DRAFT FOR ATTORNEY REVIEW — NOT FINAL

§ 290

Citation
§ 290
Parent Document
Francis v. Kings Park Manor, Inc., 992 F.3d 67 (2021)
Effective Date
2021-03-25
Original Source
https://www.courtlistener.com/opinion/4867798/francis-v-kings-park-manor-inc/ ↗

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with its tenants was in any way atypical. The lease terms identified by the dissent
to support an inference of substantial control (terms forbidding tenants from
impairing the “rights, comforts or conveniences” of other tenants, A.61) are
unremarkable, and do not suggest the existence of a special “arsenal of incentives
and sanctions” reasonably attributable to KPM. See Lohier Dissent at 26 (quoting
Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 865 (7th Cir. 2018).
       39As the majority panel opinion acknowledged, the Seventh Circuit is the
only other circuit to have entertained this theory of FHA liability in circumstances
even arguably analogous to those here. Francis I, 944 F.3d at 378.
       40   See Wetzel, 901 F.3d at 860-65 (defendant landlord ran a “living
community” for senior citizens with “a common living area, a common dining area,
common laundry facilities, and hallways” and had a demonstrated capacity to
restrict tenants’ access to common spaces, suspend cleaning services, assign dining
locations, and enter private apartments). Our dissenting colleagues note that the
Wetzel court did not expressly limit its reasoning to circumstances involving
enhanced landlord control and made clear that it was not determining the FHA’s
application to circumstances that “more closely resemble[] custodial care, such as a
skilled nursing facility, or an assisted living environment, or a hospital.” Id. at 864;
see also Lohier Dissent at 29 n.12. It does not follow, however, that the Wetzel court