United States District Court, D. Vermont
BINTI O. MOHAMED, H.M.A., A.OA., K.H.K., F.H.K., M.H.K., S.H.K., and S.H.K., Plaintiffs,
MICHAEL MCLAURIN, Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CHRISTINA REISS, DISTRICT JUDGE
April 27, 2017, Plaintiffs Binti O. Mohamed and her minor
children, H.MA., 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.
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 as witnesses. On April 29, 2019,
Plaintiffs submitted their post-trial memorandum, at which
time the court took the matter under
are represented by Rachel A. Batterson, Esq. and Erika L.
Johnson, Esq. Defendant is represented by M. Jerome Diamond,
Findings of Fact.
upon the preponderance of the evidence, the court makes the
following findings of fact:
The Parties and the 74 Front Street
1. On or about February 9, 2016, Plaintiff 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
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.
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
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
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
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.)
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
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
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
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
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
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
2. Tub is not draining properly.
Front entrance stairway[.] Tenant Responsibility[.]
3. Bed frame parts at the bottom of the stairs must be
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
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
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.
1. Smoke detectors were beeping. Batteries need changing.
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.
The door to the porch area still needs to be replaced due to
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
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
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,