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The Eleventh Circuit recently clarified that discriminatory conduct by a municipality post-acquisition of a property can violate Fair Housing Act protections.
The case arose when residents in LaGrange, Georgia, filed a civil complaint alleging that basic utility services have a discriminatory impact. The city, which is the sole provider of basic utilities, requires customers to first pay any debts owed to the city and provide photo identification to get services. Petitioners argued these policies discriminated against black and Hispanic residents, respectively. The district court had dismissed the case on failure to state a claim, finding that the FHA did not apply to services not involving the direct sale or acquisition of a property.
The Eleventh Circuit panel, in a unanimous opinion, disagreed. Like other federal circuits, the judges found a plain reading of the FHA could not be interpreted so narrowly. “[B]ecause there is no temporally limiting language" the panel wrote, §3604(b) may “encompass the claim of a current owner or renter for discriminatory conduct related to the provision of services, as long as those services have a connection to the sale or rental of the dwelling."
The panel made sure to note that not all housing services necessarily fall within the scope of the FHA. The test, the panel wrote, is whether services provided by local governments have a “sufficient nexus to housing" to be within the scope of §3604(b). Since water, gas and electricity are central to both the purchase or rent of a property, as well as a property's habitability, the city services provided here were well within the scope of the FHA.
While the Eleventh Circuit is in line with other circuit courts on the question of post-acquisition conduct, some have construed §3604(b) more broadly than others. The Ninth Circuit, for example, has held that slow response times from law enforcement personnel may violate the FHA. On the other hand, the Fifth Circuit has held that the FHA did not apply to allegedly discriminatory zoning laws. The Fourth Circuit has held the FHA did not apply to a city's location of a highway, in both instances because the conduct at issue was not connected enough to the sale or rental of a dwelling.
The Eleventh Circuit, for its part, distinguished the facts of this case from the Fourth and Fifth Circuit cases, and found the Ninth Circuit's reasoning “unpersuasive."
Based on this decision, landlords and municipalities should be cautious in post-acquisition conduct that could have a disparate impact. Meanwhile, residents facing discriminatory policies must show a clear nexus between the conduct and the purchase or rental of a property to successfully invoke FHA §3604(b).
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