Landlord and Tenant: Tenant’s retaliation claim dismissed

Where a tenant alleged her landlord retaliated against her because of her emotional support dogs, but she failed to allege his actions were motivated by her exercise of rights under the Fair Housing Act, this claim was dismissed.

Background

Julie Ritchie sued Roger Gunden, her former landlord, based on his failure to accommodate her emotional support dogs and refusal to renew her lease. She brings claims for retaliation and failure to make reasonable accommodation in violation of the Fair Housing Act and the Virginia Fair Housing Law, as well as common law negligence. Defendant has moved to dismiss the claims based on negligence, retaliation and declaratory relief.

Negligence

Actional negligence requires that there must be a legal duty, a breach of that duty and resulting injury which could have been reasonably foreseen by the exercise of reasonable care. Under Virginia law, tort claims cannot be rooted in violation of a contractual duty.

And Virginia law is clear that “the violation of a statute does not, by that very fact alone, constitute actionable negligence or make the guilty party negligent per se.” The Supreme Court of Virginia further stated that “a statute may define the standard of care to be exercised where there is an underlying common-law duty, but the doctrine of negligence per se does not create a cause of action where none otherwise exists.”

Plaintiff does not really say what defendant did to give rise to a negligence claim. She neither identifies any common law, non-contractual duty which defendant would have violated nor attempts to set out the necessary elements of negligence per se based on defendant’s alleged statutory violation.

Plaintiff does correctly contend that a contractual relationship is not required for plaintiffs to bring claims under the FHA, However, plaintiffs vindicate their rights under the FHA by bringing claims under that statute rather than through an independent common law cause of action. Simply put, Plaintiff alleges next to nothing to support her negligence claim, and so the court will grant defendant’s motion to dismiss it.

Retaliation

To bring a retaliation claim under the Fair Housing Act, or FHA, plaintiff must allege (1) that she was engaged in protected activity; (2) defendant was aware of that activity; (3) defendant took adverse action against her and (4) a causal connection existed between the protected activity and the asserted adverse action.

Plaintiff does not plausibly allege retaliation. Defendant’s actions are tied to her keeping dogs, not to plaintiff’s exercise of FHA/VFHL rights. Plaintiff quotes defendant as writing “Your current lease expires May 30, 2021. If you continue to keep the dogs the lease will not be renewed.”

Nowhere in the complaint does plaintiff allege that any of defendant’s actions were motivated by the facts that plaintiff exercised her FHA rights by speaking with Housing Opportunities Made Equal or making the reasonable accommodation request. As far as the lease non-renewal goes, the retaliation claim duplicates plaintiff’s claim for failure to make a reasonable accommodation rather than making out a separate cause of action.

To be sure, harassment can be a form of “interference” — that is, retaliation under the FHA — “provided that it is ‘sufficiently severe or pervasive’ as to create a hostile environment.” But plaintiff also does not adequately allege harassment that interfered with her exercise of rights.

She states that defendant came to her workplace on “multiple and separate” occasions to ask whether she had found another place for the dogs, and that she asked him not to do so. Without more specificity in the factual allegations as to how many times this happened, or severity of the questioning, there is simply nothing to support a conclusion that defendant’s actions rise to the level of hostile environment harassment.

Declaratory judgment

In her prayer for relief, plaintiff requests a declaration “that the defendant violated the Fair Housing Act.” To the extent plaintiff wishes to obtain a judgment stating that defendant violated the FHA, she would do so by proving her substantive FHA claim. After all, she cannot prevail on that claim without first establishing that defendant committed the violation. And plaintiff does not articulate how a declaratory judgment would further clarify the obligations of landlords under the FHA.

Defendant’s motion to dismiss granted.

Ritchie v. Gunden, Case No. 3:24-cv-6, Apr. 17, 2024. WDVA at Charlottesville (Moon). VLW 024-3-229. 10 pp.