Mohamed v. McLaurin

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          CHRISTINA REISS, DISTRICT JUDGE

         On April 27, 2017, Plaintiffs Binti O. Mohamed and her minor children, H.MA., ^[1]A.O.A., K.H.K., F.H.K., M.H.K., S.H.K., and S.H.K., filed this civil rights action against Defendant Michael McLaurin alleging violations of the Fair Housing Act of 1968 as amended (the "FHA"), 42 U.S.C. §§ 3601-31, based on national origin, religious, gender, and familial status. Plaintiffs allege that Defendant "interfered] with the exercise of their civil rights under 42 U.S.C. §[] 3617 to live in housing." (Doc. 94 at 1.) Defendant denies Plaintiffs' allegations.

         On February 11, 13-15, 2019, the court conducted a bench trial at which it granted Defendant's motion for judgment as a matter law at the close of Plaintiffs' evidence and dismissed Plaintiffs' religious and familial status claims. Plaintiffs called Plaintiff Binti Mohamed and Hassan Kowa El-Basha as witnesses. Defendant called himself, Joseph McSweeney, Raymond Greenwood, Krishna Thapa, and Richard Winegar^[2] as witnesses. On April 29, 2019, Plaintiffs submitted their post-trial memorandum, at which time the court took the matter under advisement.^[3]

         Plaintiffs are represented by Rachel A. Batterson, Esq. and Erika L. Johnson, Esq. Defendant is represented by M. Jerome Diamond, Esq.

         I. Findings of Fact.

         Based upon the preponderance of the evidence, the court makes the following findings of fact:

The Parties and the 74 Front Street Apartment

1. On or about February 9, 2016, Plaintiff^[4] and Defendant entered into a one-year lease (the "Lease") for a five-bedroom, one-bathroom apartment located at 74 Front Street in Burlington, Vermont (the "apartment"). 74 Front Street is a multi-unit apartment building which Defendant inherited from his father.

2. Plaintiffs tenancy in the apartment was subsidized by the Section 8 Housing Voucher program which paid a portion of her rent.

3. Plaintiff and her minor children occupied the apartment from on or about February 1, 2016 until they vacated it at some point after January 5, 2018.^[5]

4. Plaintiff is a female born in Somalia who moved to a refugee camp in Kenya before immigrating to the United States. She is the mother of eight children, six of her children are also the children of Hassan Kowa El-Basha, and two of them are from a prior marriage. Before moving to Vermont, Plaintiff lived in Arizona for an unspecified period of time.

5. Plaintiff works full-time as a cleaner in a retirement home. Although she testified that she does not work on the weekends, in her unsworn answers to interrogatories she provided a work schedule which includes weekends.

6. Plaintiff has some ability to speak and understand English, however, she is not fluent. She credibly testified that she is able to communicate with her work supervisor without difficulty. She can also write her own name in English, but she is unable to read in any language. Based upon the content and manner of her testimony, she appears to be both intelligent and assertive.

7. Defendant is a large African American male who is partially disabled because of a condition in his knees that makes it difficult for him to walk and climb stairs. He has a loud voice and an animated manner.

8. Defendant's witness, Joseph McSweeney, has worked for Defendant as a handyman for approximately five years and has known Defendant since they were both children although he had no contact with Defendant for an approximately fifteen-year period during which Defendant lived in Florida. Prior to working for Defendant, Mr. McSweeney worked as general contractor performing carpentry, painting, roofing, and various maintenance tasks with the exception of plumbing and electrical work. Although Mr. McSweeney is Defendant's employee, the court found no evidence of bias and further found his testimony wholly credible. Mr. McSweeney encountered Plaintiff approximately fifteen times during her tenancy in the apartment. Although Plaintiffs English was imperfect, Mr. McSweeney could understand her.

9. During Plaintiffs tenancy in the apartment, all of the occupants of 74 Front Street were persons of color who had immigrated to the United States. They included witness Krishna Thapa's family from Bhutan who had emigrated from Nepal and which consisted of three men, three women, and two children. Another family that occupied a unit included two generations of family members, all of whom immigrated from Nepal. Four young men from Africa who were part of the "lost boys" occupied another unit. Other than Plaintiff and her minor children, the tenants of 74 Front Street were all long-term tenants.

10. A small parking lot behind 74 Front Street is accessed by a driveway. Each apartment at 74 Front Street is allotted one parking space per family. There are no visitor parking spaces.

11. A storage shed is located at the edge of the parking lot. During the course of Plaintiff s tenancy in the apartment, Defendant and Mr. McSweeney accessed the storage shed frequently in order to perform repairs at 74 Front Street.

12. Defendant did not live at 74 Front Street and was reluctant to visit the property after hours. From 8:00 p.m. until 5:00 a.m., he would not accept phone calls from tenants. If a tenant needed to contact him, he or she was required to send him a text message. Because of his disability, Defendant was also reluctant to climb the stairs to the apartment unless he needed to investigate a problem.

The Rental Application

13. Plaintiff submitted a rental application for the apartment with the assistance of Hassan Noor, an interpreter who assists with refugee resettlement in the Burlington, Vermont area. In her rental application, Plaintiff identified Hassan Noor as her brother although she is not related to him. In the application, Plaintiff did not respond to a request for information regarding her driver's license. She provided information regarding her vehicle, but not its license plate number. In response to a request to "[l]ist everyone, including children, who will live with you[, ]" Plaintiff identified three sons and one daughter. (Def Ex. A at 1.) There is no evidence that Plaintiff intentionally misrepresented the number of children who would reside with her, her relationship with Hassan Noor, or information regarding her vehicle's license plate number.

14. The rental application for the apartment required the applicant to identify the number and type of pets the applicant seeks to have in the rental property; this section of the rental application is crossed out.

15. A Housing Assistance Payments Contract ("HAP") for Section 8 Tenant-Based Assistance Housing Choice Voucher Program identifies Plaintiff and seven of her children as the "persons [who] may reside in the unit" and states that "[o]ther persons may not be added to the household without prior written approval of the owner and the [HAP]." (Def. Ex. B at 1.)

The Lease

16. The Lease is set forth on a form which states it was "created by Vermont Apartment Owners Association, LLC for the personal use of VAOA members." (Def. Ex. C at 1.) It provides for a one-year rental period at a monthly rent of $1, 947 due on the first of the month and a security deposit of $1, 947. Pursuant to the Lease, the tenant is responsible for all utilities except water, trash, and snowplowing.

17. The Lease states that no security deposit has been provided for pets and further states: "No animals shall be permitted on the premises except those pets which are identified in the attached Lease Addendum." Id. at 4, ¶ 14.

18. With regard to "Acceptance of the Premises," the Lease states as follows:

Tenant has inspected the leased premises, and Tenant's acceptance of possession of the leased premises is conclusive evidence of its receipt in good order and repair, in the condition as set forth on the inspection checklist. Upon the termination of this lease, the Tenant shall thoroughly clean the leased premises and shall leave the premises and the improvements therein, in the same condition as at the commencement of this Lease, reasonable wear and tear excepted.

Id. at3, ¶9.

19. The Lease sets forth the following tenant obligations regarding common areas: "The sidewalk, entrance, hall, passages, stairways, and other common areas shall not be obstructed by Tenant or used by Tenant for any other purpose than those of ingress and egress from the leased premises." Id. at¶ 12.

20. The Lease provides that: "Tenant shall park in the space, if any, designated by the landlord. Only the following vehicles, of the undersigned tenants shall be permitted to be parked on the leased premises[.]" Id. The Lease identifies Plaintiffs vehicle by make, model, year, and license plate number and states that: "No unlicensed, unregistered, or inoperable motor vehicles can be parked or stored at the leased premises." Id.

21. With regard to "Refuse," the Lease states: "Tenant shall dispose of all garbage and refuse in such a manner and at such times as Landlord shall direct" and "[t]he tenant shall maintain their unit free from rodent and insect infestations, including bed bugs. Tenant shall be responsible for extermination when the infestation is caused by Tenant's failure to maintain the dwelling unit or the Tenant introduces the rodent or insect into the unit." Id. at4, ¶¶ 13, 15.

22. The Lease sets forth the following obligations with regard to repairs and maintenance:

Landlord shall be responsible for all repairs and maintenance with respect to the leased premises except such repairs and maintenance as are caused by the negligent or deliberate act or omission of the Tenant or a person on the leased premises with the Tenant's consent. Those repairs and maintenance which are the responsibility of the Tenant shall be performed by a contractor approved by the Landlord immediately upon demand of the Landlord. If the repairs or maintenance which are the obligation of the Tenant are performed by the Landlord, the cost of such repairs and maintenance shall be paid by the Tenant in full on the next rental payment date hereunder as additional rental, or may be deducted from the Tenant's security deposit.

Id. at 5-6, ¶ 16.

23. The section of the Lease governing "Access" states as follows:

The Landlord may enter the leased premises with the Tenant's consent, which consent shall not be unreasonably withheld.

The Landlord may enter the leased premises for the following purposes between the hours of 9:00 a.m. and 9:00 p.m. but on not less than 48 hours notice: 1) when necessary to inspect the leased premises; 2) to make necessary or agreed repairs, alterations or improvements[;] 3) to supply agreed services; or 4) to exhibit the leased premises to perspective or actual purchasers, mortgagees, Tenants, workers or contractors.

The Landlord may only enter the leased premises without consent or notice when the Landlord has [a] reasonable belief that there is imminent danger to any person or to property.

Id. at 6, ¶ 18.

24. With regard to termination, the Lease provides:

If this is a month to month lease, the Landlord may terminate the lease for no cause by actual notice given to the Tenant at least 30 days prior to the termination date specified in the notice.

If this lease is for a term longer than month to month, tenant acknowledges that execution of this lease is receipt of written notice that this lease terminates for no cause upon the expiration of the initial term unless otherwise renewed or extended in writing by the landlord. No. additional notice shall be required.

Id. at 5, ¶ 15.

25. Plaintiff received a copy of the Lease and Hassan Noor translated it for her before she signed it.

26. Because Plaintiff did not have sufficient funds for a security deposit, Defendant allowed her to pay the security deposit in installments. On several occasions thereafter, Plaintiff paid her portion of the rent late. Defendant accepted Plaintiffs late payments and charged Plaintiff a late fee.

Inspections

27. Before Plaintiff and her minor children moved into the apartment, Defendant installed new carpeting and kitchen cabinets and painted the walls. Prior to her occupancy of the apartment, Plaintiff and Defendant conducted a joint inspection with Hassan Noor acting as Plaintiffs interpreter. Plaintiff and Defendant completed a three-page checklist which noted no problems, including no problems with the apartment's bathroom sink. Hassan Noor translated the inspection report for Plaintiff before she signed it.

28. Because Plaintiff was eligible for Section 8 housing benefits, the BHA was involved in the inspection of the apartment. On February 1, 2016, BHA completed a six-page U.S. Department of Housing and Urban Development ("HUD") Inspection Checklist which indicated that the apartment "passed" although a "fail" was indicated for lead-based paint in the living room. The refrigerator, stove, toilet, wash basin, and shower/tub were all marked "pass." (Def. Exs. I1 & I2.)

29. BHA's May 12, 2016 inspection report indicates that the apartment first failed and then passed inspection with the following summary explanation:

Kitchen 1. Refrigerator doors need adjusting not closing properly and hitting one another when trying to close one of them.

Bathroom

2. Tub is not draining properly.

Front entrance stairway[.] Tenant Responsibility[.]

3. Bed frame parts at the bottom of the stairs must be removed.

2. Large boxes at the top of the stair landing need to be removed. Stairway must be kept clear at all times. June 10 of 2016 reinspection by Rich - FAIL

The items marked are completed and approved.

1. The lower refrigerator door does not shut properly. There's a large air gap around the seal.

2. This item is still pending. Tenant responsibility. June 27, 2016 reinspected by Rich - PASS

(Def. Ex. I3at1.)

30. A May 12, 2016 HUD Inspection Checklist indicates the apartment passed inspection although the refrigerator, tub/shower unit, and security were flagged as a "fail."

31. On June 27, 2017, BHA inspected the apartment and initially found it failed inspection. BHA re-inspected the apartment on July 27, 2017, and August 11, 2017, and "failed" it on both occasions. On September 11, 2017, upon BHA's re-inspection, the apartment "passed." The summary report that accompanies these inspections contains the following notations:

Housekeeping was found to be substandard and will need some corrective actions.

Enclosed porch area has piles of dirty laundry and other miscellaneous material that needs to be picked up, place[d] neat and the rug needs to be vacuumed.

The door to this room is also broken... Tenant needs to replace the door.

All bedrooms have clutter that needs to be picked up and made neat... all rugs also need to be vacuumed.

LANDLORD RESPONSIBILITIES

1. Smoke detectors were beeping. Batteries need changing. Informed landlord.

2. Bathroom sink has leaking pipe underneath.

3. Front right stove burner is not operating.

July 27, 2017 special reinspection by JL. [F]ail Marked items are completed, inspected and approved.

Pending item:

The door to the porch area still needs to be replaced due to tenant damage.

August 11, 2017 reinspection by JL. Fail Door has not been worked on. Tenant stated landlord telephoned her last week that someone would be up to do the door but no one showed up.

September 11, 2017 Reinspection by Rich-PASS

The bedroom door has been replaced.

The heater in the bathroom was checked and found to be in working order.

The tenant stated that there was a leak in the bathroom sink. There was a bucket of water under the drain but the leak could not be found.

(Def. Ex. 13 at 2-3.)

Hassan Kowa El-Basha's Occupancy of the Apartment

32. Hassan Kowa El-Basha was not identified on the Lease as an occupant of the apartment. He nonetheless credibly testified that during Plaintiffs tenancy in the apartment, he lived there and did not have his own apartment elsewhere.

33. Mr. El-Basha worked nights, from 9:00 p.m. to 5:00 a.m., and would spend his days at the apartment watching his and Plaintiffs children, taking them to school and appointments, and sleeping. He described himself as married to Plaintiff and the father of six of her children.

34. In contrast, Plaintiff testified both in deposition and in the court's bench trial that, during her tenancy in the apartment, she was a single mother separated from her husband (whom she sometimes referred to as her "ex-husband") and that Mr. El-Basha lived in an apartment in Winooski, Vermont. Although he cared for the children at the apartment while she was at work, she claimed he did not live there. Plaintiff explained that in her language, to be "single" means that you are living apart from your husband.

35. Defendant credibly testified that Mr. El-Basha was consistently at the apartment during the daytime hours. Defendant repeatedly informed Plaintiff that if her husband lived in the apartment, the Lease needed to reflect that fact and she would need to pay additional rent.

36. On November 3, 2016, Defendant sent Plaintiff a letter stating in relevant part as follows:

On November 2, 2016 between the hours of 9-1 lam, I received a call about water leaking [through] the new ceiling. I went upstairs and ran in[to] the gentlem[a]n coming out of apartment 74 with his own key. He just finished a shower and kicked one of the cats out of the way to close the door. This gentleman is living there and nowhere on the lease. . . . Since this gentleman is living at 74 Front Street full time, ...