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WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) makes it illegal to refuse to rent or deny a person housing because of his or her race, color, religion, sex, handicap (disability), familial status, or national origin. Although many states also ban discrimination on the basis of a person’s criminal record, this isn’t one of the protected grounds listed in the FHA.

Question:How can criminal record discrimination be illegal if the FHA doesn’t mention it?

Answer:Refusing to rent to people with a criminal record may be an indirect form of racial, national origin, and other forms of discrimination the FHA does prohibit.

Explanation: The reason for this has to do with the so-called rule of “disparate impact” discrimination that holds that policies and practices that are neutral on their face may still be illegal if they have the effect of discriminating against a group the law protects. This is true even if there was no intent to discriminate.

Example: A fire department policy bans any persons from being promoted to the position of chief unless they have at least 10 years of service in the department. On its face, this seems like a perfectly neutral, legitimate, and nondiscriminatory policy. The problem is that the department began hiring women only five years ago. Before that, it was exclusively male. As a result, the 10-years’ service policy has the effect of excluding women from being promoted to chief and is thus a form of illegal sex discrimination.

Although the potential of disparate impact liability for criminal history restrictions began as an employment principle, the U.S. Supreme Court and HUD have made it clear that it also applies to fair housing. In 2016, HUD published guidance to address the issue. Citing the widespread racial and ethnic differences in the U.S. criminal justice system and statistics showing that across the nation, African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionately higher rates than whites with respect to their share of the general population, the guidance states that barriers to housing based on criminal records are likely to have disproportionate impact on minority home seekers.

The HUD guidance also explains what owners can do to avoid disparate impact liability when carrying out criminal history screening. The eight rules below come from the guidance and later court cases applying them to actual situations.

8 RULES FOR AVOIDING DISCRIMINATION

WHEN SCREENING APPLICANTS’ CRIMINAL BACKGROUNDS

Rule #1: Continue Performing Criminal Background Checks

The starting point is to understand that nobody is saying that you must stop performing criminal background checks on applicants. On the contrary, apartment communities have every right to establish their own policies governing who may live there, as long as their standards are fair, reasonable, and nondiscriminatory—that is, that they apply equally to all applicants regardless of race, color, religion, sex, familial status, national origin, disability—or any other personal characteristic protected under state and local fair housing laws. The FHA also specifically excludes individuals who pose a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

Moreover, courts and HUD have long recognized owners’ rights to perform background screening to ensure applicants meet their legitimate rental criteria. That includes criminal background checks to the extent that they serve the owner’s legitimate business interest in:

• Protecting their property and the safety and property of their residents;
• Ensuring that applicants can pay the rent; and
• Retaining other residents who may be fearful and leave the community if a person with a criminal record is allowed to live there.

Bottom line: The liability risk stems not from performing criminal records screening but how you perform it, including not only your screening criteria but how you use the results to make decisions about applicants.

Rule #2: Don’t Do Criminal Checks Until You Determine the Applicant Is Otherwise Qualified

Don’t perform criminal background checks unless and until you complete the credit, rental history, and other necessary checks and determine the applicant is qualified. This rule is based not so much on law as practical considerations. In addition to the legal complications, criminal checks costs time, money, and administrative effort. So, saving them for the end of the process pending the results of the other checks will enable you to avoid having to do them for applicants who aren’t qualified anyway.

Example: Texas fair housing consultant Ann Sadovsky relays the story of an owner/client facing an applicant who wanted to share the apartment with an unusual and highly undesirable pet, a 500-pound hog. “The poor client was all upset about a messy fight over the community’s no-pets policy,” Sadovsky relates. “I told him not to sweat it until after the applicant got a clear credit and rental history report.” In fact, he didn’t—and the hog issue became completely moot.

“Not that I’m comparing a hog to a person with a criminal record, but the principle of not bothering to engage with an applicant on an issue until verifying that he or she’s qualified to rent from you applies to criminal background checks,” notes Sadovsky.

Rule #3: Establish Clear, Nondiscriminatory Guidelines for Criminal Record Checks

Relying on third-party screening companies to perform actual criminal record checks the way most owners do will spare you the headaches of gathering the data yourself. But it’s how you use that data that will determine your liability. Specifically, you must make consistent, reasonable, and nondiscriminatory decisions about whether to reject applicants because they have a criminal background. The remaining rules in this lesson are designed to help you create and implement rental policies enabling you to meet that crucial compliance challenge.

Let’s start with the general rules governing when denying housing opportunities to people with a criminal record runs afoul of the FHA. The HUD guidance sets out three key questions owners should ask to evaluate whether their criminal record check policies are legally sound:

1. Does the policy have a discriminatory effect? As we explained above, excluding applicants for having a criminal record may have the effect of discriminating. But in a court or HUD administrative proceeding, the person claiming discrimination has the burden of proving that the policy under question actually does cross the line.

The most common way to show discriminatory effect is by using national, state, and/or local statistics showing that African Americans, Hispanics, and other minorities have disproportionately high arrest and conviction rates, as compared to white persons. While it doesn’t necessarily prove that a particular policy had a discriminatory effect, the HUD guidance suggests that such statistical evidence is generally enough to deny an owner’s motion to dismiss and allow the case to go to trial. And that’s crucial because it changes the negotiating leverage and pressures the owner to shell out a substantial sum of money to settle the case. 

By the Numbers:

Using Statistics to Prove Discriminatory Effect

HUD cautions owners to be aware of the discrimination risks associated with rental policies that exclude applicants because they have a criminal background. The guidance cites national statistics showing that racial and ethnic minorities face disproportionately higher rates of arrest and incarceration. According to those statistics, African Americans and Hispanics are arrested at a rate of more than double and incarcerated at a rate of nearly three times their proportion of the general population. Imprisonment rates for African-American males is almost six times greater than for white males, and for Hispanic males, it’s over twice that for non-Hispanic males.

Keep in mind that these are just national statistics. State and local statistics exhibiting similar patterns may be even more compelling in demonstrating that criminal record exclusion has a disproportionate and discriminatory effect on minorities. And, of course, most devastating of all to an owner is statistical evidence showing that the particular community’s policies had the effect of excluding minorities.

2. Is the policy necessary to achieve a substantial, legitimate, and nondiscriminatory interest? The second crucial question is whether a policy of denying housing to people with a criminal record is necessary to achieve what HUD refers to as a “substantial, legitimate, and nondiscriminatory interest” (which we’ll refer to as the “substantial interest standard”). Explanation: As noted above, it’s legitimate for owners to want to keep dangerous people out of their community. But, the guidance warns, this general interest and bald assertions based on stereotypes that individuals with criminal arrests and convictions pose a greater risk than people without criminal records isn’t enough. To justify exclusion on the basis of a criminal record, the owner must be able to prove that the policy actually does assist in protecting resident safety and property. Accordingly, blanket policies won’t work, and owners must make decisions based on the particular circumstances of the case, including how long ago the crime happened and what kind of conduct it involved. We’ll delve into these crucial details below.

3. Is there a less discriminatory alternative available? Even if the owner can show that its criminal record policy meets the substantial interest standard, it may still be unlawful if the person complaining can prove that the owner could have served that interest by adopting another policy or practice that has a less discriminatory effect. As we’ll discuss in Rule #7, such alternatives may include performing an individualized assessment of applicants found to have a criminal record.

Rule #4: Don’t Impose a Blanket Ban on Applicants with a Criminal Record

Now let’s talk about the specific things you can do to ensure that your own policy meets the criteria we explained in Rule #3. First rule of thumb: Don’t implement predetermined, blanket rules, such as automatically rejecting any applicant with a criminal record.

Remember that all forms of criminal conduct won’t satisfy the substantial interest standard justifying denying a person housing because of their criminal records. Thus, blanket policies that treat all criminal conduct the same way are highly problematic. They also make you a sitting duck for a statistical analysis showing that minorities are more apt than white persons to get arrested or convicted of a crime as compared to their percentage of the general population.

Example: A New York City community rejected an African-American applicant after learning of his felony conviction. The community claimed that its policy of automatically rejecting anyone with a felony conviction was nondiscriminatory because it applied to all applicants regardless of race, etc. The applicant conceded that the policy was neutral on its face but contended that it had the effect of racial discrimination, citing “empirical evidence showing that nationally, and in New York State, blanket bans on eligibility, based on criminal history, result in the denial of housing opportunities at a disproportionate rate for African Americans and minorities.” Although the applicant would still have to prove his claim at trial, the court found that the statistical evidence was enough to warrant holding a trial and dismissed the owner’s motion to dismiss [Jackson v. Tryon Park Apartments, Inc. et al, No. 6:2018cv06238 - Document 17 (W.D.N.Y. 2019)].

Rule #5: Reject on the Basis of Criminal Convictions, Not Arrests

While you must make decisions about whether to rent to applicants with criminal records on a case-by-case basis, there are a few bright line rules. One of them is that rejection is justified only when applicants have actually been convicted of a crime; merely being arrested isn’t enough.

Explanation: As the HUD guidance explains, an arrest, on its own, is merely an accusation and doesn’t prove that the person actually did anything wrong. Under our justice system, defendants are presumed innocent. To establish guilt, the criminal prosecutor must persuade the court or jury to convict by proving the charge beyond a reasonable doubt. Many people who get arrested are acquitted; others get their charges dropped and don’t even go to trial.

The problem with arrest records is that they often don’t show how the case was decided and whether the individual was prosecuted, convicted, or acquitted of the charges. As a result, the guidance clearly states that an arrest is not a reliable basis for determining whether a particular individual poses a potential risk to safety or property in applying the substantial interest standard.

Exception: There’s some wiggle room for eviction when a criminal background screening reveals an arrest. What you can do, according to legal experts, is ask about the underlying facts of the case. And even if the arrest hasn’t yet resulted in a conviction or conclusive and final finding of guilt, you may still be able to reject the applicant if:

• The applicant admits to committing a crime; or
• The police or other witnesses provide reliable and legally admissible information showing that a crime was committed.

Rule #6: Distinguish Between Dangerous and Non-Dangerous Convictions

The mere existence of a conviction isn’t enough to get you over the substantial interest hurdle. That’s because all crimes aren’t the same. The owner’s responsibility, the guidance clarifies, is to distinguish between criminal conduct that does indicate a risk to resident safety or property, and criminal conduct that doesn’t rise to that level. The good news is that the guidance sets out clear criteria for making such determinations:

Felonies vs. misdemeanors. The crime must be serious. And while the guidance doesn’t expressly say this, the consensus is that the conviction must be for a felony rather than a misdemeanor. But, as the NYC owner learned in the Jackson v. Tryon Parks Apartments case discussed in Rule #4 above, a blanket rule excluding any person with a felony conviction doesn’t work. The owner must take other factors into consideration.

Type of felony. The next factor to consider in applying the substantial interest standard is the nature of the felony a person was convicted of committing. Although the guidance doesn’t specify the types of felonies that owners may reasonably consider as posing a danger to safety and property, legal experts and case law suggest that the list includes convictions for:

• Illegal manufacture or distribution (but not mere possession) of drugs and other specified controlled substances;
• Sexual assaults;
• Other violent crimes like homicide, assault and battery, domestic violence, robbery, and false imprisonment; and
• Arson, vandalism, and other crimes causing significant damage to property.

How long ago the person committed the felony. The other key factor is how much time has passed. The more recent the conviction, the greater the justification for considering the person who committed it as posing a risk of danger to safety and property. Based on court cases, the unofficial window is seven years. Exception: Sexual assault convictions don’t have a shelf life. In other words, they may be grounds for denying an applicant housing regardless of how long ago they occurred.

Rule #7: Assess Each Felony Conviction Case Individually

Following Rules #4, #5, and #6 should enable you to ensure that your criminal background screening policy meets the first two of the three HUD standards, namely, the discriminatory effects and substantial interest standards. But the HUD guidance says there’s one more thing you should do to meet the third standard—that is, lack of less discriminatory alternatives: Incorporate a process for assessing each case individually that takes into account mitigating factors explaining why the person has a criminal record, such as:

• The circumstances surrounding the criminal conduct;
• How old the person was when he or she engaged in the conduct;
• Evidence that the individual has maintained a good tenant history before or after the conviction or conduct; and
• Evidence of rehabilitation efforts.

Example: A Pennsylvania public housing authority rejected an African-American applicant after the criminal records check revealed that he had pleaded guilty to involuntary manslaughter under its policy calling for mandatory denial of persons convicted of homicide offenses. The applicant claimed that the policy discriminated on the basis of race, applying the same basic logic that the applicant in the Jackson v. Tryon Parks Apartments case used to beat back the owner’s motion to dismiss. But this time the argument didn’t work.

The difference: The PHA gave rejected applicants 30 days to dispute the accuracy and relevancy of the information on which a mandatory denial was based. During the hearing, the applicant clarified that the conviction was for a misdemeanor rather than a felony. As a result, the PHA reversed its decision on the criminal conviction rejection. The problem for the applicant was that the PHA had a second reason for rejecting him, namely, a judgment awarding his previous landlord $871 in unpaid rent. And since the applicant didn’t present any evidence or mitigating information about the nonpayment judgment, the court found that the PHA had a legitimate, nondiscriminatory reason to reject the applicant and tossed his discrimination claim [Hall v. Philadelphia Housing Authority, Civil Action No. 17-5753, U.S. District Court, E.D. Pennsylvania, April 5, 2019].

Rule #8: Apply Your Screening Policy Consistently

So far, we’ve been talking about unintentional discrimination on the basis of discriminatory impact. But be aware that rejecting applicants because they have a criminal record may also constitute intentional discrimination. This can happen if you apply your policy inconsistently to people with comparable criminal histories differently based on their race, national origin, etc.

Example: A federal court ordered a Tennessee community and its property management company to pay $42,250 in damages for selectively applying its policy of disqualifying people with felony convictions to minority applicants. The evidence showed that the defendants denied an African-American applicant because of his criminal record while approving the applications of two white applicants with similar, and what should have been disqualifying, felony convictions [U.S. v. Dyersburg Apartments, Ltd., (W.D. Tenn.), Aug. 13, 2019].

The guidance lists other examples of inconsistent application of criminal records policies and practices showing intentional discrimination:

• A community has a policy against renting to people with certain convictions, but makes an exception for white, but not African-American, applicants; and
• A leasing agent helps a white applicant get his application approved despite his potentially disqualifying criminal record, but doesn’t provide the same assistance to an African-American applicant.

Question:  A cable company has offered to install all of the equipment and infrastructure for park-wide cable services at no charge.  We are to receive a one-time payment in exchange for which we give the company an exclusive right to market their services to our residents. They have asked that we sign a written contract which is recordable.  The amount paid is confidential and that portion of the agreement may not be recorded.  There are several provisions that cause us some concern, one of which is whether there might be some violation of the Oregon landlord-tenant law.  What is your opinion?

Answer:  Without actually seeing the contracts, I can only address what I know about such agreements in general.  To that extent, this response must be considered general in nature, and not specific to any particular cable company or park.  I do not practice any form of law that deals with the regulation of utilities, so cannot comment on whether this arrangement complies with those laws.  You may wish to contact the appropriate regulator, just to make sure.

Oregon Landlord-Tenant Law.  In general, I know of no specific laws that would be directly violated by such agreements.  Cable services are covered under the law as "utilities. -"  Accordingly, ORS 90.532 governs, and you should review it.  I am assuming by your question, that the cable company has the right to contact the park residents and market their services.  Your question does not mention any costs to the park, so I assume the monthly service would be charged directly to the residents, if they choose to subscribe.  It is important that you become familiar with the subscription policies and fees, especially whether they are consistent with those provided outside the park.  Remember that you will be giving the company a "captive audience"and it may be difficult, if not impossible, to terminate the service, once you are under contract.  Will the marketing occur before installation of the infrastructure.  Will there be any minimum number of subscribers?  Will rates change and if so, could residents demand you change companies because their rates are not competitive?  How easily may the residents terminate their subscription services?

If you currently provide some type of cable service, either from this company or another, what is your billing arrangement?  If it is buried in the base rent, you may have to deal with whether you should treat this arrangement like a utility "conversion,"such that you must pull the charge out of your base rent, so that the residents are not double-billed.

Park Documents.  What do your rules and rental agreements say?  Is there anything in them that could run afoul of the agreements the company is asking you to sign?  While nothing specific comes to mind that could pose a problem, the best way to avoid the unexpected is to verify that there is no risk of some violation of the park documents by the cable agreements, or vice versa. 

General Observations. Here is a checklist of general issues you may wish to consider:

• Confidentiality always concerns me.  Why does the company want it?  I suspect they don't want parks "comparing notes"on the deal they cut with their company.  While that is understandable, it poses the risk of inadvertent disclosure.  What is the "penalty"for disclosure?  Do you have to refund the initial payment made?  If so, does that mean the deal is over, or does the remainder of the agreement survive - that is, does the company still have the exclusive right to provide services in the park?  I think I would like to see some language which penalized only intentional or willful disclosures (assuming you have any ability at all to negotiate some of these terms).

• I assume the company will own all of the equipment.  Are there certain limitations on their ability to come and go inside the park?  Specifically, is there a risk of noise, inconvenience, traffic issues, etc?  How long will installation take?  Will the park grounds be restored to their original condition?  Again, remember, once these agreements are signed, you're at the company's mercy on what they do.  Make sure their reputation for service and cooperation is good. 

• What is the term of the agreement? I suspect it contains a provision for automatic renewal, absent one party or the other giving notice of termination?  While that is fair, you have to carefully read the agreements to see if there is any right to terminate without cause.  In other words, can you get out of the deal "just because,"or does there have to be a breach? 

• If either side terminates does the initial payment have to be returned to the company?  If so, you might consider making that payment "nonrefundable"after a certain length of time, say five years.  You want to make sure that if the agreements become unenforceable due to some law or similar situation over which you have no control, that you do not have to refund the money.  That is why I suggest a period of years, after which the money becomes refundable.

• Recording of any agreement is significant.  Once recorded, it will act as a sort of restrictive covenant on the land, and will continue ad infinitum.  In your case, I suspect that the recorded agreement will act as a sort of "floating"easement, giving the company general rights of ingress and egress to install, maintain and repair the equipment.  If the easement rights are not specifically defined, you may want to make sure you understand, in advance, where the equipment will be located.  You want to make sure there will be no risk that the company's right of access interferes with the residents' spaces.  It's easy to record such agreements on the public record, but much more difficult to remove them in the event of a dispute.  Do either of your agreements address that issue?  If you part ways with the company, are they obligated to remove their easement rights from the public record (e.g. by a recorded notice of abandonment of their rights under the agreement)?   Will you have to pay any costs to have this done?

• You want to make sure that if the agreement is terminated the equipment must be removed promptly and the land returned to its general pre-installation condition.

• What about liability?  It is not uncommon for these agreements to have cross indemnification provisions, whereby you agree to indemnify them for your negligence, and they do the same. 

• Are there limitations on damages in the agreement?  Most companies attempt to place limits on the kinds of damages that may be recovered (e.g. prohibitions on punitive damages).  Generally, that is fine, but just make sure that these limits apply just to park ownership, as you cannot limit the residents' right vis a vis the cable company.

• If the company has an exclusive right to market its services to the residents, you want to make sure you know what their marketing efforts will consist of.  You want to make sure it will not include personal solicitation to residents.

• Check with other parks to find out whether they have similar agreements.  I acknowledge that they may not talk about it due to the confidentiality provisions, but suspect the agreement that may be recorded is not "confidential. -"  Your main concern should be whether other park owners are satisfied with this particular company. 

• Before jumping into anything, find out if there are competing companies that may have similar programs.

• How will you deal with residents if they ask you whether you received any payment for giving the company its exclusive rights?  The best response might be that your practice is not to discuss the park's financial arrangement with vendors.  Nevertheless, you should expect someone might press the issue.

• How will the exclusivity provisions in the agreement affect a resident's right to have satellite service?  Does the agreement deal with the possibility that satellite providers may want to market in the park?  You may have some difficulty in preventing a resident from signing up for such service, so this issue should be addressed with the cable company ahead of time.  "Exclusive"is a pretty broad term.  Find out what it entails and make sure that it is sufficiently spelled out in the agreement before you sign.

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ATTORNEY.

But when all is said and done, the one thing that takes most of the community manager's time is handling guideline violations. How do you, as an extremely busy person, do this with only a minimum amount of time invested? How do you handle residents as a fragile yet necessary part of your business and still get everything else done without making them feel that they are an imposition to you? How do you notify and discuss a guidelines violation with a resident without starting World War III? And, most importantly, how do you facilitate correction of outstanding violations in a timely manner.

Steps Toward Resolution

As with anything, there are no easy answers to these questions. Resolving problems must start before there is a problem. That means starting with the administrative side of your community. For a first step, look at the document you use for your community guidelines. Is it clearly written? Are the guidelines reasonable? Are they enforceable?

The second step is the orientation process. It is imperative that as a community manager, you take time to discuss certain items with residents after they have been approved. The lease, the terms of the rental agreement, and the specific requirements and provisions contained in the guidelines are high on the list of items to discuss. Is this a time-consuming process? Most definitely. And is there an alternative? None that are really acceptable. New residents will probably sign a statement that says they received the guidelines, have read them and agree to abide by them, even if they haven'tread them.

This is the start of a major problem for you as a community manager. They will most likely not go home and read the guidelines and, therefore, won't call you with any questions, because they can't possibly have any. This is the beginning of a major problem for you as a community manager. Your first realization that there is a problem should be when you see them in violation of one or more of the guidelines. When they receive a notice, a phone call, or a visit from you, one of their first comments is almost sure to be, "No one told me I couldn'tdo that," followed by an incredulous look of disbelief.

As a community manager, you are now in the position of not only enforcing your guidelines, but defending and explaining them as well. This is not an enviable position,

because rarely do such interactions end quickly or peacefully. Residents feel insulted, defensive and that they must somehow come out on top in a contest of wills. A community manager that comes on too strongly, that threatens eviction over the littlest thing, or that appears to be unreasonable will not gain cooperation from this resident, now or ever.

The Nightmare Begins

Now you've begun a nightmare of a resident relations problem, and it's sure to affect resident retention. The simple act of discussing guidelines during the orientation process can usually eliminate most of this grief. Hand-in-hand with the discussion, the resident needs to acknowledge his responsibilities and agree to abide by the terms explained in the guidelines.

The acknowledgement was for years obtained in the form of a separate statement that the new resident signed.

This statement went something like: "The undersigned agrees that he has read and understands all requirements as presented in the guidelines, and agrees to adhere to the terms contained therein during the time he is a resident of this community."

A copy of the guidelines was then given to the resident for future reference. In reality, community managers usually cut corners in the presentation and discussion of the lease and the guidelines. The resident usually makes it eminently clear that he is trying to move, is in a hurry, and doesn'thave time for a lot of paperwork. What a shame for everyone. This is a resident who is headed for misunderstandings and a community manager who is headed for problems.

When discussing guidelines with a new resident, take time to talk about each and every term and provision. Then, request that the resident, and all adult members of the family, either initial or sign each page of the guidelines.

Laid Out in Black & White

When a resident violates one of the guidelines and you have those initialed pages, you have the ability to turn a potentially contentious situation into a routine notification process. It happens because you now are able to simply send a basic form letter that saying "It appears that you may have decided to alter your lifestyle in such a way that it no longer is aligned with the guidelines for this community. At the time you joined us as a resident, we discussed the guidelines that set acceptable parameters of behavior and responsibility for resident and management alike who live in (community name). Please call the office so that we may discuss your decision to change your lifestyle with you." Then, staple a copy of the initialed page with the violated guideline(s) currently being violated.

What happens is the realization on the part of the resident that he is caught dead to rights. There is no wiggle room here. There is no need for him to try to defend his actions or to tell you that he didn'tknow he was violating a guideline. And, there is no need for him to feel like he is backed into a corner and has to become aggressive or belligerent. Your notice simply acknowledges that he has made a choice, and asks for him to take time to discuss it with you.

Remember, the best resident relations program can be compared to a round room: If you don't back a resident into a corner where he has to defend himself you can truly have a productive conversation, mutual respect, and a meeting of the minds. If you force him to lose face; if you turn this type of situation into a confrontation where the battle lines are drawn; or if you place a large amount of importance on the "winning" of every disagreement, you've lost the resident relations game before you even started.

Resolve those guideline violations that frequently happen by using peer pressure, rewards, public recognition, and, once in a while, fear. By using all

these techniques and more, you can truly enforce your guidelines and build your resident relations program to new heights.

Yours will be the community run by a manager with a reputation for being fair, honest, and consistent. The time and emotional energy you spend on guideline violations will be greatly reduced, and the time you do spend in the future will be much more pleasant.

Where The Problems Lie

Which of your community guide-lines are violated the most often? What problems do you need to eliminate in order to better meet the goals of your community owner or to have a more professionally operated community?

Among these are reducing receivables; out-of-compliance clotheslines; the building of decks that are required as part of the initial installation but are still not done 60 days later; installation of skirting that is supposed to be done by a third party and remains undone; residents who ride bicycles on the community streets without paying attention to motorists; and residents who "forget" the streets have a speed limit and are not part of the Indianapolis Motor Speedway.

Answer: All good questions, and ones that I have not addressed for some time. There are several statutes that come into play:

90.514 Disclosure to prospective tenant of improvements required under rental agreement.

(1) Before a prospective tenant signs a rental agreement for space in a manufactured dwelling park or for a converted rental space, the landlord must provide the prospective tenant with a written statement that discloses the improvements that the landlord will require under the rental agreement. The written statement must be in the format developed by the Attorney General pursuant to ORS 90.516 and include at least the following:

(c) Identification of the improvements that belong to the tenant and the improvements that must remain with the space.

90.730 Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.

(7) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

(a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

(b) The agreement does not diminish the obligations of the landlord to other tenants on the premises; and

(c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated.

90.740 Tenant obligations. A tenant shall:

(1) Install the tenant's manufactured dwelling or floating home and any accessory building or structure on a rented space in compliance with applicable laws and the rental agreement.

In summary, what these statutes, and other in ORS Chapter 90 mean, is the following:

• When the landlord rents a space, it includes all pre-existing structures located on the space, such as carports and sheds.
• Does this mean the carport or shed must be maintained by the resident? In my opinion, not unless the rental agreement or rules provide otherwise. And if they so provide, it must be clearly disclosed at the commencement of the tenancy. If the roof leaked and the resident's belongings were damaged, the landlord could have liability.
• If a landlord wanted to transfer ownership of the carport or shed, the arrangement should be clearly documented, including the duty to maintain, and the right to remove upon vacating the space.
• In terms of a "downside" I see very little so long as the responsibility going forward is clear; on the other hand, I see a "downside" in doing nothing, and then each side expects the duty of maintenance belongs to the other - and as pointed out above, if the structure leaks or has a fire, etc., the landlord could have liability.
• When a space changes hands, and you want to transfer the maintenance responsibility at that time, you can do so, as long as it's clear and fair. You cannot, for example, require that a shed that has maintenance problems, be rebuilt or be repainted.
• On the issue of reducing the rent, ORS 90.730(7), cited above, does refer to adequate consideration if the maintenance responsibility is shifted from the landlord to the resident. That may be true where you don't transfer ownership of the structure to the resident. But if you do transfer ownership, and the resident, that is adequate consideration (in my opinion), so long as it is in good condition, and the arrangement was not done solely to avoid having to perform repairs. I would want to make sure that the structure was in good condition at the time, fully inspected by the resident, and the transaction clearly documented.
• As for the sharing of carports, one owned and the other not, it would be nice to get clarity on this between the two residents. The same rules apply, i.e. if the structure is in good repair, and the non-owner is willing to take ownership and assume maintenance responsibility, it would be better than what you have right now. As it stands, you, technically, have maintenance responsibility for the portion of the structure that is park-owned. This likely makes for confusion when repairs, such as roofing and painting are required.

30-day and 60 Repair Periods. If the disrepair or deterioration to the exterior of the home or related structures creates a risk of imminent and serious harm to dwellings, homes, or persons in the Community (e.g. dangerously unstable steps, decking or handrails), there is a 30-day period to repair.

For all other (i.e. non-dangerous) conditions, the minimum period to cure is now 60 days. As before, the new Form 55 provides a place for landlords and managers to specifically describe the item(s) in need of repair.

Trap: If there is imminent risk of harm, and the landlord/manager intends to give the tenant 30 days rather than 60 days, SB 277A requires that they not only describe the item(s) in disrepair, but also describe the potential risk of harm. There is little question but that the failure to do so would invalidate the notice. The new Form 55 prompts users to describe both the violation and the potential risk of harm.

Tip: The new Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. Remember, you cannot expect the tenant to be a mind reader - just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity.

Service of the Notice. Most landlords and managers are familiar with the various methods of effecting service of notices. However, if in doubt, check the statutes. They are contained at ORS 90.155 (Service or delivery of written notice) and ORS 90.160 (Calculation of notice periods). You can never be too careful; a notice giving a single day less than legally required, can result in the case being thrown out.

Statutory Definitions. The new ORS 90.632 defines "disrepair" and "deterioration", and for the most part, they are quoted in MHCO's new Form No. 55:

• Additional 60 days. If the necessary repairs involve exterior painting, roof repair, concrete pouring or similar work, and the weather prevents that work during a substantial portion of the existing 60-day period to cure;
• Additional 60 days. If the nature or extent of the correction work is such that it cannot reasonably be completed within the 60-day cure period due to the type and complexity of the work and the availability of necessary repair persons;
• Additional 180 Days (Six Months). If the disrepair or deterioration existed for more than the preceding 12 months with the landlord's or manager's knowledge, or rent had been accepted over that time.

Tip: The law requires the tenant to make a written request for an extension of time if it is sought in a reasonable amount of time prior to the last day of the 60-day compliance period. There are two issues, however: (a) How long an extension is the tenant asking for - 30 days, 40, 50, or 60? (b) Obtaining an extension also extends the deadline for compliance. An oral extension does not nail down the additional time in writing and may not identify the new deadline. Accordingly, landlords and managers should insist on a written request from their tenants and should consider putting in writing: (a) The amount of time granted; and, (b) The new deadline. That way there can be no confusion about the length of the extension and the outside date that compliance must be completed.

Issue: Does SB277A contemplate that following the request for a 60-day extension, management may agree to less? Possibly, since new law provides that the need for the extra time must be due to certain conditions that prevent that work from occurring during a substantial portion of the existing 60-day period. If confronted with this situation, management should consult with legal counsel.

Notice of Correction. If the tenant performs the necessary repairs before the end of the compliance date, or extended compliance date, they have the right to give the landlord/manager a written notice that the issues have been corrected. There is no fixed time for management's response as to whether the repairs have been satisfactorily and timely performed; it is sufficient if it is within a reasonable time following the tenant's written notice. However, if a tenant gives this notice to management at least 14 days prior to the end of the completion deadline, or extended deadline, their failure to promptly respond is a defense to a landlord's termination of tenancy.

Sale of Home; Prospective Purchasers. Prior to enactment of SB 277A, Oregon law permitted a tenant to sell their home while the disrepair/deterioration notice was outstanding, permitting the landlord/manager to give a copy of it to the new perspective purchaser, and providing that the sale would not automatically extend the compliance period. Essentially, the new tenant stepped into the shoes of their seller, and became subject to the same notice and time periods.

The practical result of this protocol was that as between the tenant and the prospective purchaser, they could negotiate any price reductions for the necessary work, and the new rental agreement would contain a provision requiring that it be completed within the time prescribed in the original notice, or a permitted extension. That is no longer the case under the new law.

SB 277A now provides that at the time of giving a prospective purchaser the application and other park documents, the landlord/manager must also give them the following:

• Copies of any outstanding notices of repair or deterioration issued under ORS 90.632;
• A list of any disrepair or deterioration of the home;
• A list of any failures to maintain the Space or to comply with any other provisions of the Rental/Lease Agreement, including aesthetic or cosmetic improvements; and
• A statement that the landlord/manager may require a prospective purchaser to complete the repairs, maintenance and improvements described in the notices and lists provided.

Tip: Note that the new law combines not only ORS 90.632 notices relating to damage and deterioration of the home or structures, but also a list of failures to maintain the space and other defaults, including aesthetic or cosmetic improvements. This may or may not include 30-day curable notices under ORS 90.630 for failure to maintain the space. But in both cases (i.e. defaults relating to structures, and those relating to the space), the new tenant appears to get the six-month period to comply.

This represents and interesting shift in Oregon law, and possibly for the better. Many parks historically gave "resale compliance notices" to tenants who were placing their homes up for sale. However, until now, there was some question whether a landlord could "require" as a condition of resale, that the existing tenant make certain repairs - absent having first sent a 30-day notice.[1] Now, under the new version of ORS 90.632, it appears landlords may make that list, and let the tenant/seller know that unless the work is completed before sale, it will be given to the tenant's purchaser upon application for tenancy.

So, if the landlord/manager accepts a prospective purchaser as a new tenant, and notwithstanding any prior landlord waivers of the same issue(s), the new tenant will be required to complete the repairs, maintenance and improvements described in the notices and lists.

Under Section (10) of the revised statute, if the new tenant fails to complete the repairs described in the notices within six months from commencement of the tenancy, the landlord "may terminate the tenancy by giving the new tenant the notice required under ORS 90.630 or ORS 90.632." This appears to say that a new tenant who fails to complete the items addressed in the notices and lists within the first six months, will thereafter be subject to issuance of a curable 30-day or 60-day notice to complete the required repairs. Accordingly, this is how the new MHCO Form 55 will read.

What if the landlord had already given the seller a written notice under one of these two statutes, but the compliance period had not yet run at the time of sale? The new statute does not carry over the unused time to the new tenant/purchaser, since under the new law, they will have received essentially the same information upon application, and will now have six months to complete.

Tip: Nonetheless, it is still a good idea to give a detailed 90.632 notice to a tenant before sale. That way, the very same repair issues will be in front of the landlord, existing tenant and prospective purchaser at the same time. It will now become a matter of negotiation between tenant/seller and tenant/buyer as to who will perform the repairs, and when.

Repeat Violations. If one or more of the items that caused issuance of a 30-day or 60-day notice under ORS 90.630 or 90.632 recurs within 12 months after the date of issuance of that notice, the tenancy may be terminated upon at least 30 days' written notice specifying the violation(s) and the date of termination of tenancy. In such case, correction of the disrepair or deterioration will not prevent a termination of the tenancy.

• As under the prior law, a copy of the disrepair and deterioration notice may be given by the landlord/manager to any lienholder of the tenant's home.

And darestillrequiredtopayrentuptothe

• : If the rent tendered by the tenant covers days that extend beyond the deadline for compliance, or any permitted extension thereof, it should be returned to them within ten (10) days after receipt, pursuant to ORS 90.412(3). This will avoid a waiver of termination of the tenancy described in the notice, should the tenant fail to timely perform the required work.

Conclusion. Members will see that due to the added complexities of ORS 90.632 (e.g. risk of harm vs. non-risk of harm violations, added detail for explanations, prospective tenant disclosures with application, etc.) the new Form 55 is longer than before. However, despite the added length, we believe it remains user-friendly.

[1] This is because ORS 90.510(5)(i) provides that the rental or lease agreement for new tenants must disclose "(a)ny conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

10 Essential Rules for Avoiding Fair Housing Trouble

This month, we highlight 10 essential rules to help you to comply with fair housing law. Housing discrimination has been outlawed for more than 50 years, but all too often communities still find themselves on the wrong side of the law and are forced to pay out thousands—and in some cases millions—in settlements or court awards, civil penalties, and attorney’s fees to get themselves out of fair housing trouble.

In this article, we’ll provide an overview of fair housing requirements and offer 10 essential rules to help you ward off fair housing problems at your community. 

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status. In a nutshell, the FHA prohibits communities from excluding or otherwise discriminating against prospects, applicants, and residents—as well as anyone associated with them—based on any of these protected characteristics.

The FHA also bans discriminatory statements—including advertising—that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. And the law prohibits retaliation against anyone for exercising his or her rights under fair housing law or assisting others who exercise that right.

FOLLOW 10 ESSENTIAL RULES

TO AVOID FAIR HOUSING TROUBLE

Rule #1: Don’t Discriminate Based on Race or Color

The FHA bans discrimination based on both race and color, two separate but closely related characteristics. In general, race refers to a person’s physical appearance and color refers to a characteristic of a person’s race, so discrimination claims based on color are often coupled with claims based on race.

Be sure to give prospects the same information about availability and the terms and conditions of tenancy, such as screening criteria, rental terms, and any other relevant information. Under the FHA, it’s unlawful to deny housing based on an applicant’s race or color by providing different and false information about terms, conditions, and availability of rental properties.

Example: In September 2019, the owners and managers of two New York apartment buildings agreed to pay $272,000 to resolve allegations of racial discrimination against African American prospects in violation of federal, state, and local fair housing laws. The Fair Housing Justice Center filed the lawsuit based on the results of a two-year investigation involving white and African American testers posing as prospective renters. The complaint alleged that the white testers were repeatedly shown available units and encouraged to apply, while the African American testers were routinely told that no apartments were available for rent.

It’s also important to apply the community’s policies and procedures—including screening criteria—consistently without regard to race, color, national origin, or other protected characteristics. Whatever your policy on criminal background checks, for example, applying it only to applicants who are members of racial or ethnic minorities, but not to white applicants, is a sure way to trigger a fair housing complaint.

Example: In August 2019, the owners and managers of a Tennessee community agreed to pay $42,250 to resolve a race discrimination case alleging that they denied the rental application of an African-American applicant because of his criminal record, despite contemporaneously approving the rental applications of two white people with disqualifying felony convictions.

Tip: If your community has a policy to conduct criminal background checks, check to make sure it passes muster under HUD’s 2016 guidelines on the use of criminal records in conventional and assisted housing communities. The HUD guidance doesn’t prevent communities from screening applicants based on their criminal history, but you could trigger a fair housing complaint if the policy, without justification, has a disparate impact—or discriminatory effect—on minority applicants.

Rule #2: Don’t Discriminate Based on National Origin

The FHA prohibits discrimination based on national origin, which means the geographic area in which a person was born or from which his or her ancestors came. National origin discrimination means treating people differently because they or their family are from outside the United States, or because they have physical, cultural, or linguistic characteristics of persons from a foreign geographic area.

Example: In March 2019, the owners of a Minnesota rental home and a realty company agreed to pay $74,000 to resolve allegations that they refused to rent to a family of five adults and six minor children because they are Native American and Hispanic, and had minor children. HUD’s charge alleged that the housing providers discouraged the family from renting the six-bedroom home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.

“Denying a family housing because of their ethnicity or familial makeup not only robs them of a place to call home, it violates the law,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Tip: In September 2016, HUD issued new “Limited English Proficiency” (LEP) guidance on how fair housing law applies to claims of housing discrimination brought by people because they don’t speak, read, or write English proficiently. Although people with limited English proficiency are not a protected class under the FHA, the law bans discrimination based on national origin, which is closely linked to the ability to communicate proficiently in English.

Rule #3: Don’t Discriminate Based on Religion

The FHA prohibits discrimination based on religion, so it’s unlawful to refuse to rent to people, or to treat them differently, because of their religion. For example, it’s unlawful to show favoritism toward applicants who share your religious beliefs—or bias against—those of other religious faiths.

Example: In December 2019, a California homeowners association (HOA) and its management company agreed to pay $40,000 to resolve allegations that they refused to permit a condo owner to display a religious object, a mezuzah, on her front doorpost because it violated community rules. A mezuzah is a small object placed on the doorpost of many Jewish homes in fulfillment of religious obligations. Allegedly, someone forcibly removed the mezuzah from her doorpost.

“A rule prohibiting the display of a mezuzah effectively makes that housing unavailable for many observant Jews,” said Kevin Kish, director of California’s Department of Fair Employment & Housing. “For that reason, DFEH interprets California fair housing law to require landlords and HOAs to permit residents to display mezuzah outside of their homes.”

Tip: The FHA doesn’t define “religion,” but fair housing experts believe it’s broad enough to prohibit discrimination against individuals who aren’t affiliated with a particular religion or don’t ascribe to particular religious beliefs. Treating people differently simply because they do—or do not—attend religious services or identify with a religious faith could lead to fair housing trouble.

Rule #4: Don’t Discriminate Against Families with Children

Fair housing law prohibits discrimination because of familial status, which FHA defines to mean households with one or more children who are under 18 years of age, where the child is living with:

• A parent,
• A person who has legal custody (such as a guardian), or
• A person who has the written permission of the parent or legal custodian to care for the child.

That covers not only traditional families with children, but also same-sex couples, single mothers or fathers, grandparents, and others who have permission to have a child under 18 living with them. It also includes pregnant women and those in the process of securing legal custody of a minor child, such as a foster or adoptive parent.

There’s a limited exception to the familial status provisions that allows senior housing communities to lawfully exclude children, but it applies only if the community satisfies strict legal requirements to qualify as “housing for older persons.” Otherwise, it’s unlawful to refuse to rent to families with children under 18 by enforcing an “adults-only” policy or adopting rules, such as an age limit, that would prevent children from living there.

Overly restrictive occupancy standards can lead to discrimination claims based on familial status because they limit the housing choices of families with children under 18. In general, the law considers two people per bedroom—regardless of gender—to be a reasonable occupancy standard, but there are exceptions based on the size or configuration of the unit and other factors.

Example: In September 2019, the owners and managers of a single-family rental home in Idaho agreed to pay $15,000 to settle allegations that they discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they have seven minor children. HUD’s charge alleged that when the couple met with the property manager about renting the home, he told them that the owners had set a limit of four children for the home.

“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

The FHA’s familial status provisions also protect pregnant women from discrimination, so it’s unlawful to require residents to move out because of the birth of a child.

Example: In April 2019, the owners and operators of a student housing community in Arizona agreed to pay a $2,000 civil penalty to resolve allegations of discrimination based on sex and familial status. The Tucson Civil Rights Division brought a charge of housing discrimination against the community after viewing an example lease agreement on the apartment complex’s website. Allegedly, a portion of the lease agreement stated that if a female resident became pregnant, then she must vacate the apartment upon or prior to the birth of the child.

Rule #5: Don’t Discriminate Based on Sex

Under the FHA, it is unlawful to discriminate against applicants based on their sex. Making decisions about whether to accept or reject applicants based on their sex can lead to costly fair housing litigation, particularly when combined with allegations of discrimination based on familial status or other protected characteristics. 

Example: In June 2018, the owner of a three-unit rental community in South Dakota agreed to a $3,000 settlement to resolve allegations of discrimination based on sex and familial status. The complaint alleged that the owner refused to rent a unit to a woman and her 17-year-old daughter because she would be concerned about any woman being alone there and she had “always rented to bachelors” [U.S. v. Kelly, South Dakota, 2018].

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex, according to HUD, which explains the two main types of sexual harassment:

Quid pro quo harassment occurs when a housing provider requires a person to submit to an unwelcome request to engage in sexual conduct as a condition of obtaining or maintaining housing or housing-related services. HUD offers these examples:

• A landlord tells an applicant he won’t rent her an apartment unless she has sex with him.
• A property manager evicts a tenant after she refuses to perform sexual acts.
• A maintenance man refuses to make repairs unless a tenant gives him nude photos of herself.

Hostile environment harassment occurs when a housing provider subjects a person to severe or pervasive unwelcome sexual conduct that interferes with the sale, rental, availability, or terms, conditions, or privileges of housing or housing-related services. HUD offers these examples:

• A landlord subjects a tenant to severe or pervasive unwelcome touching, kissing, or groping.
• A property manager makes severe or pervasive unwelcome, lewd comments about a tenant’s body.
• A maintenance man sends a tenant severe or pervasive unwelcome, sexually suggestive texts and enters her apartment without invitation or permission.

Combatting sexual harassment remains a top priority for federal enforcement officials, who continue to come down hard on owners and managers accused of sexual harassment against prospects, applicants, or residents.

Example: In August 2019, the owner and manager of rental properties in New York agreed to pay $850,000 to resolve allegations that he sexually harassed numerous female applicants and residents for nearly three decades. In its complaint, the Justice Department alleged that the landlord subjected former residents and prospects to unwanted sexual intercourse, sexual advances and comments, groping or other touching of their bodies without consent, and offers to reduce or eliminate security deposits and rent in exchange for sexual contact. The complaint also accused him of taking or threatening to take adverse action against residents when they refused or objected to his advances.

“The sexual harassment of the vulnerable female applicants and tenants in this case by their landlord is an egregious and intolerable violation of federal civil rights law,” Assistant Attorney General Eric Dreiband said in a statement. “The Department of Justice will continue to pursue any depraved landlords and others who prey upon vulnerable women” [U.S. v. Waterbury, New York, August 2019].

Rule #6: Don’t Discriminate Based on Disability

The FHA prohibits discrimination based on disability. Under fair housing law, disability means a physical or mental impairment that substantially limits one or more major life activities. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

Under the FHA, it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability.

Example: In October 2019, the owner and manager of a California community agreed to pay $50,000 to resolve a fair housing claim by a resident who alleged that her lease was illegally terminated based on her disability. In her complaint, the resident claimed that the community terminated her lease because throughout her tenancy she experienced multiple medical emergencies that required the assistance of an ambulance to transport her to the hospital. Allegedly, the property manager received complaints from other residents about these emergencies.

“Housing providers cannot terminate or decline to renew a lease simply because they disfavor tenants with disabilities,” Kevin Kish, Director of the California Department of Fair Employment and Housing, said in a statement.

Tip: Although the disability rules protect those recovering from past drug addiction, it specifically excludes anyone who is currently using illegal drugs. The law also excludes individuals with disabilities whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. Nevertheless, federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of whether that particular applicant or resident poses such a threat based on reliable objective evidence of current conduct or a recent history of overt acts.

Rule #7: Carefully Consider Reasonable Accommodation and Modification Requests

In addition to the general rules banning disability discrimination, the FHA imposes affirmative duties on housing providers—with respect to reasonable accommodations, reasonable modifications, and accessibility design features—to ensure that individuals with disabilities have the same opportunity as everyone else to have full use of the community.

Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. In general, communities are required to make an exception to the rules, when requested, if it’s both reasonable and necessary to allow an individual with a disability to fully use and enjoy the community. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking spot in a community that doesn’t have assigned parking.

Example: In August 2019, a New Jersey HOA agreed to pay $30,000 to resolve allegations of discrimination against a resident with disabilities by denying her the right to have a dog as an assistance animal. According to the HUD charge, the community allegedly required the resident, who has hearing and sight disabilities, to cage her animal in common areas and use the service entrance when entering and exiting the building with the animal.

“No person with a disability should be denied the reasonable accommodation they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Example: In March 2019, the owners and managers of a San Diego apartment complex agreed to pay $17,000 to resolve allegations that they denied the request of a resident with disabilities for a designated parking space close to the building. The HUD complaint was filed by the resident, who uses a wheelchair, alleging that his request for an assigned parking space in the development’s garage had been denied. He said that the community later allowed him to park in non-assigned accessible spaces in the garage, but it wouldn’t give him the key necessary to enter the garage and to use the elevator. As a result, the resident said that whenever he wanted to enter the garage, he had to wait for another resident to open the gate, then follow that person in so he could use the elevator.

“To a person with mobility limitations, a designated parking space can mean the difference between merely living in a development and truly being able to call a place home,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Tip: The FHA also makes it unlawful to refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing. Reasonable modifications are structural changes to interiors and exteriors of units and to common and public use areas, such as lobbies, main entrances, and parking lots. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area.

Rule #8: Abide by Rules Banning Discriminatory Advertising

Under the FHA, it’s unlawful to advertise or make any statement that indicates a limitation or preference based on race, color, religion, national origin, sex, disability, or familial status. Liability for making discriminatory statements doesn’t require proof of discriminatory intent. Instead, the focus is on whether the statement would suggest a preference to an “ordinary reader or listener.” The rules apply not only to verbal and written statements, but also to all advertising media, including newspapers, magazines, television, radio, and the Internet.

Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children. A fair housing advocacy group filed the HUD complaint alleging that the community posted discriminatory advertisements indicating that children were not allowed and refused to negotiate with fair housing testers posing as families with children.

“It’s hard enough for families to find places to live that meet their needs without being denied suitable housing because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to working to ensure that housing providers comply with their Fair Housing Act obligation to treat all applicants the same, including families with children.”

Rule #9: Watch Out for Potential Retaliation Claims

Under the FHA, it’s unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised a fair housing right—or anyone who assisted others in exercising that right. Because discrimination and retaliation are separate violations under fair housing law, you could face liability for retaliation if you take adverse action against a resident solely because he filed a discrimination complaint against you—even if the discrimination claim is ultimately dismissed.

Watch out for potential retaliation claims when dealing with requests for reasonable accommodations or modifications by or on behalf of individuals with disabilities. The law protects people from retaliation for exercising their right to make disability-related requests.

Example: In March 2019, the owner and manager of a California rental community agreed to pay $6,000 to settle allegations that they refused to remediate mold at the property as a reasonable accommodation for a couple with disabilities and retaliated against them for asking that the mold be removed. In their HUD complaint, the couple alleged that the owners retaliated against them for making the reasonable accommodation request by increasing their rent and issuing a notice terminating their lease.

“Reasonable accommodation requests aren’t requests for special treatment. They are what many individuals with disabilities need to live in the place they call home,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Rule #10: Abide by Applicable State and Local Fair Housing Laws

To avoid fair housing trouble, it’s important to comply with not only the FHA, but also applicable state or local fair housing laws. Often, these state and local laws extend fair housing protections beyond federal requirements to ban discrimination based on:

Marital status: Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed.

Age: Many state and local laws ban discrimination based on age, though there are significant differences in how the laws apply because of the way they define age.

Sexual orientation and gender identity: Many state and local fair housing laws ban discrimination based on sexual orientation; of those, many, but not all, also cover gender identity or transgender status.

Source of income: Many state and local fair housing laws also cover lawful source of income to ban discrimination against people based on where they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance. Of those, many, but not all, also cover housing subsidies, most notably Section 8 housing vouchers.

Military status: Some state and local laws offer some form of fair housing protection for military status. The laws generally prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

Other protected classes: Some state and local laws ban discrimination based other factors, such as status as survivor of domestic violence, genetic information, HIV status, lawful occupation, political beliefs or affiliation, student status, alienage or citizenship, personal appearance, or arbitrary personal characteristics.

What is this thing called Marketing?

Let's first look at what Webster has to say about the meaning of "marketing" - (1) the act or process of buying and selling in a market; and (2) the commercial functions involved in transferring goods from producer to consumer.  A more commercial definition of marketing that might be found in a high school or college text could read something like this: "creating a sale with the consumer for your product and/or service."

         Then, let's look at Webster's definition of "promoting" - (1) to forward or further, to encourage, to advance; (2) to raise to a more important rank, to contribute to the progress or growth of, to urge adoption of or advocate; and (3) to attempt to sell or popularize by advertising or by securing financial support.  Again, a more commercial definition of promoting might be something like: "bringing the consumer to your product and/or service."

         These definitions tell us that we need to be involved in both promoting and marketing!  It is the act of promoting that creates enthusiasm and brings us the traffic.  It is the act of marketing that defines the sale of a home or signing of a lease.  Without both of these tools in your toolkit, you would have a really hard time filling, re-filling, or upgrading your community.

Deciding Why you Want to Market

Do you want to promote because you have a new development?  Or will it be to fill vacancies within an existing community, or to upgrade (and turn around) an older community?  Each of these three stages of a community requires a different marketing plan, a different focus, different promotional strategies, and differing amounts of involvement.

Marketing has been the subject of many volumes of material, college courses, high school courses, and numerous articles in literally thousands of magazines. There are many facets of marketing for whatever business you try to promote.  It depends on the type of market you are in, the general state of the economy at the time you decide to start a promotion and marketing program, whether you are creating a demand or meeting a need, and several other variables.

Who are your Partners in Marketing?

Media Sources

• Motif
• Residents
• Employees
• Retailers
• Curb Appeal
• Vendors
• Personal Development
• Professionalism
• Industry Knowledge
• Civic Involvement

The Mental Picture of Marketing

Every minute of every day in every dealing you have with each person, you are promoting yourself, the company you represent, your community, and the industry as a whole.  Picture a diagram that consists of a huge wheel.  There is a hub in the very center. It is a small circle.  You are this hub.  Radiating outward from this hub are eleven spokes that then connect with a huge wheel on the outside.  Each of the eleven spokes is one of the areas of promotion we are going to discuss in this handbook.  The huge wheel on the outside is your market: the general public, the planning and zoning officials. 

In other words, this huge wheel is a never-ending stream of potential customers.  This huge wheel also makes up the members of the general public at large.  Everyone has an opinion.  On this huge wheel, everyone has an opinion about manufactured housing and manufactured home communities.  Part of a successful promotion and marketing program is to create more and more favorable opinions of the general public that is part of that huge wheel. 

When the one of the eleven spokes joins the wheel, a direct line of vision, understanding and agreement is created between the hub (you) and the wheel (your market).  Both ends of the spoke (you in the hub and the general public on the wheel) then see things the same way.  The conduit that enables this "coming together" of opinion is the spoke that links you in your hub with your potential customer on the huge wheel.  When this happens, you have successfully created a promotion (being noticed) that may result in effective marketing (a sale or lease).   The other positive side effect is usually the creation of a more favorable image of the manufactured housing industry as a whole.

When the public that is represented by the wheel is comprised of elected officials, your promotional efforts may result in positive zoning decisions or approval of expansion plans for a new community.  When that public represents your customer, you will have created a sale of a home or a lease of a homesite.  We need all kinds of people from this public arena on our side.

This illustration gives you a visual image of the way a successful promotion can take you where you have never been before - or leave you spinning around in circles.  You are in the center ring.  Take charge of your promotional efforts.  Create new markets.  Realize new growth opportunities.  Change the image of manufactured housing.  It all starts with you!

A successful promotion and marketing program will affect your staff, your community, your residents, their friends, their co-workers and families, the surrounding business community, and the industry as a whole in a positive way.  It will help change the perception of manufactured housing in the eyes of the uneducated public, the elected officials, and increase the number of homeowners.  Your successful promotion and marketing program will generate a continued bottom-line growth for your community and your company while providing housing that is perceived as a true value by your customers.

And, by the same token, an unsuccessful promotion and marketing program - or the total lack of one - can keep your community frozen in time.  It can perpetuate a negative image of the industry.  It will hamper your efforts in expansion, fill or upgrade.  It will prevent you from reaching the highest level of personal and professional excellence that is obtainable.  To be more blunt, the lack of a promotion and marketing program that does good means you, your community, and the industry will suffer.  It means that more people will neither believe nor share the positive messages the industry has to offer.

Key Concepts to a Successful Marketing Program 

• A successful promotion is a successful perception of value
• Every day is Open House
• Curb appeal is your job
• Use white classifieds
• Use reverse classifieds
• Create a comparison grid for your community
• Look at your community honestly - through the eyes of a video
• Enforce your Guidelines for better curb appeal
• Remember that word-of-mouth is your best advertising
• Utilize business cards in new and creative ways
• Everyone forms an opinion and every opinion matters
• We are no better than others perceive us to be
• Help retailers understand the values of your community
• Allow them to use the amenities
• Invite them to activities
• Offer a special tour for new salespeople
• Allow them to install model homes
• Hang a lifestyle picture in their sales office
• Visit on a regular basis
• Use custom labels for bags of donuts or candy
• Color code a map with vacant sites and sizes of homes
• Send gift certificates to a salesman's spouse
• Call to thank them for sending prospects
• Consider using resident referrals
• Free rent
• Certificates for dinner
• Mention in the newsletter
• Create a win-win promotion
• Give a shed, plants, gift certificate from nursery, deck, patio furniture, lawn mower, lawn care for six months, snow removal for a season, sod for the lawn, reduced water bill for watering
• Take brochures to area businesses
• Join the chamber of commerce and volunteer on committees

What is this thing called Marketing?

Let's first look at what Webster has to say about the meaning of "marketing" - (1) the act or process of buying and selling in a market; and (2) the commercial functions involved in transferring goods from producer to consumer.  A more commercial definition of marketing that might be found in a high school or college text could read something like this: "creating a sale with the consumer for your product and/or service."

         Then, let's look at Webster's definition of "promoting" - (1) to forward or further, to encourage, to advance; (2) to raise to a more important rank, to contribute to the progress or growth of, to urge adoption of or advocate; and (3) to attempt to sell or popularize by advertising or by securing financial support.  Again, a more commercial definition of promoting might be something like: "bringing the consumer to your product and/or service."

         These definitions tell us that we need to be involved in both promoting and marketing!  It is the act of promoting that creates enthusiasm and brings us the traffic.  It is the act of marketing that defines the sale of a home or signing of a lease.  Without both of these tools in your toolkit, you would have a really hard time filling, re-filling, or upgrading your community.

Deciding Why you Want to Market

Do you want to promote because you have a new development?  Or will it be to fill vacancies within an existing community, or to upgrade (and turn around) an older community?  Each of these three stages of a community requires a different marketing plan, a different focus, different promotional strategies, and differing amounts of involvement.

Marketing has been the subject of many volumes of material, college courses, high school courses, and numerous articles in literally thousands of magazines. There are many facets of marketing for whatever business you try to promote.  It depends on the type of market you are in, the general state of the economy at the time you decide to start a promotion and marketing program, whether you are creating a demand or meeting a need, and several other variables.

Who are your Partners in Marketing?

Media Sources

• Motif
• Residents
• Employees
• Retailers
• Curb Appeal
• Vendors
• Personal Development
• Professionalism
• Industry Knowledge
• Civic Involvement

The Mental Picture of Marketing

Every minute of every day in every dealing you have with each person, you are promoting yourself, the company you represent, your community, and the industry as a whole.  Picture a diagram that consists of a huge wheel.  There is a hub in the very center. It is a small circle.  You are this hub.  Radiating outward from this hub are eleven spokes that then connect with a huge wheel on the outside.  Each of the eleven spokes is one of the areas of promotion we are going to discuss in this handbook.  The huge wheel on the outside is your market: the general public, the planning and zoning officials. 

In other words, this huge wheel is a never-ending stream of potential customers.  This huge wheel also makes up the members of the general public at large.  Everyone has an opinion.  On this huge wheel, everyone has an opinion about manufactured housing and manufactured home communities.  Part of a successful promotion and marketing program is to create more and more favorable opinions of the general public that is part of that huge wheel. 

When the one of the eleven spokes joins the wheel, a direct line of vision, understanding and agreement is created between the hub (you) and the wheel (your market).  Both ends of the spoke (you in the hub and the general public on the wheel) then see things the same way.  The conduit that enables this "coming together" of opinion is the spoke that links you in your hub with your potential customer on the huge wheel.  When this happens, you have successfully created a promotion (being noticed) that may result in effective marketing (a sale or lease).   The other positive side effect is usually the creation of a more favorable image of the manufactured housing industry as a whole.

When the public that is represented by the wheel is comprised of elected officials, your promotional efforts may result in positive zoning decisions or approval of expansion plans for a new community.  When that public represents your customer, you will have created a sale of a home or a lease of a homesite.  We need all kinds of people from this public arena on our side.

This illustration gives you a visual image of the way a successful promotion can take you where you have never been before - or leave you spinning around in circles.  You are in the center ring.  Take charge of your promotional efforts.  Create new markets.  Realize new growth opportunities.  Change the image of manufactured housing.  It all starts with you!

A successful promotion and marketing program will affect your staff, your community, your residents, their friends, their co-workers and families, the surrounding business community, and the industry as a whole in a positive way.  It will help change the perception of manufactured housing in the eyes of the uneducated public, the elected officials, and increase the number of homeowners.  Your successful promotion and marketing program will generate a continued bottom-line growth for your community and your company while providing housing that is perceived as a true value by your customers.

And, by the same token, an unsuccessful promotion and marketing program - or the total lack of one - can keep your community frozen in time.  It can perpetuate a negative image of the industry.  It will hamper your efforts in expansion, fill or upgrade.  It will prevent you from reaching the highest level of personal and professional excellence that is obtainable.  To be more blunt, the lack of a promotion and marketing program that does good means you, your community, and the industry will suffer.  It means that more people will neither believe nor share the positive messages the industry has to offer.

Key Concepts to a Successful Marketing Program 

• A successful promotion is a successful perception of value
• Every day is Open House
• Curb appeal is your job
• Use white classifieds
• Use reverse classifieds
• Create a comparison grid for your community
• Look at your community honestly - through the eyes of a video
• Enforce your Guidelines for better curb appeal
• Remember that word-of-mouth is your best advertising
• Utilize business cards in new and creative ways
• Everyone forms an opinion and every opinion matters
• We are no better than others perceive us to be
• Help retailers understand the values of your community
• Allow them to use the amenities
• Invite them to activities
• Offer a special tour for new salespeople
• Allow them to install model homes
• Hang a lifestyle picture in their sales office
• Visit on a regular basis
• Use custom labels for bags of donuts or candy
• Color code a map with vacant sites and sizes of homes
• Send gift certificates to a salesman's spouse
• Call to thank them for sending prospects
• Consider using resident referrals
• Free rent
• Certificates for dinner
• Mention in the newsletter
• Create a win-win promotion
• Give a shed, plants, gift certificate from nursery, deck, patio furniture, lawn mower, lawn care for six months, snow removal for a season, sod for the lawn, reduced water bill for watering
• Take brochures to area businesses
• Join the chamber of commerce and volunteer on committees

What is this thing called Marketing?

Let's first look at what Webster has to say about the meaning of "marketing" - (1) the act or process of buying and selling in a market; and (2) the commercial functions involved in transferring goods from producer to consumer.  A more commercial definition of marketing that might be found in a high school or college text could read something like this: "creating a sale with the consumer for your product and/or service."

         Then, let's look at Webster's definition of "promoting" - (1) to forward or further, to encourage, to advance; (2) to raise to a more important rank, to contribute to the progress or growth of, to urge adoption of or advocate; and (3) to attempt to sell or popularize by advertising or by securing financial support.  Again, a more commercial definition of promoting might be something like: "bringing the consumer to your product and/or service."

         These definitions tell us that we need to be involved in both promoting and marketing!  It is the act of promoting that creates enthusiasm and brings us the traffic.  It is the act of marketing that defines the sale of a home or signing of a lease.  Without both of these tools in your toolkit, you would have a really hard time filling, re-filling, or upgrading your community.

Deciding Why you Want to Market

Do you want to promote because you have a new development?  Or will it be to fill vacancies within an existing community, or to upgrade (and turn around) an older community?  Each of these three stages of a community requires a different marketing plan, a different focus, different promotional strategies, and differing amounts of involvement.

Marketing has been the subject of many volumes of material, college courses, high school courses, and numerous articles in literally thousands of magazines. There are many facets of marketing for whatever business you try to promote.  It depends on the type of market you are in, the general state of the economy at the time you decide to start a promotion and marketing program, whether you are creating a demand or meeting a need, and several other variables.

Who are your Partners in Marketing?

Media Sources

• Motif
• Residents
• Employees
• Retailers
• Curb Appeal
• Vendors
• Personal Development
• Professionalism
• Industry Knowledge
• Civic Involvement

The Mental Picture of Marketing

Every minute of every day in every dealing you have with each person, you are promoting yourself, the company you represent, your community, and the industry as a whole.  Picture a diagram that consists of a huge wheel.  There is a hub in the very center. It is a small circle.  You are this hub.  Radiating outward from this hub are eleven spokes that then connect with a huge wheel on the outside.  Each of the eleven spokes is one of the areas of promotion we are going to discuss in this handbook.  The huge wheel on the outside is your market: the general public, the planning and zoning officials. 

In other words, this huge wheel is a never-ending stream of potential customers.  This huge wheel also makes up the members of the general public at large.  Everyone has an opinion.  On this huge wheel, everyone has an opinion about manufactured housing and manufactured home communities.  Part of a successful promotion and marketing program is to create more and more favorable opinions of the general public that is part of that huge wheel. 

When the one of the eleven spokes joins the wheel, a direct line of vision, understanding and agreement is created between the hub (you) and the wheel (your market).  Both ends of the spoke (you in the hub and the general public on the wheel) then see things the same way.  The conduit that enables this "coming together" of opinion is the spoke that links you in your hub with your potential customer on the huge wheel.  When this happens, you have successfully created a promotion (being noticed) that may result in effective marketing (a sale or lease).   The other positive side effect is usually the creation of a more favorable image of the manufactured housing industry as a whole.

When the public that is represented by the wheel is comprised of elected officials, your promotional efforts may result in positive zoning decisions or approval of expansion plans for a new community.  When that public represents your customer, you will have created a sale of a home or a lease of a homesite.  We need all kinds of people from this public arena on our side.

This illustration gives you a visual image of the way a successful promotion can take you where you have never been before - or leave you spinning around in circles.  You are in the center ring.  Take charge of your promotional efforts.  Create new markets.  Realize new growth opportunities.  Change the image of manufactured housing.  It all starts with you!

A successful promotion and marketing program will affect your staff, your community, your residents, their friends, their co-workers and families, the surrounding business community, and the industry as a whole in a positive way.  It will help change the perception of manufactured housing in the eyes of the uneducated public, the elected officials, and increase the number of homeowners.  Your successful promotion and marketing program will generate a continued bottom-line growth for your community and your company while providing housing that is perceived as a true value by your customers.

And, by the same token, an unsuccessful promotion and marketing program - or the total lack of one - can keep your community frozen in time.  It can perpetuate a negative image of the industry.  It will hamper your efforts in expansion, fill or upgrade.  It will prevent you from reaching the highest level of personal and professional excellence that is obtainable.  To be more blunt, the lack of a promotion and marketing program that does good means you, your community, and the industry will suffer.  It means that more people will neither believe nor share the positive messages the industry has to offer.

Key Concepts to a Successful Marketing Program 

• A successful promotion is a successful perception of value
• Every day is Open House
• Curb appeal is your job
• Use white classifieds
• Use reverse classifieds
• Create a comparison grid for your community
• Look at your community honestly - through the eyes of a video
• Enforce your Guidelines for better curb appeal
• Remember that word-of-mouth is your best advertising
• Utilize business cards in new and creative ways
• Everyone forms an opinion and every opinion matters
• We are no better than others perceive us to be
• Help retailers understand the values of your community
• Allow them to use the amenities
• Invite them to activities
• Offer a special tour for new salespeople
• Allow them to install model homes
• Hang a lifestyle picture in their sales office
• Visit on a regular basis
• Use custom labels for bags of donuts or candy
• Color code a map with vacant sites and sizes of homes
• Send gift certificates to a salesman's spouse
• Call to thank them for sending prospects
• Consider using resident referrals
• Free rent
• Certificates for dinner
• Mention in the newsletter
• Create a win-win promotion
• Give a shed, plants, gift certificate from nursery, deck, patio furniture, lawn mower, lawn care for six months, snow removal for a season, sod for the lawn, reduced water bill for watering
• Take brochures to area businesses
• Join the chamber of commerce and volunteer on committees

1. Question: When will the Bill go into effect, and what does that mean for 90-day rent increase notices issued in manufactured housing communities before the effective date?

Answer:  The effective date is September 1, 2025. It is not “retroactive” i.e., it cannot affect notices legally issued before then. So rent increase notices properly issued (i.e., delivered, attached and posted, or mailed) before September 1, 2025 will not be affected. However, rent increase notices issued on or after September 1, 2025 must comply with the new laws in every respect.

2. Question: What if I issued a rent increase for less than the current maximum increase cap in February 2025? Can I issue another one before the September 1, 2025 effective date so long as it does not exceed the current cap before HB 3054 becomes effective? 

Answer: ORS 90.600(1)(b) currently provides that a park landlord may not increase the rent more than once in any 12-month period. HB 3054 did not affect that law. In other words, once you issued a rent increase in any 12-month period, you cannot issue another one covering that same 12-month period. The only exception – which you should confirm with your own attorney – is if you issued a limited rent increase for only six months in February 2025, it would seem you could issue a second one for six months before September 1, 2025 and avoid any new regulations under HB 3054. But this is not legal advice; you must confirm with your own attorney.

3. Question: As a landlord, I own three homes in my community that I rent out to tenants. How will HB 3054 affect me?

Answer: HB 3054 amended ORS 90.324 to provide that (1) No later than September 30th of each year, the Oregon Department of Administrative Services (“DAS”) shall calculate the maximum annual rent increase percentage allowed for the following calendar year  as the lesser of Ten percent (10.00%) or  Seven percent (7.00%) plus the applicable CPI.

4. Question: Does HB 3054 apply to RVs or RV parks?

Answer:  RVs are subject to the general landlord-tenant law and are not subject to the manufactured housing statutes in ORS 90.505-.850. In other words, the laws that apply to all other tenants, e.g., those in apartment, rental homes/condominiums, etc. They are affected by HB 3054 as described in the Answer to Question No. 3, above.

5. Question: Does HB 3054 apply to marinas and floating home communities?

Answer:  Marina and floating home communities are subject to the same laws as in the manufactured housing statutes in ORS 90.505-.850.  In other words, on an after September 30, 2025 and each year thereafter, theOregon Department of Administrative Services (“DAS”) will calculate the maximum annual rent increasepercentage allowed for 2026 and thereafter.

6. Question: Will we have to use different MHCO rent increase notice forms?

Answer: Yes. It is Form 49. It has already been revised. Any rent increase notices issued on or after September 1, 2025 should use the new MHCO Form 49.

7. Question: Will HB 3054 apply to all Oregon parks?

Answer: Yes, but the size of the park now matters. For parks (and marina and floating home communities) with more than 30 spaces (or slips), rent increases will be capped at six percent (6.00%) and for those with 30or fewer spaces (or slips), they will be capped at the lesser of ten percent (10.00%) or seven percent plusCPI.

8. Question: Does HB 3054 apply to parks located in the City of Portland?

Answer:  If a Community is located within the City of Portland, a rent increase should not exceed 9.99% - as opposed to the 10% cap for parks with 30 or fewer spaces (or slips). So even though HB 3054 sets the cap at the lesser of ten percent (10.00%) or seven percent plus CPI. You do not want a total cap on rent to exceed 9.9% in Portland. A rent increase of 10.00% or more in the city of Portland can result in a landlord having to pay the resident’s “relocation assistance” of thousands of dollars. If your community is located within the city limitsof Portland, you should consult with your attorney before issuing a rent increase notice.

9. Question: Does HB 3054 have any exclusions to rent increase notices?

Answer:  Yes, they are generally the same as before but with the exception in bold below. The rent capcalculation does not apply if (1) the dwelling unit’s first certificate of occupancy was issued less than 15years before the date of the notice of rent increase; or (2) the dwelling unit is regulated or certified as affordable housing by federal, state or local government and it (a) does not increase the tenant’s portion ofthe rent, or (b) is required by the program eligibility requirements or (c) is due to a tenant’s change inincome, or (d) for a community of more than 30 spaces and complies with ORS 90.600(3)(c)(A) –(G).  Those provisions are detailed and should be reviewed separately.

10. Question: Are there any other major changes brought by HB 3054?

Answer:  Yes, there are three:

1.  Prior to HB 3054, the Oregon Legislature overlooked leases (i.e., “fixed term tenancies”). The result was that landlords using leases were not limited in their rent formulas (within reason at least) by the same caps as month-to-month tenancies. This new legislation corrects that oversight, and subjects rental increases in park leases to the same rent caps found in month-to-month tenancies.

Since the effective date of this Bill is September 1, 2025, landlords may wish to consider putting their new tenants on fixed term leases before then. This is not to suggest that the rent formulas should be open-ended without limits or guidelines. But a well- drafted rent formula based upon reasonable and objective criteria should survive attack. After all, before the caps, there were never any limits on rent increases (other than the existing good faith provision under ORS 90.130.) This is not legal advice. Members should check with their own legal counsel.

1.  Although the law has always provided that at the time that a landlord gives the prospective purchaser an application  they should also give them certain additional documents including “a list of any failures to maintain the space or to comply with any other provisions of the rental agreement, including aesthetic or cosmetic improvements….” The italicized text has been deleted, meaning that prior tenant notices of alleged violations based upon “aesthetic or cosmetic improvements” cannot be provided to the new tenant.

2. The Bill made a major change to ORS 90.680. It now provides that a landlord may not require that aselling tenant, prospective purchaser or purchaser must consent to the inspection of the interior of thehome or obtain an inspection of the interior of the home by a third party, as a condition of Landlord’s acceptance of the required notice of sale, approval of a sale, or approval of a new tenancy by thepurchaser.

Not having been present during the legislative drafting of this Bill, I cannot explain its rationale. I will attempt to find out more. But since I participated in the (now discontinued) landlord-tenant coalitions, I submit the following observation: ORS 90.740(4)(c) imposes upon tenants a duty to “Keep the dwelling or home, and the rented space, safe from the hazards of fire.” (Emphasis added.) This is a duty tenant owes to the landlord. So today when the home sells, if the owner had made dangerous non-code wiring alterations to its interior, those risks can be discovered by the landlord through a required inspection upon transfer. Then, prior to closing and possession, the tenant and prospective purchaser can reach agreement upon bringing the wiring up to code and averting electrical fires. This protects everyone. After this new law goes into effect, landlords should consider providing all prospective sellers and buyers with information about the importance of a professional inspections including an evaluation of code compliance for all electrical wiring and other fire risks. But such inspections should not be made a condition of tenant approval or consent to the sale.