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 Court of any formal errors so that corrections may be made before the bound 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.