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Working with Residents' in Disaster Preparedness

MHCO

Generally speaking, this committee should consist of :

 

  • Chairperson
  • Training Coordinator
  • Communications Coordinator
  • Emergency supplies manager
  • Residents with knowledge or experience in financial, insurance and legal issues

 

 

Depending on the size of your community, you may also want to appoint Block Captains, who will be responsible for maintaining data on their assigned neighborhoods and also be on call to warn residents in their area about an approaching emergency. If your community has a large number of pets, you may want to include someone on the committee to focus on animals.

 

 

There Are Two Major Roles For The Committee:

 

 

  • Educating and training all residents about emergencies
  • Actually coping with an emergency

 

 

As a manager or owner of a manufactured home community, provide the committee with excellent materials to use in doing their work, starting with this series of articles.

 

 

Committee Responsibilities:

 

 

The chairman should plan and hold regular meetings of the committee to review the work that is being done. He or she should be an active participant in other activities and lead by example. In case of an actual emergency, the chairman and the community manager will be the center of operations and communications. The chairman can assign duties to committee members, such as maintaining a list of community members with special needs or residents with special skills or expertise.

 

The training coordinator should be responsible for planning and holding actual evacuation or other types of disaster drills, depending on what potential problems face your community. For example, if the community has a central shelter that resients can use in case of a tornado, you should have a "mock" emergency alert once or twice a year. Encourage everyone to participate. This will improve their own safety, and it will also help you find out if there are any flaws in the plan, such as an area whose residents cannot reach the shelter quickly or a breakdown in the system used to alert residents.

 

These drills should also include practice with the notification system. Audio alarm systems should be tested regularly, and back-up systems should be practiced. For example, if a phone chain is being used, it should be tried out at least twice a year, to see how long it takes everyone in the community to be notified and to make sure that phone numbers are current.

 

 

Similarly, with a door-to-door system, practices will help determine how long it takes to notify everyone, so that adjustments can be made. In either system, make plans that would allow for some residents not being in the community when notification is needed. For example, are some homes occupied for only part of the year? Would some residents be at work when you need to notify them?

 

 

The communications specialist is responsible for community education. Regular communication with residents through a newsletter or other publication is a good idea. In addition to letting residents know about the community's disaster plan, encourage families to develop their own disaster plans. Although not required by law, disaster plans should be provided to new residents as part of the move-in processing.

 

 

The emergency supplies person will work with the community management to establish a storage area for a supply of food, water, medical supplies, communications equipment and other items that would be needed in case a disaster strikes the community, and help cannot reach you right away.

 

 

The emergency supplies should be kept in an area that is unlikely to be damaged by any type of disaster. The managers should check these supplies regularly to make sure that they are usable and up-to-date. As part of their individual family disaster plan, residents should maintain their own emergency supplies, and a way to carry the supplies (a duffel bag or suitcase) in case an evacuation is required.

 

 

 

Phil Querin Q&A: Accepting Application When You Suspect Applicant Does Not Qualify.

Phil Querin

Answer: A judgment is a lien on all real property that is owned by the judgment debtor in the county in which the debtor resides. The lien gives the judgment creditor the right to "execute" on that real property, i.e. force a sale of the property with the proceeds being applied toward payment of the judgment. It is good for ten years and can be renewed for another ten years. If the creditor doesn'tknow if the debtor owns property in a particular county he can record the judgment there anyway (or some counties or every county in Oregon), and it will immediately attach if property is located there. This means that if the debtor attempts to dispose of, or mortgage, the property, the judgment lien will prevent the transaction until the creditor is paid in full. Judgments carry interest at 9% per annum. If the judgment debtor does not own any real property to which the lien can attach, he can still try to get paid, either through garnishment of wages or bank accounts, or execution upon other of the debtor's assets. If the creditor doesn'tknow what assets the debtor has, he can subpoena him into court, place him under oath, and ask questions about the existence and whereabouts of the debtor's assets. As you can see, armed with a recorded judgment, a creditor can make a debtor's life somewhat unpleasant. Once the judgment is satisfied, the debtor should insist that the creditor remove the lien by recording a Satisfaction of Judgment. This has the effect of nullifying the judgment and it will no longer appear as a negative comment on his credit history. In your case, you should tell the person that as long as the judgments appear on the record, it will appear on his credit report, affect his credit score, and could interfere with his ability to qualify to rent a space in your community. If, indeed, the liens have been taken care of, he needs to have the judgment creditors each record a Satisfaction of Judgment. A word of caution: ORS 90.680(6)(b) says that a landlord may not unreasonably reject a tenant's prospective purchaser. My concern here is that if you reject the purchaser before running the background check, you face a potential claim from the existing tenant that your rejection in advance, was per se unreasonable. Furthermore, if the applicant is a member of a protected class, you could be setting yourself up for a fair housing claim. Please consider this: If these are old judgments or very small amounts, they may say little about his qualifications as a tenant. It may be that no collection efforts are being made. Most collection agencies do not want to spend a lot of time chasing small sums, or if they do, they will discount the amount for a cash payment. How recent are the judgments? Is he gainfully employed? How long has he been employed? What is his debt-to-income ratio? His rental history? How is he paying for the home? If you don't know the answer to these questions, perhaps you should consider running the report just to find out. Since he is paying the cost of the credit check, completing the process may be your best and safest course of action, rather than "assuming" it's as bad as you think because of the unsatisfied judgments. It is far easier to say "No" after the credit, criminal, and background checks, because - if you're right - you'll have something to base the rejection on. Rejecting him in advance gives you no such safe harbor protection.

Phil Querin Q&A: Home Fire in the Community – Rights, Duties and Liabilities

Phil Querin

Question: A home burned down over the weekend in my community.  What are my rights and responsibilities?  How does the scenario change depending if the resident has or does NOT have insurance?

 

Answer:   This is a good question, and all too frequently ignored by owners and managers. The first question is whether the issue is addressed anywhere in the community documents, i.e. the statement of policy, rules, or rental agreement. Likely not. It really isn’t addressed in the Oregon Residential Landlord-Tenant Act, with the exception of ORS 90.222, which covers renter’s liability insurance, and is excluded from the manufactured housing section of the law.  

Strictly speaking, the fact that the home was destroyed and is likely uninhabitable does not make it any less of a resident responsibility than before the fire. In other words, it is the resident’s primary responsibility to either promptly repair, replace, or remove the home.  The space is still under lease or rental to the resident, so all of the same rules apply, i.e. to keep it in good condition and safe. If the home is nothing more than a shell, the resident should likely remove it as soon as possible.

If the resident does not have fire insurance to repair or replace the home, I suspect he or she will abandon it, thus making it your problem - or the problem of the lienholder if there is one. Incidentally, if there is a lienholder, the loan documents likely require fire insurance, and that it be a named insured on the policy.  If that is the case, then hopefully, between the resident and their insurance company, there may be available proceeds to repair or replace.[1]

If the resident abandons the home, you should immediately send out a 45-day abandonment letter, thus triggering your right (and duty) to take control of the personal property.  It is likely an attractive nuisance for children, which could result in injury to them, and liability to you.  In such case, you should consider having it either cordoned off with “No Trespassing” signs, or removed.  Make sure that you independently confirm that it is a total loss, and with no salvage value.  If there is salvage value, it belongs to the resident.

ORS 90.675is the abandonment law that applies generally to homes located in manufactured housing communities. Today it contains 23 separate subsections, a behemoth in size compared to most statutes.  Buried 21 sections down in the subterranean recesses of the statute is that portion of the law dealing with health, safety and welfare issues, in which 45 day letters and 30 response periods could not possibly work. In such situations, time is of the essence.  Accordingly, subsection 21 sets forth a fast-track protocol for declaring the abandonment of a home that poses certain risks to others (such as the abandoned shell of a home destroyed by fire). Below is a summary of what this subsection says:

If a governmental agency determines that the condition of the abandoned  home constitutes an extreme health or safety hazard under state or local law andthe agency determines that the hazard endangers others in the facility andrequires quick removal of the property, the landlord may sell or dispose of it by taking the following steps[2]:

 

· The date by which a tenant, lienholder, personal representative or designated person must contact a landlord to arrange for the disposition of the property shall not be less than 15 days after personal delivery or mailing of the abandonment letter required by ORS 90.675(3);

· The date by which a tenant, lienholder, personal representative or designated person must remove the property must be not less than seven (7) days after the date the tenant, lienholder, personal representative or designated person issues the abandonment letter;

· The contents of the abandonment letter must be in accordance with ORS 90.675(5)except that:

  • The dates and deadlines in the notice must be consistent with the fast-track protocol above;
  • The abandonment letter must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and
  • The landlord must attach a copy of the agency’s determination to the abandonment letter.

 

 

[1]Note that the MHCO Rental and Lease Agreements dohave a provision for the resident to maintain fire insurance, but it is optional, and applies only if the box is checked.  This situation should be a cautionary tale for owners and managers requiring such insurance, with proof that it is being maintained.

[2]Note: the following steps are exceptions to the rest of ORS 90.675.  This means that if there is no exception in this list, the rest of the statute will apply.

Phil Querin Q&A - Which is the best method for serving notices?

Phil Querin

Answer. Much depends on circumstances. Here are your options:


There are three acceptable methods:

(1) Personal delivery;

(2) First class mail; or

(3) Only if the lease/rental agreement permits for both landlord and tenant, either party may use "nail and mail." This allows a written notice to be sent from the landlord to the tenant by first class mail addressed to the tenant at the premises and a copy of the notice to be attached in a secure manner to the main entrance to that portion of the premises; and


Here are the rules for calculating the time periods, depending on the method of service:

(1) Where the time for compliance is measured in days, they are calculated by consecutive calendar days, not including the initial day of service, but including the last day until 12 Midnight of the last day.

(2) Where the time for compliance is measured in hours, they are calculated in consecutive clock hours, beginning immediately upon service.

(3) When "nail and mail" is used for a 72-hour or 144-hour nonpayment notice, the time period for compliance begins at 11:59 p.m. the day the notice is both mailed and attached to the premises. The time period ends 72 hours or 144 hours, as the case may be, after the time started to run at 11:59 p.m. on the day of mailing.


Here are some rules of thumb; they may not be for everyone, but they generally work for me. My approach is to assume that Murphy's Law is ever-present, so I err on the side of being too cautious.

  1. When calculating days or hours, always add a few extra just to be safe. Just because it's called a "72-hour notice," doesn'tmean you can't add a few more hours. Same for 24-hour notices.
  2. don't forget the additional 3-day period for mailing. It applies to virtually all written notices you give, from 30-day notices, to park closure notices. I frequently add five days rather than three.
  3. If you're going to serve a written notice personally, take a witness, just to avoid the possibility of the resident denying service. If someone other than the tenant comes to the door, I'd think twice about making "substituted service," as it's too easy for the person answering to "forget," and you've now got an issue you could have avoided. I suggest finding out when the resident is returning, and come back. Never deliver the notice to a child or teenager - for obvious reasons. If they won't answer the door, don't think you can slip it under the door, behind the screen, or drop it in an open window. Just go back to the office and mail it regular mail.
  4. Never, never, never use certified mail or any other form of delivery like UPS or Fed Ex.
  5. Remember, if the written notice is properly addressed, stamped and posted, the law "presumes" receipt. While the resident can try to deny it, the "presumption" requires them to prove a reason for non-receipt, which is pretty difficult to do. I've never seen the argument work. A good precaution is to obtain a certificate of mailing from the post office, which confirms that you posted the letter.
  6. I'm not a fan of nail and mail. Unless your rental agreement permits it both ways, i.e. from landlord to tenant, and vice versa,[1] you should not use this method. If you're insistent on using this method, don't forget the 11:59 PM rule.
  7. don't forget to keep true copies of the notice. You'll have to attach it to eviction complaint, if the matter isn'tresolved by the notice.
  8. "Measure twice, cut once." In other words, calculate the number of days or hours a couple of time, just to make sure you've got the proper amount of time. Have someone else review it, just to make sure.

Conclusion. If time is of the essence, and the resident will actually answer the door (not their 6-year old child, or a friend), I would say personal service will suffice. However, my strong preference is to mail all notices, making sure to add at least three days. I prefer this approach since the law presumes receipt, so long as it was properly addressed, stamped and posted. It also avoids the potential for a confrontation at the door.

[1] The MHCO complies with this requirement.

Phil Querin Q&A: Home Fire in the Community – Rights, Duties and Liabilities

Phil Querin

Question: A home burned down over the weekend in my community.  What are my rights and responsibilities?  How does the scenario change depending if the resident has or does NOT have insurance?

Answer:   This is a good question, and all too frequently ignored by owners and managers. The first question is whether the issue is addressed anywhere in the community documents, i.e. the statement of policy, rules, or rental agreement. Likely not. It really isn’t addressed in the Oregon Residential Landlord-Tenant Act, with the exception of ORS 90.222, which covers renter’s liability insurance, and is excluded from the manufactured housing section of the law. 

Strictly speaking, the fact that the home was destroyed and is likely uninhabitable does not make it any less of a resident responsibility than before the fire. In other words, it is the resident’s primary responsibility to either promptly repair, replace, or remove the home.  The space is still under lease or rental to the resident, so all of the same rules apply, i.e. to keep it in good condition and safe. If the home is nothing more than a shell, the resident should likely remove it as soon as possible.

If the resident does not have fire insurance to repair or replace the home, I suspect he or she will abandon it, thus making it your problem - or the problem of the lienholder if there is one.  Incidentally, if there is a lienholder, the loan documents likely require fire insurance, and that it be a named insured on the policy.  If that is the case, then hopefully, between the resident and their insurance company, there may be available proceeds to repair or replace.[1]

If the resident abandons the home, you should immediately send out a 45-day abandonment letter, thus triggering your right (and duty) to take control of the personal property.  It is likely an attractive nuisance for children, which could result in injury to them, and liability to you.  In such case, you should consider having it either cordoned off with “No Trespassing” signs, or removed.  Make sure that you independently confirm that it is a total loss, and with no salvage value.  If there is salvage value, it belongs to the resident.

following my article titled “Home Fire in the Community” I received an email from John Van Landingham with a ‘gentle reminder’ that “…you might want to add that, if a governmental agency posts the burned-out home as constituting a health hazard, the abandoned property timelines can be shortened. ORS 90.675 (21).” John was – as usual – absolutely correct.  Below is an amplification of my earlier post.

ORS 90.675 is the abandonment law that applies generally to homes located in manufactured housing communities. Today it contains 23 separate subsections, a behemoth in size compared to most statutes.  Buried 21 sections down in the subterranean recesses of the statute is that portion of the law dealing with health, safety and welfare issues, in which 45 day letters and 30 response periods could not possibly work. In such situations, time is of the essence.  Accordingly, subsection 21 sets forth a fast-track protocol for declaring the abandonment of a home that poses certain risks to others (such as the abandoned shell of a home destroyed by fire). Below is a summary of what this subsection says:

If a governmental agency determines that the condition of the abandoned  home constitutes an extreme health or safety hazard under state or local law and the agency determines that the hazard endangers others in the facility and requires quick removal of the property, the landlord may sell or dispose of it by taking the following steps[2]:

 

  • The date by which a tenant, lienholder, personal representative or designated person must contact a landlord to arrange for the disposition of the property shall not be less than 15 days after personal delivery or mailing of the abandonment letter required by ORS 90.675(3);
  • The date by which a tenant, lienholder, personal representative or designated person must remove the property must be not less than seven (7) days after the date the tenant, lienholder, personal representative or designated person issues the abandonment letter;
  • The contents of the abandonment letter must be in accordance with ORS 90.675(5), except that:
    • The dates and deadlines in the notice must be consistent with the fast-track protocol above;
    • The abandonment letter must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and
    • The landlord must attach a copy of the agency’s determination to the abandonment letter.

 

 

[1] Note that the MHCO Rental and Lease Agreements do have a provision for the resident to maintain fire insurance, but it is optional, and applies only if the box is checked.  This situation should be a cautionary tale for owners and managers requiring such insurance, with proof that it is being maintained.

[2] Note: the following steps are exceptions to the rest of ORS 90.675.  This means that if there is no exception in this list, the rest of the statute will apply.

Mark Busch RV Q&A: Covid-19 Eviction Moratoriums and RVs

Mark L. Busch

Question: Do the state and federal eviction moratoriums apply to RV tenants?  What about short-term guests who are not technically “tenants?”

 

Answer:  Oregon House Bill 4213 prohibits residential evictions (including eviction notices) based on nonpayment of rent or other charges owed to the landlord, and further prohibits no-cause evictions against residential tenants through September 30, 2020.  The federal government through the CDC issued an order placing a nationwide ban on nonpayment residential evictions through December 31, 2020.  (Under both, rent is deferred, not waived, although HB 4213 waives late fees and gives tenants until March 31, 2021 to repay past-due amounts.)

 

Oregon HB 4213 protects tenants from nonpayment and no-cause evictions until September 30, 2020.  After that, the CDC order takes over to protect tenants ifthey submit a sworn declaration to the landlord stating that the tenant:  (1) has used best efforts to obtain all available government housing assistance, (2) does not expect to earn more than $99,000 in 2020, or no more than $198,000 if filing taxes jointly, (3) is unable to pay full rent due to lost income, lost employment, or extraordinary medical expenses, (4) is using best efforts to make timely partial rent payments as circumstances permit, (5) if evicted is likely to become homeless or will need to move to “a new residence shared by other people who live in close quarters,” (6) understands that rent, late fees and other lease charges must eventually be paid in full, and (7) understands that after December 31, 2020, the landlord may evict the tenant if past-due payments are not made in full.

 

The bottom line is that RV parks should NOT be issuing anynonpayment notices (i.e., 72-hour rent nonpayment notices or otherwise) or no-cause notices to tenants until at least October, which is when the statewide eviction moratorium under HB 4213 is scheduled to end.  And while I have my doubts about the legality and enforceability of the CDC order, I also recommend that landlords notissue any nonpayment notices until the end of the year ifa tenant submits the required declaration.  There are potential criminal penalties for landlords who violate the CDC order, which together with the cost of litigation make it entirely too risky to ignore.

 

The other issue is whether HB 4213 and the CDC order apply to short-term, “vacation occupants” in an RV park?  The answer is “no.”  In Oregon, “vacation occupants” are not covered by the protections given to “tenants” by HB 4213 and ORS Chapter 90.  The CDC order also exempts properties “rented to a temporary guest or seasonal tenant as defined under the laws of the State, territorial, tribal, or local jurisdiction.”

 

A “vacation occupant” under Oregon law meansoccupancy in a dwelling unit (which includes an RV rental space), that has all of the following characteristics:  (a) The occupant rents the unit for vacation purposes only, not as a principal residence; (b) the occupant has a principal residence other than at the unit; and (c) the period of authorized occupancy does not exceed 45 days.  So long as your temporary RV park guests fall into this category, they cannot exercise any tenancy-based rights under either state or federal law to avoid being removed from the park for nonpayment.  However, be careful to ensure that your temporary guests actually fit this category, preferably with a written registration agreement specifying that they are, in fact, vacation occupants.

 

As usual, you should consult with a knowledgeable attorney before you resume issuing nonpayment or no-cause eviction notices.  Also be sure to check whether your county or local municipality may have enacted a broader moratorium that could cover short-term RV guests.

Phil Querin Q&A: Issuing Trespass Notices To Community Visitors

Phil Querin

Answer: Your question does not mention any activity by this visitor that could be considered disruptive to current residents (e.g. under the peaceful enjoyment statute, ORS 90.740(4)(j)), threatening, or a violation of any laws, rules, or ordinances. As you know, most park rules, as well as Oregon's landlord-tenant laws, make residents responsible for the conduct of their guests. Thus, if the guest is doing something disruptive, threatening, or illegal, your first step should be to notify the resident and ask that the visitor not engage in the bad behavior. If it continues, a 30-day notice under ORS 90.630(1)may be in order.

From time-to-time, I have seen situations where the person coming into the community has not been invited, and the resident tolerates their presence, but does not - or cannot - control their activities while there. Oftentimes, the visitor is a younger family member, and the resident is an elderly parent.

Under these circumstances (including those in which you simply do not want to issue the resident a 30-day notice), where the activities are disruptive, threatening, or illegal, a trespass notice may be in order. However, before doing so, you should contact your local law enforcement jurisdiction for directions. This is because they may have their own rules on how they will respond and under what circumstances. For example, they may say that the notice has to be served on the visitor, i.e. it isn'tenough to give it to the resident to give to the visitor. They may want the notice to contain specific language, and certainly be clear enough that the officer believes they have authority to remove the visitor.

The form of the notice must be clear and unequivocal. For example[1]:

"NO TRESPASSING NOTICE

TO: ___________________________

You are not a current resident at ______________________ (the "Community"). On ______, _____, and ______, you have visited _____________________, at Space __________. In each instance you became engaged in a verbal altercation with _______ and ___________, both of whom are residents. In each instance, police were called to quiet things down, and remove you from the Community.

 

Accordingly, this is to notify you that inasmuch as you are not an approved resident in the Community, and your presence has been consistently disruptive to other residents while here, you will no longer be permitted to enter any portion of the Community under any circumstances. This shall apply to you, your friends and family. This Notice is effective immediately. If you fail to observe this Notice, and you are discovered in the Park, Management will immediately contact the local police to request that you be removed as a trespasser.

 

 

If you have any questions, please contact your own attorney. You are not to make contact with Management or the undersigned. PLEASE GIVE THIS NOTICE YOUR IMMEDIATE ATTENTION."

 

 

Lastly, to clear, your reasons for issuing a Trespass Notice must include something more than just a general dislike of the visitor - even if he was a problem while he was a resident in the community. If he has not caused any disruption, etc., while there, I question the advisability of issuing a Trespass Notice.

 

 

The only exceptions I can think of is where the visitor poses a clear and present danger to others, e.g. a sexual predator (even if charged but not convicted); someone charged with a crime of violence, even if not convicted; a visitor who has engaged in prior disruptive, dangerous, or illegal conduct while visiting the Community.

 

 

Of course, you should contact your own attorney, as well.

 

[1]This is not intended to constitute legal advice as to the form of the Notice - it is just an example for illustrative purposes. Contact your own attorney first.

Phil Querin Analysis and Tips for Community Owners and Managers - HUD's New Memo on Landlord's Use of Criminal Records Under The Fair Housing Act

Phil Querin

 

 

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Act, if they have a disproportionately "adverse impact" on certain members of a protected class, i.e. those falling into the following groups: Race, color, religion, sex, disability, familial status or national origin.  The simplest explanation of how disparate impact works is by the following example: 

 

A landlord may be found to have discriminated against a prospective tenant, not because of an intentional discriminatory act, such as rejecting him or her based upon race or religion, but unintentionally, because the landlord relied upon a perfectly legal basis, except that it had a disproportionately adverse impact on members of a protected class.  Proof of the “disproportional impact” is usually based upon some statistical correlation showing that a certain class of protected persons are impacted more than others. In other words, unintentional discrimination can be found to be a violation of the Act.

 

According to the Memo (footnotes omitted): 

 

Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability). Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).

 

The purpose of the Memo is to issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result. 

 

MHCO has closely reviewed the Memo and will be providing further guidance shortly. In the meantime, this article is a “heads-up” to landlords and managers regarding the use of criminal background checks in light of the Memo. It is preliminary only, and not intended as “legal advice”. MHCO members should consult their own legal counsel for advice relating to their particular situation. 

 

Summary of Thoughts and Suggestions.  Here are some tips based upon information from the Memo: 

 

  1. 1.    Beware of testers, calling over the phone and asking if you will rent to persons with a criminal background. Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address. 

 

  1. 2.    Ultimately, members should plan on making adjustments in their rules and application process.  MHCO will elaborate on this further in a future article.

 

  1. 3.    Do not have a rule or policy that treats arrests, with no conviction, the same as a conviction. If you currently have such a rule, it should not be enforced.

 

  1. 4.    Do not have a blanket guideline providing, for example, that conviction for any crime is an automatic denial.

 

  1. 5.    Be sure that all rules or policies concerning criminal records are uniformly enforced – no exceptions.  However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violence over the past five years.

 

  1. 6.    If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these criteria, then the rejection can be based on that, thus avoiding the use of criminal background reports and disparate impact issues entirely.

 

  1. 7.    In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before making a decision to reject a prospective tenant based upon criminal history. For example:

 

    1. a.    How long ago was the conviction? (Convictions over 6-7 years old, with no further convictions, in most cases should probably not be used as the basis for a denial (excluding registered sex offenders, or those convicted for violent crimes).

 

    1. b.    What has the person been doing since release?

 

    1. c.    Has the person been convicted once, or on multiple occasions?

 

    1. d.    What was the nature and severity of the crime? 

 

    1. 8.    Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (not mere possession) of a federally defined controlled substance is immune from a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent to a prospective tenant based upon his or her conviction for manufacture or distribution will not result in a violation of the Act, based upon disparate impact. Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

 

    1. 9.    ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all. And where there is similarity, Oregon law does not go as far as the Memo on the issue of criminal records and disparate impact. Oregon’s statute provides:

 

(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168 (Oregon’s eviction statutes – PCQ) if the action:

      (a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application.

      (b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application.

(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application.

(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is:

     (a) A drug-related crime;

     (b) A person crime;

     (c) A sex offense;

     (d) A crime involving financial fraud, including identity theft and forgery; or

     (e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect:

         (A) Property of the landlord or a tenant; or

         (B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent. 

 

    1. 10.    Readers should not assume that compliance with ORS 90.303 means that a denial of tenancy could not result in a disparate impact claim.  In other words, landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  

 

Here are some considerations to keep in mind:

 

    1. a.    The Memo and ORS 90.303 both prohibit screening applicants for arrests, regardless of the conduct that led to the arrest;
    2. b.    ORS 90.303 says that an arrest which has not been dismissed, but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (a) When the matter will be resolved, e.g. a week, a month, or a year? (b) What was the charge? (c) If convicted, would the applicant automatically be denied?  As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds. If so, there is no need to rely upon the community’s criminal background policy to vet an applicant. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason, versus a stronger one, can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases. 
    3. c.    ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo.
    4. d.    Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred, or require an evaluation of what the applicant had been doing since the conviction. (i.e. evidence of rehabilitation). The General Landlord-Tenant Coalition could not reach agreement on whether to use a five or seven year standard in the statute, nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this. Footnote 34 of the Memo cites to the following authority, which mentions six to seven years: 

 

“(S)ee, Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven years without reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record).”

 

Conclusion.  Landlords and managers could be forgiven for feeling they are caught in a dilemma. If they follow Oregon law, it may not be enough – but at least the statutes are black and white. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines”. Perhaps most unsettling, now a good faith effort to comply with the tenant application process is not enough. Unintentional discrimination, now known under the more benign title, “disparate impact”, is more of a concept than a law, since it does not depend upon one’s overt actions,  - however well intended - but upon the long term “consequences” of those actions based upon inferred and empirical statistics derived from academic writings, analysis, surveys, footnotes, and demographics. Is this something landlords and managers can or should be expected to fully appreciate and understand?  The best we can do today is to keep alert to the issue. MHCO will have more on this minefield in coming articles.

 

Fair Housing, Caregivers and 55 & Older Status

MHCO

For several years, the husband had been taking care of the wife after her stroke. Within the last month, the husband had had a heart attack, and was no longer able to care for his wife alone.


Throughout this recent period of decline, their only child, a daughter in her late 40's, had been caring for them. The daughter had retired within the past year, so she was in a perfect position to care for her parents.


Now, the community manager learned that the daughter had moved into the spare bedroom, preparing for her father's return home from the hospital. Not only had the daughter moved into the spare room, she had sold her home, put her furniture up for auction, and was literally moving into her parents' home with no thought of moving back out. The mother reportedly had just been diagnosed with advanced lung cancer and been given less than six months to live. The father's prognosis was grim, although he was coming home. As an only child, the daughter would obviously inherit the home upon their passing.


It appeared to be a situation that would resolve itself within a few years when the daughter reached the minimum secondary age of 50, as stated in the Community Guidelines, however the manager feared losing her exemption status granted under federal law for a 55+ community. And, also contained in the Community Guidelines was a restriction on the length of time a person could have a guest visit them.


Another issue was that their company policy required proof of ownership of the home. If the legal affairs of the parents were not in order, or if there were another sibling not known to management, this might also present a future problem.


And, with all the health and emotional issues going on, the manager didn'twant to bother the family unnecessarily with details that would just burden them.


What to do? First, remember that as a "caregiver" there is no age requirement or limitation that applies. Simply changing the status of the daughter from "guest" to "caregiver" eliminates part of the problem. Then, the age limitation also becomes no problem as long as at least one of the parents is still living and the daughter continues as a caregiver, because they are not subject to agent restrictions, either. And, with at least one of the parents alive, the household still qualifies as one of the required 80% households with at least one person 55 years of age or older.


Then, we are down to ownership of the home, future problems with the legalities of ownership should there be another sibling, and the timing for discussion with the family. Do not wait to have this discussion. Yes, the family is extremely busy, but it doesn'tsound as if it will ease up any time soon. Yes, they probably have their legal affairs in order, but as long as it is handled tactfully, a visit doesn'thave to be an intrusion.


Start the visit by offering your help and asking what you can do. Then proceed into the legalities of home ownership, etc. And, remember, you do have the ability to allow 20% of your households to be occupied by a resident under 55 years of age.


Marketing Your Community

MHCO

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
  • Social Media - Facebook etc
  • 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