The Lawletter Vol 36 No 12
The Federal Housing Act, enacted in 1968, prohibits discrimination in a variety of situations and transactions related to the sale or rental of housing. In a recent case, the court noted an apparent split among the circuits and within the Second Circuit as to the reach of the Act with regard to "postacquisition" discrimination. Haber v. ASN 50th St. LLC, No. 10 Civ. 3536(VM), 2012 WL 843275, at *8 n.3 (S.D.N.Y. Mar. 7, 2012) (reviewing cases). Section 3617 of the Act makes it unlawful to "coerce, intimidate, threaten, or interfere with" the exercise or enjoyment of another person's rights under the Act. 42 U.S.C. § 3617. Other provisions of the Act, which are enumerated in § 3617, prohibit discrimination and harassment based on a person's protected status. E.g., id. § 3604. While a number of courts have concluded that § 3617 goes beyond the rights established under the other sections enumerated in § 3617, other courts appear to limit rights under § 3617 to those established in the other sections. Moreover, the circuits are split as to whether § 3604, one of the enumerated sections, ever covers postacquisition conduct. Id.
In an earlier case, the Second Circuit had stated that § 3617 prohibits only interference with the substantive rights established under the enumerated sections. Frazier v. Rominger, 27 F.3d 828, 833-34 (2d Cir. 1994). In a subsequent decision by a district court within the Second Circuit, however, the court reached a different conclusion and, in doing so, distinguished Frazier, characterizing the issue in the Frazier case as being the slightly different issue of whether a violation of § 3604 could simultaneously support a separate claim under § 3617. Ohana v. 180 Prospect Place Realty Corp., 996 F. Supp. 238, 240-43 (E.D.N.Y. 1998). While the court noted that the necessity for a nexus between § 3617 and the sections enumerated therein is not free from doubt, after reviewing the cases on both sides of the issue and the regulations promulgated by the Act, it agreed with language from another court to the effect that reading § 3617 as dependent on a violation of one of the enumerated sections would render § 3617 superfluous and, therefore, that it also protects from coercion persons who have already exercised their rights under the Act. Id. at 242. The Ohana court also found that a careful reading of Frazier suggests that the Second Circuit, if faced with the issue of whether postacquisition discrimination claims can be brought under § 3617 directly, would also agree.The Haber court concluded, in the end, that it did not need to determine these issues, because the plaintiff had simply failed to produce facts which could establish a prima facie case of discrimination. The Second Circuit will eventually have to resolve its conflict, and the issues will eventually have to be determined either by a clarification by Congress or by the Supreme Court.