FHA claims held to apply to post-sale actions of condo association

by Gary Taylor

Bloch v. Frischholz and Shoreline Towers Condominium Association
(Federal 7th Circuit Court of Appeals, November 13, 2009)
(For a map of the geographic boundaries of the federal courts of appeals click here)

7th Circuit Court of Appeals remands to district court claim for post-sale discrimination under Fair Housing Act.

The Blochs are long-time residents of the Shoreline Towers condominiums, subject to the rules and regulations of the Shoreline Towers Condominium Association (STCA).  For roughly 30 years the Blochs displayed a mezuzah (a small rectangular box that houses scriptures from the Torah) on the exterior doorpost of their home (Many Jews believe they are commanded by God to affix a mezuzah on the right doorpost when facing into the home.  They touch the mezuzah and pray when entering the home).  In 2001 the STCA rules committee enacted a set of rules to govern activities taking place in the common hallways.  Lynne Bloch chaired that committee and voted in favor of the rules, one of which was that “mats, boots, shoes, carts or objects of any sort are prohibited outside unit entrance doors.”  Until mid-2004 the STCA did not remove mezuzot (plural of mezuzah) or any other object affixed to the outside unit doors or doorposts; however, in 2004 after the building hallways were remodeled the STCA began removing and confiscating the mezuzot, using the above-referenced rule for support.  The STCA also began confiscating crucifixes, wreaths, Christmas ornaments, political posters “and Chicago Bears pennants.” 

The Blochs voiced their concerns to the STCA and its president, Edward Frischholz; however, their concerns were not heeded.   Instead Frischholz “accused Lynne Bloch of being a racist, called her a liar, encouraged other tenants to vote against her re-election to the Association’s Board of Managers, and told her that if she did not like the way the rules were enforced she should ‘get out.'”  He also admitted that he purposefully held Board events on Friday nights, knowing that she could not attend due to her religious obligations.  The Board rejects any rules change, and went on to warn the Blochs that they would be fined if they continued to display a mezuzah.  For over a year, each time the Blochs put their mezuzot back up, the STCA took them down, even on the occasion when Lynne Bloch and her family were out of the building at the cemetery for the funeral of Lynne’s husband.  On the occasion of the funeral, the STCA even left tables and chairs near the door in the hallway in place – tearing down only the mezuzah.

In September 2005 the Blochs filed suit, seeking an injunction to prevent the STCA from removing the mezuzot, and damages for emotional distress.  The Blochs asserted three theories based on the Fair Housing Act (FHA).  First, section 3604(a) makes it unlawful 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.”  The Blochs asserted that the “otherwise make unavailable” language allows claims for actions that take place after the sale, and that the actions of the STCA in this case constituted “constructive eviction,” by rendering Shoreline Towers unavailable to them and other observant Jews because their religion does not permit them to live in a dwelling where a mezuzah is not permitted to be affixed to the doorway.  The 7th Circuit ruled against the Blochs on this theory based on the fact that they never vacated the condominium, nor ever attempted to sell it to an observant Jew or any other individual.

The Bloch’s second claim was based on section 3604(b), which makes it unlawful “to 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 therewith, because of race, color, religion, sex, familial status, or national origin.”  On this claim the 7th Circuit remanded the case to the district court, stating that because the Blochs purchased a dwelling subject o the condition that the STCA can enact rules that restrict the buyer’s rights in the future, section 3604(b) prohibits the Association from discriminating against the Blochs through its enforcement of the rules, even if the rules themselves are neutral as written.     

The Bloch’s final FHA claim was based on section 3617, which makes it unlawful 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…of this title.”  The Blochs argued that this section supports a post-acquisition discrimination claim independent of any allowed under section 3604.  “Interference” with the enjoyment of fair housing rights, they argued, encompasses a broader swath of conduct than an outright deprivation of those rights.  Noting that other federal courts are split on this issue, the 7th Circuit concluded that section 3617 does support an independent claim, because to hold otherwise would give section 3617 no independent meaning.  The court reasoned that in the Bloch’s case, even though the STCA’s enforcement of the rules did not constructively evict them, it does not foreclose the possibility that the STCA “interfered” with their enjoyment of their section 3604 rights or “coerced” or “intimidated” them on account of their having exercised those rights.  To rule otherwise would require the Blochs to vacate their home before they could sue. 

In order to move forward with any FHA claim, the Blochs must be able to prove discriminatory intent (the FHA allows a claim under a theory of disparate impact, but the Blochs waived any right to raise a disparate impact claim by not arguing it in the district court).  As the court characterized it, “the evidence must indicate that the STCA was not simply indifferent when it reinterpreted the rules, the evidence must show that the STCA reinterpreted the rules with Jews in mind.”  The 7th Circuit concluded that the record included sufficient evidence of discriminatory intent that their case should be allowed to go forward at the district court, although the case “may be difficult to prove.”   Frischholz’s comments, the repeated actions to take down the mezuzot, and leaving the tables and chairs in place at the time of the funeral – only to take down the mezuzah, provided sufficient evidence for the claims to survive summary judgment.





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