UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Civil No. 14-cv-502-LM Opinion No. 2015 DNH 093 Avatar Properties, Inc., Midridge Condominium Assoc., Richard Morway and Stacey Diodati
O R D E R
The United States of America has sued in one count, on
behalf of Edward Tirrell (“Edward”), Michaela Tirrell
(“Michaela”), and Edward’s minor son, all of whom once resided
at the Midridge Condominium Complex (“Midridge”). The United
States claims that defendants violated the Fair Housing
Amendments Act of 1988 (“FHA”), 42 U.S.C. §§ 3601-3631, by
denying the Tirrells’ requests to use a parking area that would
have given Edward, who has physical impairments, easier access
to his unit than the parking area assigned to that unit. Before
the court is defendants’ motion to dismiss for failure to state
a claim on which relief can be granted. See Fed. R. Civ. P.
12(b)(6). The United States objects. For the reasons described
below, defendants’ motion to dismiss is denied. I. The Legal Standard
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(citation omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Analyzing plausibility is “a context-specific task” in
which the court relies on its “judicial experience and common
sense.” Id. at 679.
II. Background
The facts in this section are drawn from the complaint
filed by the United States, document no. 1.
From 1999 until April of 2014, Michaela owned and lived in
Unit 5 at Midridge. Edward and his minor son lived there with
Michaela between 2011 and April of 2014. Midridge is governed
by the Midridge Condominium Association (“Association”), and is
managed by Avatar Properties (“Avatar”). Richard Morway was
2 Avatar’s on-site property manager, and Stacey Diodati was
Avatar’s liaison for Midridge.
Edward’s left leg is partially paralyzed, which causes him
to wear a leg brace. He also suffers from arthritis in his
hips. As a result, he cannot walk for more than 50 feet without
being at risk of falling, and he has difficulty going up or down
stairs.
The parking area assigned to the Tirrells’ unit at Midridge
is located behind the unit, and was accessible from the unit by
means of a nine-step stairway. There was another parking area
designated for visitors only, which is located in front of the
Tirrells’ unit. That parking area is on the same level as the
front door of the Tirrells’ unit. Thus, that parking area was
accessible to Edward without his having to ascend or descend a
stairway.
In December of 2013, Michaela sent an accommodation request
to Diodati, informing her that Edward needed to use the visitor
parking area because it was too painful for him to use the
stairway leading to his unit’s designated parking area. Diodati
forwarded the request to the Association’s board of directors,
which denied it without offering Edward any alternative to using
his unit’s designated parking area.
3 In January of 2014, the Tirrells directed a second request
for an accommodation to Diodati and Morway. The Association’s
board also denied that request. Again, the Association declined
to offer the Tirrells any alternative to using their unit’s
designated parking area.
Because he was denied access to a parking area located on
the same level as the front door of his unit, Edward experienced
difficulties getting to his vehicle. As a result of those
difficulties, his physical condition has deteriorated. In April
of 2014, the Tirrells moved out of Midridge.
In March 2014, the Tirrells filed a housing-discrimination
complaint with the Office of Fair Housing and Equal Opportunity
of the United States Department of Housing and Urban Development
(“HUD”). In due course, this action followed. In it, the
United States claims that defendants violated 42 U.S.C. §§
3604(f)(2) and (f)(3)(b) by failing to permit Edward to park his
car in the visitor parking area in front of Unit 5.
III. Discussion
Defendants move to dismiss, arguing that because the
Tirrells were not renters, and because their claim does not
arise from Michaela’s purchase of the unit, the claim asserted
by the United States is not cognizable under the FHA. In other
words, defendants argue that 42 U.S.C. § 3604(f)(2) does not
4 apply to claims of post-acquisition discrimination made by or on
behalf of property owners. The court does not agree.
The United States has brought suit to enforce a provision
in the FHA that 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 with such dwelling, because of a handicap of . . .
that person.” 42 U.S.C. § 3604(f)(2)(A). That statute defines
discrimination for purposes of § 3604(f) to mean “a refusal to
make reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford [a
handicapped] person equal opportunity to use and enjoy a
dwelling.” 42 U.S.C. § 3604(f)(3)(B). Apropos of defendants’
argument, the court notes that while 42 U.S.C. § 3604(f)(1)
prohibits discrimination against buyers and renters when they
are buying or renting dwellings, the protection offered by §
3604(f)(2) is not similarly limited; it extends to “any person”
and bars a wider range of discriminatory conduct.
The determinative question here is whether 42 U.S.C. §
3604(f)(2) bars discrimination that takes place after an owner
has acquired a dwelling. The court of appeals for this circuit
appears not to have spoken on this issue. But, in Astralis
Condominium Ass’n v. Secretary, U.S. Department of Housing &
Urban Development, 620 F.3d 62 (1st Cir. 2010), the First
5 Circuit did affirm a decision made by an administrative law
judge (“ALJ”) at HUD in which the ALJ ruled that a condominium
association violated the FHA by failing to provide accessible
parking for a disabled condominium owner who had owned his unit
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Civil No. 14-cv-502-LM Opinion No. 2015 DNH 093 Avatar Properties, Inc., Midridge Condominium Assoc., Richard Morway and Stacey Diodati
O R D E R
The United States of America has sued in one count, on
behalf of Edward Tirrell (“Edward”), Michaela Tirrell
(“Michaela”), and Edward’s minor son, all of whom once resided
at the Midridge Condominium Complex (“Midridge”). The United
States claims that defendants violated the Fair Housing
Amendments Act of 1988 (“FHA”), 42 U.S.C. §§ 3601-3631, by
denying the Tirrells’ requests to use a parking area that would
have given Edward, who has physical impairments, easier access
to his unit than the parking area assigned to that unit. Before
the court is defendants’ motion to dismiss for failure to state
a claim on which relief can be granted. See Fed. R. Civ. P.
12(b)(6). The United States objects. For the reasons described
below, defendants’ motion to dismiss is denied. I. The Legal Standard
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(citation omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Analyzing plausibility is “a context-specific task” in
which the court relies on its “judicial experience and common
sense.” Id. at 679.
II. Background
The facts in this section are drawn from the complaint
filed by the United States, document no. 1.
From 1999 until April of 2014, Michaela owned and lived in
Unit 5 at Midridge. Edward and his minor son lived there with
Michaela between 2011 and April of 2014. Midridge is governed
by the Midridge Condominium Association (“Association”), and is
managed by Avatar Properties (“Avatar”). Richard Morway was
2 Avatar’s on-site property manager, and Stacey Diodati was
Avatar’s liaison for Midridge.
Edward’s left leg is partially paralyzed, which causes him
to wear a leg brace. He also suffers from arthritis in his
hips. As a result, he cannot walk for more than 50 feet without
being at risk of falling, and he has difficulty going up or down
stairs.
The parking area assigned to the Tirrells’ unit at Midridge
is located behind the unit, and was accessible from the unit by
means of a nine-step stairway. There was another parking area
designated for visitors only, which is located in front of the
Tirrells’ unit. That parking area is on the same level as the
front door of the Tirrells’ unit. Thus, that parking area was
accessible to Edward without his having to ascend or descend a
stairway.
In December of 2013, Michaela sent an accommodation request
to Diodati, informing her that Edward needed to use the visitor
parking area because it was too painful for him to use the
stairway leading to his unit’s designated parking area. Diodati
forwarded the request to the Association’s board of directors,
which denied it without offering Edward any alternative to using
his unit’s designated parking area.
3 In January of 2014, the Tirrells directed a second request
for an accommodation to Diodati and Morway. The Association’s
board also denied that request. Again, the Association declined
to offer the Tirrells any alternative to using their unit’s
designated parking area.
Because he was denied access to a parking area located on
the same level as the front door of his unit, Edward experienced
difficulties getting to his vehicle. As a result of those
difficulties, his physical condition has deteriorated. In April
of 2014, the Tirrells moved out of Midridge.
In March 2014, the Tirrells filed a housing-discrimination
complaint with the Office of Fair Housing and Equal Opportunity
of the United States Department of Housing and Urban Development
(“HUD”). In due course, this action followed. In it, the
United States claims that defendants violated 42 U.S.C. §§
3604(f)(2) and (f)(3)(b) by failing to permit Edward to park his
car in the visitor parking area in front of Unit 5.
III. Discussion
Defendants move to dismiss, arguing that because the
Tirrells were not renters, and because their claim does not
arise from Michaela’s purchase of the unit, the claim asserted
by the United States is not cognizable under the FHA. In other
words, defendants argue that 42 U.S.C. § 3604(f)(2) does not
4 apply to claims of post-acquisition discrimination made by or on
behalf of property owners. The court does not agree.
The United States has brought suit to enforce a provision
in the FHA that 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 with such dwelling, because of a handicap of . . .
that person.” 42 U.S.C. § 3604(f)(2)(A). That statute defines
discrimination for purposes of § 3604(f) to mean “a refusal to
make reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford [a
handicapped] person equal opportunity to use and enjoy a
dwelling.” 42 U.S.C. § 3604(f)(3)(B). Apropos of defendants’
argument, the court notes that while 42 U.S.C. § 3604(f)(1)
prohibits discrimination against buyers and renters when they
are buying or renting dwellings, the protection offered by §
3604(f)(2) is not similarly limited; it extends to “any person”
and bars a wider range of discriminatory conduct.
The determinative question here is whether 42 U.S.C. §
3604(f)(2) bars discrimination that takes place after an owner
has acquired a dwelling. The court of appeals for this circuit
appears not to have spoken on this issue. But, in Astralis
Condominium Ass’n v. Secretary, U.S. Department of Housing &
Urban Development, 620 F.3d 62 (1st Cir. 2010), the First
5 Circuit did affirm a decision made by an administrative law
judge (“ALJ”) at HUD in which the ALJ ruled that a condominium
association violated the FHA by failing to provide accessible
parking for a disabled condominium owner who had owned his unit
for two years. However, the defendant in Astralis did not
challenge the applicability of § 3604(f)(2) to discrimination
claims by a property owner based upon post-acquisition conduct.
As a consequence, the court of appeals did not have to decide
the dispositive issue in this case.
Courts elsewhere are split on the issue. See Committee
Concerning Community Improvement v. City of Modesto (“CCCI”),
583 F.3d 690, 713 (9th Cir. 2009). This court is persuaded by
the reasoning of CCCI, in which the Ninth Circuit ruled that
“the FHA does apply to post-acquisition discrimination.” Id. at
714.
In CCCI, Latino residents of four neighborhoods claimed
that the city and county in which their neighborhoods were
located violated the FHA by “provid[ing] municipal services in a
manner that discriminate[d] against the plaintiff
neighborhoods.” Id. at 700. In holding that claims by property
owners based upon post-acquisition conduct are cognizable under
the FHA, the court first surveyed the relevant case law,
including Halprin v. Prairie Single Family Homes of Dearborn
Park Ass’n, 388 F.3d 327 (7th Cir. 2004), which goes the other
6 way. See CCCI, 583 F.3d at 712-13. Then the court gave the
following reasons for its decision: (1) “the statutory language
does not preclude all post-acquisition claims,” id. at 713
(citing 42 U.S.C. § 3604(b));1 (2) “the regulations implementing
the FHA, promulgated by [HUD] also support permitting post-
acquisition claims,” id. (citing 24 C.F.R. § 100.65); and (3)
“limiting the FHA to claims brought at the point of acquisition
would limit the act from reaching a whole host of situations
that, while perhaps not amounting to constructive eviction,
would constitute discrimination in the enjoyment of residence in
a dwelling or in the provision of services associated with that
dwelling,” id. at 714.
The court supported its third reason for permitting post-
acquisition claims this way:
Under . . . a reading of the statute [that bars post- acquisition claims]:
. . . it would not violate § 3604(b) for a condominium owners’ association to prevent a disabled person from using the laundry facilities or for a landlord to refuse to provide maintenance to his Hispanic tenants. Similarly, it would not violate § 3604(b) for a landlord to sexually harass a tenant or to raise the rent of only Jewish tenants. It would not violate §
Section 3604(b) makes it unlawful “[t]o discriminate 1
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.” This language is identical to the language of § 3604(f)(2) in all material respects.
7 3604(c) for a landlord to use racial slurs to or about existing tenants or to spray-paint such a slur on an occupant’s door. Nor would it violate § 3604(c) for a homeowners association to print up flyers denigrating a particular resident due to her religious faith and post them throughout the neighborhood. All of these behaviors would be beyond the law’s purview solely because of when they occurred.
583 F.3d at 714 (quoting Rigel Oliveri, Is Acquisition Everything?
Protecting the Rights of Occupants Under the Fair Housing Act, 43
Harv. C.R.-C.L.Rev. 1, 32–33 (2008)).
This court is persuaded by CCCI that “the FHA does apply to
post-acquisition discrimination.” 583 F.3d at 714. Thus, the
court rejects defendants’ argument to the contrary and their
reliance upon Halprin.
IV. Conclusion
For the reasons detailed above, defendants’ motion to
dismiss, document no. 8, is denied.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
May 7, 2015
cc: Nicholas S. Guerrera, Esq. Michael T. McCormack, Esq.