Guidelines.
- All advertising must be neutral and avoid even the hint of a preference or bias. Obviously, it must be truthful and not misleading.
- Avoid language that can be construed as impliedly discouraging certain protected classes such as families:
- "single professional" (implies bias against families or couples);
- "quiet couple" (implies bias against families or groups);
- “husband and wife” (implies bias against unmarried couples);
- Restrictions/limitations regarding source of income, such as Section 8 vouchers.
- Remember that “pets” are different from “assistance animals;”
- Limitations on size of pets are ostensibly prohibited – my belief is that if the pet is one that the landlord’s liability insurance company will not insure against is arguably OK. Check with your own lawyer. (Choice of evils analysis: Better to reject a tenant’s large dog and face a potential Fair Housing claim, than accept the large dog and face a multi-million-dollar damage claim for a grievously mauled child.)
What Is Permissible. Landlords should focus on describing the physical characteristics, amenities, and objective details of the property and neighborhood. This includes:
- Property Specifics:
- Number of bedrooms and bathrooms (Be careful here: Oregon tenancy occupancy limits generally follow a "2 people per bedroom plus 1" guideline but must be reasonable and based on health/safety. See ORS 90.262; Courts consider bedroom size and unit size when deciding what occupancy limits are reasonable. See, ORS 659A.421;
- Specific features (e.g., "hardwood floors," "stainless steel appliances," "washer/dryer," "fenced backyard," "fireplace," "pool" etc.);
- Square footage or general size of the rooms;
- Availability of on-site amenities such as a laundry, storage facilities, and off-street parking.
- Financial Information, Rules, Etc.:
- Rental prices and security deposits;
- Lease and Monthly tenancies;
- Policies on pets and smoking;
- Utilities (included vs. excluded);
- Contact information and showing instructions.
- Location and Lifestyle:
- Specific location or neighborhood (e.g., Downtown” Rural, etc.);
- Proximity to local amenities, public transportation, schools, parks, shopping, libraries, and restaurants;
- Walkability of the area.
Smoking? It is legal for Oregon landlords to prohibit smoking or vaping in rental properties, including outdoor areas and common areas on the property. Smoking and vaping are not federally or state-protected rights. But the landlord’s policy must be clearly stated (e.g., prohibited everywhere, only in limited areas, etc. Be specific!). Such prohibitions may also be enforced against the use of recreational marijuana and similar substances. (This assumes the landlord is not attempting to implement a non-smoking policy retroactively against tenant-smokers who were admitted before any such policies were enacted.)
A landlord may prospectively prohibit medical marijuana use, as well. The reason is that since it is still illegal under federal law, and federal law preempts conflicting state law, landlords can regulate its use on their properties - at least until federal law changes. (See: discussion in my online article here.) Note that opinions may differ. Landlords are encouraged to check with their own legal counsel on this issue.
Additional Resources. For further information, Landlords and Managers may also consult Oregon Rental Housing Association and/or the City of Portland for the latest rules and best practices.
The above information is general in nature and should not be construed as legal advice. MHCO Members should consult with their own attorney if they have any questions or concerns.
