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Landlord and Tenant: Fair Housing Suits Often Rely on Testers

Posted By Cliff Tuttle | April 10, 2014

Fair HousingNo. 1,027

 United States of America v. S-2 Properties, Inc. and Bill Turzai, U.S. District Court, W.D. Pennsylvania, No. 13cv1421 (January 17, 2014)

This is a case in which the United States brought suit in the United States District Court for the Western District of Pennsylvania under the Fair Housing Act and other related statutes, alleging racial discrimination.  This case is in its early stages.  The District Court denied the initial Motion to Dismiss. In other words, the  Court held that the facts set forth below are minimally sufficient to state a cause of action for racial bias under the Fair Housing Act and the other statutes relied upon by the plaintiff.

Of interest to landlords in particular, is the procedure by which the plaintiff (in this case the U.S., but often private organizations created for the purpose of bringing such a suit) builds its case through the use of “testers.”  These are paid witnesses who test whether a particular landlord is engaging in discriminatory practices.  The Statement of Facts from this case, reproduced below, illustrates how this evidence is typically assembled. Note that the testers in this case are all male. All except one specifically asked for a two-bedroom unit.  The intent is to control the experiment for only one kind of discrimination — black and white– and these are usually alternated.  By the time the landlord learns that he has been tested, the evidence has probably been gathered.

Of course, the best way not to fall victim to such a procedure is not to discriminate.

Bear in mind that the narrative below is taken from the complaint and may not be substantiated when the evidence is presented at trial.

********************************************************************

The facts of this case, taken from the Complaint and taken as true solely for the purposes of this Memorandum Order, are as follows: Defendant S-2 Properties, a Pennsylvania Limited Partnership, owns the Baldwin Commons apartment complex (“Baldwin Commons”), a 100-unit rental property in Pittsburgh, Pennsylvania. Doc. No. 1, ¶ 4. Units at Baldwin Commons are “dwellings” within the meaning of the Fair Housing Act. Id. Defendant Bill Turzai (“Turzai”) is employed by S-2 Properties as Baldwin Common’s manager and on-site leasing agent.

Between at least February 19, 2013, and April 25, 2013, in his roles of manager and leasing agent, Turzai showed and offered units within Baldwin Commons for rent. Id. at ¶ 7. During this time, the United States Department of Justice conducted three tests at Baldwin Commons to evaluate Defendants’ compliance with the Fair Housing Act. Id. at ¶ 8.

The first test was conducted on February 19 and February 20, 2013. Id. at ¶ 9. On February 19th, Turzai told a white male tester, who had contacted Baldwin Commons by telephone, that a 2-bedroom townhome was available to rent. Id. The next day, Turzai told a black male tester, who visited Baldwin Commons and inquired about a two-bedroom unit to rent in March, that the complex was “fully occupied” and that he had to be placed on a waiting list for a call back. Id. A few hours later, Turzai told a white male tester, who visited Baldwin Commons and inquired about the availability of a 2-bedroom unit for March, that a unit was available to rent immediately and that he should “snag it.” Id.

The Department of Justice conducted a second test on March 27 and March 28, 2013. On March 27th, Turzai told a white male tester, who visited Baldwin Commons and inquired about a 2-bedroom unit for rent for the end of May, that there were three units that were “opening up” and available for rent and that there were two additional units that would potentially be available to rent. Id. at ¶ 10. A few hours later, a black male tester visited Baldwin Commons and asked about the availability of a 2-bedroom unit for May 1st. Id. The black male tester was told by Turzai that there a 2-bedroom unit was vacant but it was “not going to be available” for rent and Turzai could “put [him] on the waiting list.” Id. The following day, the white male tested called Turzai to inquire about the vacant 2-bedroom unit he had seen the day before. Id. He was told by Turzai that the unit was still available for rent. Id.

A third test was conducted on April 23-25, 2013. Id. at ¶ 11. On April 23rd, a white male tester visited Baldwin Commons and inquired about a 2-bedroom unit available for rent at the end of May. Id. Turzai told the white male tester that there were three units “opening up” and two additional units that could be available for rent. Id. The following day, a black male tester visited Baldwin Commons and inquired about the availability of a 2-bedroom unit for the first of June. He was told by Turzai that he had “some openings” but that he had people “lined up” to rent the units. Id. Turzai told the black male tester that he could be placed on the waiting list and a call back if a unit became available. Id. On April 25th, the white male tester called Turzai and inquired whether there were units to rent. Id. Turzai told the white tester that the 3 units he had been shown the day before were still available and “you can come right in off the street if you want one right now.” Id.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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