housing rights. The court reversed summary judgment and remanded to the lower court for further proceedings.
The court’s analysis relied on a new(ish) HUD regulation that prohibits quid pro quo and hostile environment harassment, meaning, it is unlawful to interfere, coerce, intimidate or threaten any persons in the exercise or enjoyment of rights granted under the FHA, which includes use and enjoyment of a dwelling. We discussed this regulation in a prior blog post. Interference, as examined in Revok, can be written as well as verbal or physical, as the court determined that a jury could decide that the homeowner-defendant’s blog posts could amount to conduct that interfered with the plaintiff’s fair housing rights.
Obviously, a board should never post disparaging or harassing information about owners, and most certainly not in the context of a request for a reasonable accommodation. Likewise, Revock suggests individual owners could be in hot water under the FHA for harassing or intimidating conduct that interferes with another resident’s fair housing rights.
Boards must discourage, and perhaps even take measures to stop, this type of behavior.