HABITAT

CO-OP/CONDO BUYERS

Unmarried Couples and Protection Under Anti-Discrimination Laws

Richard Siegler in Co-op/Condo Buyers

May a co-op board apply a different standard for approving single applicants to purchase apartments than it does for married couples? The answer was a clear "no" in the early stages of Latoni vs. Sherman Square Realty Corp. (2005)

In 2003, Lisa Latoni and Andrew Jorgensen, a cohabiting, unmarried couple, jointly signed a contract to purchase a cooperative apartment at Sherman Square, 201 West 70th Street. They jointly sought and received a mortgage commitment from their bank. After reviewing their application, the co-op board informed them that Latoni would be allowed to purchase the shares and become a lessee, but that the couple would not be allowed to purchase the shares jointly, because Jorgensen was not qualified. (The couple had a joint annual income of $325,000, and were seeking an apartment selling for $880,000, according to a report in the New York Daily News .)

Latoni and Jorgensen claimed — and the board did not dispute — that it was the building's policy to consider an application from a married couple as an application from a single economic unit, and to approve such applications when the "unit" was financially qualified, even when one of the spouses had no income and would not be financially qualified as an individual applicant.

Conversely, board policy considered an application from two unmarried individuals living together as an application from two separate economic units; when one of those individuals was financially qualified and the other individual was not, only the financially qualified individual would be approved.

The question was whether these policies and practices constituted discrimination. The complaint alleged that Sherman Square's policies and practices had a disparate impact on unmarried individuals, discriminated against Latoni and Jorgensen, and violated city and state human rights laws.

In the court's view, it was obvious and conceded that the board's policies and practices were to treat applicants differently based on whether they were married or not. That is, married partners were treated as a single economic unit and unmarried partners were not. In our contemporary social environment, the court said that it might be natural to conclude that policies and practices treating married couples differently from others, while reflected in many forms of federal, state, and local laws (such as taxes, inheritances and others), were not only antiquated, but were discriminatory.

Human Rights Laws and Marital Status

The court noted that both the New York City and State human rights laws prohibited discrimination on the basis of marital status in the sale, rental, or leasing of housing accommodations, including any of the accommodations, advantages, facilities, or privileges that accompanied them. The city human rights law specifically prohibited facially neutral policies that have a disparate impact.

According to the court, Latoni and Jorgensen's discrimination claim stood upon a different footing. They did not allege that Jorgensen suffered discrimination as a result of a denial of a benefit to Latoni, but rather, as a result of a denial of a benefit to him. Jorgensen would have been financially qualified had the co-op applied the same policies and practices to him that it currently applied to married individuals; Jorgensen lost a significant benefit solely because he was single. The court said that this was sufficient to make a prima facie case of discrimination, on the basis of marital status, in "the terms, conditions, or privileges of the sale, rental or lease of any, housing accommodation." The court added that the property's practices and policies did not favor families, but favored married persons.

The co-op maintained that they had rejected Jorgensen because he was financially unqualified, not because he was single. That was patently untrue. While a spouse with less or no income would be qualified based on Sherman Square's policies and practices, the board maintained that its policies and practices were based on the fact that such a spouse would be entitled to financial protections under the Equitable Distribution Law and inheritance laws.

The president of the co-op, who was also a defendant, separately argued that the complaint should be dismissed against him because it did not allege that he alone had the authority, to sell, rent or lease the apartment as required by the human rights laws. The complaint alleged that the president supported, encouraged and implemented the alleged discriminatory policies. He was not dismissed from the action at this time.

The case — which generated a New York Times article and commentary at UnmarriedAmerica.org, is not the last word on this matter and the results may change after the discovery stage. However, it illustrates that is not difficult to run afoul of statutory prohibitions on discrimination against protected classes of individuals.

 

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