by Lorie Garland
Assistant Vice President
Legal Services

Last year the Summit County Court of Appeals decided a case in which it found that a cause of action exists under Ohio’s fair housing laws where a landlord and its property manager could be held liable when a tenant racially harasses another tenant. This was the first time an Ohio appellate court addressed this type of hostile living environment claim. The landlord appealed and in a recent decision, the Ohio Supreme Court reversed the Court of Appeals finding. The Supreme Court found that a landlord may not be held liable for failing to take corrective action against a tenant whose racial harassment of another tenant created a hostile housing environment.

In this case Fontella Harper, a black woman, and her two sons moved into rental housing owned by the Akron Metropolitan Housing Authority (“Landlord”). The Kaisks, a white family, moved in next door to the Harpers. Shortly after the Kaisks moved in, the two families began to engage in heated confrontations. Ms. Harper alleged that the Kaisk family would swear at members of her family and guests at her home, using racial epithets. She also claimed that the name calling and swearing escalated to threats of violence towards her family.

The lease terms provided that tenants were to fulfill the tenant obligations noted in the lease and that the Landlord could terminate or refuse to renew the lease if a tenant failed to fulfill these obligations. One tenant obligation was that tenants conduct themselves in a manner that would not disturb their neighbors peaceful enjoyment of their accommodations. Ms. Harper alleged that the harassment was continuous for over a year, that she filed numerous racial harassment complaints with the property manager and that management neither investigated or resolved her complaints regarding her neighbors.

Ms. Harper then contacted the Fair Housing Advocates Associates, Inc. and the Ohio Civil Rights Commission which resulted in a suit being filed against the Landlord and one of its property managers. The suit claimed that the Landlord and its property manager violated Ms. Harper’s fair housing rights by tolerating tenant-on-tenant racial harassment and failing to take adequate, effective steps to end the harassment.

The Common Pleas Court of Summit County granted the defendants’ motions for summary judgment finding no case of action for a hostile living environment. The plaintiffs appealed this finding and the Summit County Court of Appeals reversed the trial court’s decision. The court found that although a hostile living environment claim is new to Ohio courts, federal courts have recognized such a cause of action. The court also found that a tenant-versus-tenant harassment claim is analogous to a co-worker harassment in the workplace claim. The court likened the control an employer has over an employee to the control a landlord has over a tenant. A landlord controls who is allowed to become a tenant and can evict a tenant who does not comply with the lease. The appellate court found that a cause of action based upon a hostile living environment is actionable in Ohio.

The Landlord appealed the decision to the Ohio Supreme Court. The Ohio Supreme Court did not agree with the Court of Appeal’s decision.

First, the court did not agree that federal housing discrimination cases supported the appellate court’s decision. The cases cited by the appellate court dealt with direct harassment by the property owner or manager not tenant-on-tenant harassment.

Secondly, the court did not agree that the principles of employer liability in hostile work environment claims should be used as a model for landlord liability for the acts of tenants.

The liability of an employer for the acts of an employee (including harassment of a co-worker) is based upon agency law. An employer-employee relationship is a master-servant relationship. An employer can control the acts of an employee. This control does not exist in landlord-tenant relationships. A landlord can evict a tenant. However, the court found that the power of eviction alone is insufficient to hold a landlord liable for a tenant’s acts. The court held that the absence of an agency relationship between a landlord and his tenants and the landlord’s comparative lack of control over his tenants prohibits a tenant from bringing a claim against his landlord when a co-tenant’s harassment creates a hostile living environment.

Ohio Civil Rights Commission v. Akron Metropolitan Housing Authority, 119 Ohio St. 3d 77, 2008-Ohio-3320