Increased indoor time in coming winter months can lead to more tenant-on-tenant discrimination and is landlord liability an issue?
By Bradley S. Kraus
Attorney at Law
Warren Allen, LLP
Winter is almost upon us, which means many people will be indoors more often than not. Unfortunately, that increased indoor time can mean more tenant-on-tenant disputes. While seasoned landlords are no strangers to handling such situations, one particular situation, tenant-on-tenant discrimination, requires additional discussion—and immediate action.
Buried within the Oregon Administrative Rules is OAR 839-005-0206, which details specific theories of discrimination involving housing in Oregon. One particular section involves landlords:
(5) Tenant-on-tenant harassment: A housing provider is liable for a resident’s harassment of another resident when the housing provider knew or should have known of the conduct, unless the housing provider took immediate and appropriate corrective action.
What this administrative rule reads as is a theory of liability for tenants against their landlord if they are harassed by other tenants based on a protected status if the landlord did not take “immediate and appropriate corrective action.” Such exposure may seem strange, but some courts have already previously determined that the Fair Housing Act contains the same protections for tenants. If the landlord knew, or should have known, of tenant-on-tenant discrimination, and failed to take action, the victim tenant may sue the landlord based on this discrimination.
What does this mean for landlords? First, a landlord should do as they always do with tenant disputes. If complaints or disputes between tenants arise, take proper investigative measures to determine what actually happened. This would involve interviewing the parties, witnesses, and reviewing any other written statements or documents provided. Second, creating a log book and/or incident report can assist down the road in recreating what, if anything, happened. Landlords should use/create such items anyway as a best practice, as they are infinitely helpful in the event of litigation.
If it appears or is discovered that discriminatory language and/or conduct occurred, a landlord should take immediate action. This would include the proper termination notices under Oregon law. In the event of a he-said/she-said situation, it may behoove the landlord to defer on the side of aggressive action, as opposed to inaction. Fair housing lawsuits are no laughing matter, often involving substantial attorney fees, costs, and stressful discovery processes, all of which could potentially be avoided through affirmative action.
As a landlord’s attorney, I have learned that not all tenant disputes are created equal. Some are petty, and/or involve people that cannot be placated or made happy unless they live entirely away from each other. Some involve racism, discrimination, and/or bigotry, which should have no place in our world. While these are two extremes that do not encompass the entirety of tenant-on-tenant disputes, if a landlord finds themselves facing the latter of these two scenarios, working with your attorney on an aggressive response can be the difference between resolution and litigation.
About the author:
Bradley S. Kraus is an attorney and partner at Warren Allen LLP. His primary practice area is landlord/tenant law, but he also assists clients with various litigation matters, probate matters, real estate disputes, and family law matters. You can reach him at kraus@warrenallen.com or at 503-255-8795.
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