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Virtually all forms of “familial discrimination” became illegal under the FHAA, such as the refusal to rent to tenants because they had children; imposing different terms or conditions of rental depending upon whether they had children; discouraging persons from living in a manufactured housing community if they had children, etc.

The FHAA created certain exemptions, or “safe harbors,” from the prohibition against familial discrimination.  The primary one, embraced by many manufactured housing communities, was the 55+ age exemption.  On May 3, 1999, the Housing for Older Persons Act (HOPA) became effective.  HOPA substantially relaxed the earlier highly restrictive – and unworkable - requirements initially established by the FHAA for housing providers to qualify for the 55+ exemption.   Under the FHAA and HOPA, a housing provider may now, without fear of violating the law, legitimately refuse to rent or sell to persons with families, if the provider properly qualifies under the 55+ exemption.

Currently, in order to qualify for the 55+ exemption under the FFHA and HOPA, a community must:

1. Be intended and operated for persons age 55 or over.  This intent can be met by such things as (1) The manner in which the community is described to prospective residents; (2) Advertising designed to attract prospective residents; (3) Lease or rental provisions; (4) The written rules and regulations; (5) Consistent application of the rules, regulations and procedures; (6) Actual practices; and (7) Publicly posting statements describing the facility as a 55+ community.   The age verification procedures must be updated every two years.  This means maintaining a complete file on each space, including with the tenant application updated information, circulated every two years, confirming the names and ages of all persons who are currently residing in the home.

2.  Have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.   Generally, communities strive to be over 80%, since falling below 80% means immediate disqualification.  Does this mean that the 20% margin must be reserved for families with children?  The answer is “No.”  In fact, a 55+ community may to strive for 100% occupancy

by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age or older?  Again, the answer is “No.”  If desired, the community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   Similarly, the community can make the 55+ requirement “more restrictive” e.g. by either saying EVERYONE has to be 55+ or that the minimum age must be OVER 55+.  The only limitation by the federal government is that the age requirement can’t be LESS restrictive, e.g. under 55, or less than 80% occupied. However, it is important for park owners and managers to make sure that all such age/occupancy requirements be properly reflected in the community’s rules and statement of policy – and be consistently applied. 

3. Publish and adhere to policies and procedures that demonstrate an intent to be operated as a 55+ community.This requirement is fairly self-explanatory.  The community must make sure that in all that it does, from its advertising, rules, rental agreements, and all other policies, always hold itself out in writing as a 55+ facility. 

4.            Comply with HUD age verification of occupancy procedures to substantiate compliance with the requirement that 80% of the facility be intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older. 

When the FHAA was first enacted, it imposed an additional requirement mandating that all 55+ communities must have “significant facilities and services” meeting the needs of older persons.  This requirement quickly became a stumbling block for otherwise qualified housing providers from ever obtaining the exemption.  HOPA deleted that requirement, and imposed a transition period for facilities to attempt to meet the 80% requirement.  The period began on the effective date of the law, May 3, 1999, and ended one year later.  During that transition period, HOPA permitted communities that otherwise qualified – without the “significant facilities and services” requirement – to reserve space for 55+ applicants.  This meant that during the one year period, communities could legally decline to rent or sell to families without violating the FHAA.  However, communities that tried but failed during the one year transition, were then expected to commence renting and selling to families.

However, one major question still exists:  What about communities that, for whatever reason, did not qualify for 55+ status?  This would include those that tried but failed; those that never tried because they wanted to be a family facility; or those that were unaware of the HOPA transition period in the first place.  What if today, a community already has qualified under the 80% rule, but still holds itself out as a family facility?  Assuming that it does not discriminate in any respect against the existing families, nor against all those who have applied for occupancy, may it “convert” to a 55+ community, by holding itself out as such, and otherwise meet the HOPA requirements?  This is an open – but inviting  - question.  It would seem that if the community could meet the HOPA requirements in all respects (not because it discriminated in getting there, but simply by attrition of family occupants and the influx of more 55+ residents), it should be permitted to do so.  The process would be fairly simple:  Implement a rules change, combined with new published policies and age verification procedures, which confirm the 55+ status. 

One caveat:  Even though the Oregon landlord-tenant law does permit rules changes to implement material modifications in the parties’ bargain, there is a risk of possible argument by families in the community, complaining that they are now limited in the pool of available buyers for their homes.  However, it would seem that this risk could be remedied, by “grandfathering” those family residents in, thereby permitting them to sell their homes to other families.  This assumes, of course, that by doing so, the community would not jeopardize its 80%-20% ratio.  Before proceeding down this path, park owners are urged to contact their own legal counsel familiar with the FFHA and HOPA for advice and direction.

Answer.   I’ll try.  First let’s start with some definitions:

Section 603 of the FCRA defines a “consumer report” as:

“…any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for (a) credit or insurance to be used primarily for personal, family, or household purposes***

Section 605 provides that “…no consumer reporting agency may make any consumer report containing any of the following items of information:

**** 

(3) Paid tax liens which, from date of payment, antedate the report by more than seven years.

(4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years

1. Any other adverse item of information, other than records of convictions of crimes[1] which antedates the report by more than seven years (Emphasis added.)

Based upon the preceding text in subsections (3) and (4), I read (5) to mean that 7+ year old criminal convictions are excluded from the list of 7+ year old adverse information that is prohibited to be a consumer report.

So, from a consumer reporting perspective, I do not believe there is any restriction for convictions over seven years old.

The position of HUD is an entirely different matter.  This has nothing to do with consumer reporting; rather it relates to HUD’s views on “disparate impact”.

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Fair Housing 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.[2] 

Today, 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 negatively impacted more than others. In other words, unintentional discrimination can now be a violation of the Act.

On April 4, 2016, the U.S Department of Housing and Urban Development (“HUD”) issued its “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions” (hereinafter, the “Memo”). The full text of the 10-page Memo can be found here. Not surprisingly, it follows the June 25, 2015 ruling by the U. S. Supreme Court, in the Texas Dept. of Housing vs. Inclusive Communities case, which upheld the much-debated concept of “disparate impact” under the Fair Housing Act, as amended (the Act”). 

At footnote 43 of the Memo, the following appears:

***see 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). (Emphasis added.)

Does this mean that six or seven years is the maximum look-back that landlords can make when screening someone’s criminal background? I submit that in non-violent crimes, this is not an unreasonable review period. But in cases of crimes to the person, and most significantly, rape and child molestation, I agree a seven year period is not enough. However, the Memo is not to be read to say that any conviction over seven years may not be taken into consideration when screen potential tenants. Its purpose 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.”

Here are some tenant screening tips based upon one of my earlier MHCO Q&As:

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.

2.Ultimately, landlords should plan on making adjustments in their rules and application process.  

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

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

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 violent crimes over the past five years.

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 other criteria, then the rejection can be based on that, rather than a criminal background report, thus avoiding the disparate impact issue entirely.

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:

a.How long ago was the conviction? (A single conviction over 6-7 years old, in most cases should probably not be used as the basis for a denial (excluding registered sex offenders, or those convicted of violent crimes).

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

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

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

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 permissible and not subject to a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent based upon a conviction for manufacture or distribution is not 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 illegalmanufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

9.ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all of them. 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. Landlords should not assume that compliance with ORS 90.303 means that a denial of tenancy automatically avoids a disparate impact claim.  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.  Thus, compliance with state law, but non-compliance with federal law, can still result in a disparate impact claim under the Fair Housing Act, as amended.

Here are some considerations to keep in mind:

1. The Memo and ORS 90.303 both prohibit screening applicants for arrests, regardless of the conduct that led to the arrest;
2. 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 (i) When the matter will be resolved, e.g. a week, a month, or a year? (ii) What was the charge? (iii) 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 a landlord’s criminal background policy at all. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason 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. 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. 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. (e. g. 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[3], nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this issue.

• .  Landlords could be forgiven for feeling they are caught on the horns of a dilemma. If they follow Oregon statutes, it may not be enough. 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” based upon anecdotal information.

Perhaps most unsettling is the fact that today, a landlord’s good faith effort to comply with the tenant application process is not enough. Instead, unintentional discrimination, now known under the more benign title, “disparate impact”, has become a basis for Fair Housing claims. Yet unlike statutes, which can provide distinct guidance, disparate impact is more of a concept than a law, since it ignores one’s intent, and looks instead to the perceived long term consequences of certain actions based upon empirical statistics, academic writings, analysis, surveys, demographics and footnotes. Is this something landlords can or should be expected to fully appreciate and understand when evaluating a person for tenancy? 

[1] It would have helped if a comma had been inserted after “convictions of crimes”.

[2] Note, many local jurisdictions have additional class, including sexual orientation.

[3] It is believed that most screening services do not report criminal information over seven years old.

Answer. Your questions are all good ones, but generally are dealt with in the utility pass-through laws.[1] Here is a summary:

1. Right to Pass Through Utilities. If a written rental agreement so provides, the landlord may require tenants to pay a utility or service charge that has been billed by a utility or service provider to the utility or service provided directly to the tenant's space as measured by a submeter

1. Permitted Charges. The utility or service charge to be assessed to the tenants may consist of:
   1. The cost of the utility or service provided to the tenant's space and under the tenant's control, as measured by the submeter;
   2. The cost of any sewer service for stormwater or wastewater as a percentage of the tenant's water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided; and
   3. A pro rata portion of any base or service charge billed by the utility or service provider, including but not limited to any tax passed through by the provider.

1. Prohibited Charges. The utility or service charge may not include:
   1. Any additional charges (including any costs of the landlord), for the installation, maintenance or operation of the utility or service system or any profit for the landlord; or
   2. Any costs to provide a utility or service to common areas of the facility.[2]

1. Unilateral Amendment. Landlords may unilaterally amend a rental agreement to convert a tenant's existing utility or service billing method to a submeter billing method. The language in the amendment must fairly describe the submetering provisions.

1. 180-day Notice. Landlords must give the tenants not less than 180 days' written notice before converting to a submeter billing method. (PCQ Comment - I believe landlords can send out the unilateral amendment anytime - It does not have to correspond to when they send the 180-day notice out. The "unilateral amendment" language means that the landlord does not need tenant "consent.")

1. Access to Install or Maintain Meters. Landlords must give notice before entering a tenant's space to install or maintain a utility or service line or a submeter that measures the amount of a provided utility or service.
   1. PCQ Comment - The statute does not treat submeter installation as something that must wait until the 180-day notice is mailed. Installation may commence at any time following unilateral amendment of the rental agreement.
   2. The landlord must give tenants at least 24 hours' actual notice of intent to enter and the landlord or landlord's agent may enter only at reasonable times.
      1. PCQ Comment - Although the statute only says "actual notice" (e.g. phone call or phone message left on recorder) I would make sure it is in writing. If it's mailed the landlord would have to add three additional days before gaining entry. If delivered, and the clock time of delivery was put on the notice, the landlord wouldn't have to add any additional time beyond the 24 hours. The 24-hours applies to the minimum amount of advance notice - not to the actual date of intended entry - so long as the entry is not within the 24-hour period.
   3. Landlords may not enter if the tenant, after receiving the notice, denies consent to enter. The tenant must assert this denial of consent by giving actual notice of the denial to the landlord prior to, or at the time of, the attempted entry.
      1. If the tenant refuses to allow lawful access, landlords may obtain injunctive relief to compel access or may terminate the rental agreement with 30-day notice under ORS 90.630 (1). In addition, landlords may recover actual damages. I've never seen this happen, although I have seen situations where some tenants refuse to allow the installation, but they usually come around, since the benefits are well known.
      2. PCQ Comment - Once the amendment is in effect the landlord can start the submeter installation anytime thereafter.

1. Reduction of Base Rent. If the cost of the tenant's utility or service was included in the rent before the conversion to submeters, landlords must reduce the tenant's rent upon their first billing of the tenant using the submeter method.
   1. Although the statute does not set forth a "formula" for calculation, the rent reduction may not be less than an amount "reasonably comparable to the amount of the rent previously allocated to the utility or service cost averaged over at least the preceding six months."
   2. Before landlords first bill the tenant using the submeter method, they must provide the tenants with written documentation from the utility or service provider showing their cost for the utility or service provided to the facility during at least the six preceding months.
2. Prohibition on Subsequent Rent Raises. During the six months following a conversion to submeters, landlords may not raise the rent to recover the costs of installing, maintaining or operating the utility or service system or of new lines or submeters.
   1. Except as part of the rent, landlords may not charge the tenant for the cost of installation or for any capital expenses related to the conversion to submeters or for the cost of maintenance or operation of the utility or service system. (The term "operation" includes, but is not limited to, reading the submeter.)
   2. PCQ Comment: What this means to me is that the landlord can raise rent in the ordinary course after the six month period and apply it toward recoupment of the capital costs. However, I would not "advertise" it and the rent raise statute (ORS 90.600) does not require landlords to do so.

1. Entry to Read Submeter. Landlords or their authorized agent may enter a tenant's space without tenant consent for the purpose of reading a submeter. The following restrictions apply:
   1. Landlords may not remain on the space for a purpose other than reading the submeter.
   2. Landlords may not enter the space more than once per month.
   3. Landlords may enter the space only at reasonable times between 8 a.m. and 6 p.m.

[1] See, ORS 90.531 - 90.539.

[2] Note: Common area utility charges may be passed through, but that right must be included in the rental agreement and the amount passed through per tenant must be calculated on a proportionate basis, e.g. the number of spaces in the park being the denominator.

Answer. I remember writing this provision several years ago, and it has survived the test of time - in other words - to my knowledge it has never been set aside or otherwise ruled illegal or unconscionable by any Oregon courts.

The genesis of this provision relates to the change in Oregon law several years ago that prohibited landlords from imposing a "removal on resale" condition when consenting to the sale of older homes in their communities. Essentially, the condition said that if when the resident sought to sell the home to a new buyer, the landlord could consent, but could add the condition that the home had to be removed on resale. In theory, this was designed to permit landlords to incrementally upgrade the age of the homes in their communities.[1]

The law, prohibiting this practice, is found in ORS 90.680(12) which provides that:

A landlord may not, because of the age, size, style or original construction material of the dwelling or home or because the dwelling or home was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code as defined in ORS 455.010:

(a) Reject an application for tenancy from a prospective purchaser of an existing dwelling or home on a rented space within a facility; or

(b) Require a prospective purchaser of an existing dwelling or home on a rented space within a facility to remove the dwelling or home from the rented space.

The quid pro quo for landlords permitting this legislation was twofold:

• A law that expressly allowed landlords to impose maintenance requirements to the exterior of homes (ORS 90.632);
• A law providing that the failure to enforce the maintenance provision did not constitute a waiver of the right to do so in the future. See, ORS 90.414(1)(c).[2]

While these laws worked well for the exterior of older homes, they did not address the interior, where typically, landlords could impose no updating requirements. However, ORS 90.740 (Tenant Obligations), provided for several things I believed we could incorporate into the MHCO Rental and Lease Agreements. Among other things, the statute provides that residents must:

• Keep the dwelling or home, and the rented space, safe from the hazards of fire;
• Install and maintain in the dwelling or home a smoke alarm approved under applicable law;
• Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;
• Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

And since ORS 90.630(1)(a) provides that '_the landlord may terminate a rental agreement *** if the tenant: (a) Violates a law or ordinance related to the tenant's conduct as a tenant... " I felt it was not unreasonable to require that if the resident made any modifications to the home or its heating, cooling or electrical systems, they must comply with all local, state and federal codes and regulations in existence at the time of the modification."

I then consulted with one or more professional inspectors who specialize in manufactured homes, to ask if they could inspect the interior of the home and vet these issues. I was assured they could.

Lest your resident argue that neither they, nor their buyer, wants to pay for this, I would respond that this requirement is not just for their safety, but the rest of the Park's residents. If the home should catch fire, the conflagration could endanger others as well as them.

Lastly, it is my position, which I have vetted with others, that notwithstanding the ORS 90.680(12) proscription against imposing a "removal on resale" condition, it does not apply if the resident has made changes '_to the original construction material of the dwelling or home *** [that] was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code... ."

In other words, it is my belief[3] that if a resident has made changes to the heating, cooling, or electrical systems inside their home, he or she is no longer protected against the prohibition against "removal on resale" condition. So your recalcitrant resident has two choices: (a) Either consent to the interior inspection by a professional, to make sure it is "safe from the hazards of fire" or (b) You can impose a "removal on resale" requirement. And by the way, since you can impose, as a condition of approval, that the new resident has fire and liability insurance, you will want to consider imposing both conditions, and becoming a co-insured on the liability policy. Good Luck!

[1] Tenant lawyers argued that the provision was illegal, since it violated the law prohibiting termination of MHP tenancies without cause. It was the result of this standoff that resulted in the compromise legislation.

[2] When these laws were being negotiated, non-waiver was important to several landlords who had fixed income elderly residents whose homes were in need of exterior maintenance or painting. While they were willing to forego enforcing the maintenance requirements so long as the aged resident was living there, they did not want to waive the right to do so later, if the home was sold, or transferred by inheritance.

[3] You should verify this with your own legal counsel. MHCO's Q&A articles should not be relied upon as "legal advice".

It's also important to realize that there isn'tone source for information on all federal and state criminal records, said Richer, explaining what she considers to be the "biggest myth in resident screening." There is no single "national" database of criminal records available to screening company providers. In fact, even the FBI database doesn'tcontain all criminal records from every court or state criminal repository in the country.

The way most professional screeners obtain data is either to use a third party or gather their own criminal records from state, county, and local sources, Richer explained. Either way, there are states that restrict the release of electronic criminal records, and some that omit personal identifiers, like full name or date of birth, which makes the process of matching records impossible.

The bottom line: It's difficult to gather criminal records because each source has a different way of cataloguing records. Those differences can make it challenging for both screening and housing providers to conduct criminal records screening.

Understand Key Terminology

Before getting started, you should understand some key terms used in criminal record screening. If you review criminal records as part of your application process, being able to clearly understand the disposition of the record is critical in how you evaluate prospects for housing, Richer said.

Arrest: This word can be confusing or misinterpreted in the context of resident screening. Records of "arrest" refer to when a person is "picked up" or "cuffed" for a criminal event. He or she may be taken into custody (typically to a local police station), but a case has yet to be filed in a court. Richer said that most screening companies don't include records of arrest in their criminal background service.

Pending case: Once sufficient evidence has been presented, typically the prosecutor will file charges. The charge filed opens a case at the appropriate court and the case remains pending until a final disposition, such as guilty or dismissed, has been rendered. HUD's new guidelines warn against making housing decisions based on arrests, so it's important to distinguish between arrests and charges filed (that is, pending cases).

Disposition: Disposition refers to how the case was resolved in the criminal justice system. Any criminal record that isn'tpending would have some type of disposition.

Deferred adjudication: Some states use the term "deferred adjudication," which is a criminal record showing conviction status, but the court had "deferred" the conviction to allow the offender to participate in some type of community service program. If completed, the conviction status would be removed; if not, the conviction status would stand.

Conviction: A record of conviction means the case resulted in the offender either pleading guilty or being found guilty.

Look-back period: This refers to the amount of time a company will consider when evaluating criminal histories. You may have different look-back periods, depending on the nature and seriousness of the crime.

Exit from incarceration: The date of exit from incarceration, parole, or release date if the sentence included jail time.

TIME OUT!

What You Should Know about the FCRA

The Fair Credit Reporting Act (FCRA) is the main compliance law for all screening providers (known as consumer reporting agencies), Richer explained. This federal law provides guidance and obligations for screening providers, users of consumer reports (including housing providers), and consumers (including housing applicants).

Once the criminal records are obtained, screening providers can only deliver the information in accordance with FCRA requirements. Here are some key things to keep in mind about the FCRA:

Permissible purpose: To gain access to any consumer report (including criminal records), companies must certify a permissible purpose under the FCRA. For housing providers, the one that typically applies is "a legitimate business transaction initiated by the consumer." You also may have the written consent of the consumer.

Obsolescence reporting standards: The FCRA defines how long a record can be delivered on a consumer report. The federal FCRA allows for records of conviction to display indefinitely; records of non-conviction (pending, deferred adjudications, and the like) are limited to seven years.

State law limitations: There are 11 states with different reporting standards from the federal FCRA. Most limit records of conviction to seven years, but some have different rules. For example, Kentucky limits records to only convictions, but keeps the time frame the same as the federal FCRA. And California, New Mexico, and New York only allow for records of conviction and limit the time to display to seven years.

Accuracy requirement: Consumer reporting agencies must have reasonable procedures to ensure maximum possible accuracy. For example, if a criminal record does not contain enough information to match to an appropriate consumer (typically full name and full date of birth), then it shouldn'tbe delivered in a consumer report.

Adverse action: If you determine that an applicant isn'tsuitable for housing, or you decide to offer housing with a conditional offer, based on the consumer report, then a "statement of adverse action" is required under the FCRA.

Disclosure and dispute: The statement of adverse action directs the applicant (the consumer) to the "source" of the consumer report (the screening company) to find out what information was delivered to the housing provider (the user) and dispute any inaccurate or non-updated information. This is a free service to consumers and is required under the FCRA.

Answer: In a guest blog dated March 13, 2015, Jo Becker, Educational/Outreach Specialist for the Fair Housing Council of Oregon ("FHCO") posted an article for the Willamette Valley MLS titled: "Screening without Social Security Numbers: There are Options!" The post is set out in full at this link.

What I've set forth below is a summary of Ms. Becker's points, with some editorial comment of my own. First and foremost, this is not to be used as legal advice, as everyone's factual situation is different.

Mr. Obama's controversial (my word, not hers) amnesty program will result in approximately 4 million U.S. residents who are undocumented, coming into the United States. Although they will have an opportunity to apply for work permits and social security numbers, many may still not have SSNs when seeking housing.

In pointing out that '_the Fair Housing Act and Oregon law apply to everyone present in the US, regardless of immigration status" Ms. Becker suggests that there are alternatives to screening other than requiring proof of a SSN. Though she recognizes the "importance of thorough tenant screening," she states that:

'_criminal history information can be acquired without an SSN and, of course, current and past landlords can provide rental history and references. Applicants may be able to provide other information such as proof of "x" number of recent months' paid utility bills, rent, or other regular monthly bills that can show a pattern of timely payment."

However, regardless of a landlord or manager's willingness to rent or lease space to all who qualify, the litmus test in tenant screening is really what the screening company requires. Ms. Becker suggests that rather than issuing a "flat no," landlords and managers say to the applicant "show me what you can." She states that:

'_your screening company should be able to give you an informed estimate about how much time and money an evaluation could cost. Costs may vary so shop your screening company. Once you have a cost estimate, inform the consumer and, if you wish and do so consistently, you may then pass this cost on to them if they want to continue with the application."

This suggestion makes the following assumptions: (a) That the applicant actually has some reliable identifying information sufficient to permit the a company to complete the screening process; (b) The screening company is capable of completing the screening process - even for an increased fee - if it does not rely upon a SSN; and (c) That the screening report will provide equally reliable information as if the applicant had tendered a SSN.

Ms. Becker notes that an alternative to a SSN is an ITIN (Individual Taxpayer Identification Number). Here is what the IRS says about ITINs:

• ITINs are for federal tax reporting only, and are not intended to serve any other purpose. IRS issues ITINs to help individuals comply with the U.S. tax laws, and to provide a means to efficiently process and account for tax returns and payments for those not eligible for Social Security Numbers (SSNs).
• If you do not have a SSN and are not eligible to obtain a SSN, but you have a requirement to furnish a federal tax identification number or file a federal income tax return, you must apply for an ITIN.
• By law, an alien individual cannot have both an ITIN and a SSN.
• For more information, go to link here.

Based upon the above, this leads me to believe - or at least suspect - that the use of an ITIN is really only appropriate if the individual has a federal income tax reporting obligation and is unable to obtain a SSN. So the question landlords and managers should ask their screening company is whether it can even use the ITIN for purposes of tenant screening. If the company can do so, and the background check can be accomplished with a comparable level of accuracy as with a SSN, then the following rules should apply:

• If applicants do not have a SSN, but do have an ITIN, their application should be processed.
• Make sure that the use of the ITIN in lieu of the SSN is applied evenly and consistently to ALL applicants.

If your screening company does not use the ITIN for tenant screening, are you legally required to find one that does? I will leave that question to your own attorney. As for me, if I could pass on the added cost, if any, to the applicant [as Ms. Becker's article suggests], and the company can provide equally reliable and prompt service, I would personally consider doing so.

However, Ms. Becker notes in her article that:

"After having consulted with screening companies and the credit bureaus, it does not appear that this will allow a credit report to be pulled in the same way that an SSN does." [Underscore mine.]

That statement does not sound like a ringing endorsement by Ms. Backer of her own suggestion that landlords use an ITIN in lieu of the SSN. In any event, it's worth a try.

Setting the ITIN issue aside, the FHCO's position is that:

'_a refusal to review alternative documentation when a SSN is not available will have a negative and disparate impact on individuals whose national origin is not the US, thereby having a disparate impact on that protected class. Therefore, a policy or practice of not accepting applicants because they do not have a SSN is not appropriate. That said, we feel that passing on actual additional costs of screening in a situation like this as a legitimate business expense that could be passed on to the applicant. [Underscore mine.]

Here is where Ms. Becker and I part company. What she is saying is that: (a) Since members of the protected class [i.e. Mr. Obama's four million invitees - who will be given an opportunity to apply for SSNs] will be adversely affected; (b) By insisting exclusively on the SSN as the sole screening tool, it indirectly singles them out, and that's discriminatory. That is what she means when she says it creates a "disparate impact." So even if a manager or landlord has no intent to discriminate - i.e. they are applying the SSN requirement to ALL applicants, it is the FHCO's position that such a screening practice is a violation of the Federal and State Fair Housing Laws.

"Disparate impact" is a controversial theory, and only recently was addressed by U.S. Supreme Court. On June 25, 2015, the United States Supreme Court, in Texas Dept. of Housing vs. Inclusive Communities, ruled that under certain circumstances, disparate impact theory can provide the basis for liability in matters pertaining to the sale and rental of housing. While the holding was disappointing, Anthony M. Kennedy, who wrote for the Majority, did state that claims based solely upon mere statistical outcomes are insufficient. He wrote:

"In a similar vein, a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity. A robust causality requirement ensures that "[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate impact" and thus protects defendants from being held liable for racial disparities they did not create.

***

Courts must therefore examine with care whether a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases is important. A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact.

***

It must be noted further that, even when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that "arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e]." Ibid. If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means."

Conclusion. Thus, in recognition of the Inclusive Communities holding, I believe it could be risky to blindly adhere to an application policy that requires proof of a social security card, if a suitably reliable substitute can be found at a reasonable cost. Here are some take-aways:

• The FHCO believes that landlords and managers should review "alternative documentation" protocols, rather than just saying "No" whenever an applicant seeks to rent or lease a space without a SSN. I have no problem with that, and suggest park owners develop such protocols.
• However, the protocols must produce a reasonably equivalent [i.e. timely and reliable], result as when using a SSN.
• If there are companies out there that can produce such results without SSNs - even if more costly - they should be seriously vetted. According to Ms. Becker, the cost, as of today, can be passed on to the applicant, should he or she choose to proceed.
• Note that Ms. Becker is not saying that park owners and managers must use alternative procedures, even if they are bad or unreliable. She is only saying that, if available, alternatives should be considered. I repeat: Landlords and managers should not initially "screen" [i.e. reject] all tenant applicants based solely on whether or not they have a SSN.
• If (a) valid alternative screening tools exist, and (b) they are equally applied, there should be no legal basis for a claim of discrimination if the tenant applicant does not pass the screening protocol.

In the meantime, landlords and managers may want to investigate various screening companies today, to learn whether there are other suitable substitutes to using the SSN as a screening tool. If there are, and they prove reliable, these alternatives should be included on a written list and provided to tenant applicants preferably upon the first face-to-face contact. Remember to be consistent and apply this approach across the board to ALL tenant applicants. To be absolutely safe, I would even go so far as to say that the list - if one can be developed - should be given to all applicants with the rest of the park's paperwork. In other words, don't ask the applicant if they have a SSN, and if they do not, then refuse to give them an application. If there are comparable alternatives that a screening company will accept, then you may use one of them.

As to the question whether not requiring SSNs as part of the application process could open a community up to liability from the other residents, I'm not sure that is an issue. Criminal background checks can be conducted without a SSN. You always want a criminal background check, and the absence of a SSN should not prevent your doing so.

For more information go to the following links:

• https://www.landlordology.com/do-landlords-need-social-security-numbers/
• http://www.american-apartment-owners-association.org/property-managemen…
• https://www.biggerpockets.com/forums/52/topics/183099-background-checks…
• http://www.nolo.com/legal-encyclopedia/how-screen-select-tenants-faq-29…

Your "Screening Criteria" is another important document that should be provided to an interested applicant. This is the document that will determine where you draw the line between acceptance and denial. Your "Screening Criteria" is a written statement of the factors the landlord considers in deciding whether to accept of reject an applicant and any qualification required for acceptance. What can you have on that list? That is up to you. Here is a brief list to get you started: unsatisfactory rental references, the absence of any prior tenant history or credit history, unsatisfactory character references, criminal history, bankruptcy filed in the past two years, payment of rent problems, no social security number, and inaccurate information on the application, insufficient debt to income ratio. All of these are reasons for denial - it is up to you establish them as a basis for acceptance into you community. For example - maybe you accept applicants with felony conviction that are 20 years or older - it is up to you to include that on your screening criteria.

Remember to apply your criteria uniformly in all applications. Do not make exceptions. The question of whether you denied one person and accepted another could be tied to a potential discrimination case. Save yourself the agony of these situations - write a "screening criteria" and apply it uniformly. Used properly and consistently it can be a tool that keeps you above any suspicion of discrimination. The one limit on your screening criteria is that you cannot deny residency to anyone because of his or her race, color, sex, handicapped status, familial status, national origin or sources of income. However, you can deny tenancy to anyone - even if they are in a protected class - if they do not meet any of the minimum criteria that you establish in your screening criteria. Often potential applicants will "self screen" themselves by reading your "screening criteria" and realizing that they do not qualify, thus saving you and the potential applicant time and energy.

Screening/Admission Criteria: All applicants should be presented with a full explanation of the established basis for acceptance or rejection. This should be a written statement of any factors a landlord considers in deciding whether to accept or reject an applicant and any qualifications required for acceptance. This may include:

• Unsatisfactory rental references
• Applicant must be 18 years or older
• Provide two pieces of identification, one with each applicant's photo from a government office (i.e. Driver's License, State ID Card, Passport) and Social Security Card
• Be gainfully employed or have verifiable income from retirement, social security or periodic income.
• If the community is either an "age 55 or older" or an "age 62 or older" Community, you must provide proof that you meet the age requirements
• The absence of any prior tenant history or credit history
• Unsatisfactory credit history
• Unsatisfactory character references
• Any criminal history
• Insufficient income to reasonably meet the monthly rental and other expense obligations
• Presence of pets or the number, type or size of pets
• Evidence that the prospective tenant has provided landlord with falsified or materially misleading information on any material items
• If the prospective tenant refuses to sign a new written rental agreement or lease agreement
• The number of additional occupants
• Adverse information contained in the public record

Additional criteria that may be added to qualify could include:

• Minimum two-year verifiable references with previous landlords
• No payment of rent problems over the past two years
• Two years of verifiable employment
• No criminal convictions
• No tax liens
• Sufficient income to pay all outstanding obligations after payment of rent
• Any individual who is a current illegal substance abuser, or has been convicted of the illegal manufacture or distribution of a controlled substance will be denied tenancy
• Any individual or pet/animal whose residency would constitute a direct threat to the health or safety of other individuals.
• If pets are permitted they must meet the requirements of state and local laws, ordinances, and the Community in regards to number, size and breed. Farm animals, exotic and/or wild animals, livestock and certain breeds of dogs. You should list breeds of dogs that are not allowed in your community
• You may want to set a percentage of net-income that should be left over after meeting all financial obligations.
• Homes must be owner occupied - no subleasing

You MUST post your community's screening criteria publicly in the office and provide written copies to all prospective residents.

Remember to apply your criteria uniformly in all applications. Do not make exceptions! Once you make an exception for one of your criteria you are opening up the possibility of future problems. You will be in the awkward position of having to explain why you made the exception to one applicant and not to another applicant. The question of whether you denied one person and accepted another could be tied to a potential discrimination case. Save yourself the agony of these situations and do not make exceptions to your screening criteria. Take the time to put your screening criteria in writing to protect yourself and provide prospective residents with a copy so that they can have the necessary information upon which to make a decision.

Remember - you cannot deny residency to anyone because of his or her race, color, religion, sex, handicapped status, familial status, national origin or source of income. However, you can deny tenancy to anyone - even if they are in a protected class - if they do not meet any of the minimum criteria.

For example: If someone applies for a space in your park and reveals that they are Catholic and have a bad credit record you cannot deny tenancy based on the fact that the individual is Catholic. However, you may deny the tenancy based on the fact that the prospective tenant has bad credit so long as the minimum screening criteria have been consistently applied.

Tell the applicant that you require a certain amount of time to screen the completed application, but that they will be notified within seven days, in accordance with Oregon law. This will give you the opportunity to complete credit and criminal checks, determine the condition of the home for pre-sale or move-in requirements, check employment and personal references; and get information about current and past tenancies.

Example: Landlord/Community
Screening or Admission Criteria

General Requirements:

1. Positive Identification with photo ID
2. A complete and accurate application. Incomplete applications will not be processed.
3. Applicant must be able to enter into a legally binding contract
4. Any applicant currently using illegal drugs or reporting a conviction for the illegal manufacture or distribution of a controlled substance will be denied.
5. Any individual who may constitute a direct threat to the health and safety of an individual, complex, neighborhood, or the property of others will be denied.
6. An application insufficient in credit and rental requirements shall require an additional security deposit equal to 50% of stated rental amount, over and above any other security deposit or additional security deposit required.
7. Applicants may qualify individually, however no person may reside in the property if they do not meet the general requirements of (3), (4) and (5).
8. In order to qualify as a co-signer you must meet all the general requirements and have a monthly income of five times the stated rent.
9. Proof of ownership of the home.

Income Requirements:

1. Gross monthly household income should be equal to two and half time the monthly rent
2. A current pay stub from your employer will be required if we are unable verify income over the phone. If you are unemployed you must have income or liquid assets equal to two and half time the annual rent. Self employed individuals will be required to show the previous year tax return and employment will be verified through the state. A recorded business name or corporate filing will suffice.
3. If applicant does not earn enough income to reside in the property then a co-signor will be required.
4. Your application will be denied if we are unable to determine you earn a legal source of income.

Rental Requirements:

1. One year of rental history or mortgage history verifiable by a third party is required. Current or previous mortgage history showing late payments will require an additional deposit of one month rent.
2. Eviction free rental history is required.
3. Rental history from a non-third party will require an additional deposit of one month rent or a cosignor.
4. Rental history with past due rent or an outstanding balance will be denied.
5. If previous landlord fails to give a reference or give a negative reference application will be denied.
6. Three (3) or more 72 hour notices within a one year period will result in denial.
7. Three (3) or more NSF checks within a one year period will result in denial.
8. Rental history demonstrating disruptive complaints or neglect will result in denial.

Credit Requirements:

1. A credit history with negative reports will not be accepted. A negative report is considered an non medical item 60 days past due or greater, collections, repossessions, liens, judgments or garnishments. Negative credit will result in additional guidelines as follows
   1. A credit report containing a discharged bankruptcy will require an additional deposit of one month's rent or co-signor.
   2. 1-2 items 60 days past due or greater, collections, repossessions, liens judgments or garnishments will require an additional deposit of one month's rent or co-signor.
   3. 3-5 of the items above will require an additional one and half time security deposit.
   4. 6-8 of the items above will require an additional one and half time security deposit plus a cosignor.
   5. 9 or more will result in complete denial

Criminal:

Upon receipt of the rental application and a screening fee, Landlord will conduct a search of the public records to determine whether the applicant or any proposed tenant has been convicted of, or pled guilty to, or no contest to, any crime.

1. A conviction, guilty plea, or no-contest plea, ever for: any felony involving serious injury, kidnapping, death, arson, rape, sex crimes/ and or child sex crimes, extensive property damage, or drug related offenses (sale, manufacture, delivery, possession with intent to sell) A/ Felony burglary or class A/ Felony robbery or;
2. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last seven years for any; felony charges or;
3. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last seven years for; any misdemeanor or gross misdemeanor involving assault, intimidation, sex related, drug related (sale, manufacture, delivery or possession), property damage or weapons charges; or
4. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last three years for; any class B or C misdemeanor in any of the above categories or any misdemeanors in the above categories or any misdemeanors involving criminal trespass I, theft, dishonesty, prostitution shall be grounds for denial of the rental application. Pending charges or outstanding warrants for any of the above will result in suspension of the application process until the charges are resolved. Upon resolution, if the desired unit is available, the application process will be completed. Units will not be held awaiting resolution of pending charges.

Denial Policy:

If you applicant is being denied to adverse and negative information being reported, you should:

1. If it is credit related, contact the credit reporting agency listed in the denial letter in order to:
   1. Identify who is reporting negative information about you
   2. Request a correction if the information being reported is incorrect.

Remember - the "Ideal Resident":

1. Pays the rent on time.
2. Keeps the outside of the manufactured home and the space in a clean and well maintained manner.
3. Does not litter, damage or destroy community property.
4. Does not disturb the neighbors.

The key to identifying the "Ideal Resident" is a thorough and complete processing of the rental application and the supplemental verification forms, combined with a personal interview of the prospective tenant. "Snap judgements" or a "hurry to rent the space" must be avoided.

Used properly and consistently, the Rental Application and supplemental verification forms will prove helpful in countering charges of discrimination in renting spaces. The application should be used in conjunction with a personal interview of the entire household, which can reveal characteristics that do not come through on the written application. In order to protect yourself against claims, you must adopt and consistently follow specific guidelines and procedures by which each and every application is reviewed. The "Resident Acceptance Policy" will assist you in documenting the basis for your acceptance or rejection of each application. It is a good idea to maintain all rejected applications and supporting information for a period of at least three years. Tenant screening is a very important part of community management and it should not be done without reason and consistency. Tenant screening cannot be based on your personal feelings or emotions.

A thorough screening is your best resource for finding good residents. Current residents in surrounding home sites will feel more secure knowing their neighbors have also been screened. 

Answer: This sounds like an episode from a Jerry Springer reality show! Your question doesn'tmake it clear whether the estate was formally filed for probate in court, in which case this "Administrator" would be subject to court supervision and would have to have a bond. I'm suspecting that is not the case - but if it is, you may want to secure legal counsel to notify the court of what's happening and perhaps get him removed.

Assuming that the person is just a designee for the un-probated estate (I will call him the "representative"), I would suggest that you look to ORS 90.675(20), which applies when a resident living alone passes away. Subsection (20) is summarized below, but should not be used as a substitute for reading ORS 90.675 (linked here) in its entirety:

• This subsection (20) applies the same duties as those of a resident who abandoned the property.
• It also applies to any personal representative named in a will or appointed by a court, or any person designated in writing by the decedent to be contacted by the landlord in the event of the tenant's death;
• The 45-day abandonment notice required in ORS 90.675(3) (go to above link) is to be sent by first class mail to this representative at the premises, and also personally delivered or sent by first class mail to them if actually known to the landlord.
• If the representative responds by actual notice to a landlord within the 45-day period provided in the letter and so requests, the landlord shall enter into a written storage agreement with the representative or person providing that the personal property may not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later.
• Note: Entering into the storage agreement includes the duty to pay a "storage fee" which can be no higher than the space rent. This duty is not triggered until the 45-day letter is sent. Presumably you will use a good storage agreement that requires, among other things, compliance with all applicable park rules and state, federal and local laws and ordinances, including a duty to maintain the space. On- site destruction of the home is NOT maintaining the space. Depending upon the home's age, on site destruction could be a violation of certain environmental laws, due to potentially hazardous material used in construction. In fact, since there is a risk that the representative will not comply with the storage agreement - based on his threat of destruction - you may want to consider - only upon the advice of your attorney - to restrict his unsupervised access to the home. Destruction of the home would not only take it off the tax rolls in violation of Oregon property tax law, but it would prevent you, as the landlord, from selling the home upon failure of the representative to meet his obligations. Remember, in addition to the tax collector, you have a vested interest in seeing the home sold for recoupment any sums due (arguably including attorney fees) incurred during the abandonment process.
• Since the abandonment law requires that the landlord has a duty of safe keeping pending completion of the abandonment process, it is my belief[1] that this entitles the landlord to secure the home (e.g. with a new lock) so that heirs and others cannot enter and remove personal property.
• A storage agreement entitles the representative to store the personal property on the space during the term of the agreement, but does not entitle anyone to occupy the personal property.
• If such an agreement is entered into, the landlord may not enter a similar agreement with a lienholder (if any) until the agreement with the representative ends.
• If the representative requests that a landlord enter into a storage agreement and there is a lienholder, also, you should review subsections (19)(c) to (e) and (g)(C) of ORS 90.675, which describes the rights and responsibilities of a lienholder with regard to the storage agreement.
• During the term of the Storage Agreement, the representative has the right to remove or sell the property, including a sale to a purchaser or a transfer to an heir who wishes to leave the property on the space and become a tenant. However, this prospective tenant is subject to the same statutory requirement, including landlord qualification and approval, as found in ORS 90.680 (linked here). The landlord also may condition approval for occupancy upon payment of all unpaid storage charges and maintenance costs.
• If the representative violates the storage agreement, the landlord may terminate it by giving at least 30 days' written notice to them stating facts sufficient to notify them of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the Storage Agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative.

• Upon the failure of a representative to enter into a storage agreement or upon termination of an agreement, unless the parties otherwise agree or the representative has sold or removed the home, the landlord may sell or dispose of it pursuant to sale provisions of ORS 90.675 without further notice to the representative.

So, in summary, the abandonment statute - which is quite lengthy and somewhat difficult to follow - applies in this case, and with proper guidance, you should be able to successfully deal with the representative.

[1] I'm not rendering a "legal opinion" in this Answer - PCQ

Editor's Note:  The following article was provided by Northwest ark Brokerage. For more information on manufactured home communities for sale or an assessment of your community call Bill Jackson of Northwest Park Brokerage at (206) 652-4100 or email Bill at: billj@nwparks.com.  

*****

Everybody is wondering what type of year 2020 will shape up to be.  Elections, international unrest, political infighting, tariffs, taxes and a laundry list of other issues has kept everyone guessing.  None of us know what the future will bring, but in the housing industry two things will help us stay healthy and grow steadily – low interest rates and a strong economy.  

CAP RATES. From what we have seen recently CAP rates can vary greatly, depending on the age and quality of the park/community and its location. 

Low interest rates combined with rising Net Operating Incomes are minimizing CAP rates in most areas of the country.  Coastal metropolitan areas account for lower CAP rates than other regions, where quality, larger communities are demanding CAP rates in the 4% range, and some have been sub-4%.  Buyers target high caliber parks in this CAP rate range, and they sell within weeks of listing.  This is something we haven’t seen before but there is limited inventory available for buyers targeting quality larger communities, and as private housing costs rise out of reach for many residents, demand for manufactured housing communities will continue to compress CAP rates.  If you are a potential seller of a larger quality community, we would love to talk to you.  We have the buyers.  Older communities in rural areas on septic systems and wells have seen CAP rates as high as the 7% range, but if they can be converted to central, local utilities they have a potential and there is still a strong demand for these properties.

INTEREST RATES.  In December the Federal Reserve signaled that it wants to hold off on further interest rate cuts for a while.  At its last meeting the Fed kept the federal funds rate between 1.5% and 1.75%.  Fed Chair Jerome Powell has been in his current position since November 2, 2017 and he expects that the economy will remain stable, but again emphasized that the future path of Fed actions will depend on many different possible events.  

The bond market has also been very stable, as rates have changed very little over the past few months.  The yield curve – the gap between rates on short-term and long-term bonds has maintained its historically normal upward sloping line.  This indicates that investors are not worried much about a possible recession occurring this year or next. 

If the economy slows the Fed will have a much smaller margin of error.  If market turmoil develops (think war or trade challenges) then the Fed will likely cut rates at least one more time.  However, that could result in the Fed gradually raising rates in 2021 according to a variety of economists and prognosticators. 

THE ECONOMY. Most economists seem to agree that the 2020 economy will look much like the 2019 economy.  Long gone are the days of 2007-2009 where real estate foreclosures and bank closures (remember Washington Mutual?) where the daily headline.  Today businesses are by-in-large doing well, unemployment is low, liquidity is plentiful, the stock market is steadily setting new records and many economists believe things will actually get even better in 2021.  The biggest area of uncertainty remains international trade and if that clears up 2020 might even be better than expected.

The “demand side” of the economy will be a little subpar, giving a small break to the supply side.  But when spending improves the supply limitations of low labor force growth and slow productivity growth will diminish, leading to increasing demand for products and services and a demand-supply balance.  Households are growing their incomes slightly more than they are growing their spending.  As a result, the savings rate is moving slowly upward.  That’s ideal, as a higher savings rate puts the economy on a more sustainable path.

Finally, the growth of income and spending has not been as great in 2019 as in 2018 because job gains are lower.  That results from the tight labor market.  Businesses would hire more if they could find additional qualified workers.  Wages have not risen much, so the income growth rate is lower than back in 2018.  However, the jobs picture is solid, leading to good incomes and a positive attitude among most consumers.  Look for them to continue growing their spending moderately in 2020 and into 2021.

Oregon Legislature

Senate Bill 586 Becomes Law on January 1, 2020

When Senate Bill 586 became law on 01/01/20 it amended several landlord-tenant laws.  Most industry representatives feel the new mediation aspects of this Bill are the most important. Notably, the provision that requires mandatory mediation if either the landlord or the tenant initiates a request for mediation.  They are most likely to be disputes relating to compliance with the rental agreement or modifications in the rules or regulations within the community. 

Interestingly, there are a number of types of disputes excluded from mandatory mediation, unless both parties agree otherwise.  They include facility closures, facility sales, rent increases, rent payments and/or amounts due, unauthorized occupants, disputes involving domestic violence or sexual assaults and disputes arising from termination of tenancy under ORS Chapter 90 (Oregon’s Residential Landlord-Tenant Law). 

If a community has a mediation policy, it must include a detailed process and format to initiate mediation, the names and contact information for mediation services made available by the Housing and Community Services Department, a clause stipulating that all communications during the mediation process be held in strict confidence, and it may include specific disputes between the landlord and one or more tenant, or a dispute between two or more tenants. 

All parties must participate in the mediation by making a good faith effort to schedule mediation within (30) days after it is initiated, attending and participating in the mediation process and cooperating with reasonable requests of the mediator. 

Californians Are Moving North

A new study by United Van Lines shows California is ranked among the top 10 of “most moved from states” last year, coming in at number 7.  One of the hot spots people are moving to?  Boise, Idaho.  According to the Boise Valley Economic Partnership, in a span of about five years approximately 7,200 Californians have moved to the Boise area.  And if you have visited Boise recently you can attest to this fact by navigating their increasing crowded roadways, bustling restaurants and newly constructed hotels, motels and shops. 

Forbes Magazine recently named Boise as the fastest growing metro area in the US, crediting the area’s robust tech sector and job growth.  The median home price is Boise is $332,698.  In San Francisco?  $1,325,000. 

Gas prices in Boise are a dollar less than in California and most of the other typical items that make up a family’s cost of living are all significantly less in Idaho.  Also, manufacturers are attracted to the Treasure Valley because of the favorable climate and geological attributes.  Boise is not an area where floods, earthquakes, tornados and hurricanes are a threat, and large companies find that very appealing when investing in large brick-and-mortar factories, data centers and distribution hubs.

Oregon is experiencing the same migration, but it’s been going on much longer.  Californians disproportionally move to southern and central Oregon when compared to other parts of the country.  Southern Oregon has been growing at a rate of about 5% per year, but 12% of net migration is from California.  Most other Californians move to the Portland area and the Willamette Valley.  On average 39,320 Californians move to Oregon annually.  But an average of 19,523 Oregonians also make the move south, leaving Oregon with a net gain of 19,797 new residents from California every year.  Also, in central Oregon, Bend has seen a net gain in population from Washington state in recent years.  This is unusual, but in each of the past few years, central Oregon has gained population from all parts of Washington including the Seattle area and SW Washington. 

THE NORTHWEST BENEFIT

All of this data bodes very well for the housing industry and in particular the manufactured housing industry.  There is a severe housing shortage in Oregon and the Boise, Idaho region, as well as parts of Washington state.  Manufactured housing can provide a quick, affordable, well built and energy efficient housing solution to all these former Californians looking for a better life up north.  This is evidenced by recent reports of increased new and pre-owned manufactured home sales and production. Retailers and manufactures report solid 4th quarter sales and production results in Oregon, Washington and Idaho. 

CrossMod – A New Class of Manufactured Home

The Manufactured Housing Institute – MHI – recently introduced the official name for the new class of manufactured homes.  “CrossMod is a reflection of the industries commitment to elevate the industry by bringing the quality and innovation that can be found in all off-site built housing, including Manufactured Homes, Modular Homes and now CrossMod homes, to even more home buyers” MHI said in a prepared statement.   The term was developed with involvement from multiple professional agencies and teams of industry participants to serve as a mark of distinction for this new HUD code home category. 

“As housing affordability challenges continue to grow, families of all economic backgrounds are searching for attainable, high-quality homes that do not create an unsustainable financial burden.  CrossMod homes are place on a permanent foundation, qualify for conventional financing, help challenge exclusionary zoning ordinances and are virtually undistinguishable from higher-price, site-built options.  Best of all, this new class of off-site built home can be appraised using comparable site-built homes.” 

MHI partnered with market research firm Landor to test a variety of names directly with over 1,000 consumers.  Their impression of the term CrossMod included “modern and sleek”, “combines different models and styles”, “sounds secure and safe” and is an “innovative and smart home”  While just 9% of respondents said they would consider purchasing a manufactured home, 46% said they would purchase a CrossMod. 

Find out more at www.manufacturedhousing.org  

Financing a Manufactured Home Community

The latest interest rates for manufactured housing community financing or refinancing on West Coast remain at or near these rates, which continue to fluctuate and have remained steady in the past few weeks.  Here are some of the lowest rates available for $1 - $10 Million:

Three-year fixed 4.40%, five-year fixed 4.161%, seven-year fixed 4.255%, ten-year fixed, 4.366% and fifteen-year fixed at 4.322%.  ARM’s are as low as 2.9%.  Rates can be found as high as 5.483% for 20-year fixed rate loans and underwriting requires complete and detailed historical operation data. Rate locks are available up to 90-days prior to close in most cases. 

The larger REIT’s and investment funds continue to offer and expand a variety of tax-saving and tax-deferred structures to sellers interested in something other than a 1031 tax-deferred “up leg” exchange or an all-out cash transaction.  Resident purchases are also on the rise.

4th Quarter Production Rises

According to official statistics compiled on behalf of the U.S. Department of Housing and Urban Development (HUD) and verified by the Manufactured Housing Association for Regulatory Reform (MHARR), HUD Code manufactured home production increased in October of 2019 according to the latest reports.  Just released statistics indicate that HUD Code manufacturers produced 9,415 homes in October 2019, up a strong 9.6% from the 8,588 new HUD Code manufactured homes produced during October of 2018. 

On a cumulative basis industry production for 2019 totaled 79,912 HUD Code homes, a decline of 3.6% from the 82,942 HUD Code homes produced during the same period in 2018. While this marks a decline in year-over-year production and shipments and margin has narrowed and industry experts are predicting stronger production and shipment numbers in 2020 as a result of newly introduced products and increased consumer awareness of the affordability and quality of today’s manufactured home. 

For more information on manufactured home communities for sale or an assessment of your community call Bill Jackson of Northwest Park Brokerage at (206) 652-4100 or email Bill at: billj@nwparks.com

If a resident with a disability is harassing or otherwise threatening his neighbors, then you may take action, but only after considering the ramifications of fair housing law. For example, you may have to evaluate a request made by a resident who blames his disruptive behavior on a mental disability and asks you to delay eviction proceedings to allow him to pursue treatment.

The FHA doesn’t protect an individual with a disability whose tenancy would amount to a “direct threat” to the health or safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation, according to HUD.

That means you’ll have to determine whether the resident is a “direct threat” and whether anything can be done to resolve the matter, short of eviction. You can’t make a snap decision. The law requires an individualized assessment of the nature, duration, and severity of the risk of injury; the probability that injury will actually occur; and whether there are any reasonable accommodations that will eliminate the direct threat. And, in evaluating any recent misconduct, you’ll have to consider whether the resident has received intervening treatment or medication that has eliminated the direct threat—that is, a significant risk of substantial harm.

As an example, HUD says that a community must take certain steps before evicting a resident with a psychiatric disability who was arrested for threatening his neighbor with a baseball bat. During the eviction process, the resident’s attorney explains that the resident becomes violent when he stops taking prescribed medication, and asks the community to allow him to remain as a reasonable accommodation. HUD says the community must grant the request only if the attorney can provide satisfactory assurance that the resident will receive counseling and periodic medication monitoring to ensure he will no longer pose a direct threat. If the resident refuses, HUD says that the community may go forward with the eviction proceeding since the resident continues to pose a direct threat to the health and safety of other residents. In practice, applying these rules can be complicated, so it’s best to consult your attorney for guidance.

Example: In 2014, a Texas court ruled against a public housing resident who asked for a reasonable accommodation to avert his eviction for threatening the staff. The resident, who had been warned about increasingly alarming interactions with neighbors, left a threatening voicemail for the director. After the community initiated eviction proceedings, the resident had an outburst in the office, announcing that there would be “bullets for everyone” before storming out. The director, who knew he had a gun, felt threatened and instituted additional safety measures.

The resident’s attorney requested a reasonable accommodation to halt the eviction in favor of an action plan, explaining that the resident had schizophrenia and recently began new medication to better manage his disease. Although a mental health counselor testified that she didn’t think he was a threat, the court rejected his request for a reasonable accommodation and ordered his eviction for violating the lease provisions banning criminal activity by making “terroristic threats.”

An appeals court upheld the lower court’s decision, ruling that the resident wasn’t entitled to a reasonable accommodation, because he failed to prove that his tenancy was terminated by reason of something caused by his disability—that is, that his threats to the staff were causally linked to his disability. There was no proof that his mental disability caused him to threaten violence against the community’s staff. His tenancy wasn’t terminated because of his disability but, instead, because of his failure to abide by the terms of the lease [Heinert v. Wichita Falls Housing Authority, July 2014].

Although fair housing law considers a history of past drug addiction or alcoholism as a disability, you don’t have to excuse criminal or disruptive behavior caused by a resident’s current use of alcohol or illegal controlled substances.