Virginia Lawyers Weekly VA Lawyers Weekly
A judge has allowed a lawsuit to move forward against owners and a rental agent who allegedly balked at renting a home to a large family.
The owners reportedly sought extra rent when they learned a family of nine was interested in renting their five-bedroom home in Loudoun County. Liability could turn on whether the owners’ motivation was the family’s five minor children or two grandparents.
Loudoun County Circuit Judge Jeanette A. Irby on May 9 overruled both a demurrer and a plea in bar to allow a state housing discrimination claim to go forward in the case of Commonwealth v. Tutt Taylor & Rankin Real Estate LLC (VLW 019-8-045).
Large home, large family
Irby’s opinion provided a sketch of the situation.
The Campbells – Brent and Corrie – were looking to rent a large home in Ashburn for their multigenerational family. The couple had five minor children and Corrie was pregnant. In addition, Brent’s parents lived with the couple.
Rishu and Charu Sabharwal own a five-bedroom, five-and-a-half bathroom, 8,495-square-foot home in a neighborhood of similar homes in Ashburn. The Sabharwals sought to sell the property, but decided to list it for rent in January 2017 for $3,750 per month. Their agent was employed by Tutt Taylor & Rankin.
When Brent Campbell inquired, the agent said the Sabharwals “were not interested in renting to a large family,” the complaint said.
The state alleged that Mr. Sabharwal, once he determined there were no prospects for sale, then offered to lease to the Campbells if they paid more rent. Sabharwal allegedly told a state investigator he sought additional rent because of “extra wear and tear on the property” from an “additional family living in the home.”
Hearing that proposal, Campbell told the agent there would not be two families in the dwelling.
Nevertheless, two weeks later, the Sabharwals rented the house for the original price to a family with only four people: a husband and wife and two children.
‘Familial status’
State lawyers sued the owners and the agent on behalf of the Virginia Real Estate Board claiming two violations of the Virginia Fair Housing Law. The owners filed a demurrer and the agent filed a plea in bar.
The state contended the defendants would not rent at the advertised price because of the Campbell’s five children under the age of 18.
The law – Virginia Code § 36-96.3 – bars discrimination based on “familial status.” The Fair Housing Law elsewhere defines “familial status” in terms of children under 18 and pregnant persons.
The Sabharwals, represented by John C. Altmiller of McLean, argued their motivation for seeking added rent was solely the two extra adults – Mr. Campbell’s parents – and not the number of children. The owners said their motivation was clear from facts alleged in the complaint.
Irby overruled the demurrer. She said, if the allegations could be interpreted to show the children as well as the grandparents as motivation, it must be interpreted in a light favorable to the plaintiffs. The allegations “do not, as a matter of law, make it clear that the defendants’ request for additional rent was related to the additional adults,” the judge said.
The allegations “establish at most a factual dispute” regarding the Sabharwals’ motivation for requesting the additional rent, Irby said.
Agent’s defenses fall
Irby rejected two defenses raised by the agent in a plea in bar.
First was the agent’s contention that it was shielded by language in another statute.
Virginia Code 54.1-2138.1(B) provides a bar to ordinary liability for a licensee in a residential real estate transaction who provides information or assistance to unrepresented parties.
That statute does not obviate fair housing laws, Irby said. It “clearly does not protect the licensee when his actions rise to the level of unlawful discriminatory housing practices,” Irby wrote.
The agent then pointed to language in the Fair Housing Law allowing renters to deny or limit rental to those who “pose a clear and present threat of substantial harm to others or to the dwelling itself.”
The agent argued the complaint showed the Campbells posed such a threat based on the “extra wear and tear” they would cause with their large family.
“Plainly, as a matter of common sense, the expected relatively minor deterioration of a dwelling resulting from its ordinary and reasonable use does not equate to a “clear and present threat of substantial harm to the dwelling,” Irby said.
“Moreover, given the property’s sizable living area, it is apparent that a family of nine would not, without some evidence to the contrary, necessarily overstress the physical limitations of the Dwelling or cause more than normal ‘wear and tear’ to the Dwelling,” the judge wrote, overruling the agent’s plea in bar..
Altmiller noted the preliminary stage of the proceedings.
“Judges are justifiably reluctant to short-circuit litigation at this stage,” he said.
Tutt Taylor & Rankin is represented by Douglas M. Coleman and Gregory Melus of Alexandria. The state is represented by R. Thomas Payne II of the attorney general’s office.
Coleman, Melus and a spokesperson for the AG’s office were not available for comment as of press time.
Felon bar challenged
As the Loudoun action moved to discovery, another Virginia fair housing lawsuit raised a separate issue: whether an apartment complex was within the law to exclude those with felony convictions and certain other types of criminal history.
The organization Housing Opportunities Made Equal claimed the policy at Chesterfield County’s Sterling Glen Apartments has a disproportionate adverse impact on African American applicants.
HOME sued in Richmond federal court on June 4 under the federal Fair Housing Act of 1968 and the Virginia Fair Housing Law.
The case is assigned to U.S. District Judge Robert E. Payne.
