Wilfred Welsh v. McNeil & Elliott

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 15-CV-524 and 15-CV-559

WILFRED WELSH,

APPELLANT/CROSS-APPELLEE,

V.

BEVERLY MCNEIL and ALVIN ELLIOTT,

APPELLEES/CROSS-APPELLANTS.

Appeals from the Superior Court

of the District of Columbia

(CAB-429-14)

(Hon. John M. Campbell, Trial Judge)

(Argued May 12, 2016 Decided June 29, 2017 )

Michael C. Forster for appellant/cross-appellee.

Steven G. Polin for appellees/cross-appellants.

Opinion for the court Per Curiam.

Opinion by Associate Judge Glickman, concurring in part and dissenting in

part, with whom Associate Judges Beckwith and McLeese join in Parts I, II and III

B, at page 3.

Concurring opinion by Associate Judge Beckwith with whom Associate

Judge McLeese joins, at page 47.

Before GLICKMAN, BECKWITH, and MCLEESE, Associate Judges.

2

PER CURIAM: Wilfred Welsh, a member of the Chaplin Woods Homeowners

Association (―HOA‖), sued fellow HOA members Beverly McNeil and Alvin

Elliott (the ―McNeils‖) on the ground that they had leased out their home in

violation of the HOA‘s bylaws. The McNeils brought counterclaims under the

Federal Fair Housing Act1 and the District of Columbia Human Rights Act.2 The

trial court granted summary judgment against Mr. Welsh on the ground that he

lacked standing and against the McNeils on the merits. Mr. Welsh and the

McNeils now appeal these respective rulings.

As to Mr. Welsh‘s claims, we reverse the judgment of the trial court for the

reasons stated in Judge Beckwith‘s opinion. As to the McNeils‘ counterclaims, we

reverse the trial court‘s judgment for the reasons stated in Judge Glickman‘s

opinion. The case is remanded for further proceedings consistent with these

opinions.

So ordered.

1

42 U.S.C. §§ 3601-3619 (2012).

2

D.C. Code §§ 2-1402.21 to 2-1402.24, 2-1402.61 (2012 Repl.).

3

GLICKMAN, Associate Judge, with whom BECKWITH and MCLEESE,

Associate Judges, join in parts I, II, and III.B, concurring in part and dissenting in

part: These appeals are from the resolution by summary judgment of a dispute

between members of the Chaplin Woods Homeowners Association. Members

Beverly McNeil and Alvin Elliott (the ―McNeils‖) rented their townhouse to a

group of recovering alcoholics and substance abusers as a residence. The terms of

the rental agreement did not meet certain requirements in the Homeowners

Association‘s Bylaws. Member Wilfred Welsh (―Welsh‖) sued the McNeils in

Superior Court for leasing in violation of the Bylaws and without the approval of

the Association‘s Board of Directors. The Homeowners Association itself did not

join in his complaint and has not been a party to this litigation. The McNeils

counterclaimed that Welsh was violating the Federal Fair Housing Act and the

District of Columbia Human Rights Act by opposing their request for a reasonable

accommodation – Board approval of their rental agreement – that would allow

them to provide a dwelling to persons with disabilities. Welsh and the McNeils

each moved for summary judgment on the other‘s claims. The trial judge, ruling

that neither Welsh nor the McNeils had standing to maintain their claims, granted

both motions.

4

Welsh rested his standing to sue the McNeils on a provision in the Bylaws of

the Homeowners Association giving individual members the ―same rights as the

Association‖ to enforce the Bylaws. After he initiated his suit, however, the

Association, through the actions of its Board of Directors and its President,

approved the McNeils‘ lease. Welsh contends this approval was itself improper

under the Bylaws. Even if that is so, however, I agree with the trial judge that the

approval operated to deprive Welsh of any standing he had to pursue the claim he

asserted against the McNeils; under the circumstances, as I explain below, the

Bylaw provision on which Welsh relies for standing is inapplicable. I would

therefore affirm the award of summary judgment in their favor on Welsh‘s

complaint.

As to the counterclaims, the trial judge ruled that Welsh could not be liable

to the McNeils under the Fair Housing and Human Rights Acts because ―as a

single board member, [he] does not have the power, on his own accord, to grant or

deny a reasonable accommodation‖ to them. We, as a panel, conclude that this

was an erroneous basis on which to find either that the McNeils lacked standing or

that they could not prevail on the merits of their fair housing claims against Welsh.

We therefore reverse the award of summary judgment to Welsh on the McNeils‘

counterclaims.

5

I.

Chaplin Woods Townhomes is a residential community situated on Texas

Avenue in the Southeast quadrant of the District of Columbia. Welsh and the

McNeils own homes in this community. All Chaplin Woods homeowners are

members of the Homeowners Association and governed by its Bylaws. The

Association is a District of Columbia corporation. As its Bylaws set forth, a five-

member Board of Directors is vested with ―all of the powers and duties necessary

for the administration of the affairs of the Association and may do all acts that are

not prohibited by these Bylaws.‖ Welsh was a member of the Board; at times

pertinent to this case, he served as its Secretary. The Board elects the officers of

the Association. The President presides at all meetings of the Association and the

Board of Directors and has ―all of the general powers and duties which are incident

to the chief executive of a stock corporation organized under the Business

Corporation Act of the District of Columbia.‖

The Bylaws permit members to lease their townhouses subject to certain

conditions and Board approval. The conditions include a rule against occupation

of the premises by anyone not named in the lease and a prohibition of subletting.

However, by a two-thirds vote, the Board of Directors may approve leases that do

6

not meet those or other Bylaw requirements. If the Board does not approve a lease,

it ―may pursue the legal remedies at its disposal in order to prevent the

unauthorized use of the premises.‖

In general, ―the Association, acting through its Board of Directors,‖ may

seek legal relief for any violation of the Bylaws. An ―aggrieved Member‖ of the

Homeowners Association also is authorized by the Bylaws to seek such relief ―if

appropriate.‖ The Bylaws further state that ―[a]ny individual Member shall have

the same rights as the Association to enforce any provision of these Bylaws except

the right to collect delinquent assessments.‖

In April 2009, the McNeils started renting their townhouse in Chaplin

Woods to an entity identified as ―Oxford House – Texas Avenue.‖ This entity was

an unincorporated association of approximately seven women who were

recovering alcoholics and drug addicts. The purpose of the lease was to provide

them with sober, supportive, single-family housing in accordance with the tenets of

a recovery program sponsored by a national organization known as Oxford House,

7

Inc.3 The lease was for two years. It was renewed for another two-year term in

June 2011.

3

Oxford House, Inc., is a not-for-profit, tax-exempt corporation that assists

in the establishment of housing for recovering alcoholics and substance abusers. It

acts as an ―umbrella organization‖ for a national network of independent group

homes. Oxford House, Inc. v. Cherry Hill, 799 F. Supp. 450, 452 (D. N.J. 1992);

see also Tsombanidis v. City of W. Haven, 180 F. Supp. 2d 262, 272 (D. Conn.

2001), aff’d in part, rev’d in part sub nom. Tsombanidis v. W. Haven Fire Dep’t,

352 F.3d 565 (2d Cir. 2003). ―Oxford Houses,‖ as the group homes are called,

have been described as follows:

Oxford Houses are not health care facilities,

rehabilitation centers, or supervised halfway houses.

They are simply residential dwellings rented by a group

of individuals who are recovering from alcoholism and

drug addiction. Three basic rules govern the functioning

of all Oxford Houses: each house must 1) be

democratically self-governed by its residents, 2) be

financially self-supporting, and 3) immediately expel any

resident who relapses into drug and/or alcohol use. No

professional treatment, therapy, or paid staff is provided.

Unlike a boarding house, where a proprietor is

responsible to run and operate the premises, at Oxford

House, the residents are responsible for their own food

and care as well as for running the home. Because the

house must be self-supporting, each of the residents

needs a source of income to pay his or her fair share of

the expenses.

Oxford House, Inc., 799 F. Supp. at 452. A guiding principle of the program is to

locate Oxford Houses in ―clean, drug-free, single family neighborhoods that will

provide the occupants a sense of pride and self-worth,‖ on the premise that this

―plays a crucial role in an individual‘s recovery by promoting self-esteem, helping

to create an incentive not to relapse, and avoiding the temptations that the presence

of drug trafficking can create.‖ Id. at 453.

8

The two leases did not comply with the Homeowners Association Bylaws,

chiefly because they did not name the persons who would occupy the premises.

The Board of Directors did not approve the leases. However, neither the Board nor

Welsh took legal action to abate the unapproved tenancy while either lease was in

effect.

In May of 2013, as the second lease was soon to expire, the President of the

Board of Directors informed the McNeils in writing that they would have to submit

a lease that complied with the Bylaws. The following month, the General Counsel

of Oxford House, Inc., wrote a letter to the Board. Stating that he was writing on

behalf of both the McNeils and the residents of Oxford House – Texas Avenue, he

requested that the Board waive the Bylaw requirements at issue as a reasonable

accommodation mandated by the Fair Housing Act to afford persons recovering

from substance abuse who could not live independently or with their families ―an

equal opportunity to use and enjoy a single[-]family dwelling of their choice.‖ The

Board took no immediate action in response to this letter.

The McNeils proceeded to enter into another lease with Oxford House –

Texas Avenue. They submitted this lease to the Board for its approval in August

2013. The Board rejected the lease for being non-compliant with the Bylaws. This

9

time, however, the Board turned the matter over to the Homeowners Association‘s

attorney. In September 2013, that attorney sent the McNeils a ―Notice of Violation

– Cease and Desist‖ letter asserting they were violating the Bylaws by subleasing

their townhouse and allowing persons not named in the lease to occupy it.4 The

letter called upon the McNeils to cure this violation within ten days and warned

that their failure to cease subletting the property ―may result in the Association

exercising its available remedies at law,‖ including removal of the tenants from the

premises, the imposition of fines, the filing of a civil lawsuit, and other possible

sanctions.

The General Counsel of Oxford House, Inc., answered the cease-and-desist

notice on the McNeils‘ behalf. Citing his June 2013 request for a reasonable

accommodation, he charged that the Association‘s conduct up to this point had

violated the fair housing rights of both the McNeils and the Oxford House – Texas

Avenue residents. He warned that if the Association did not grant a reasonable

accommodation to enable them to proceed with their lease, the McNeils would

apply for a court order enjoining enforcement of the Bylaws against them.

4

―Specifically,‖ the letter stated, ―we understand that you have leased your

Property to Oxford House – Texas Avenue . . . [which] has in turn subleased the

Property to at least seven (7) individuals . . . for some type of halfway house or

recovery home.‖

10

The Association‘s attorney responded that he had not known of the McNeils‘

request for a reasonable accommodation and would review it with the Board of

Directors. On January 9, 2014, he sent the Board a letter advising that the

accommodation sought by the McNeils would be ―appropriate‖ and ―required‖

under the Fair Housing Act and recommending that the full Board of Directors

meet to discuss the issue.5

Two weeks later, on January 24, 2014, Welsh filed his complaint against the

McNeils to enjoin them from leasing their townhouse in violation of the

Homeowners Association Bylaws.6 The Board of Directors did not authorize this

action and the Association did not participate in it. Welsh brought the suit in his

own name, citing the Bylaw provisions empowering individual members of the

Association to enforce the Bylaws. In their answer, the McNeils asserted that

Welsh lacked standing to maintain the action. They also counterclaimed, charging

Welsh with discriminating against the residents of Oxford House – Texas Avenue

in violation of the Fair Housing and Human Rights Acts, principally by ignoring,

5

The letter is marked as a privileged attorney-client communication, but the

privilege apparently has been waived, as the letter was produced in discovery and

is part of the record on appeal.

6

In addition to equitable relief, the complaint prayed for attorneys‘ fees and

asserted that Welsh was entitled to unspecified damages.

11

opposing, and obstructing their request for a reasonable accommodation. The

McNeils claimed, among other things, that when they attempted to educate Welsh

about their tenants‘ need for an accommodation, he refused to accept their

explanations, and that he impeded and delayed consideration of their request for a

reasonable accommodation by failing to bring the June 2013 letter from the

General Counsel of Oxford House, Inc., to the attention of the Association‘s

attorney (as allegedly it was Welsh‘s responsibility to do in his capacity as the

Board‘s Secretary).7 The McNeils further claimed that Welsh had retaliated

against them in contravention of the Fair Housing and Human Rights Acts by

threatening and thereafter pursuing legal action against them for not complying

with the Bylaws. In response to the counterclaims, Welsh denied that his actions

were discriminatory or retaliatory. He claimed to have acted solely in the belief

that enforcement of the Bylaws is necessary to protect important legitimate

interests of the Homeowners Association.

On April 28, 2014, shortly after the McNeils responded to the complaint, the

President of the Homeowners Association sent them a letter on Association

7

Welsh claims he did not forward the letter because he did not know

whether its author was representing the McNeils. He also points out that the full

Board was aware of the request because the Oxford House‘s General Counsel sent

his letter to all Board members.

12

stationery. The letter advised the McNeils that the Board of Directors had voted on

March 27, 2014, on a motion to approve their lease with Oxford House – Texas

Avenue. According to the letter, four of the five Directors were present at the

meeting, including Welsh, and ―[t]he vote was 2 yes, 1 nay and 1 excused.‖8

―Therefore,‖ the letter concluded, ―the lease was approved[.]‖ So far as the record

indicates, the Board of Directors has never disavowed this letter from its presiding

officer. The Association has not sought to intervene in the present lawsuit to

enforce the Bylaws against the McNeils‘ lease.

After they received the President‘s letter, the McNeils requested that Welsh

dismiss his complaint. He refused to do so, taking the position that the Board vote

on March 27 did not constitute an approval of the lease because only two Directors

voted for approval. Welsh claimed that because there were four Directors present

(though only three voted), a valid approval would have required three affirmative

votes under a Bylaw provision stating that ―the vote of a majority of the Directors

present at a meeting at which a quorum is present shall constitute the decision of

8

In an interrogatory answer in this case, Welsh stated that he ―abstained

from the vote because of [his] perceived conflict of interest‖ arising from the fact

that he had sued the McNeils.

13

the Board of Directors‖ (emphasis added).9 Welsh also claimed that the Board

vote was ineffective because the Board previously had disapproved the lease and

because the McNeils did not obtain the Board‘s approval of it before the lease term

commenced. The McNeils contend that Welsh‘s continuing prosecution of his suit

against them after the Board‘s approval of their lease constitutes further retaliation

in violation of the fair housing laws. Welsh denies this.

The parties eventually filed motions for summary judgment on the claims

asserted against them. As we shall explain below, the trial judge granted both

motions on the ground that neither Welsh nor the McNeils had standing to bring

their respective claims.

II.

Appellate review of a grant of summary judgment is de novo.10 We will

affirm if the record shows there is no genuine issue of material fact and the movant

9

We note that there may be a genuine, unresolved dispute as to the number

of Directors present when the vote was taken: Welsh claims he was present, but

the President‘s letter states that the fourth Director was ―excused.‖

10

Johnson v. Wash. Gas Light Co., 109 A.3d 1118, 1120 (D.C. 2015).

14

is entitled to judgment as a matter of law.11 In conducting our review, we construe

the record ―in the light most favorable to the non-moving party‖; however, ―mere

conclusory allegations by the non-moving party are legally insufficient‖ to defeat a

facially sufficient motion.12 Rather, the opponent of the motion ―must produce at

least enough evidence to make out a prima facie case in support of [its] position.‖13

Civil Rule 56 ―mandates the entry of summary judgment‖ against a party that has

failed to make a sufficient evidentiary showing on an essential element of its case

with respect to which it has the burden of proof.14

―Standing is a threshold jurisdictional question [that] must be addressed

prior to and independent of the merits of a party‘s claims.‖15 ―[T]he question is

11

Super. Ct. Civ. R. 56 (c); see, e.g., Virginia Acad. of Clinical

Psychologists v. Grp. Hospitalization & Med. Servs. Inc., 878 A.2d 1226, 1232-33

(D.C. 2005).

12

Joeckel v. Disabled Am. Veterans, 793 A.2d 1279, 1281 (D.C. 2002).

13

Id. at 1281-82.

14

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (―In such a

situation, there can be ‗no genuine issue as to any material fact,‘ since a complete

failure of proof concerning an essential element of the nonmoving party‘s case

necessarily renders all other facts immaterial.‖); see, e.g., Night & Day Mgmt.,

LLC v. Butler, 101 A.3d 1033, 1037 (D.C. 2014).

15

Grayson v. AT&T Corp., 15 A.3d 219, 229 (D.C. 2011) (en banc)

(internal quotation marks omitted).

15

whether the person whose standing is challenged is a proper party to request an

adjudication of a particular issue.‖16 This, too, is an issue of law that is reviewed

de novo.17 When a lawsuit has reached the summary judgment stage and a party‘s

standing is in issue, the requisite ―standing must be shown through ‗specific facts‘

set forth ‗by affidavit or other evidence‘ to survive a motion for summary

judgment.‖18

Traditionally, we have looked to ―federal standing jurisprudence, both

constitutional and prudential,‖ for the principles that determine whether a party has

standing to pursue a claim for relief.19 ―Constitutional‖ standing is grounded in the

―case or controversy‖ language of Article III of the federal Constitution. The sine

qua non of constitutional standing is the requirement that the claimant have such a

―personal stake in the outcome of the controversy‖ as to justify calling upon the

16

Id. (internal quotation marks omitted).

17

Parcel One Phase One Assocs. L.L.P. v. Museum Sq. Tenants Ass’n, 146

A.3d 394, 398 (D.C. 2016).

18

Grayson, 15 A.3d at 246 (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992)).

19

Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201, 1206

(D.C. 2002) (internal quotation marks omitted); see also Grayson, 15 A.3d at 233-

34.

16

remedial powers of the court.20 ―A party has such a ‗personal stake‘ only if: (1) he

or she has suffered ‗injury in fact‘ – an actual or imminent, concrete and

particularized, invasion of a legally protected interest; (2) the injury is ‗fairly . . .

trace[able]‘ to [the] defendant‘s challenged actions; and (3) it is ‗likely . . . the

injury will be redressed by a favorable decision.‘‖21

In addition to those requirements, we also adhere to ―the rule that a party

‗generally must assert his own legal rights and interests, and cannot rest his claim

to relief on the legal rights or interests of third parties.‘‖22 Unlike the

constitutional standing requirements, this prohibition usually is viewed as a

―prudential‖ limitation on standing.23 As such, although it is a requirement of

20

Grayson, 15 A.3d at 229 n.19 (quoting Warth v. Seldin, 422 U.S. 490,

498 (1975)).

21

Equal Rights Ctr. v. Props. Int’l, 110 A.3d 599, 603 (D.C. 2015) (quoting

Lujan, 504 U.S. at 560-61); accord Grayson, 15 A.3d at 246; Friends of Tilden

Park, 806 A.2d at 1206-07.

22

Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (quoting Warth, 422 U.S.

at 499). The Supreme Court has recognized an exception to the rule against third-

party standing where the party seeking to assert the right of another has a ―close‖

relationship with the person who possesses the right and there is a ―hindrance‖ to

the possessor‘s ability to protect his own interests. Id. at 130.

23

But see Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.

1377, 1387 n.3 (2014) (describing third-party standing limitations as ―hard[] to

classify‖ and leaving consideration of their ―proper place in the standing

(continued…)

17

general applicability, it does not apply to claims for relief brought under statutes

that provide otherwise. The Federal Fair Housing Act and the District of Columbia

Human Rights Act are two such statutes; standing to sue under them has been held

to be co-extensive with standing under Article III of the Constitution.24

Standing ordinarily must persist throughout the litigation.25 This implicates

the related concept of mootness: ―the doctrine of standing set in a time frame,‖ in

that ―[t]he requisite personal interest that must exist at the commencement of the

(continued…)

firmament‖ to ―another day‖). Other non-constitutional limitations on standing

have been identified; Lexmark indicates that labeling them as ―prudential‖ may be

questionable. See 134 S. Ct. at 1387. For present purposes, it is unnecessary to

consider these other limitations.

24

See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) (holding

that standing to maintain a civil action under the Fair Housing Act ―extend[s] to

the full limits of Art. III and that the courts accordingly lack the authority to create

prudential barriers to standing‖ in suits brought under that Act; ―[t]hus the sole

requirement for standing to sue under [the Fair Housing Act] is the Art. III minima

of injury in fact‖) (internal quotation marks omitted); Equal Rights Ctr., 110 A.3d

at 603 (―We have recognized, several times, that the DCHRA presents no

additional prudential barriers.‖) (citing Exec. Sandwich Shoppe, Inc. v. Carr Realty

Corp., 749 A.2d 724, 733 (D.C. 2000); Molovinsky v. Fair Emp’t Council of

Greater Washington, 683 A.2d 142, 146 (D.C. 1996)).

25

See, e.g., Kamit Inst. for Magnificent Achievers v. District of Columbia

Public Charter School Bd., 81 A.3d 1282, 1286-87 (D.C. 2013) (―[I]t is not enough

that Kamit may have had standing . . . at the outset of this litigation, or even when

it noted its appeals . . . . The requisites of standing must continue to be met as long

as the appeals continue.‖).

18

litigation (standing) must continue throughout its existence (mootness).‖26 An

action becomes moot, and the plaintiff thereby loses his standing to continue to

maintain it, ―when the issues presented are no longer ‗live‘ or the parties lack ‗a

legally cognizable interest in the outcome.‘‖27 Mootness, like standing, is a

question of law that we review de novo.28

III.

A.

Regarding Welsh‘s claim against the McNeils for leasing their townhouse in

violation of the Bylaws, the trial judge ruled that because the Board of Directors

26

Rotunda v. Marriott Int’l, Inc., 123 A.3d 980, 983 (D.C. 2015) (quoting

United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)). While

―[l]ack of standing always deprives a court of the power to adjudicate a claim, . . .

the doctrine of mootness is subject to recognized exceptions that allow a court to

proceed to judgment.‖ Mallof v. District of Columbia Bd. of Elections & Ethics, 1

A.3d 383, 395 n.54 (D.C. 2010); see also Grayson v. AT&T Corp., 15 A.3d 219,

235 n.38 (D.C. 2011). However, the exceptions this court has recognized, such as

―for disputes capable of repetition yet evading review,‖ Mallof, 1 A.3d at 395, are

not pertinent here.

27

Settlemire v. District of Columbia Office of Emp. Appeals, 898 A.2d 902,

904-05 (D.C. 2006) (citations omitted).

28

Fraternal Order of Police, Metro. Labor Comm. v. District of Columbia,

82 A.3d 803, 814 (D.C. 2014).

19

approved the McNeils‘ lease after Welsh commenced his lawsuit, a dispute no

longer existed for the court to resolve. The judge found no legal support for the

proposition that an individual homeowner could challenge the decision of a

homeowners association in court without suing the association itself or its Board of

Directors.

Welsh contends that the judge erred by relying on the mistaken (or at least

disputed) premise that the Board validly approved the McNeils‘ lease. The trial

judge did not address the validity of the Board‘s putative approval. I would

conclude, however, that it was not necessary for the judge to address this issue in

order to rule, correctly, that Welsh lost his standing to sue the McNeils directly

once the Association approved their lease.

Welsh did have standing to sue the McNeils for violating the Association‘s

Bylaws when he commenced his action against them in January 2014. Ordinarily,

a homeowners association has the primary responsibility of enforcing its rules and

regulations for the good of the entire community; such communal enforcement has

been recognized as ―one of the chief benefits of owning property in a common-

20

interest community‖ and a ―chief function‖ of the association.29 Nevertheless,

except where governing documents or statutes provide otherwise, it is the general

rule that individual members of a homeowners association also may sue to enforce

the association‘s bylaws.30 That general rule is incorporated in the Bylaws on

which Welsh relies for standing to sue the McNeils. Those Bylaws state that

individual homeowners have ―the same rights as the Association to enforce any

provision of these Bylaws except the right to collect delinquent assessments,‖ and

that an ―aggrieved‖ homeowner may seek legal relief for a violation of the Bylaws

―if appropriate.‖

Shared power to enforce the bylaws permits homeowners to act on violations

when the homeowners association fails to do so.31 The need for individual

29

RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 6.8, cmt. a (2000).

30

See id.; 15B AM. JUR. 2d Condominiums & Cooperative Apartments § 55

(2017) (―An individual unit owner also has standing to bring a claim against

another unit owner for a breach of the condominium bylaws, even though the unit

owners agreed to allow the condominium board to sue on their behalf for certain

matters, as the board‘s right is not exclusive of the unit owners‘ rights to pursue

legal remedies for individual wrongs.‖).

31

See Williams v. Southern Trace Prop. Owners Ass’n, 981 So. 2d 196 (La.

Ct. App. 2008) (upholding association‘s discretion not to enforce restrictions and

covenants against minor infractions because ―practicality and economy prohibit the

enforcement of every violation‖ and ―some violations may be more irritating to

one owner than to another and may be deemed not actionable by the majority‖;

(continued…)

21

enforcement action typically arises when (unlike in the present case) the

homeowner‘s claim is against the association itself32 or the homeowner seeks a

remedy for injury to his own personal property rather than a common injury.33

The issue in this case is not whether Welsh had standing to sue the McNeils

when he commenced his lawsuit. The issue is whether Welsh continued to have

standing to pursue the suit after the President of the Association informed the

McNeils that the Association had approved their lease – or whether, in other

words, Welsh‘s complaint thereupon became moot.

(continued…)

adding, in dictum, that each property owner ―has the individual right to seek

enforcement of the restrictions and covenants if the Association in its discretion

and judgment declines to act to the satisfaction of the property owner‖).

32

See St. Denis v. Queensbury Baybridge Homeowners Ass’n, 955 N.Y.S.2d

263, 264-65 (App. Div. 2012) (holding that an individual homeowner had standing

to sue the association for amending its budget and raising monthly dues, to the

homeowner‘s detriment, in violation of the association‘s declaration and bylaws)

(citing cases).

33

See, e.g., Kirschner v. Baldwin, 988 So. 2d 1138, 1141-42 (Fla. Dist. Ct.

App. 2008) (holding that property owner had standing to seek injunction and

monetary relief in suit against neighbor for constructing garage too close to her

property, in violation of setback restriction, and that the failure of the property

owners‘ association to enforce the restriction did not bar the suit); Uehara v.

Schlade, 603 N.E.2d 646, 650 (Ill. App. Ct. 1992) (holding that condominium unit

owner had standing to sue owner of neighboring unit for fire-related damages to

her condominium caused by neighbor‘s violation of maintenance requirements in

condominium bylaws).

22

Shared power to enforce an association‘s bylaws becomes problematic when

the parties who share the enforcement power disagree over whether it should be

exercised. I am not aware of a case in which one member of a homeowners

association was allowed to enforce a bylaw against another member over the

association‘s objection, i.e., contrary to a decision by the association not simply to

refrain from enforcing the bylaw itself but to waive it and permit or excuse the

alleged violation. It is one thing for a homeowner to enforce the bylaws when the

association is unable, unwilling, or too busy to expend the time and effort to do so

itself; mere inaction by the association does not foreclose the homeowner‘s

enforcement action because it does not actually conflict with the association‘s

decision. It is quite another thing when the association, representing all its

members, does act and opts to resolve the dispute differently, without enforcement

of the bylaws. Generally speaking, a homeowners association has the power to

release or compromise any claim it has the right to assert, and to do so over the

objections of individual homeowners, who then are bound by the association‘s

resolution of the claim.34

34

See Frantz v. CBI Fairmac Corp., 331 S.E.2d 390, 395 (Va. 1985)

(holding that ―because a unit owners‘ association has the authority . . . to assert a

claim for the violation of a common right, it necessarily has the authority to

compromise the claim‖ over the objection of individual unit holders, all of whom

(continued…)

23

Although the Bylaws in this case recognize an individual homeowner‘s right

to sue for a violation of the Bylaws, their phrasing – that a homeowner has ―the

same rights as the Association to enforce‖ the Bylaws and may seek legal relief ―if

appropriate‖ – supports the view that the Association can foreclose such a lawsuit

by resolving the claim itself. If the Association has waived its right to enforce a

Bylaw, a homeowner who has only ―the same rights as the Association‖ has no

right to enforce it either. The Bylaw does not give individual homeowners

superior or additional enforcement rights. It would be unreasonable to read the

provision as empowering a Member to enforce a Bylaw that the Association has

waived, for a Member‘s exercise of such an override power would interfere with

the Association‘s ability to manage its affairs and represent the common interests

(continued…)

are ―bound by the compromise‖); Golub v. Milpo, Inc., 522 N.E.2d 954, 957-58

(Mass. 1988) (explaining that association‘s power to conduct litigation relating to

common areas and facilities ―includes the power to settle claims prior to or in the

course of litigation‖ on behalf of the unit owners). I do not suggest, however, that

a homeowner‘s association may release or compromise an individual member‘s

claim against a third party for damages to the member‘s personal property (as

opposed to the common elements). See id. (holding that association has ―no

authority to settle claims for damages to individual units‖); Siller v. Hartz

Mountain Assocs., 461 A.2d 568, 574 (N.J. 1983) (―The unit owner, of course,

does have primary rights to safeguard his interests in the unit he owns. . . . The

unit owner‘s right to maintain an action for compensation for that loss against the

wrongdoer is not extinguished or abridged by the association‘s exclusive right to

seek compensation for damage to the common element.‖). Nor do I mean to

suggest that the association can unilaterally compromise a homeowner‘s claim

against the association itself (or the members of its governing body) for violation

of the bylaws, breach of fiduciary duty, or other misconduct. See id.

24

of its Members, and it would threaten the reasonable expectations and legal rights

of parties dealing with the Association and relying on its decisions. The words ―if

appropriate‖ also suggest a limitation on the individual Member‘s right to seek

legal relief for a violation of the Bylaws; although the nature of that limitation is

not spelled out, at least one court has understood similar words (―in any proper

case‖) to mean that an association‘s decision to surrender a claim held in common

by all its members precludes an individual member from pursuing the claim

directly against the alleged violator.35

The Association‘s waiver of a right held in common would not necessarily

bar a homeowner from pursuing a claim based on a different legal right or for an

individual (as opposed to common) injury such as damage to the homeowner‘s

personal unit or property. In this case, though, Welsh does not contend that he is

asserting any right other than the same legal right the Association possessed to

enforce the Bylaws against the McNeils for the common welfare of the

Membership. The interest Welsh claims to have at stake is simply his interest in

the enforcement of the Bylaws for the good of the Association as a whole, an

35

See Frantz, 331 S.E.2d at 395. As we discuss below, this does not

necessarily mean the individual aggrieved homeowner is without other recourse to

rectify the association‘s wrongful failure to enforce the Bylaws or pursue a valid

claim.

25

interest he shares in common with all other homeowners. Thus, in his complaint,

Welsh described the harm allegedly caused or threatened by the McNeils as

follows:

Plaintiff and the Association have suffered damages as a

result of Defendants‘ violation. The Association has

valid reasons to require members to provide names of the

tenants and to prohibit terms of less than 1 year. Such

provisions are essential to the orderly management of the

Association and to preserve the financial viability of the

Association. Compliance with rules is necessary to

collect HOA [Homeowners Association] fees in the event

of a member default, or assessments in the event of a

violation of bylaws.

Despite his pro forma request for monetary damages, Welsh did not and still

does not claim to have been injured directly and personally by the McNeils‘ lease

of their townhouse to Oxford House – Texas Avenue. At no point in this entire

litigation – not in his complaint, nor at the summary judgment stage, nor even on

appeal – has Welsh been able to identify any personal injury for which a court

could award him monetary relief.36 Merely pleading that one is entitled to

36

Although Welsh has argued that the Association could have been entitled

to damages based on a fine schedule promulgated by the Board pursuant to the

Bylaws, those would be the Association‘s damages, not Welsh‘s. Moreover, the

Board never assessed any fines against the McNeils and, even if the Board had

done so, the Bylaws specifically withhold from Welsh ―the right to collect

delinquent assessments.‖

26

unspecified monetary damages, without identifying an injury they would redress, is

not enough to show personal standing.37 By the summary judgment stage at the

latest, when he faced a direct challenge to his standing, it was Welsh‘s burden to

proffer evidence of a personal injury on which he predicated his claim for

recoverable damages.38 He did not do so.

At oral argument in this appeal, the court inquired as to what monetary

damages Welsh hoped to recover. His counsel responded that Welsh seeks to be

compensated for his attorney‘s fees and costs (including the value of his own time)

incurred in prosecuting this litigation against the McNeils. Welsh contends that his

expectation of being awarded attorney‘s fees and costs pursuant to the Bylaws if he

prevails on his claim against the McNeils suffices by itself to support his standing

to pursue the litigation. But that is not so. ―[A] party‘s interest in pursuing

37

See Davis v. Dyson, 900 N.E.2d 698, 712 (Ill. App. Ct. 2008) (―[A]n

owner of a condominium unit has no standing to maintain an action in his own

right where the alleged injury is inflicted upon the condominium association and

the only injury to the unit owner is the indirect harm that consists in the lessening

of value of his unit.‖).

38

See Hamilton v. Howard Univ., 960 A.2d 308, 313 (D.C. 2008) (―While

we examine the evidence in the light most favorable to the party opposing the

motion, ‗[c]onclusory allegations by the nonmoving party are insufficient to

establish a genuine issue of material fact or to defeat the entry of summary

judgment.‘‖) (quoting Hollins v. Federal National Mortgage Ass’n, 760 A.2d 563,

570 (D.C. 2000)).

27

litigation in order to be awarded attorney‘s fees [and costs] cannot by itself create

the requisite live controversy ‗where none exists on the merits of the underlying

claim.‘‖39

Welsh implicitly concedes that his claim against the McNeils would be moot

if the Association‘s Board of Directors properly approved their lease. Welsh‘s

argument is that the Board vote was not a valid approval, in spite of the

representation in the President‘s letter to the McNeils, and that the Association

therefore did not waive its right to enforce the Bylaws against the McNeils.

Consequently, Welsh concludes, the Association did not preclude him from

continuing his individual suit to enforce the Bylaws and stop the McNeils from

leasing their townhouse to Oxford House – Texas Avenue. But whether the Board

validly approved the lease or not, the President‘s letter to the McNeils said it did.

In my view, the letter from the President effected a legally binding relinquishment

by the Association of its right to enforce the Bylaws against the McNeils on

account of their lease.

39

Settlemire v. District of Columbia Office of Emp. Appeals, 898 A.2d 902,

907 (D.C. 2006) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 480

(1990)).

28

The Association is a corporate body, and the conclusion that it waived its

rights rests on principles of corporation law that are well established. A

corporation ―can only act by agents, and its duly elected officers are[,] within the

scope of their respective duties, its agents to deal with third parties.‖40 Like any

corporation, the Association therefore is ―bound by the acts of its officers so long

as they act with either actual or apparent authority.‖41 And even when an officer

40

Russell v. Washington Sav. Bank, 23 App. D.C. 398, 407 (D.C. Cir.

1904); cf. Gonzalez v. Internacional De Elevadores, S.A., 891 A.2d 227, 239 (D.C.

2006) (―[A]s all corporations must necessarily act through agents, a wholly owned

subsidiary may be an agent and when its activities as an agent are of such a

character as to amount to doing business of the parent, the parent is subjected to

the in personam jurisdiction of the state in which the activities occurred.‖) (quoting

Curtis Publishing Co. v. Cassel, 302 F.2d 132, 137 (10th Cir. 1962)); Dean v.

Walker, 876 F. Supp. 2d 10, 13 (D.D.C. 2012) (relying on the proposition that

when a corporation‘s CEO signs a contract with a third party, he is acting on behalf

of the corporation); BCCI Holdings (Luxembourg), S.A. v. Clifford, 964 F. Supp.

468, 478 (D.D.C. 1997) (―Because a corporation operates through individuals, the

privity and knowledge of individuals at a certain level of responsibility must be

deemed the privity and knowledge of the organization.‖) (quoting FDIC v. Ernst &

Young, 967 F.2d 166, 171 (5th Cir. 1992)).

41

Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi,

Ltd., 15 F. Supp. 2d 1, 7 (D.D.C. 1997), aff’d, 159 F.3d 636 (D.C. Cir. 1998)

(holding corporation bound by contract executed by its president without the

required authorization of the board of directors); see also, e.g., Curtiss-Wright

Corp. v. Schoonejongen, 514 U.S. 73, 81 (1995) (―[A] corporation is bound by

contracts entered into by its officers and agents acting on behalf of the corporation

and for its benefit, provided they act within the scope of their express or implied

powers.‖) (quoting 2 W. Fletcher, Cyclopedia of Law of Private Corporations §

466 at 505 (rev. ed. 1990)); Shear v. National Rifle Ass’n, 606 F.2d 1251, 1254

(D.C. Cir. 1979) (holding that despite the board‘s lack of authority to approve a

(continued…)

29

acts without actual or apparent authority, the corporation still may be bound if it

fails to disaffirm the action within a reasonable time after learning of it; ratification

is implied.42

In the present case, even if the President was mistaken about the meaning

and validity of the Board‘s March 27 vote (a matter on which we do not opine), he

acted in his official capacity and within the ordinary scope of his duties under the

Bylaws as the chief executive officer and presiding Director of the Association in

communicating with the McNeils about the Board‘s decision regarding their

(continued…)

contract, the corporation may be bound by it if the president possessed apparent

authority to sign it); Russell, 23 App. D.C. at 407 (―[I]n the absence of specific

limitations brought home to the knowledge of those who deal with them, or of

which those who deal with them are bound to take notice, the officers of a

corporation, as its agents, are authorized to bind the corporation to third parties so

long as they act within the ordinary scope of their duties.‖).

42

Capital Food Mart, Inc. v. Sam Blanken & Co., 267 A.2d 371, 373 (D.C.

1970) (holding that although the corporate treasurer had no authority to execute a

listing agreement to sell its business, the corporation impliedly ratified the

agreement and was bound by it because it knew of the agreement and took no steps

to prevent or repudiate it); Columbia Hosp., 15 F. Supp. 2d at 9 (―The District of

Columbia Court of Appeals has held that for an unauthorized act to be ratified, the

principal must have knowledge of the act and may ratify the act impliedly, but the

conduct that implies ratification must be conduct that is ‗inconsistent with any

other hypothesis.‘‖) (quoting Lewis v. Washington Metro. Area Transit Auth., 463

A.2d 666, 671-72 (D.C. 1983)); Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890

F.2d 456, 465 (D.C. Cir. 1989).

30

lease.43 If the President did not have actual authority to declare the McNeils‘ lease

approved, he had apparent authority to do so based on his official position, the

surrounding circumstances, and the Bylaws.44 Welsh does not claim, and nothing

in the record suggests, that it was unreasonable for the McNeils to believe the

Board had approved their lease and had authorized the President to convey that

decision to them. In addition to the indicia of apparent authority already

43

The President‘s action was not ultra vires. As the court explained in

Columbia Hospital,

Ultra vires doctrine encompasses only corporate actions

that are expressly prohibited by statute or by-law.

Commentators have noted that though ultra vires acts are

sometimes confused with . . . acts within the power of the

corporation but exercised . . . without complying with

required procedures . . . , in its true sense the phrase ultra

vires describes action which is beyond the purpose or

power of the corporation.

Columbia Hosp., 15 F. Supp. 2d at 7 (internal quotation marks, brackets, and

citation omitted). Accordingly, here as in that case, ―[n]ot ultra vires, but the law

of agency, governs [the plaintiff‘s] claim.‖ Id. (emphasis in original).

44

―Apparent authority arises when a principal places an agent in a position

which causes a third person to reasonably believe the principal had consented to

the exercise of authority the agent purports to hold. Apparent authority thus may

exist without the principal‘s express authorization of the agent‘s representations or

conduct[.]‖ Green Leaves Rest., Inc. v. 617 H St. Assocs., 974 A.2d 222, 230 (D.C.

2009) (internal quotation marks and brackets omitted). See also Columbia Hosp.,

15 F. Supp. 2d at 8 (―Moreover, at least one court has found that where a

corporation appoints someone to act as ‗chief executive officer and chairman of the

board . . . [a]ppointing a person to such a position may, in itself, create apparent

authority in an employee.‘‖) (quoting Federal Deposit Ins. Corp. v. Texas Bank of

Garland, 783 S.W.2d 604, 607 (Tex. Ct. App. 1989)).

31

mentioned, the President of the Association owed fiduciary duties to its members,

including the McNeils.45 It is axiomatic that ―it is reasonable for a person to act

upon the representations of a speaker who owes the listener a fiduciary duty.‖46

Moreover, the Board of Directors did not join the present litigation against the

McNeils and never repudiated the approval of the McNeils‘ lease. The Board‘s

inaction in that regard reinforced the reasonableness of the McNeils‘ reliance on

the President‘s communication and amounted to an implicit ratification of the

President‘s letter.

The Association is therefore bound by the action of its President to treat the

McNeils‘ lease as having been approved in accordance with the Bylaws. The

approval amounted to a waiver of the Association‘s claim against the McNeils for

leasing their townhouse in violation of the Bylaws. As I have explained, this

45

See Willens v. 2720 Wisconsin Ave. Co-op. Ass’n, 844 A.2d 1126, 1136

(D.C. 2004) (―The directors of the Cooperative owed the duties of a fiduciary to

the corporation and to its members.‖) (citing Wisconsin Ave. Assocs. v. 2720

Wisconsin Ave. Coop. Ass’n, 441 A.2d 956, 962-63 (D.C. 1982)); Feliciano v.

Geneva Terrace Estates Homeowners Ass’n, 14 N.E.3d 540, 550 (Ill. App. Ct.

2014) (―The individual members of the board of managers of a condominium

association owe a fiduciary duty to the unit owners.‖).

46

Armstrong v. Accrediting Council for Continuing Educ. & Training, Inc.,

961 F. Supp. 305, 310 (D.D.C. 1997); see, e.g., Hercules & Co. v. Shama Rest.

Corp., 613 A.2d 916, 934 (D.C. 1992).

32

waiver binds not only the Association, but also its individual Members, including

Welsh.

Welsh argues that even if the Association is deemed to have approved the

McNeils‘ most recent lease, it did not approve their two previous leases with

Oxford House – Texas Avenue, and therefore he still may enforce the Bylaws with

respect to them. But those leases expired before Welsh brought this lawsuit, and

he has identified no lingering adverse consequences, nor any threat of future harm

posed by them, nor any compensable injury he sustained on account of them.

Moreover, while the Association perhaps could have assessed fines against the

McNeils because of the expired leases, it did not do so; nor, as previously noted,

does Welsh have the right under the Bylaws to sue to collect unpaid fines from the

McNeils. Consequently, even if the Association retains a theoretical right to

enforce the Bylaws with respect to the expired leases (which seems highly doubtful

given the Association‘s ultimate approval of the most recent lease), there is no

effective relief the court now can provide Welsh for the McNeils‘ alleged violation

33

of the Bylaws – there is nothing for the court to enjoin and no monetary damages

to award him – so the third, redressability, condition of standing is not satisfied.47

The preceding analysis does not necessarily mean a homeowner such as

Welsh is without any viable remedy when the management of the homeowners

association wrongly refuses to bring suit or otherwise enforce the bylaws.

Although a plaintiff usually has standing to assert only his ―own legal rights and

interests, and cannot rest his claim to relief on the legal rights or interests of third

parties,‖48 the homeowner may be able to pursue a derivative action in the

association‘s name to enforce the association‘s rights.49 In order to do so,

however, the homeowner must satisfy the conditions precedent for the maintenance

47

See, e.g., Equal Rights Ctr. v. Properties Int’l, 110 A.3d 599, 603 (D.C.

2015) (explaining that the redressability condition of standing means that ―a

plaintiff seeking forward-looking relief, such as an injunction, must allege facts

showing that the injunction is necessary to prevent injury otherwise likely to

happen in the future‖); Thorn v. Walker, 912 A.2d 1192, 1195-97 (D.C. 2006)

(holding that sale of property mooted appeal of judgment for specific performance

of purchase agreement).

48

Warth v. Seldin, 422 U.S. 490, 499 (1975).

49

See, e.g., Cigal v. Leader Dev. Corp., 557 N.E.2d 1119, 1122-23 (Mass.

1990) (individual unit owners cannot assert claims of condominium association

except by way of a derivative suit); Siller v. Hartz Mountain Assocs., 461 A.2d

568, 574-75 (N.J. 1983) (when a unit owner sues on a common element claim

because of the association‘s failure to do so, ―the unit owner‘s claim should be

considered derivative in nature and the association must be named as a party‖).

34

of such actions, including the demand requirement.50 In the present case, Welsh

did not pursue relief through the vehicle of a derivative action; he did not claim to

have made a demand on the Board of Directors, that it would have been futile to do

so, or that the Board‘s failure to sue the McNeils was in bad faith, unreasonable, or

attributable to any reason other than the exercise of a good faith business judgment

(on the advice of counsel, as it appears).

I would, therefore, conclude that the trial court properly dismissed Welsh‘s

complaint against the McNeils for lack of standing or, more precisely, for

mootness.

50

A shareholder (or a member of a non-profit corporation) seeking to bring

a derivative enforcement action ―must first demonstrate to the court either that the

corporation refused to proceed after a suitable demand for action or that a demand

would be futile.‖ Behradrezaee v. Dashtara, 910 A.2d 349, 354-55 (D.C. 2006).

Generally, moreover, shareholders are prohibited from ―initiating actions to

enforce the rights of the corporation unless the corporation‘s management has

refused to pursue the same action for reasons other than good-faith business

judgment.‖ Franchise Tax Bd. of California v. Alcan Aluminium Ltd., 493 U.S.

331, 336 (1990); see, e.g., Goldberg v. Michael, 766 N.E.2d 246, 251 (Ill. App. Ct.

2002) (holding that individual homeowners could not pursue litigation derivatively

on behalf of their homeowners association when the board had voted not to

proceed with litigation, without a showing that the board ―abused its discretion,

was grossly negligent, or acted in bad faith or fraudulently‖).

35

B.

In awarding summary judgment to Welsh on the McNeils‘ counterclaims,

the trial judge reasoned that a tenant suing his landlord under the fair housing laws

for the denial of a reasonable accommodation must show that (1) he suffered from

a disability; (2) the landlord knew or should have known of the disability; (3) an

accommodation of the disability is necessary for the tenant to have an equal

opportunity to use and enjoy the premises in question; (4) the tenant requested a

reasonable accommodation; and (5) the landlord refused to grant a reasonable

accommodation.51 The judge concluded that the McNeils cannot establish the fifth

element because Welsh is just one member of a five-member Board of Directors,

and ―as a single board member, [he] does not have the power, on his own accord,

to grant or deny a reasonable accommodation.‖ The same reasoning, the judge

stated, applied to the McNeils‘ retaliation claim. Therefore, the judge held, the

McNeils ―lack standing‖ to pursue their Fair Housing Act and Human Rights Act

claims against Welsh. We agree with the McNeils that this analysis is faulty.

51

See Rutland Court Owners, Inc. v. Taylor, 997 A.2d 706, 711 (D.C.

2010); Douglas v. Kriegsfeld Corp., 884 A.2d 1109, 1129 (D.C. 2005) (en banc).

36

To begin with, it is not a proper standing analysis; it confuses the question of

the McNeils‘ standing with the question of the merits of their fair housing claims.

Whether the McNeils can prevail against Welsh despite his position as only one of

five board members is an issue concerning the merits of those claims. 52 The

McNeils‘ standing to have their claims adjudicated is a different issue. Because

claimants under the Fair Housing and Human Rights Acts need not satisfy any so-

called prudential standing requirements, the McNeils need only establish their

constitutional standing. Thus, the standing question in this case is only whether –

assuming arguendo the merits of their legal claims – the McNeils have alleged and

can show the minimum Article III requisites of an injury in fact attributable to

Welsh for which the court can provide relief.

The trial judge did not address or resolve this threshold question in his

ruling. However, on the record before the judge at the summary judgment stage,

we see no reason to doubt the McNeils‘ constitutional standing to pursue their fair

housing law counterclaims. Standing to complain of discriminatory housing

52

See Grayson v. AT&T Corp., 15 A.3d 219, 229 (D.C. 2011) (―If a

plaintiff‘s factual allegations are sufficient to require a court to consider whether

the plaintiff has a statutory (or otherwise legally protected right), then the . . .

standing requirement has served its purpose; and the correctness of the plaintiff‘s

legal theory — his understanding of the statute on which he relies — is a question

that goes to the merits of the plaintiff‘s claim, not the plaintiff‘s standing to present

it.‖).

37

practices that violate the Fair Housing and Human Rights Acts is not restricted to

the direct targets or victims of such practices, i.e., the persons denied housing on

account of their disabilities. Others who suffer or are threatened with ―a distinct

and palpable injury‖ from such practices also fall within the category of ―aggrieved

persons‖ with standing to sue.53 Both economic and noneconomic injuries may

suffice to provide standing.54 Thus, it is well-settled that landlords have standing

under the Fair Housing and Human Rights Acts to sue those who would prevent

them from renting their property to tenants with disabilities.55

53

See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982);

Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 103 n.9 (1979); Trafficante

v. Metro. Life Ins. Co., 409 U.S. 205, 209-10 (1972); Exec. Sandwich Shoppe, Inc.

v. Carr Realty Corp., 749 A.2d 724, 732 (D.C. 2000) (―Limiting standing under

the DCHRA to only the direct targets of discrimination would limit the flexibility

of the DCHRA as a tool to eliminate discrimination and hamstring efforts to effect

the statute‘s broad purpose. That a plaintiff‘s alleged injury is predicated upon

discrimination against a person other than him or herself presents a jury question as

to whether an ‗unlawful discriminatory practice‘ occurred and whether the plaintiff

was thereby ‗aggrieved‘; it is not, however, a question of justiciability.‖)

54

Gladstone, Realtors, 441 U.S. at 112.

55

See e.g., Tsombanidis v. City of W. Haven, 180 F. Supp. 2d 262, 283 (D.

Conn. 2001), aff’d in part, rev’d in part on other grounds sub nom. Tsombanidis v.

West Haven Fire Dep’t, 352 F.3d 565 (2d Cir. 2003) (holding that the landlord of

property rented as a group home for recovering alcoholics and drug addicts had

standing to sue city and city fire district on claims that the enforcement of zoning,

building, property maintenance, and fire safety codes against the group home

discriminated against the residents and prospective residents in violation of the Fair

Housing Act and the Americans With Disabilities Act); Growth Horizons, Inc. v.

Delaware Cty., Pa., 983 F.2d 1277, 1282 n.6 (3d Cir. 1993) (explaining that an

(continued…)

38

The McNeils fall within that class of plaintiff. They sustained or were

imminently threatened with injury sufficient to support standing when the

accommodation they requested in order to rent their townhouse in compliance with

the Bylaws was withheld, their lease was disapproved, they were directed to cease

and desist renting their townhouse to the Oxford House – Texas Avenue tenants or

face a lawsuit, and they ultimately were sued by Welsh, all in alleged violation of

their and their tenants‘ rights under the Fair Housing Act and the Human Rights

Act. Although there may be a genuine material dispute about Welsh‘s reasons for

opposing the McNeils‘ lease, there is no dispute that he did oppose it and that his

actions could be found to have contributed to causing the aforesaid injuries to the

McNeils. If the alleged statutory violations are established, the court can provide

appropriate redress in the form of monetary damages in addition to equitable

(continued…)

―aggrieved person‖ with standing to sue under the Fair Housing Act ―does not

necessarily have to be the person discriminated against‖ and can include an

organization providing housing to disabled individuals that claims to have been

injured by a discriminatory housing practice); Dr. Gertrude A. Barber Ctr., Inc. v.

Peters Twp., 273 F. Supp. 2d 643, 651 (W.D. Pa. 2003) (―Courts have clearly held

that a person or company in the business of providing housing for handicapped

persons that has been prevented from doing so due to alleged discrimination[] has

standing to sue under the [Fair Housing Act].‖); ReMed Recovery Care Ctrs. v.

Twp. of Willistown, Chester Cty., Pa., 36 F. Supp. 2d 676, 682-83 (E.D. Pa. 1999)

(same; citing cases).

39

relief.56

Finally, the mere fact that the McNeils ultimately received the Homeowners

Association‘s approval of their lease did not moot their counterclaims, even with

respect to their request for injunctive relief. ―For a case to be rendered moot

through the defendant‘s voluntary cessation of a challenged practice, it must be

‗absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.‘‖57 The party asserting mootness based on the cessation of the

challenged conduct has the ―heavy burden of persuading the court that the

56

In a private civil action under the Fair Housing Act,

if the court finds that a discriminatory housing practice

has occurred or is about to occur, the court may award to

the plaintiff actual and punitive damages, and . . . may

grant as relief, as the court deems appropriate, any

permanent or temporary injunction, temporary restraining

order, or other order (including an order enjoining the

defendant from engaging in such practice or ordering

such affirmative action as may be appropriate).

42 U.S.C. § 3613 (c)(1); see, e.g., Samaritan Inns, Inc. v. District of Columbia, 114

F.3d 1227, 1234 (D.C. Cir. 1997). The Human Rights Act likewise provides for

damages and equitable relief in private civil actions. D.C. Code § 2-1403.16.

57

Hardaway v. District of Columbia Hous. Auth., 843 F.3d 973, 979 (D.C.

Cir. 2016) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528

U.S. 167, 189 (2000)); accord Mbakpuo v. Ekeanyanwu, 738 A.2d 776, 782-83

(D.C. 1999).

40

challenged conduct cannot reasonably be expected to start up again.‖58 Welsh, of

course, has not asserted mootness on this (or any other) ground; he is in no position

to do so given that he has disputed the validity of the Association‘s approval of the

McNeils‘ lease and has continued to pursue his complaint against the McNeils for

violating the Bylaws.

So the question before us is not a standing question. It is a merits question:

whether, as a matter of law, the McNeils cannot succeed on their fair housing

claims against Welsh for the reason the trial judge identified – that as a single

board member, Welsh did not have the power, ―on his own accord,‖ to grant or

deny the McNeils‘ request for a reasonable accommodation or to retaliate against

them. We disagree with the trial judge. Even assuming the premise that Welsh

was powerless to grant or deny a reasonable accommodation by himself,59 his

allegedly discriminatory actions to enforce the Bylaws against the McNeils and

block them from leasing their townhouse to Oxford House – Texas Avenue still

58

Laidlaw Envtl. Servs., Inc., 528 U.S. at 189.

59

On the record before us, the premise is not unassailable. As Welsh‘s

contention about the Board vote to approve the McNeils‘ lease indicates, he

arguably did have the power to single-handedly deny their accommodation request

by refusing to vote for it while remaining present at the time of the vote. More

broadly, he may have influenced the votes of other Board members.

41

could be found to have violated the Fair Housing Act and the Human Rights Act

and to expose him to liability.

Both Acts make it unlawful to discriminate against a person on account of

his or her disability (or ―handicap‖) by, inter alia, ―refus[ing] to make reasonable

accommodations in rules, policies, practices, or services [that] may be necessary to

afford such [a disabled or ‗handicapped‘] person equal opportunity to use and

enjoy a dwelling.‖60 The two Acts also make it unlawful, inter alia, to retaliate

against any person for exercising or aiding another person to exercise their

statutory rights against discrimination.61 The Acts‘ prohibitions are not limited to

60

42 U.S.C. § 3604 (f)(3); D.C. Code § 2-1402.21 (d)(3)(B). A person has

a ―handicap‖ within the meaning of the Fair Housing Act if the person has ―a

physical or mental impairment which substantially limits one or more of such

person‘s major life activities.‖ 42 U.S.C. § 3602 (h)(1). The Human Rights Act

employs the term ―disability‖ rather than ―handicap,‖ but the two terms have the

same meaning. See D.C. Code § 2-1401.02 (5A); see also Douglas v. Kriegsfeld

Corp., 884 A.2d 1109, 1115 n.1 (D.C. 2005) (―The District of Columbia Human

Rights Act employs virtually the same language as that found in the federal Fair

Housing Act, substituting the word ‗disability‘ for ‗handicap‘ while incorporating

verbatim the federal wording for discrimination based on ‗a refusal to make

reasonable accommodations‘ for the disabled.‖).

61

See 42 U.S.C. § 3617 (―It shall be unlawful to coerce, intimidate,

threaten, or interfere with any person in the exercise or enjoyment of, or on

account of his having exercised or enjoyed, or on account of his having aided or

encouraged any other person in the exercise or enjoyment of, any right granted or

protected by section 3603, 3604, 3605, or 3606 of this title.‖); D.C. Code § 2-

1402.61 (a) (―It shall be an unlawful discriminatory practice to coerce, threaten,

(continued…)

42

sellers and renters, and they extend to the discriminatory enforcement by third

parties of facially neutral land use rules such as homeowners association bylaws.62

Accordingly, a failure-to-accommodate claim under the Fair Housing and

Human Rights Acts requires proof that (1) the defendant refused (2) a request by or

(continued…)

retaliate against, or interfere with any person in the exercise or enjoyment of, or on

account of having exercised or enjoyed, or on account of having aided or

encouraged any other person in the exercise or enjoyment of any right granted or

protected under this chapter.‖).

62

See, e.g., Bhogaita v. Altamonte Heights Condo. Ass’n, 765 F.3d 1277,

1289 (11th Cir. 2014) (affirming judgment that condominium association violated

the Fair Housing Act by enforcing its pet weight rule to require resident suffering

from post-traumatic stress disorder to remove his emotional support dog from his

unit); Skipper v. Hambleton Meadows Architectural Review Comm., 996 F. Supp.

478, 484 (D. Md. 1998) (―[T]he use of restrictive covenants or local zoning

ordinances to discriminate against handicapped persons violates the FHA

irrespective of whether as a matter of state law those covenants or ordinances were

violated.‖) (citing cases); Martin v. Constance, 843 F. Supp. 1321, 1326 (E.D. Mo.

1994) (―Another method of making housing unavailable to people with disabilities

has been the application or enforcement of otherwise neutral rules and regulations

on . . . land use in a manner which discriminates against people with disabilities.

Such determination often results from false . . . assumptions about the needs of

handicapped people, as well as unfounded fears of difficulties about the problems

that their tenancies may pose. These and similar practices would be prohibited.‖

(quoting House Report No. 100-711, 100th Cong., 2d Sess. 24, reprinted in 1988

U.S.C.A.N. 2173, 2184-85)); Rhodes v. Palmetto Pathway Homes, Inc., 400 S.E.2d

484, 486 (S.C. 1991) (―We conclude that interpretation of the restrictive covenants

in such a way as to prohibit location of a group residence for mentally impaired

adults in a community is contrary to public policy as enunciated by both state and

federal legislation.‖).

43

on behalf of (3) a person suffering from a disability (of which the defendant was or

should have been aware) (4) for a reasonable accommodation (5) that may have

been necessary to afford the disabled person an equal opportunity to use and enjoy

a dwelling.63 The McNeils proffered such proof in opposition to Welsh‘s motion

for summary judgment.

As recovering alcoholics and addicts, the Oxford House – Texas Avenue

tenants of the McNeils could be found to be disabled persons entitled to

appropriate accommodations under the Fair Housing and Human Rights Acts.64

The McNeils requested Welsh and the Board of Directors to approve their lease

with Oxford House – Texas Avenue even though the lease did not identify the

63

See, e.g., Douglas, 884 A.2d at 1129. It must be shown that the defendant

knew or should have known of the disability, but not that the defendant had a

discriminatory purpose. See id. at 1128-29 (explaining how failure-to-

accommodate claims differ from disparate treatment and disparate impact claims).

Once the plaintiff produces evidence ―sufficient for findings that the requested

accommodation is reasonable and may be necessary for enjoyment of the premises

equal to that experienced by tenants who are not disabled,‖ the burden shifts to the

defendant ―to introduce evidence in rebuttal, leaving the ultimate burden of

persuasion . . . on the [plaintiff] who seeks accommodation.‖ Id. at 1129 (citing

Giebeler v. M & B Assocs., 343 F.3d 1143, 1156 (9th Cir. 2003)).

64

Alcoholism and addiction are deemed to be impairments that may render

a person disabled or ―handicapped.‖ See, e.g., Douglas, 884 A.2d at 1129-30;

Oxford House, Inc. v. Cherry Hill, 799 F. Supp. 450, 459-60 (D.N.J. 1992); 24

C.F.R. 100.201 (a)(2) (2008). The Fair Housing Act provides, however, that the

term ―handicap‖ does not include ―current, illegal use of or addiction to a

controlled substance.‖ 42 U.S.C. § 3602 (h).

44

tenants by name as the Bylaws required. Although it might be disputed, this could

have been a reasonable accommodation to afford the putatively disabled tenants

the opportunity to reside in and enjoy the McNeils‘ townhouse.65 The request and

its justification were presented to Welsh and the other members of the Board by

the General Counsel of Oxford House in his July 2013 letter. The McNeils

proffered evidence that Welsh opposed and ignored the request and that he

withheld it from the Association‘s attorney in derogation of his supposed duty as

the Board‘s Secretary (though this may be one of the material facts in genuine

dispute). Welsh‘s actions (or inaction) evidently delayed the Board‘s response to

the request for months and contributed to the issuance of the cease-and-desist letter

threatening the McNeils with legal action.

Thus, even though Welsh may not have had the power, as a single member

of the Board of Directors, to decide whether the Association would grant or deny

the requested accommodation, the McNeils proffered evidence that Welsh had and

exercised the power to prevent a timely review and determination of the request.

65

The precise rationale for the requested accommodation is not set forth in

the record before us, but we understand the McNeils to contend that the

accommodation is needed to enable the recovering alcoholics and drug addicts to

take advantage of the group home residential opportunity and comply with the

specific conditions of participation in the Oxford House recovery program. We

express no opinion as to whether this is so.

45

―The failure to make a timely determination after meaningful review amounts to

constructive denial of a requested accommodation, ‗as an indeterminate delay has

the same effect as an outright denial.‘‖66 The fact that the Board eventually did

consider the request and that the McNeils ultimately received the accommodation

they sought does not mean Welsh cannot be found liable for the delay. ―The Act is

violated when a reasonable accommodation is first denied, regardless of remedial

steps that may be taken later.‖67 That Welsh was only a single member of the

Board of Directors does not mean he cannot be held individually liable if, in that

capacity or otherwise, he personally committed or contributed to a violation of the

Fair Housing Act or the Human Rights Act.68

66

Bhogaita, 765 F.3d at 1286 (quoting Groome Res. Ltd. v. Parish of

Jefferson, 234 F.3d 192, 199 (5th Cir. 2000)); see also United States v. District of

Columbia, 538 F. Supp. 2d 211, 219 (D.D.C. 2008).

67

District of Columbia, 538 F. Supp. 2d at 219 (citing Bryant Woods Inn,

Inc. v. Howard County, 124 F.3d 597, 602 (4th Cir. 1997)).

68

See, e.g., Chavez v. Aber, 122 F. Supp. 3d 581, 593 (W.D. Tex. 2015)

(―[C]ourts across the country have routinely imposed individual liability for

discriminatory actions under the FHA.‖) (citing cases); Sabal Palm Condos. of

Pine Island Ridge Ass’n v. Fischer, 6 F. Supp. 3d 1272, 1293 (S.D. Fla. 2014)

(―Individual board members or agents such as property managers can be held liable

when they have personally committed or contributed to a Fair Housing Act

violation.‖) (internal quotation marks omitted); Fielder v. Sterling Park

Homeowners Ass’n, 914 F. Supp. 2d 1222, 1229-30 (W.D. Wash. 2012) (holding

that members of non-profit could be found individually liable under the FHA for

race-based discrimination).

46

In addition, the McNeils proffered that Welsh violated the anti-retaliation

provisions of the Fair Housing and Human Rights Acts by threatening them with

and pursuing a lawsuit for violating the Bylaws of the Association despite their

explanation that their tenants needed and were entitled to an accommodation.

Even though Welsh may not have had the power as a single Board member to bind

the Association, he clearly had and exercised the power to sue the McNeils. Such

conduct can support a retaliation claim.69

69

See, e.g., Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 743-44

(1983) (holding ―that it is an enjoinable unfair labor practice to prosecute a

baseless lawsuit with the intent of retaliating against an employee for the exercise

of rights protected by § 7 of the NLRA[]‖; ―such suits are not within scope of First

Amendment protection‖ and state interests in maintaining domestic peace and

protecting citizens‘ health and welfare do not enter into play when suit has no

reasonable basis.); United Credit Bureau of Am., Inc. v. NLRB, 643 F.2d 1017,

1025 (4th Cir. 1981) (―Likewise, the message to United‘s employees is clear:

assertion of protected rights (rights found subsequently to be meritorious by the

labor board) will subject you, as a United employee, to a retaliatory lawsuit and all

the expense and trouble that goes with it. The violation of Section 8 (a)(1) is thus

clear. We conclude that substantial evidence supports the Board‘s finding that

United‘s lawsuit filed against its charging employee . . . constituted violations of

Sections 8 (a)(4) and (1) of the Act.‖); cf. Ayasli v. Armstrong, 780 N.E.2d 926,

937 (Mass. App. Ct. 2002) (―The jury could have viewed the Armstrongs‘ conduct

as constituting persistent efforts to disturb the plaintiffs‘ enjoyment of their land, to

impede access, limit use, and generally make the Ayaslis so uncomfortable in that

secluded location that they would abandon their plans for the house. Put another

way, a reasonable person could have felt threatened and intimidated and feared that

the Armstrongs would always try to interfere with their access to and enjoyment of

their property, as the Ayaslis testified that they felt.‖).

47

Welsh may have meritorious factual or legal defenses to the McNeils‘

reasonable-accommodation and retaliation claims. We perceive that there may

remain genuine disputes of material fact to be resolved, which would preclude an

award of summary judgment on those claims to either side. But such questions are

not before us at this stage and we express no views on them. It suffices to say that

the sole rationale relied upon to grant summary judgment to Welsh does not

support it.

BECKWITH, Associate Judge, with whom MCLEESE, Associate Judge, joins,

concurring: The sole point of disagreement within the division concerns the

disposition of Mr. Welsh‘s claims against the McNeils. The trial court granted

summary judgment against Mr. Welsh on the theory that he lacked standing to

assert these claims based on the HOA bylaws. Concluding that the grant of

summary judgment cannot be sustained on this basis, we reverse.

―Standing is a question of law that is reviewed de novo; the underlying

factual determinations are reviewed for clear error.‖ Daley v. Alpha Kappa Alpha

Sorority, Inc., 26 A.3d 723, 729 (D.C. 2011). The basis for Mr. Welsh‘s standing

is Article XI, § 1 (d) of the HOA‘s bylaws, which states that ―[a]ny individual

48

Member shall have the same rights as the Association to enforce any provision of

these Bylaws except the right to collect delinquent assessments.‖ Section 1 (a)(1)

further provides that legal relief ―may be sought by the Association . . . or, if

appropriate, by any aggrieved Member.‖ No other provision in the bylaws requires

or allows the HOA to approve or disapprove suits by members to enforce the

bylaws.

The trial court concluded that the HOA‘s purported approval of the

McNeils‘ lease on March 27, 2014, deprived Mr. Welsh of standing to sue for the

violation of the bylaws he has alleged. Even assuming that the HOA did approve

the McNeils‘ third lease with Oxford House – Texas Avenue, however—

something Mr. Welsh disputes—we do not agree with the trial court that this

approval deprived Mr. Welsh of standing to assert his claims under the HOA

bylaws, which are akin to a contract enforceable by all individual members. See

Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 361 (D.C. 2005) (―It is well

established that the formal bylaws of an organization are to be construed as a

contractual agreement between the organization and its members.‖). Just as the

parties to a contract may provide for enforcement by an intended third-party

beneficiary, see, e.g., Fields v. Tillerson, 726 A.2d 670, 672 (D.C. 1999), the

bylaws of an organization may also provide for enforcement by individual

49

members. No one contends that the relevant bylaw provisions changed during the

course of the litigation. Assuming they initially conferred standing on Mr.

Welsh—an assumption neither the trial court nor the parties have challenged—they

continued to do so.1

If the HOA approved the McNeils‘ third lease and thereby brought it into

compliance, Mr. Welsh‘s claim that this lease violated the bylaws may well fail on

the merits. If the HOA itself were to sue the McNeils on similar grounds, its claim

might fail for the same reason: not because the HOA or Mr. Welsh lacked

standing to enforce the bylaws, but because the McNeils were no longer violating

the bylaws. The absence of a violation—or the court‘s inability to grant relief due

to the absence of a violation—cannot in itself deprive a party of standing. If it

could, consideration of standing would lapse entirely into adjudication of the

merits. See Grayson v. AT&T Corp., 15 A.3d 219, 229 & n.20 (D.C. 2011).

In addition, the trial court‘s order granting summary judgment failed to take

into account the McNeils‘ prior two leases, which were in effect from 2009 to 2011

1

On remand, the parties may address the impact, if any, of the phrase ―if

appropriate‖ in the bylaw provision allowing legal relief to be sought, ―if

appropriate, by any aggrieved Member.‖ This question has not been addressed by

the trial court or raised by the parties, and we decline to decide it sua sponte and

without the benefit of briefing.

50

and 2011 to 2013. The HOA purported to approve only the lease that began in

2013, so even if that approval did have some bearing on Mr. Welsh‘s standing, it

did not affect his standing to sue based on the earlier noncomplying leases.2

Judge Glickman argues in dissent that the trial court was—or would have

been, had it addressed this issue—justified in concluding that Mr. Welsh lacked

standing to sue for these past violations of the bylaws because there was no relief

the court could provide. On this record it appears that the past noncompliant leases

left nothing to enjoin and there was therefore no basis for prospective relief. See,

e.g., Equal Rights Ctr. v. Props. Int’l, 110 A.3d 599, 603 (D.C. 2015) (stating that

the redressability condition of standing requires that ―a plaintiff seeking forward-

looking relief, such as an injunction, must allege facts showing that the injunction

is necessary to prevent injury otherwise likely to happen in the future‖). But Mr.

Welsh has also persistently sought monetary damages—in his complaint, in his

motion for summary judgment, and in his brief in this court.3 A claim for damages

2

At least before this court, the McNeils have not disputed that the earlier

leases were in violation of the HOA bylaws.

3

Although Mr. Welsh‘s claim for damages has persisted throughout the

litigation, it has also changed. In his complaint, he asserted without elaboration

that he and the HOA had both suffered damages. In his motion for summary

judgment, on the other hand, he argued only that the HOA was entitled to damages

based on a fine schedule promulgated under the bylaws. In his appellate brief, he

(continued…)

51

is not mooted by the lack of an ongoing violation or the unavailability of

prospective relief. See, e.g., Vaughn v. United States, 579 A.2d 170, 174 (D.C.

1990) (en banc). Mr. Welsh‘s live claim as it pertains to the prior leases is that the

McNeils‘ violations of bylaws that he is empowered to enforce entitle him to

damages, a remedy the court can grant. Regardless of the actual merits of this

claim, Mr. Welsh is entitled to assert it and the trial court erred in concluding—at

least on the grounds it relied on—that he lacked standing.

While the record before us might permit us to reach our own conclusions on

the merits of Mr. Welsh‘s claims, ―it usually will be neither prudent nor

appropriate for this court to affirm summary judgment on a ground different from

that relied upon by the trial court.‖ Wagner v. Georgetown Univ. Med. Ctr., 768

A.2d 546, 560 (D.C. 2001); see also Jaiyeola v. District of Columbia, 40 A.3d 356,

372-73 (D.C. 2012). The order granting summary judgment rested entirely on the

erroneous conclusion that Mr. Welsh lacked standing due to the HOA‘s approval

of the McNeils‘ 2013 lease, and the briefing in this appeal has focused on that

issue. Arguments on other aspects of Mr. Welsh‘s standing or on the merits of Mr.

(continued…)

refers both to damages he has suffered and to the HOA‘s fine schedule. On

remand the trial court may determine what damages Mr. Welsh is claiming and

whether he is entitled to them.

52

Welsh‘s claims—for example, about whether the HOA actually approved the 2013

lease or whether Mr. Welsh has adequately shown an entitlement to damages based

on the McNeils‘ prior noncompliant leases—can best be addressed by the trial

court in the first instance. We therefore vacate the trial court‘s order granting

summary judgment on Mr. Welsh‘s claims and remand for further proceedings

consistent with this opinion.