IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

ADAM HUSSAIN and SARA HUSSAIN,

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Plaintiffs,

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v.
QUALITY PROPERTIES, INC.,
Defendant.

Case No. 13-CV-5278

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Motion to Dismiss and Memorandum in Support

Defendant, Quality Properties, Inc., respectfully moves, through counsel,
for dismissal of this housing discrimination case pursuant to rule 12(b)(6) of
the Federal Rules of Civil Procedure. As set forth in the accompanying
Memorandum in Support, Plaintiffs complaint should be dismissed for failure
to state a clam upon which relief can be granted.
Plaintiffs, who are tenants of Defendants apartment complex, bring this
action pursuant to 42 U.S.C. 3604(b) and 3617, part of the federal Fair
Housing Act. Plaintiffs allege that Defendant violated the FHA for failing to
stop discriminating and harassing conduct by neighbors based on religion.
Plaintiffs have failed to establish that Defendant owes a duty to take steps to
prevent such conduct, because:
(1) Religious discrimination which takes place after the acquisition of a
dwelling is not actionable under the Fair Housing Act; and
(2) Under either 3604 or 361, Defendant owes no duty and is not liable
for the intervening discriminating actions of other tenants.
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Accordingly, Plaintiffs Complaint should be dismissed with prejudice.

STATEMENT OF FACTS
Plaintiffs Adam and Sara Hussain are married with two children and reside
at Sheridan Apartments, a residential dwelling owned and managed by
Defendant. (Compl. 5.) Plaintiffs are U.S. citizens who identify themselves
as Muslim. (Compl. 9.) Plaintiffs contend that Defendant failed to take
reasonable steps in response to discriminatory and harassing conduct based
on religion, which was wholly and exclusively carried out by neighbors at
Sheridan Apartments. (Compl. 2, 14, 15.)
Plaintiffs moved into Sheridan Apartments in February of 2013. (Compl.
8.) Plaintiff Adam Hussain has a beard, and Sara Hussain wears a hijab,
both of which Plaintiffs contend are outward displays of their religion and
make them identifiable to others as Muslim. (Compl. 10, 11.) Plaintiffs
allege that after moving into the apartment managed by Defendant,
cotenants repeatedly harassed them because of Plaintiffs religion. (Compl.
14.) Plaintiffs contend that this harassment was severe and pervasive,
based on religious intolerance on the part of other tenants- none of whom
are identified by name in the Complaint. (Compl. 14.) The alleged
discrimination includes defacement of a flyer with religious slurs, a note
taped onto Plaintffs mailbox, yelling, writing epithets on Plaintiffs car, beer
cans thrown onto Plaintiffs patio, and threats of physical harm. (Compl.
15.)

In March of 2013, Plaintiffs contacted Defendant via telephone and writing

and asked Defendant to take immediate, effective action to prevent or end
the harassment. (Compl. 16.) Plaintiffs subsequently sent more letters,
asking Defendant to intervene to prevent cotenant harassment, again not
identifying any cotenant by name. (Compl. 17, 18, 20, 21). Plaintiffs have
not alleged any harassment directly carried out by Defendant, but solely acts
by neighbors whose basis for discriminating alleged to have been Plaintiffs
religion. The harassment is furthermore solely attributed to the time period
after Plaintiffs began renting the apartment. (Compl. 15.)
Defendant responded to Plaintiffs in writing on May 13, 2013 and informed
them that Quality Properties does not have an obligation to intervene in
personal disputes between tenants. (Compl. Exhibit E.) The Rules and
Regulations of the lease state, in pertinent part, that tenants are to protect
the quiet enjoyment of other residents and not play radios, stereos or other
such devices in such a manner as to disturb others. (Compl. Exhibit A.) The
lease does not contain any requirement that a tenant act in a way to avoid
personal disputes with other tenants.
Plaintiffs claim Defendants failure to take reasonable steps to prevent the
adverse actions by cotenants violates the Fair Housing Act.
ARGUMENT
The Complaint should be dismissed because Plaintiffs claim for
discrimination after the acquirement of a residence is not actionable
under the Fair Housing Act; 42 U.S.C. 3604(b) and 3617.
A Rule 12(b)(6) tests the legal sufficiency of a complaint. In evaluating a

motion to dismiss, the court assumes all factual allegations in the complaint
are true and construes them in the light most favorable to the plaintiff.
Additionally the court must determine if a claim to relief is plausible on its
face. Heinrich v. Waiting Angels Adoption Servs., Inc., 688 F.3d 393, 403 (6th
Cir. 2012) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)) (alteration in
original). Although a complaint need not state detailed factual allegations, it
must contain sufficient factual allegations to raise a reasonable expectation
that discovery will reveal evidence of the elements of the claim. Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). The complaint must
provide more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Id. at 1955.
Section 3404(a) makes it unlawful for a person to 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.
Section 3404(b) prohibits discriminat[ion] 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. Section 3617 furthermore makes it
unlawful for a person 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

section 3604.
Plaintiffs contend that the hostile housing environment they experienced
after renting from Defendant is applicable under the statute, yet Plaintiffs
have failed to state facts alleging a cognizable claim under the sections of
the FHA from their complaint. Plaintiffs allegations, if taken as true, state
claims of religious discrimination which took place after they began
occupying the apartment owned by Defendant, and 3604 fails to address
such post-acquisition claims. Defendant therefore is not required to take
corrective action to prevent alleged discrimination. When interpreting a
statute, courts must look not only at the meaning of the language, but the
statutes context, purpose and policy. Estate of Cowart v. Nicklos Drilling Co.,
112 S. Ct. 2589, 2594 (1992). The statutes pre-acquisition application is
straightforward in that it makes refusing to sell or rent a dwelling based on
discrimination unlawful. As clearly stated by the plain language of 3604(a),
the statute does not regulate conduct following the sale of property and only
addresses conduct leading up to the terms of the sale or rental. SouthSuburban Housing Center v. Greater South Suburban Board of Realtors, 935
F.2d 868, 882 (7th Cir. 1991). Section 3604(b) has led to considerable
debate because of the in connection therewith phrase linked to provision
of services or facilities. Yet a narrow reading, as this court should apply,
would properly link it to services or facilities pertaining to the initial sale or
rental contract.
When looking at the statute as a whole and determining meaning from its

context, there are other clear indications that the sections of the FHA cited
by Plaintiffs do not apply post-occupancy. A nearly identical prohibition to
3604(a) which deals with handicap discrimination is contained in 3604(f)
(1). This later amendment to the statute also contains the language a
person residing in or intending to reside in that dwelling after it is so sold,
rented, or made available in 3604(f)(1)(B), indicating that unlike 3604(b)
it clearly applies to post occupancy requirements. No such amendment as
yet has been added to 3604, and an amendment would be a proper way to
deal with a post-acquisition claim for reasons of administrability. Section
3604's remaining subsections deal, respectively, with discriminatory ads,
notices, and statements; misrepresentations of availability; "blockbusting";
and handicap discrimination. Id. 3604(c). Section 3605 outlaws
discriminatory home financing and other residential real estate-related
transactions, while 3606 bans discrimination in brokerage organizations
and related services. Allowing post-acquisition claims is clearly in conflict
with the overall statutory scheme. To construe that it applies to an ongoing
transaction and continues to give rights during a tenants rental occupancy,
this court will be taking a perilous step of sliding down a slippery slope of
future claims never intended by the legislature when the statute was
enacted. The Fair Housing Act contains no hint either in its language or its
legislative history of a concern with anything but access to housing. Halprin
v. Prairie Single Family Homes of Dearborn Park Assn, 388 F.3d 327, 331 (7th
Cir. 2004). Allowing Plaintiffs claims to continue would be taking the FHA far

beyond its intended application, and as a matter of law Plaintiffs complaint

should be dismissed.
Notwithstanding the language, the history of the Fair Housing Act and the
circumstances under which it was enacted clearly show that its policy and
purpose was to break down barriers and provide integrated housing. The
FHA was passed in 1968 amid significant racial segregation, when minorities
were denied access to affordable housing as they migrated from rural
southern areas in pursuit of employment opportunities in cities. They were
confined to slum-like overcrowded neighborhoods, and the Fair Housing Acts
purpose was to desegregate such areas. As a result, barriers during the
acquisition phase such as discriminatory pricing or redlining have been
deemed unlawful. N.A.A.C.P. v. American Family Mut. Ins. Co., 978 F.2d 287
(7th Cir. 1992). Section 3604(a), in particular, has been designed to ensure
that no one is denied access to housing for discriminatory purposes.
Southend Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.2d
1207, 1210 (7th Cir. 1984). Courts have applied this subsection to actions
having a direct impact on the ability of potential homebuyers or renters to
locate in a particular area, and to related indirect actions arising from efforts
to secure housing. See, e.g., Dillon v. AFBIC Development Corp., 597 F.2d
556 (5th Cir. 1979); Williams v. Matthews Co., 499 F.2d 819 (8th Cir.), cert.
denied, 95 S.Ct. 495 & 507 (1974).
Despite the FHAs statutory language, history and policy, several recent
cases have held that the FHA applies to post-acquisition claims, which has

led to a split in circuit courts over this largely unresolved issue. Many courts
continue to apply the FHA to pre-acquisition claims only, and have held that
allegations after the initial sale or rental of a dwelling are not cognizable.
Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009). Adding to this debate is the
rule that the FHA is to be given a generous construction. Trafficante v.
Metro. Life Ins. Co., 93 S. Ct. 364, 368 (1972). Some courts have allowed
narrowly applying post-acquisition claims and refused to apply 3604(b)
unless the situation amounted to constructive eviction. Cox v. City of
Dallas, Tex., 430 F.3d 734 (5th Cir. 2005), Halprin, 388 F.3d 327 at 331.
These courts have focused on availability, a step closer to post acquisition
claims. Habitability in these decisions is still considered outside the FHAs
scope. Cox, 430 F.3d at 741. The case before this court concerns an issue of
habitability, since Plaintiffs still reside at Defendants apartment and the
situation has never amounted to constructive eviction.
Although the Sixth Circuit has yet to directly address post-acquisition
claims, the Seventh Circuit has held that although rights of enjoyment are
granted in 3604, there is no claim cognizable for post-sale harassment.
Bloch, 587 F.3d at 782. Bloch concerned a Jewish family alleging religious
discrimination, attributable to a hallway rule enacted so that they were not
allowed to keep a mezuzot outside their door as required by their faith.
Citing Halprin, it was noted that religiously motivated harassment of owners
or tenants does not violate the Fair Housing Act or its regulations. Id. at
563. Since the rights of the statute pertain to acquisition, short of redlining

(or steering tenants away from a sale or rental of a dwelling in the

acquisition phase) or making the situation so intolerable so that a tenant
were forced to leave, would not constitute interference with these protected
rights. Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n, 388
F.3d 327, 329 (7th Cir. 2004). Other courts likewise have addressed the
possibility of constructive eviction amounting to constructive discharge.
DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996); Neudecker v.
Boisclair Corp., 351 F.3d 361, 36465 (8th Cir.2003) (per curiam); Honce v.
Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993). The courts that have refused
applying 3604 to post acquisition claims have reasoned that if the claims
were cognizable, such causes of action would have been expressly stated in
the statute. Indeed, it was an endeavor that would have required careful
drafting in order to make sure that quarrels between neighbors did not
become a routine basis for federal litigation. Halprin, 388 F.3d 327 at 329.
Some courts have taken the big leap of allowing habitability to be
addressed under the FHA, despite the absence of constructive eviction. The
Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th
Cir. 2009), United States v. Koch, 352 F. Supp. 2d 970 (D. Neb. 2004). Such
courts have extended 3604(b)s use of the word privileges and singularly
interpreted the word to imply continuing rights, such as the privilege of
quiet enjoyment of a dwelling. Modesto, 583 F3.d at 713. Modesto involved
a Hispanic neighborhood that claimed the city discriminated against them in
the provision of municipal services. Id. at 696. The court concluded a

natural reading of the statute would encompass claims after a tenant has
acquired possession of a dwelling. Id.

In allowing claims of habitability to

continue under the FHA, these courts have ignored the overall context of the
statute.
Controversy also exists as to whether a 3617 claim can stand on its own
or whether a sufficient nexus between 3617 and 3604 must exist.
Michigan Protection & Advocacy Serv. v. Babin, 18 F.3d 337, 346 (6th Cir.
1994). Many courts have held, however, that a 3617 applies only to
conduct that implicates the availability of housing rather than merely
habitability. AHF Cmty. Dev., LLC v. City of Dallas, 633 F. Supp. 2d 287, 303
(N.D. Tex. 2009). To allow for a 3617 claim to exist, independently without
a 3604 violation, ignores the statutes textual language. Reule v.
Sherwood Valley I Council of Co-owners, Inc., 235 Fed.Appx. 227, 22728 (5th
Cir.2007) (per curiam). Reulet cited Cox and Halprin to conclude that the
plaintiff's claims under both 3604 and 3617 must fail because they go to
the habitability of her condominium and not the availability of housing, Id.
Similarly, in McZeal v. Ocwen Financial Corp., 252 F.3d 1355 (5th Cir.2001)
(per curiam) (unpublished table decision), the Fifth Circuit stated: [b]ecause
his 3605 claim fails, [plaintiff's] claim under 3617 must also fail, Id. In a
recent case, the Sixth Circuit has also addressed if whether a 3617 claim
can stand on its own without other underlying claims. Hidden Vill., LLC v.
City of Lakewood, Ohio, 734 F.3d 519 (6th Cir. 2013). Hidden Village
concerned housing advocates who had aided tenants in exercising their

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housing rights and were racially discriminated against post-occupancy. The

court pointed to the fact that the advocates had helped the tenants during
the acquisition phase as reason for not needing an underlying 3604 claim.
Id. at 528. The facts also indicated alleged instances where the tenants had
been discriminated against before occupancy, and the harassment escalated
after the tenants moved in. Id. at 523.
Plaintiffs in this case before the court are already lessees of housing, they
do not allege that they have been discriminated against before occupancy
nor have they ever been under threat of eviction or loss of their homes. To
permit Plaintiffs case to continue, this court will be extending the FHA
beyond its intended scope and would lead to a flood of litigation regarding
post-acquisition claims. The statutes very purpose: providing affordable
housing to those who need it, would be undermined in that it would hurt
rental properties the most by driving up costs as a direct result of increased
litigation. The courts would be applied with the task of distinguishing
between simple disputes and discrimination based on protected class. When
faced with discrimination problems, what is the appropriate response and
where is the line drawn? Even if post-acquisition claims deserve a remedy
by law, it should not be through judicial action and should be through
amendment to the FHA. The statute has been amended before to add
disability claims, and having a statute would be the proper way to address
this issue for reasons of efficient use of judicial resources and
administrability.

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1.

Even if post acquisition claims are actionable under 3604 or

3617, a claim cannot be brought against Defendant for cotenant
harassment.
Even if this court finds Plaintiffs post-acquisition claims are actionable,

cotenant harassment is even further outside the scope of what courts have
determined to be a landlords liability under the FHA. Not a single allegation
from Plaintiffs complaint states a claim of harassment by Defendant; the
facts all pertain to actions from neighbors, none of whom are identified by
name in the complaint. Plaintiff, in essence, wants Defendant to control the
actions and to be liable for the behavior of unnamed parties.
Cases that have analyzed if a landlord could be liable for the
discriminatory actions of third parties have employed an agency-principle
approach, and have attempted to find parallels between Title VII workplace
discrimination and landlord-tenant relationships. Reeves v. Carrollsburg
Condo. Unit Owners Ass'n, 1997 U.S. Dist. LEXIS 21762, at *1 (D.D.C. Dec.
18, 1997). The rules for workplace harassment are also well established in
the courts. Meritor Sav. Bank v. Vinson, 106 S.Ct. 2399 (1986). Title VII
makes it an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a)(1) (2014). This
language is admittedly similar to 3604(b). Both statutes were passed
during the civil rights era of significant racial tension, and both were passed

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with the ultimate purpose of finding measures to end discrimination. But

while the FHA was concerned with providing access to housing, Title VII was
passed with the purpose to end patterns of discrimination in the workplace.
At its core, the FHA is to break down barriers to opportunities, whereas Title
VIIs purpose is to provide a remedy for injury. In this sense, the FHA is a rule
to govern a transaction (Halprin, 388 F.3d at 328) and Title VII is an ongoing
rule meant to govern throughout the entire employer-employee relationship.
Harris v. Forklift Sys., Inc., 114 S. Ct. 367, 371 (1993).
Some courts have attempted to apply Title VII to the housing context, to
decide if a claim is actionable when the offensive behavior unreasonably
interferes with use and enjoyment of the premises. Honce, 1 F.3d at 1090.
The Ohio Supreme Court addressed a case where a tenant complained to her
apartment manager of repeated racially motivated harassment by a
cotenant. The plaintiff had made both oral and written complaints to her
property manager, and a lawsuit was filed citing the landlords failure to take
corrective action. The court rejected the use of Title VIIs agency principles,
determining that a landlord does not exert the same control over a tenant as
employeer-employee relationships. Ohio Civ. Rights Comm. v. Akron Metro
Hous. Auth., 892 N.E.2d 415, 418 (Ohio 2008). The court recognized that
through an agency approach, an employer may be liable for a nonsupervisory employees discrimination if they knew or should have known
the harassment was taking place. Id. at 418 (citing Hampel v. Food
Ingredients Specialties, Inc. (2000), 729 N.E.2d 726 (Ohio 2000), Burlington

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Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998), Faragher v. Boca Raton, 118
S.Ct. 2275 (1998)). The court noted that [t]he power of eviction alone is
insufficient to hold a landlord liable for his tenant's tortious actions against
another tenant. Id. at 420. In the instant case before this court, eviction is
not even within the Defendants power, since the cotenants who have
allegedly engaged in religious discrimination against Plaintiffs are unknown
by name.
There are further reasons that a vicarious liability theory is improper in this
context. To prevail on a Title VII claim, the employee must show (1)
unwelcome conduct, (2) based on membership of a protected class, (3)
sufficiently pervasive or severe so as to create a hostile environment, (4)
some basis for imputing liability to [the employer]. Matvia v. Bald Head
Island Mgmt., Inc., 259 F.3d 261, 266 (4th Cir. 2001). The problem lies in the
fourth element, and what constitutes some basis. An employees conduct
and actions are directly observed and controlled by a superior through daily
interaction. An employees behavior can therefore have direct, immediate
consequences. A tenant is seen intermittently, and a landlord cannot
possibly be expected to have the same control. The cotenants who harassed
Plaintiffs were engaging in personal activity outside the contractual
relationship between tenants and Defendant. Imputing liability to Defendant
is an irrational expectation, and Plaintiffs have ignored the possibility of more
readily available remedies. There are no indications that Plaintiffs have
called police as the result of personal physical threats, nor have they filed

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this claim against the parties who are actually responsible for the harassing
conduct. If Plaintiffs claims prevail, this court will make Defendant the
insurers of cotenant actions.
Very few courts have addressed landlord liability for cotenant actions.
Neudecker v. Boisclair concerned a man with OCD who was harassed by his
neighbors. 351 F.3d 361, 362 (8th Cir. 2003). The property manager had
released his medical information to other tenants in the building, prompting
the harassment. The manager also threatened to evict him for complaining.
Id. at 364. Neudecker concerned some affirmative actions taken by the
landlord, and not just their inaction with regard to discrimination by
cotenants. Id. In Bradley v. Carydle Enterprises, the plaintiff was an African
American woman who had been subjected to racial epithets by her neighbor.
The apartment complex had attempted to evict them both. 707 F. Supp.
217, 219 (E.D. Va. 1989). Ultimately the court decided that the landlord had
violated the plaintiffs right to quietly enjoy her lease in violation of 3617.
Id. at 233. There were many indications that the harassment was two-sided;
the plaintiff had played loud music, and the two tenants had engaged in a
long standing dispute. Id. at 219.

As stated by Judge Posner in Halprin, the

drafters of the FHA did not intend for common quarrels to become the basis
for routine litigation. Halprin, 388 F.3d 327, at 329. For the courts to impose
liability onto a landlord for personal disputes between neighbors is a perilous
step towards opening the floodgates of litigation. Establishing such
precedent would be contrary to public policy and the purpose of the FHA,

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since it will further drive up costs to those who need affordable housing the
most- the habitants of rental dwellings. It is also unfair to impute liability for
the harassment of third parties onto landlords, when there are other, more
established remedies available by law.

CONCLUSION
For all of the foregoing reasons, Defendant respectfully requests that
Plaintiff's Complaint be dismissed in its entirety and with prejudice.

Catherine J. Villanueva
Attorney for Quality Properties, Inc.

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