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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

Answer: As to whether you or the resident is responsible for the condition of the ground upon which the home sits, it depends on whether the infestation existed at the time of commencement of the tenancy. If “yes,” the it’s your responsibility to abate; if “no” then it’s the tenant’s responsibility.  Here is a summary of the applicable statute.  I have highlighted that portion of the law which applies to your issue:

ORS 90.730 [Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.] provides in relevant part:

• A landlord who rents a space for a manufactured dwelling shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition.
• The landlord does not have a duty to maintain a dwelling or home.
• A landlord’s habitability duty includes only the following:
  • A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;
  • If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;
  • A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;
  • An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;
  • At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
  • Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement, and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal; and
  • Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation.
•  A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727. 
• A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury.
• A facility common area is considered unhabitable if it substantially lacks:
  •  Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
  • Safety from the hazards of fire;
  • Trees, shrubbery and grass maintained in a safe manner; and 
  • If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord.
•  Note that the landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:
  • The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;
  • The agreement does not diminish the obligations of the landlord to other tenants on the premises; and 
  • The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated.[1]

The term “vermin” is defined as:  “Small insects and animals (such as fleas or mice) that are sometimes harmful to plants or other animals and that are difficult to get rid of.” [http://www.merriam-webster.com/dictionary/vermin] That’s a pretty broad definition, and I’m going to assume that “vermin” include ants.  So the question is, was this condition one that existed at the commencement of the tenancy?  If the resident had been at the space for years and never complained until now, I suspect they [or their exterminator] would have a tough time establishing when the problem first occurred.  As you know, pests come and go; they could be seasonal, weather related, food related, hygiene related, etc.

Chances are that if one resident has ants, others may as well.  Had the resident come to you beforehiring the exterminator, I would have suggested that you find out how widespread the problem was, and if it was prevalent throughout the community [or a specific area within the community]perhaps work out some cost-sharing arrangement along with a periodic maintenance schedule to eradicate the problem. That was not done here.   

However, good community relations suggests that you find out the breadth of the problem, and if it affects several residents, discuss a solution with all of them that works for your pocketbook, and the residents’ budget. Whether you pay for the exterminator for one resident, might set a bad precedent, since it could encourage others to do the same.  That’s why you want to find out the scope of the problem.  

Answer: I assume you are referring to a sale where you carry back the security obligation (as opposed to the buyer paying cash or securing third party financing). In this respect, you are correct, subject to several limitations. MHCO worked extensively with the Oregon Department of Finance and Corporate Securities ("DFCS") and others to develop an exemption to the Oregon law that would permit park owners to engage in the sale of formerly abandoned homes to purchasers for the purpose of a primary residence without having to use a broker (referred to as a "Mortgage Loan Originator" or "MLO" under the new law). Here is a summary of the new exemption law which will be found in ORS 86A.203. - Here are the rules for those licensed as a manufactured structure dealer under ORS 446.691. _ They may offer or negotiate the terms of the loan three or fewer times in a 12 month period; _ They must use a written sale agreement that complies with certain requirements, or with DFCS rules . _ The dealer may not hold more than eight residential mortgage loans without securing a MLO license under ORS 86A.203(1). [Presumably, this means "at one time."] - Here are the rules for those licensed as a limited manufactured structure dealer under ORS 446.706. _ They may offer or negotiate terms of the loan five or fewer times in a 12 month period: _ They must have an ownership interest in a manufactured dwelling park; _ They must use a written sale agreement that complies with certain requirements, or with DFCS rules. _ They may not hold more than twelve residential mortgage loans without securing a MLO license under ORS 86A.203(1). [Presumably, this means "at one time."] But here's the rest of the story: Just because you are exempted from the MLO licensing requirements for a limited number of sales, does not mean that you are free from the tentacles of the Dodd-Frank Act. No, indeed. In fact, there are two new rules that still will apply. 1. Ability-to-Repay ("ATR") Rules. A creditor is prohibited from making a residential loan (this includes your sale of the formerly abandoned home) unless it first makes '_a reasonable, good faith determination of a consumer's ability to repay any consumer credit transaction secured by a dwelling (excluding an open-end credit plan, timeshare plan, reverse mortgage, or temporary loan) and establishes certain protections from liability under this requirement for "qualified mortgages." [See CFPB Summary, here.] In complying with the ATR rules, you must consider and verify the following borrower information: a) Current or reasonably expected income or assets [other than the value of the home that secures the loan]; b) Current employment status; c) Monthly payment on the mortgage loan; d) Monthly payment on any simultaneous mortgage loan that the creditor knows or has reason to know will be made; e) Monthly payment for mortgage-related obligations [e.g., insurance, taxes, assessments]; f) Current debt obligations; g) Monthly debt-to-income ratio, or residual income; and h) Credit history. In making the loan you will be required to calculate the mortgage loan payment based on: - The fully indexed rate or any introductory interest rate (whichever is greater); and - Substantially equal monthly installment that will fully amortize the loan amount over the loan term. At first blush, perhaps these requirements don't seem so burdensome, since one would think any smart lender would follow these protocols anyway. But remember, back in the easy money days, lenders were not keeping most of their loans on their own books; instead, the loans were "securitized", i.e. bundled and sold as securities to investors all over the world. This meant that circa 2004 - 2008, the originating banks that funded these residential loans were quickly repaid by investors and were never going to have to deal with them if and when they failed. Hence, bank underwriting was virtually nonexistent back then - except, of course, for those loans the banks were going to keep on their own books (sometimes referred to as "portfolio loans"). 2. Qualified Mortgages. The Dodd-Frank Act has established a term, "Qualified Mortgage," or "QM," that provides a safe harbor for lenders. That is, if the loan is a QM, there is a legal presumption that the lender complied with the ATR underwriting rules, and therefore the penalties for non-compliance are either eliminated or substantially reduced, as discussed below. If a presumption is "conclusive," no amount of evidence to the contrary will defeat it. But if a presumption is "rebuttable," the party opposing the presumption has an opportunity to rebut it by introducing evidence to the contrary. For a mortgage to be a "Qualified Mortgage," it must meet the following requirements: - All of the "Non-Traditional" Loan Features Must be Removed - This refers to features that we saw in the past, e.g. negative amortization, interest-only payments, and certain balloon payments.[5] - The loan may not exceed 30 years. - If the loan is for $100,000 or more, it cannot have points or fees greater than 3% of the total loan amount. There are different and stricter limits for smaller loans. Certain "bona fide discount points" for prime loans are not included in these limits. - There is an Income Verification and Monthly Debt-to-Income Ratio Cap; The borrower's total monthly debt-to-income ratio (i.e. all housing and non-housing expenses, such as food, automobile, child care, etc.) can be no greater than 43%. - Monthly payments must be based on the highest payment that will apply during the first five years of the loan. The presumptions afforded to lenders making QM loans gives lender protection as follows: - Safe Harbor QM loans - Conclusive Presumption. These are prime loans that (a) Meet the ATR compliance rules including the underwriting requirements above; (b) Are secured by a first lien on the residence; and (c) Carry an interest rate that is less than 1.5% higher than the average prime rate available.[7] The presumption of ATR compliance is conclusive. It is a complete safe harbor. - Higher-Priced QM Loans - Rebuttable Presumption. Here, the presumption of ATR compliance is rebuttable. These loans include first-position liens with an interest rate of equal to or greater than 1.5% over the available prime rate. Essentially, these loans are "higher priced" because the borrowers' credit is less than prime, i.e. the loan is, in the vernacular, "sub-prime." Noncompliance with the ATR Rules. Violations of the ATR rules are harsh, and likely to stifle any types of loans that hint of non-compliance. If a material violation is established, the borrower would have the ability to recover back all of the finance charges and fees paid, plus actual damages, statutory damages, attorney fees and court costs. The plaintiff's bar and the class action bar must be sharpening their knives. There is a three year statute of limitations from the date the violation occurred. Conclusion. I marvel at the complexity of these laws which have been implemented to "protect" consumers by confusing creditors - especially small creditors, such as park owners selling formerly abandoned homes to fill a space and provide affordable housing. If these small transactions caused the credit and housing crisis of 2008 and the ensuing Great Recession, perhaps I could understand. But they didn'. What we're are seeing is a huge net of bureaucratic regulation that has been cast over even the smallest of transactions under the guise of consumer protection. Going forward into 2014, my suggestion is for park owners to decide if: (a) They want to handle these transactions without the use of a MLO (which will add several hundred dollars to each sale) or (b) Go it alone, with knowledge that they will still be expected to comply with the ATR and QM rules. If the latter, my suggestion is to create the simplest of paper transactions, with a market rate interest, no adjustable rates, and a balloon that is not less than five years.

HUD also found that the problem exists in both the home buying and rental markets. Specifically, the report found that, as compared to white renters who contact a rental agent:

• African Americans are told about 11 percent fewer units and shown 4 percent fewer units;
• Latinos/Hispanics are told about 12 percent fewer units and shown 7 percent fewer units; and
• Asian Americans are told about 10 percent fewer units and shown 7 percent fewer units.

Surprised? How can this continue to happen in a country where housing discrimination and segregation have been illegal since 1968, you may wonder.

Part of the answer is that while overt discrimination has become relatively rare, more subtle forms of discrimination continue to thrive. And as they continue over time, they perpetuate institutional segregation. Of course, these subtle forms of discrimination are every bit as illegal as the overt kind. The problem is that they’re also much harder to detect and root out. And because these forms of discrimination are so subtle, it’s easy for property owners, managers, and leasing agents who are otherwise committed to equal housing principles to engage in them unintentionally and inadvertently.  

This month’s lesson deals with one of the most widespread and pernicious forms of subtle discrimination: steering. First, we’ll explain what steering is and how it occurs. And then we’ll set out seven rules to ensure that your leasing agents don’t engage in conduct that constitutes steering. We’ll finish up the lesson with the Coach’s Quiz so you can see how well you learned the material.   

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans discrimination on the basis of race, color, religion, sex, handicap (disability), familial status, or national origin. (To avoid having to list these traits over and over again, we’ll refer to them collectively as “protected characteristics”). Also keep in mind that federal FHA requirements are minimum standards and that many states have adopted their own fair housing laws that extend protections to other protected characteristics, which may include:

• Sexual orientation;
• Gender identity;
• Source of income;
• Criminal record;
• Political belief;
• Creed; and/or
• Military status.

Forms of unlawful discrimination include, among other things:

• Refusing to sell, rent, or negotiate for the sale or rental of, or otherwise make available, or deny housing to a person on the basis of protected characteristics [FHA, Section 3604(a)];  
• Offering different and less favorable terms, conditions, or privileges of the sale or rental of housing due to a person’s protected characteristics [FHA, Section 3604(b)];
• Making notices and statements or engaging in advertising for the sale or rental of housing that indicate a preference on the basis of protected characteristics [FHA, Section 3604(c)]; and
• Making discriminatory misrepresentations about the availability of housing [FHA, Section 3604(d)].

Steering may run afoul of any one or combination of Sections 3604(a), (b), (c), and/or (d), depending on the situation. It occurs when a landlord tries to influence rental prospects’ choice in housing based on their protected characteristics. Steering is illegal because it limits prospects’ choices and denies them the opportunity to buy or rent the housing they choose. Practiced on a wider basis, steering also maintains or creates segregation across apartment communities, neighborhoods, towns, cities, and wider communities.

Part of what makes steering so widespread is how easy it is to conceal. And those very same qualities make it easy to commit accidentally. Nobody would object to the principle that housing providers refrain from trying to influence a person’s housing choices on the basis of protected characteristics. But applying this no-influence principle to real-life situations is very tricky. After all, aren’t leasing agents supposed to provide prospects with information about the apartment so they can decide whether it’s suitable for them?

Steering is all about balancing these competing dynamics. Nobody is suggesting that leasing agents be banned from providing information and answering questions about a property so that prospects can decide whether renting it is right for them. The key to avoiding steering is ensuring that leasing agents don’t carry out these information-sharing responsibilities in a way that influences the prospect’s decision on the basis of his or her particular race, color, etc. And that’s easier said than done. The seven lessons below will enable you to help your leasing agents steer clear of steering.   

7 RULES FOR HELPING LEASING AGENTS AVOID STEERING

Rule #1: Don’t Tell Prospects Where to Rent Based on Protected Characteristics

Steering isn’t always subtle. Sometimes it’s as obvious as a punch in the face. The two most common forms of overt steering:

• Making verbal remarks like “we don’t lease to Black people” or “we don’t have anything suitable for kids or people with disabilities”; and
• Displaying apartments on the basis of protected characteristics such as not showing any units on “adults-only” floors to prospects with young kids.

While these things are enough to make any fair-minded landlord cringe, regrettably, they still happen. And rest assured that if any of your leasing agents were to engage in that kind of conduct, fair housing testers will eventually catch them. At that point, you’ll be looking at not just liability but also potential punitive damages running into six- or even seven figures.

Example: An Atlanta real estate firm and its leading agent had to pay $160,000 to settle steering charges for showing white testers homes in predominately white neighborhoods and Black testers homes in Black neighborhoods. The smoking gun: The agent allegedly told one tester, “I wasn’t sure where to take you because I couldn’t tell over the phone whether you were white or Black.”

Rule #2: Don’t Try to Influence Prospects’ Choices Based on Protected Characteristics

A more common form of steering is to say things to discourage prospects from renting from you (or where in the building to rent from you) or encouraging them to rent from somebody else on the basis of their protected characteristics. Examples of things leasing agents should never say (all of which come from actual HUD cases where landlords were found guilty of steering):

• “I think there are other apartment communities in town that cater more to kids”;
• “We have a few apartments in the back of the building for people with wheelchairs”; and
• “I wouldn’t be comfortable renting in this neighborhood if I were a young single woman.”

Rule #3: Don’t Tell Prospects Where They’d Be “Comfortable”

Notice the word “comfortable” in the last bulleted example above. One of the most common forms of steering is seeking to influence prospects’ choices based on where they’d be most comfortable. The problem is what the word “comfortable” implies.

The critical assumption that’s dangerous to make and even more poisonous to act upon is that people are more “comfortable” and “compatible” with people of their own race, color, etc. Accordingly, telling prospects that they’d be uncomfortable in your community or more comfortable somewhere else suggests that you’re trying to influence them on the basis of their protected characteristics. This conduct constitutes illegal steering even when leasing agents genuinely believe they’re acting in the prospects’ best interests.

Another variation on the theme is seeking to protect residents from discriminatory neighbors, for example, by deliberately not telling a Jewish family about an otherwise suitable vacancy to protect them from the virulently antisemitic neighbor next door. Giving bigots, racists, anti-Semites, and the like veto power over who can lease from you makes you a co-conspirator in discrimination.  

Rule #4: Don’t Answer Discriminatory Questions or Heed Discriminatory Demands

In some cases, the impetus for steering comes not from the leasing agent but the prospect considering the property. One form of this is when a prospect asks questions about, say, the race or color of residents in the community—for example, where a white prospect asks, “Are there any Black people living here?” A more subtle way to pose the question is for prospects to ask a leasing agent, “Do you think I’d be comfortable (there’s that word again) in this community?”

Prospects who ask these kinds of questions are probably either: (1) testers sent to monitor your community’s compliance with the FHA; or (2) genuine racists or bigots. In either case, make sure that leasing agents don’t take the bait. Specifically, make sure they understand that discussing the protected characteristics of other residents with a prospect is a form of illegal steering, even when the prospect brings up the topic.

Note that the same principles apply when a prospect makes discriminatory demands, such as insisting on being shown only units on floors where none of the residents are of a particular race, color, etc.

The best practice for these situations is to have the leasing agent politely decline to answer the discriminatory question or heed the discriminatory demand and tell the prospect of your community’s commitment to fair housing and refraining from discrimination. It’s also a best practice to script the leasing agent’s “we-don’t-discriminate” reply. Language to consider:

“I’m sorry but I’m afraid I can’t answer that question. Please understand that ABC Community is an equal housing opportunity provider committed to complying with all federal, state, and local fair housing laws. ABC does not discriminate against any person because of race, color, religion, national origin, sex, familial status, disability, or [other personal characteristics protected by state or local fair housing law].”

In some cases, the leasing agent may even be able to explain why the prospect’s question or demand is discriminatory and persuade him or her to rephrase or retract it.   

If instead of a direct question about a protected class, prospects ask whether they’d be comfortable renting from you, instruct leasing agents to turn the question around and ask the prospect what he or she means by “comfortable.” If the prospect’s response is nondiscriminatory and not based on the characteristics of the people in the community or neighborhood, the leasing agent can proceed to answer the question. But if the prospect’s response suggests any discriminatory biases, such as, “I’m comfortable with young people” or “I’m uncomfortable around kids,” they should refuse to answer and recite the above statement.  

Rule #5: Don’t Limit Prospects’ Choices Based on Their Kids’ Safety

Leasing agents must understand that it’s not their responsibility to try to talk prospects out of making unsound decisions about where to rent. This instinct of leasing agents to want to protect prospects against themselves is most likely to manifest itself when prospects want to rent apartments that would be unsafe for their young children—for example, units located on an upper floor or right next to a pool with no lifeguard.

A 1992 in-house legal memorandum from HUD’s Fair Housing Division clearly states that denying or trying to discourage families with children housing on the basis of safety is illegal steering. According to the memo, the FHA requires “housing providers to make all units, including units on upper floors and units with balconies, available to families with children.” It also bans the practice of making families with children sign waivers of liability not required of other residents.

Example: In 2017, the U.S. Department of Justice (DOJ) accused the owner and operator of a New Hampshire community of using the safety argument to steer the mother of an infant child away. According to the complaint, the community had a safety policy of placing families with children under the age of 10 in first-floor units only. And since no first-floor units were available, they turned the mother away rather than showing units that were available on the upper floors. Rather than risk a trial, the owner and operator agreed to shell out $25,000 to settle the case.

While ruling out the practice of not showing apartments to families with children on the basis of safety, the HUD memo goes on to say that it’s okay for housing providers to make “factual statements about perceived hazards of their property,” as long as:

• Those statements are “truthful and not misleading”;
• The statements don’t indicate a “preference, limitation, or discrimination” based on familial status; and
• An “ordinary listener” wouldn’t interpret the statements as discouraging families with children from deciding to live in the apartment community or building.

Coach’s Tip: The 1992 HUD memo also clarifies that the FHA doesn’t ban housing providers from imposing “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” such as requiring adult supervision of young children using a swimming pool without a lifeguard.

DEEP DIVE

Steering & Schools

While it might seem like the most natural and innocent thing in the world, discussing neighborhood schools with rental prospects can be a steering liability minefield. That’s because phrases such as “a school with low test scores” or “communities with declining schools” have become code words for racial and other differences to the extent there’s a correlation between the quality of the schools and the racial or ethnic composition of the neighborhood. Similarly, praising the schools in one neighborhood while discretely saying nothing about the schools in another may have the same steering effect.

With this in mind, the National Association of Realtors (NAR) has devised best practices for avoiding steering when discussing schools. And while the recommendations are targeted to real estate brokers, many of them also work for leasing agents on how to avoid steering when talking to prospects about the quality of schools in the neighborhood, including:

• Offer facts, not opinions or personal judgments;
• Keep a list of websites and other sources of objective information about the schools in your area to which you can refer prospects so they can make their own judgments; and
• Ask prospects to clarify their criteria; for example, if they ask whether the schools are “good,” have them describe the standards they believe makes a school good so you can point them to appropriate sources of information.

Rule #6: Don’t Exaggerate a Property’s Drawbacks

Another common way to exert improper influence is to draw attention to or exaggerate the drawbacks or flaws of your property. Such behavior, which runs contrary to the leasing agent’s mission to make your community look good, is powerful evidence of a motive not to rent to the prospect. And when that prospect has one or more protected characteristics, it strongly suggests that discrimination is the driving force behind that motive.

Example: The owner of an Arizona community is determined to maintain a peaceful and quiet “adult” community to attract retirees. Recognizing that categorically refusing to rent to prospects with children is illegal, the owner comes up with a plan to discourage them from doing so by creating a list of all the things that make the property unsuitable for young children. It then instructs leasing agents to go through the list with all prospects that have young kids. Result: The owner—and leasing agents who actually implement the plan—have committed illegal steering.  

Rule #7: Don’t Direct Prospects to Particular Buildings or Areas Based on Protected Characteristics

One particularly egregious, institutional, and still common form of steering is to assign prospects or residents to a particular section of a community or floor of a building because of a protected characteristic. Examples can range from limiting all residents with wheelchairs and/or families with children under a particular age to the ground floor to actual segregation and maintaining separate buildings for Black and white residents. If you don’t believe these things actually happen nowadays, we can cite literally dozens of cases to persuade you otherwise. Here are just a couple of recent examples:

Example: In May 2020, the DOJ filed a lawsuit against a Georgia management company for allegedly steering elderly and disabled African-American rental prospects away from Cedarwood Village, a predominantly white housing complex for elderly persons and persons with disabilities, and to Cedartown Commons, a predominantly Black general occupancy complex.

Example: In January 2021, the DOJ charged a Massachusetts housing authority of steering African-American prospects away from three overwhelmingly white properties that it manages and steering white applicants from two of its disproportionately Black properties in an effort to keep all of these communities racially segregated [United States v. J & R Associates (D. Mass.)].

TIME OUT!

Give Your Marketing Materials an FHA Audit

You may be engaging in steering without realizing it by including language or images in your marketing materials that indicate preferences on the basis of protected characteristics. Statements like “No Children” or “Singles Only” are obvious examples. However, indications of discriminatory preference may be far more subtle, such as characterizing a property located in a predominately white area as being “traditional” or even noting that it’s located next to a particular church. Here’s a list of marketing Do’s and Don’ts that comes straight out of HUD guidelines:

Steer Clear of Discriminatory Marketing

First up: Sexual harassment. Accusations against high-profile celebrities, politicians, and media moguls, fueled by the #MeToo movement, have raised awareness and pushed the issue into the national consciousness. Likewise, it’s become a top priority for officials in the Justice Department and HUD, which continue to come down hard on those accused of sexual harassment against prospects, applicants, and residents. Meanwhile, the victims of sexual harassment in rental housing continue to turn to the courts, either on their own or with the help of fair housing advocates, to seek redress for their injuries.  

Next up: Tenant-on-tenant harassment. Federal fair housing law bans not only sexual harassment, but also harassment based on race, national origin, or other protected characteristics. Most cases against community owners are based on the actions of managers or employees, but HUD regulations—and a recent court ruling—make it clear that communities face potential liability under fair housing law for tenant-on-tenant harassment under certain circumstances.

Last up: Criminal background checks. A few years ago, HUD released guidelines on how fair housing law applies to the use of criminal records by both conventional and assisted housing providers, and federal officials and fair housing advocates continue to press communities accused of discrimination based on criminal screening policies.

In this lesson, we’ll take each of these topics in turn, reviewing recent developments involving HUD, the Justice Department, and the courts, so you’ll understand how to handle these situations should they arise at your community. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

SEXUAL HARASSMENT

The federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status.  

Sexual harassment is a form of sex discrimination banned under the FHA. The basic rules haven’t changed much, but it’s becoming increasingly urgent to take all steps necessary to prevent sexual harassment at your community.

Federal officials with HUD and the Justice Department have made it a top priority to crack down on sexual harassment in housing. In 2017, the Justice Department launched an initiative to combat sexual harassment in housing, and last year, it announced the nationwide rollout of the initiative, including three major components: a new joint Task Force with HUD to combat sexual harassment in housing, an outreach toolkit to leverage the Department’s nationwide network of U.S. Attorney’s Offices, and a public awareness campaign, including the launch of a national Public Service Announcement.

Earlier this year, HUD launched a campaign and training initiative to help protect people from harassment by landlords, property managers, and maintenance workers in HUD-assisted housing. The “Call HUD: Because Sexual Harassment in Housing is Illegal” campaign aims to educate the public about what behaviors constitute sexual harassment and what to do and whom to contact if they experience it where they live. The initiative also offers sexual harassment training to employees of public housing authorities and other housing providers.

“Complaints we receive and cases we see tell us that there are some housing providers who unfortunately prey on vulnerable men and women,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “No one should have to tolerate harassment or unwanted sexual advances in order to keep a roof over their head, and HUD will continue to take appropriate action when discrimination of this type occurs.”

Since launching the initiative, the Justice Department has filed nine lawsuits alleging a pattern or practice of sexual harassment in housing. The Department has filed or settled 14 sexual harassment cases since January 2017 and has recovered over $2.2 million for victims of sexual harassment in housing.

Example: In April 2019, the Justice Department announced a $600,000 settlement with a North Carolina property owner for allegedly subjecting 17 female prospects and residents to sexual harassment over the course of more than 10 years in violation of the Fair Housing Act and the Equal Credit Opportunity Act.

According to the complaint, the owner ran a real estate business that involved not only operating residential rental properties, but also selling homes through “owner financing,” meaning that he extended credit to individuals to purchase homes that he owned. The complaint alleged that he subjected female prospects and residents of these homes to sexual harassment by making unwanted sexual advances and comments; groping or otherwise touching their bodies without consent; offering to reduce or eliminate down payments, rent, and loan obligations in exchange for sexual favors; and taking or threatening to take adverse action against residents when they refused or objected to his advances.

Under the settlement, the owner agreed to pay $550,000 in damages to former and prospective residents, as well as a $50,000 civil penalty. The settlement also permanently bars him from participating in the rental, sale, or financing of residential properties, and requires that he relinquish his ownership interest in all such properties.

“Abusing power and control over housing and credit by committing acts of sexual harassment is an abhorrent and intolerable violation of every woman’s right to equal housing and credit opportunities,” Assistant Attorney General Eric Dreiband said in a statement. “The Justice Department, through its Sexual Harassment in Housing Initiative, will continue to aggressively enforce federal anti-discrimination laws against property managers and owners who cause women to feel unsafe in their homes.”

Example: In April 2019, the Justice Department announced that it has added more alleged victims in a sexual harassment case against the owner and manager of rental properties in Tennessee. The lawsuit alleged that the landlord, who owned and managed a mobile home park and other rental properties, sexually harassed a number of female residents at his properties. Among other things, the landlord was accused of conditioning housing or housing benefits on female residents’ agreement to engage in sexual acts; subjecting at least one female resident to unwanted sexual touching; making unwelcome sexual comments and advances to female residents; and taking adverse housing-related actions against female residents when they refused his sexual advances. The complaint contains allegations of unlawful conduct; the allegations must be proven in federal court.

“No woman should ever be subjected to sexual harassment or intimidation in her home,” Assistant Attorney General Eric Dreiband said in a statement. “The Fair Housing Act protects tenants from harassment and retaliation by their landlords, and the Justice Department will continue to vigorously enforce this law and seek relief for victims.”

“Property owners and landlords who use their position to harass residents or to attempt to trade sexual favors for rent violate the sanctity of an individual’s home, the place where they should feel the safest,” said Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity. “HUD will continue to work with the Justice Department to take action against housing providers that violate the Fair Housing Act by engaging in this type of behavior.”

Example: In March 2019, the owners and former manager of more than 70 rental properties in West Virginia were held in civil contempt for failing to pay $600,000 still owing under a 2017 settlement with the Justice Department in a sexual harassment case. 

The initial complaint alleged that a married couple and related entities owned the properties and that the husband, while serving as the manager, subjected female prospects and residents to egregious sexual harassment and retaliation in violation of fair housing law. In 2015, the husband pleaded guilty to sexual abuse and other charges and was incarcerated for two years for those offenses. The wife has since died.

According to the complaint, the husband sexually harassed multiple female prospects and residents from at least 2006 until he was incarcerated. Among other things, the husband was accused of engaging in unwanted sexual touching and groping; conditioning or offering tangible housing benefits in exchange for performance of sex acts; touching himself in a sexual manner and exposing himself in the presence of female residents; making unwanted and unwelcome sexual comments and verbal sexual advances; entering the apartments of female residents without permission or notice to sexually harass them; and taking or threatening to take adverse action against female residents who refused or objected to his sexual advances.

The wife was accused of failing to take appropriate steps to remedy the discrimination after receiving tenant complaints about sexual harassment. To the contrary, she allegedly took adverse housing actions, or threatened to take such actions, in retaliation for discrimination complaints.

To resolve the case, the defendants agreed to a settlement, which required them to deposit $500,000 into a compensation fund for potential victims and pay $100,000 in civil penalties to the government. The defendants made the first $100,000 payment but failed to deposit the remaining $400,000 into the compensation fund or pay the $100,000 civil penalty as agreed a year later.

The Justice Department took the case back to court, where the judge granted its request to hold the defendants in civil contempt for failing to pay the balance of the funds owed under the 2017 settlement agreement.

The defendants didn’t deny that they owed the money and failed to submit financial documents to prove their supposed inability to pay. They conceded that they owned more than $700,000 worth of property but said that they couldn’t obtain a loan secured by the properties. They didn’t want to sell the properties because the husband wanted to transfer his interest in the properties to his children and a forced sale of the properties at below market value “would only punish innocent persons not party” to the settlement agreement.

Rejecting those claims, the court said that obtaining fair market value for the sale of their real estate wasn’t required for the defendants to satisfy their obligations under the settlement agreement. The “innocent persons” at issue in this case were the defendants’ former female residents and prospects who have yet to be compensated for the harms they suffered as a result of the husband’s conduct [U.S. v. Walden, March 2019].

Coach’s Tip: Adopt a zero-tolerance policy against sexual harassment at your community. It’s important to have a clear, written policy that sexual harassment of any kind won’t be tolerated at your community and that violations will bring prompt disciplinary action, up to and including termination. Require all employees—from leasing agents to maintenance workers, whether full or part time—to receive fair housing training, including your sexual harassment policy.

TIME OUT!

Understanding Harassment Regulations

In September 2016, HUD adopted final regulations on fair housing protections for victims of harassment based on race, color, religion, national origin, sex, familial status, or disability. The new regulations cover “quid pro quo” harassment and hostile environment harassment in both private and publicly assisted housing.

Sexual harassment in housing threatens a resident’s safety and privacy in her own home, according to HUD. In its experience enforcing the FHA, HUD said that low-income women—often racial and ethnic minorities and persons with disabilities—may be particularly vulnerable to sexual harassment in housing. HUD’s final rule on harassment in housing includes formal uniform standards for evaluating claims of hostile environment and quid pro quo harassment in the housing context:

Quid pro quo (“this for that”) harassment involves subjecting a person to an unwelcome request or demand and making submission to the request or demand a condition related to the person’s housing.

Hostile environment harassment involves subjecting a person to unwelcome conduct that’s so severe or pervasive that it interferes with or deprives the person of the right to use and enjoy the housing.

The new rules also clarify when housing providers and other covered entities or individuals may be held directly or vicariously liable under the Fair Housing Act for illegal harassment or other discriminatory housing practices.

TENANT-ON-TENANT HARASSMENT

HUD’s regulations make it clear that fair housing law bans not only sexual harassment, but also harassment based on any protected class, including race, national origin, disability, and family status.

The regulations also clarify when housing providers and other covered entities and individuals may be held liable for illegal harassment and other discriminatory housing practices. Under HUD regulations, community owners may be liable under fair housing law for failing to take prompt action to correct and end discriminatory conduct, including harassment, by their employees or agents, where they knew or should have known about it.

You don’t have only your employees or other staff members to worry about—you could face liability for tenant-on-tenant harassment under certain circumstances. Based on the HUD regulations, you could be liable under fair housing law for failing to take prompt action to correct and end a discriminatory housing practice by a third party, where you knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third party depends on the extent of your control or any other legal responsibility you may have with respect to the third party’s conduct.

Example: In March 2019, a court ruled that a New York community could be liable under the FHA for an alleged campaign of racial harassment against an African-American resident by his neighbor.

After living at the community for several months, the resident claimed that his next-door neighbor began a relentless campaign of racial harassment, abuse, and threats directed toward him. From the start of the harassment, the resident said he feared for his personal safety, so he contacted the police and the site’s management to complain.

According to the resident, his first call in March 2012 prompted police officers in the hate crimes unit to visit the site, interview witnesses, and warn the neighbor to stop threatening the resident with racial epithets. That day the resident said he filed a police report, and a police officer told the management about the neighbor’s conduct. Allegedly, the management did nothing.

In May 2012, the resident said he called the police again and filed another police report. This time, the resident said he provided written notice to management about his neighbor’s racial harassment and racial slurs directed toward him between March and May 2012. It also provided contact information for the police officers responsible for investigating the neighbor. Allegedly, the management still took no action.

According to the complaint, the neighbor’s conduct persisted to the point that the police arrested him for aggravated harassment. In August 2012, the resident said he sent a second letter informing management of the continued racial slurs directed to him and the fact that the neighbor had recently been arrested for harassment.

In September, the resident said he contacted the police and sent the management group a third letter complaining about his neighbor’s continued harassment. After receiving the letter, according to the complaint, the management group advised the site manager “not to get involved,” and the management group declined to respond or follow up. To the contrary, the resident claimed that the neighbor was allowed to stay in his unit until his lease expired and he moved out in January 2013. A few months later, the neighbor pleaded guilty to harassment and a court entered an order of protection prohibiting him from contacting the resident.

The resident sued, accusing the owner and manager of violating fair housing law by failing to take action to address a racially hostile housing environment created by his neighbor. A district court ruled against the resident and dismissed the case.

On appeal, the court reversed, ruling that the resident could pursue his claims against the community for failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment.

The court cited HUD’s regulations, which specifically state that an owner may be liable under the FHA for “[f]ailing to take prompt action to correct and end a discriminatory housing practice by a third-party” tenant where the owner “knew or should have known of the discriminatory conduct and had the power to correct it.”

The court acknowledged that the owner’s ability to control a given resident is relevant to determining the owner’s liability. In some cases, an owner may not have enough control over its residents to be held liable for failing to intervene. According to HUD, the owner can be held liable only in circumstances where the landlord had the power to take corrective action yet failed to do so. That would mean that the landlord escapes liability under the FHA if the appropriate corrective action is “beyond the scope of its power to act.”

In this case, the resident’s complaint adequately alleged that the owner and manager engaged in intentional racial discrimination by tolerating and/or facilitating a hostile environment, even though they had authority to “counsel, discipline, or evict [the neighbor] due to his continued harassment of [the resident],” and also had “intervened against other tenants at [the site] regarding non-race-related violations of their leases or of the law.”

The complaint alleged that the owner and manager had actual knowledge of the neighbor’s criminal racial harassment of the resident but, because it involved race, intentionally allowed it to continue even though they had the power to end it. It may turn out that the owner tried but failed to respond. Or it may be that the owner was powerless to evict or otherwise deal with the neighbor. But the resident was entitled further proceedings to determine the level of control the owner and management group actually exercised over tenants and whether they had the power to act to stop the neighbor’s abuse [Francis v. King Park Manor, Inc., March 2019].

Coach’s Tip: Take all necessary steps to prevent—and address—discrimination or harassment at the community. Aside from ensuring that your policies and procedures conform to fair housing law, you can reduce the likelihood of a complaint by properly training and supervising all employees—not only managers and leasing staff, but also maintenance workers and anyone else who interacts with the public. And be particularly careful when hiring and supervising outside contractors or anyone else who could be considered your agent.

Promptly address any complaints of discrimination or harassment by conducting an investigation and, if warranted, taking adequate steps to stop the offending conduct. Get legal advice if necessary, and be sure to document what you’ve done so you’ll be prepared to defend yourself in case a claim is filed against you.

Just don’t try to solve the problem by doing anything that looks like you’re punishing the victim. According to HUD regulations, taking prompt action to correct and end the discriminatory conduct may not include any action that penalizes or harms the aggrieved person, such as evicting a resident who complains to you about discrimination or harassment by an employee, agent, or another resident.

CRIMINAL BACKGROUND CHECKS

Have you reviewed your criminal screening policies lately? If it’s been a while since you last reviewed your policy, it’s important to ensure that it doesn’t run afoul of HUD’s 2016 guidelines explaining how federal fair housing law applies to the use of criminal records in both conventional and assisted housing communities.

The HUD guidance doesn’t prevent communities from screening applicants based on their criminal history, but communities could face liability under fair housing law if its criminal history policy, without justification, has a disparate impact—or discriminatory effect—on minority applicants. It’s important to review the guidance in detail, but there are some steps you should take ASAP to reduce the risk of fair housing trouble. If, for example, your policy still considers arrest records in criminal background screenings, you should make some changes immediately. HUD’s new guidelines flatly say that excluding someone based on arrest records is likely to have a discriminatory effect based on race and national origin.

Check whether your policy still lists “all felonies” or long-ago felonies as reasons not to rent to someone. If so, you may be headed for trouble because the guidelines call into question the lawfulness of excluding people based on criminal convictions—without consideration of what the conviction was for or how long ago it occurred.

Example: In January 2019, a court refused to dismiss a lawsuit filed by an applicant who claimed that a community discriminated against him on the basis of race when it denied his rental application based on its policy to automatically exclude anyone with a felony conviction from renting a unit at the community.

The applicant was an African-American man with a felony conviction. At the time he submitted his application, the applicant met the income eligibility requirement for the unit he applied for, had no prior evictions, and didn’t have a bad credit history. The community allegedly notified him that his application had been denied due to a felony on his criminal record. The applicant said he called twice to request an appeal, but no one returned his calls.

The applicant sued, accusing the community of discrimination because its criminal background policy had a disparate impact based on race. According to the complaint, the applicant alleged that the community had an outwardly neutral policy of automatically excluding anyone with a felony conviction, but the policy had a disparate impact based on race because statistics showed that blanket bans based on criminal history resulted in the denial of housing opportunities at a disproportionate rate for African-Americans and minorities.

The court rejected the community’s request to dismiss the case. The applicant could pursue his disparate impact claim because the statistical racial disparity he relied on was directly related to its alleged policy of excluding a person with a felony conviction from renting at the community [Jackson v. Tryon Park Apartments, Inc., January 2019].

Check whether your policy allows applicants to explain the background of a felony conviction. The HUD guidelines say that communities should offer applicants with criminal records an opportunity to explain the circumstances and what’s happened since then—something akin to the “interactive” process for disability-related reasonable accommodation requests.

Example: In April 2019, a court dismissed claims by an applicant who accused a public housing authority of race discrimination by denying him housing because of his criminal record.

In his complaint, the applicant alleged that he applied to be placed on the public housing waiting list, requesting placement in the first available housing with wheelchair accessibility. At the time he applied in 2016, the PHA required a credit check and criminal background check for all applicants. The policy stated that certain factors could lead to a mandatory denial, including a homicide-related offense. The policy provided applicants with the opportunity to dispute the accuracy and relevancy of the information through an informal hearing.

After an interview, the PHA denied his application for two reasons: a police record—a felony guilty plea to involuntary manslaughter in 1997—and a landlord/tenant judgment against him for $871.

At his hearing, the applicant clarified that his conviction was for a misdemeanor, not a felony, and provided an explanation for the landlord/tenant dispute: He had missed payments only because he had avoided the rental office after being sexually harassed by an employee there.

The PHA reversed its decision regarding his conviction and gave him 30 days to provide proof that he had entered a repayment plan to resolve the landlord/tenant dispute.

The applicant didn’t meet the 30-day deadline, so the PHA upheld the denial of his application. A week later, he sent in the rental payment agreement and the PHA granted his application. Eventually, he signed a lease for a unit at a PHA property.

The applicant sued, accusing the PHA of race discrimination in violation of fair housing law and his due process rights by denying his application because of his criminal record.

Siding with the PHA, the court dismissed the case. The applicant claimed that the PHA discriminated against him and violated his due process rights by refusing to house him because of his criminal record, but the exact opposite was true: Although the PHA initially found him ineligible for housing because of his homicide-related offense, the PHA reversed its decision after a hearing revealed that the offense was only a misdemeanor. Nothing in the record showed that he was the victim of housing discrimination or that he was denied due process.

“There is no evidence that the PHA’s criminal history policy violates state or federal fair housing laws or the Constitution. [The applicant’s] case presents an example of due process at work. Although the PHA may have erred in its initial decision to deny [his] application for public housing, the PHA corrected that decision after giving [the applicant] a meaningful opportunity to demonstrate the PHA’s error” [Hall v. Philadelphia Housing Authority, April 2019].

Coach’s Tip: Whatever your policy on criminal background checks, be sure that you apply it consistently—without regard to race, color, national origin, or other protected characteristics. Applying it only to applicants who are members of racial or ethnic minorities, but not to white applicants, is a sure way to trigger a fair housing complaint.

Example: In October 2018, the Justice Department sued a Tennessee community and its property management company for allegedly denying the application of an African-American applicant because of his criminal record, despite approving the rental applications of two white people with disqualifying felony convictions.

The case dates back to 2012 involving a man living with his ex-wife at the community, who completed a lease application in which he disclosed a felony conviction for writing a bad check. According to the complaint, the community’s resident selection guidelines provided for rejection of applicants who had a felony conviction within the last 10 years as well as any conviction for the sale, distribution, or manufacture of controlled substances or certain sexual offenses.

According to the applicant, the community’s resident manager denied his lease application because of the policy not to rent to felons. Allegedly, she also told him that he was no longer allowed on the property because he was a felon.

Around the same time, according to the complaint, at least two other applicants who were not African American and who had criminal records in violation of the resident selection guidelines were approved for housing at the community. Allegedly, both disclosed their convictions on their applications: The first had a conviction for felony sexual battery and was on the national sex offender database; the second pleaded guilty to felony drug charges and was serving probation [U.S. v. Dyersburg Apartments, LTD., October 2018].

TIME OUT!

Court: Tenant-Screening Services Must Comply with Fair Housing Act

In a landmark civil rights decision, a court ruled that consumer reporting agencies must comply with the FHA when conducting tenant-screening services for landlords.

Fair housing advocates filed the lawsuit against a consumer reporting agency after its tenant screening product allegedly disqualified a disabled Latino man with no criminal convictions from moving in with his mother. The complaint alleged that the company’s screening product provided landlords with an “accept or decline” decision based on an assessment of an applicant’s criminal record. The lawsuit claimed that the screening company’s product discriminates based on race, national origin, and disability in violation of the Fair Housing Act.

The court rejected the company’s claim that the case should be dismissed because fair housing laws didn’t reach its services. According to the court, the company “held itself out as a company with the knowledge and ingenuity to screen housing applicants by interpreting criminal records and specifically advertised its ability to improve ‘Fair Housing compliance.’” Because consumer reporting companies functionally make rental admission decisions for landlords that use their services, they must make those decisions in accordance with fair housing requirements [Fair Housing Center et al. v. CoreLogic Rental Property Solutions, LLC, March 2019].

"Fair Housing Coach" articles are a benefit of MHCO membership.  Sharing, duplication is prohibited.

Answer: ORS 90.530 (Pets in Facilities) provides as follows:

Notwithstanding a change in the rules and regulations of a manufactured dwelling or floating home facility that would prohibit pets, a tenant may keep a pet that is otherwise legally living with the tenant at the time the landlord provides notice of the proposed change to the rules and regulations of the facility. The tenant may replace a pet with a pet similar to the one living with the tenant at the time the landlord provided notice of the proposed change. New rules and regulations that regulate the activities of pets shall apply to all pets in the facility, including those pets that were living in the facility prior to the adoption of the new rules or regulations.

(2)A rental agreement between a landlord renting a space for a manufactured dwelling or floating home and a tenant renting the space must comply with the following:

(a)A landlord may not charge a one-time, monthly or other periodic amount based on the tenant’s possession of a pet.

(b)A landlord may provide written rules regarding control, sanitation, number, type and size of pets. The landlord may require the tenant to sign a pet agreement and to provide proof of liability insurance. The landlord may require the tenant to make the landlord a co-insured for the purpose of receiving notice in the case of cancellation of the insurance.

(c)A landlord may charge a tenant an amount for a violation of a written pet agreement or rules relating to pets not to exceed $50 for each violation.

MHCO Form 05A Space Rental Agreement provides in relevant part:

• Sec. 5 (Additional Fees and Charges) includes place for Landlord to attach the Pet Agreement.
• Section 8 (Community Rules and Regulations; Fines) provides: 8.1 TENANT represents that TENANT has read the Community Rules and Regulations, and agrees to comply therewith, as well as any additional rules and regulations that have been adopted by LANDLORD. A copy of the Community Rules and Regulations is attached and made part of this Agreement. TENANT is responsible for the acts of members of TENANT’S household, TENANT’S pets, occupants, guests and visitors. Violation of this Agreement or any Community Rule and Regulations may be cause for termination. 8.2 As more fully described in ORS 90.302, LANDLORD may charge TENANT a fee for each occurrence of the following: (a) A late Rent payment; (b) A dishonored check; (c) Removal or tampering with a properly functioning smoke alarm, smoke detector or carbon monoxide alarm; (d) The violation of a written pet agreement or of a rule relating to pets in the Community;
• Sec. 12. (Tenant Agreements)TENANT agrees to the following: A. To be responsible for and pay all damages caused by the acts of TENANT, other occupants of TENANT’S Space, TENANT’S pets, occupants, guests and visitors.*** J. (Not applicable unless box is checked.)Maintain a homeowner’s policy of insurance that includes:(a) Coverage for fire in an amount sufficient to replace the Home; and (b) A general liability policy of not less than $100,000 per occurrence. (Note: The liability policy should comply with ORS 90.222.[1]) TENANT agrees to provide LANDLORD, upon request, with a current copy of such policy or policies. TENANT(S) Initials: _____________
• Sec. 13B (1) (Termination of Tenancy by Landlord): TENANT or others occupying TENANT’S Home violate a law or ordinance which relates to TENANT’S conduct as a tenant or violates this Agreement or the Community Rules and Regulations. 

MHCO For 21 (Pet Agreement) provides in relevant part:

Sec. 4. Resident shall maintain at all times a policy of general liability insurance in a company satisfactory to Management with coverage of not less than $250,000 naming Management as a co-insured. Said policy shall provide insurance coverage in the event of any claims, damages or liability arising as a result of any injuries to other Residents, their guests or other third parties directly or indirectly caused by Resident’s pet(s). Said policy shall include a provision that Management must be notified prior to cancellation. A copy of the policy shall be provided to Management together with evidence satisfactory to management that the policy is in full force and effect for so long as Resident has the pet(s) at this Community.

MHCO For 21A (Assistance Animal Agreement) provides in relevant part:

Appearing at top of form: [Note: Landlord reserves the right to refuse to permit an animal becoming an assistance animal if: (a) It has previously caused verifiable and significant damage or injury to persons or property in the Community; (b) Landlord’s insurance carrier would cancel, substantially increase premiums, or adversely change policy terms because of the presence of a certain breed of dog or a certain animal andit would impose an undue financial and administrative burden for Landlord to secure a substitute carrier which would provide coverage for the Animal (hereinafter “Undue Burden”). Prior to such refusal, Landlord should secure written verification substantiating the Undue Burden.]

Summary of Above Information

• ORS 90.530 (Pets in Facilities) permits landlords to enact rules and regulations regarding pets. It also provides that management may require that tenants carry liability insurance on their pets and name the landlord as a co-insured.
• ORS 90.222 (Renter’s liability insurance), quoted in Footnote 1, does not apply to manufactured housing communities. ORS 90.222 addresses tenant liability insurance but says nothing about insurance for pets. Nevertheless, the provisions of ORS 90.222 should be reviewed, perhaps as a “best practice”, as they contain certain landlord limitations that perhaps can be applied when requiring pet insurance (See, for example, the provisions at Subsections 8 and 9 regarding family income limitations and subsidized housing.) In the event of a conflict between ORS 90.222 and ORS 90.530 (e.g. naming management as a co-insured under ORS 90.530), the manufactured housing statute, ORS 90.530, would apply, as ORS 90.222 does not pertain to parks
• The MHCO Space Rental Agreement addresses tenant liability insurance of at least $100,000, but this is optional, and the adjacent box must be checked to apply. It also allows landlord to require the tenant to sign a Pet Agreement. Under the Space Rental Agreement there are several provisions regarding tenant responsibility and liability for damage or injury caused by their pets.
• The MHCO Pet Agreement requires $250,000 liability insurance, naming management as a co-insured.
• The MHCO Assistance Animal Pet Agreement does notrequire that tenants obtain liability insurance, since an assistance animal is not regarded as a “pet”. However, it does permit management to decline to allow an assistance animal if, under certain circumstances, its insurance carrier would not provide insurance or would substantially increase the current premium.
• Note: I did not address park rules, since they can vary widely. But there is little question that park management may have a mandatory pet liability insurance provision in its rules, and as long as they apply to everyone, a rule change can be applied retroactively.

[1]90.222 Renter’s liability insurance.(1) A landlord may require a tenant to obtain and maintain renter’s liability insurance in a written rental agreement. The amount of coverage may not exceed $100,000 per occurrence or the customary amount required by landlords for similar properties with similar rents in the same rental market, whichever is greater.

      (2) Before entering a new tenancy, a landlord:

      (a) Shall advise an applicant in writing of a requirement to obtain and maintain renter’s liability insurance and the amount of insurance required and provide a reasonable written summary of the exceptions to this requirement under subsections (8) and (9) of this section.

      (b) May require an applicant to provide documentation of renter’s liability insurance coverage before the tenancy begins.

      (3) For an existing month-to-month tenancy, the landlord may amend a written rental agreement to require renter’s liability insurance after giving the tenant at least 30 days’ written notice of the requirement and the written summary described in subsection (2) of this section. If the tenant does not obtain renter’s liability insurance within the 30-day period:

      (a) The landlord may terminate the tenancy pursuant to ORS 90.392; and

      (b) The tenant may cure the cause of the termination as provided by ORS 90.392 by obtaining insurance.

      (4) A landlord may require that the tenant provide documentation:

      (a) That the tenant has named the landlord as an interested party on the tenant’s renter’s liability insurance policy authorizing the insurer to notify the landlord of:

      (A) Cancellation or nonrenewal of the policy;

      (B) Reduction of policy coverage; or

      (C) Removal of the landlord as an interested party; or

      (b) On a periodic basis related to the coverage period of the renter’s liability insurance policy or more frequently if the landlord reasonably believes that the insurance policy is no longer in effect, that the tenant maintains the renter’s liability insurance.

      (5) A landlord may require that a tenant obtain or maintain renter’s liability insurance only if the landlord obtains and maintains comparable liability insurance and provides documentation to any tenant who requests the documentation, orally or in writing. The landlord may provide documentation to a tenant in person, by mail or by posting in a common area or office. The documentation may consist of a current certificate of coverage. A written rental agreement that requires a tenant to obtain and maintain renter’s liability insurance must include a description of the requirements of this subsection.

      (6) Neither a landlord nor a tenant shall make unreasonable demands that have the effect of harassing the other with regard to providing documentation of insurance coverage.

      (7) A landlord may not:

      (a) Require that a tenant obtain renter’s liability insurance from a particular insurer;

      (b) Require that a tenant name the landlord as an additional insured or as having any special status on the tenant’s renter’s liability insurance policy other than as an interested party for the purposes described in subsection (4)(a) of this section;

      (c) Require that a tenant waive the insurer’s subrogation rights; or

      (d) Make a claim against the tenant’s renter’s liability insurance unless:

      (A) The claim is for damages or costs for which the tenant is legally liable and not for damages or costs that result from ordinary wear and tear, acts of God or the conduct of the landlord;

      (B) The claim is greater than the security deposit of the tenant, if any; and

      (C) The landlord provides a copy of the claim to the tenant contemporaneous with filing the claim with the insurer.

      (8) A landlord may not require a tenant to obtain or maintain renter’s liability insurance if the household income of the tenant is equal to or less than 50 percent of the area median income, adjusted for family size as measured up to a five-person family, as determined by the Oregon Housing Stability Council based on information from the United States Department of Housing and Urban Development.

      (9) A landlord may not require a tenant to obtain or maintain renter’s liability insurance if the dwelling unit of the tenant has been subsidized with public funds:

      (a) Including federal or state tax credits, federal block grants authorized in the HOME Investment Partnerships Act under Title II of the Cranston-Gonzalez National Affordable Housing Act, as amended, or the Community Development Block Grant program authorized in the Housing and Community Development Act of 1974, as amended, project-based federal rent subsidy payments under 42 U.S.C. 1437f and tax-exempt bonds.

      (b) Not including tenant-based federal rent subsidy payments under the Housing Choice Voucher Program authorized by 42 U.S.C. 1437f or any other local, state or federal rental housing assistance.

      (10) Subsection (9) of this section does not apply to a dwelling unit that is not subsidized even if the unit is on premises in which some dwelling units are subsidized.

      (11)(a) If a landlord knowingly violates this section, the tenant may recover the actual damages of the tenant or $250, whichever is greater.

      (b) If a landlord files a frivolous claim against the renter’s liability insurance of a tenant, the tenant may recover from the landlord the actual damages of the tenant plus $500.

      (12) This section does not:

      (a) Affect rights or obligations otherwise provided in this chapter or in the rental agreement.

      (b) Apply to tenancies governed by ORS 90.505 to 90.850. [2013 c.294 §2; 2015 c.180 §38; 2015 c.388 §5]

1. Manufactured Home Set-Up

1. Include provisions limiting owner's responsibility for such conditions as soils, site preparation, foundation stability, final grading, and settling.
2. Include provision that homeowner has examined the home site and accepts the condition, "as-is."

1. Manufactured Home Removal

Include a provision notifying resident that they will be held liable for any damage to the home site or manufactured community in the event there is any damage during removal of the home.

1. Manufactured Home Standards

Include provisions addressing the following items pertaining to the manufactured home itself:

1. Description of the home and all other structures and accessories that will be sited on the home site.
2. Age, make and model of home.
3. Installation of skirting, gutters and downspouts (within prescribed period of time).
4. Awnings, decks and patios (within prescribed period of time).
5. Above ground piping.
6. Landscaping (Within prescribed period of time).
7. Will fences be allowed, and if so, what height, material and color? Who's responsibility will it be to maintain?

1. Maintenance of Home and Home Site.

1. Add provision making resident responsible for maintaining and keeping the exterior of the home clean and in good repair. Require painting or staining of all wooden structures such as decks, hand railings, storage buildings etc. to prevent their visual and/or physical deterioration.
2. Make resident responsible for maintaining all lawn areas, flowers and shrubbery within their space (e.g. regular mowing and weeding of lawns).

1. Can/should owner reserve the right to perform or have performed landscape maintenance which resident fails to perform?

1. Who owns the landscaping improvements upon termination of tenancy? Address exceptions. Have in writing.
2. Storage of personal property (e.g. firewood, toys, tools, patio furniture, garbage cans, etc.)
3. Clothes lines or clothes line poles.
4. Play equipment, its location and visibility.

1. Homeowners and Guests

1. Limit amount of rent to the persons identified in the rental agreement. Require that any additional residents must be approved by the owner prior to move-in, and an additional monthly amount paid as rent.
2. Limit the total number of permanent residents in any home (rule of thumb 2 persons/bedroom plus one).
3. Make resident responsible for the actions of other occupants of the home, its guests, licensees and invitees.
4. Will there be a limitation on conducting business out of the home?
5. Limitations on "obnoxious or offensive activities which owner believes are an annoyance or nuisance to the community."
6. How long may guests remain in community? Consider placing limit (e'g' 14 days consecutively or cumulatively) after which time they must be qualified as a resident.
7. Have prohibitions against unreasonably loud or disturbing noise through parties, radios, televisions, stereo equipment, etc. and include a time. (e.g. 10:00 p.m. until 8:00 a.m.

1. Subletting

1. Will subletting of a home be permitted or must they be owner occupied?
2. Require approval of house sitters for any extended period of time (e.g. in excess of 30 days) prior to occupancy.

1. Sale of Manufactured Home

1. Require that prospective resident-purchasers submit an application for residency and be approved by owner prior to occupancy. See ORS 90.680.
2. Size and location of "For Sale" signs.

1. Utilities

1. How are electrical, garbage, sewer and water services going to be paid?

1. ORS 90.510 permits direct pass through, but only if the rental agreement specifically provides the right to do so.
2. Problem: How do you "convert" from including utilities in base rent to direct pass-throughs?
3. Who pays for T.V. cable service? Can owner contract with provider, and add on an extra charge?

1. Pets

1. Place limits on control, sanitation, number, type and size of pets. Note ORS 90.530
2. May require that pet agreement be signed and proof of liability insurance making landlord co-insured.

1. Common Areas

1. Limit use and address owner's liability (e.g. streets shall not be used as playgrounds by resident or guests. Sidewalks are not meant for use by bicycles, skateboards, tricycles, etc.)
2. Require resident to assume liability for their guests and invitees.
3. If there are recreation facilities, describe them and place limitations on their use.

1. If there is a clubhouse, describe how it may be used. Consider requiring pre-registration for use; strictly limit or prohibit the use of alcohol; limit use of guests without resident present.
2. Note: can require reasonable cleaning deposit; cannot require bond or insurance; cannot prohibit tenant association meetings there.

1. Automobiles and Motorized Vehicles

1. Strictly limit the dumping of motor oils and other caustic or non-biodegradable substance in street drains, sewer systems or the grounds within the community.
2. Place limitations on car repair and storage of inoperable cars.
3. Limit the number of vehicles and location of parking. Be careful about towing violators.
4. Place limits on the parking of commercial vehicles in the community.
5. Limit overnight parking on streets by guests or homeowners
6. Limit speed and vehicle noise within the community.
7. Limit storage of motor homes, campers, trailers, boats, snowmobiles, etc. on residents' space.
8. Limit use of motorcycles and ATV's within the community.

1. Occupancy Guidelines (ORS 90.510(7))

1. Statute provides that "if adopted, an occupancy guideline in a facility shall be based upon reasonable factors and shall not be more restrictive than limiting occupancy to two people per bedroom.
2. Reasonable factors are defined to include (but not necessarily be limited to):

1. The size of the dwelling.
2. The size of the rented space.
3. Any discriminatory impact for reasons identified.
4. Limitation placed on water or sewage disposal.

1. Dispute resolution (ORS 90.610)

1. What is dispute resolution?

It is an alternative to court litigation and most frequently includes mediation and arbitration.

1. Mediation - non binding dispute resolution
2. Arbitration - binding dispute resolution
3. ORS 90.610(1) states that resident and owner '_shall provide for a process establishing informal dispute resolution of disputes that may arise concerning the rental agreement for a manufactured dwelling."
4. Parties to dispute resolution - Resident vs. owner disputes (not resident vs. resident disputes).
5. Types of disputes:

1. Should be limited to rules violations (as opposed to rental agreement issues such as rent).
2. Exceptions:

1. Statutory (Facility closure, facility sale, rent including but not limited to amount, increase and nonpayment) ORS 90.610(7).
2. Charges and fees due under the rental agreement.
3. Matters for which a non-curable notice could be issued (e.g. 24-hour notice; 3-strikes notice; 20-day repeat violation notice).
4. Approval of new residents purchasing home in park.
5. Lease renewal.

1. Query: What about claims (generally arising against the landlord) such as tort claims (e.g. personal injury, trespass, fraud, misrepresentation, Unlawful Trade Practice claims, Fair Housing claims, etc.)? Any such clause must be in writing and signed.

1. Miscellaneous

1. Address the services and facilities you do not provide.

1. For example, security patrol or security systems - encourage residents to exercise reasonable diligence and caution in securing their homes. Ask that if they observe any suspicious or illegal acts to notify the manager and/or the police department.
2. If there are dimly lighted and/or dark areas within the community, say so, and ask that the resident agree to carry a portable light source when walking at night.

1. Include a non discrimination provision.

1. For example, a recital that the owner will not discriminate on the basis of race, color, sex, marital status, familial status, religion, national origin, or handicap, etc.

Question: A resident living alone passed away. It took some time for the estate to get underway because they had to search for heirs. An heir was located and was appointed as Administrator to act on behalf of the estate. Shortly after the resident’s passing, we began requesting that a Storage Agreement be signed but the estate was hesitant to do so until the Administrator was appointed. After the appointment the Administrator was initially cooperative, but unexpectedly changed his mind and is now threatening to bring all of the past due rent current, and then, out of spite, tear the home down while still on the space. Presumably, after doing so, we would expect the Administrator to cease all further space rental payments. How should we handle this?

Answer: This sounds like an episode from a Jerry Springer reality show! Your question doesn’t make 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 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.

Let’s start with the Baby Boomers vs. the Elderly.  Senior citizens are now at the top of the heap in U.S. Census numbers. The Baby Boomers are now officially “seniors” as they started turning 65 in 2011. In fact, 10,000 people turn 65 every day! The 85- to 94-year-olds experienced the fastest growth between 2000 and 2010. The senior age group is now, for the first time, the largest in terms of size and percent of the population in the US. While the overall senior population has increased, there are major social and financial differences within the group. For example, the Baby Boomers were young adults during the 1960’s and are therefore a more “free thinking” group than their parents, the 85-94 group. While the Baby Boomers generally are not cookie baking grandmothers, they still require specific attention to their needs. Socialization is a key component for any successful senior living community program, but Baby Boomers are not interested in Bingo. The Boomer generation is driven, and “self’ centered. They want control and believe in personal gratification. In contrast, the Elderly group is concerned about being a burden to their families and how long they will be able to maintain any independent living status. Boomers have the greatest percentage of wealth in our society, where the elderly group is amongst the poorest. 

Senior Trends are definitive, and developers and builders need to get ahead of the trends seniors are demanding. Will the product we build today be desirable or outdated in 5, 10, 15 years? Why do we insist that seniors should live in small apartments with no dishwashers? Why do we expect seniors to dispose of all their possessions to live in one of our units with 600 square feet?  Just because someone has a birthday does not mean they should automatically relinquish the amenities one would expect, or the amenities they have always had. Senior housing is not just for little old ladies anymore! The rules of the past may not apply to this new generation of seniors. Boomers have already shown signs of not following their predecessors in the products and services they desire. They will work longer (don’t skimp on parking places) prefer to age in place (smart floor plans, upgraded interior appointments, green features), 89% of seniors are on-line at least once a day (think Wi-Fi, not computer classes), and desire more active retirement scenarios (think wine tasting rather than a quilting bee). For example, on site movie theatres, a concierge (not “activities director”), opportunities that reflect current social trends (golf, gardening, cooking, decorating), concerts with varied options, a technology driven entertainment center (think XBox, not shuffleboard) are just some ideas of how to attract the new generation of seniors. Remember, “Oldies” are not just Frank Sinatra and Doris Day, but the Beatles and The Stones! 

Financial Issues We are living a decade longer than our parent’s generation due to healthy aging and increased access to healthcare. Although this would seem to be a welcome fact, there are many seniors who live with the very real threat of running out of financial resources to sustain this longevity. Nearly half a million elderly living alone in California cannot make ends meet. These seniors lack sufficient income to pay for a minimum level of housing, food, health care, transportation, and other basic expenses. “As the economy wipes out retirement savings and destroys home equity, our parents and grandparents will find paying for a roof over their heads and affording basic necessities even more of a struggle,” said Steven P. Wallace, Ph.D., Center of Human Policy Research. This research shows that elder economic insecurity is problematic in both more and less affluent counties. A majority of all single elders aged 75 or older are economically insecure.  The numbers of affected seniors are likely to be even higher as the current recession deepens. So, what do we do? It may be a reasonable accommodation to change the rent due date to allow for the changing dynamic with assistance payments. All resources should be explored to keep the senior in their housing with eviction as a last resort.

Mental Illness affects one out of every five seniors in America. Just a handful of significant mental health problems that may occur are delirium, dementia, depression, and schizophrenia. Older adults who suffer with mental health conditions often have very abnormal behavior and patterns that create a decreased capacity for them to function independently. In many cases, mental health problems in seniors are too often ignored by health care professionals and attributed to “old age.”  Traditionally, our culture does not show any type of respect or dignity for those suffering from mental health disease. As our population ages, this challenge will become more prevalent. Many of our residents relocated to California and left their families to pursue the “golden dream.”  This has left them alone in their elderly years, and they look at us to fill that role for them. Our roles as rental housing professionals will need to evolve into a position of being able to locate resources that can help our aging residents.  This is why partnering with various social service agencies is such a vital component to add to our amenities on senior communities. 

So, how do we support the staff? I believe that there is a special place in property management heaven for our staff members that contribute to the success of our senior communities!  We depend on these employees to provide customer service on a completely different level. The demands of the senior resident are wide and varied….” why does that animal live here?”  “I do not like the looks of my neighbor;” “She is looking at my husband?” “Why can’t you take me to the store?” …. etc. Our responses must be kind but firm, and conversations must be conducted in terminology that seniors understand. Many seniors believe that the management of our communities have a greater responsibility to them – this makes sense if we keep in mind that they have owned their own homes for many years and probably had some resistance to moving into a “retirement home” that they may think is Assisted Living. Their sense of entitlement runs deep after so many years of being valued and contributing members of our society. Employees are challenged with understanding the perspective of the senior resident. We need to provide major support to these employees and provide continual education on how to interact with seniors. A little pampering and wide shoulders to cry on wouldn’t hurt either!

Professionals in the senior housing industry provide a vital service that goes beyond housing. We provide care, comfort, and a sense of family to our residents. This population segment will only increase so as an industry we need to get ahead of the trends and prepare for the influx of senior residents that will come our way. Our senior consumer wants reasons to believe, not empty facts. They want an emotional connection that goes beyond the walls and floors. Will you be ready for them?

For more information on training topics, including newly developed curriculum devoted to Senior Housing, contact Angel Rogers at (909)725-2700 or angel@angelrogers.com

Ask anyone who works on a Senior Living Community how they like their job and I can almost guarantee that they will tell you they have a love-hate relationship with it. Most employees will tell you that they love working with seniors; that they are a nice group of people, and they have a bond with them that they have never experienced while working on a multi-family community.  They will also tell you of the heartaches and troubles of a senior community; and this is not just the obvious complications of dealing with an aging resident population. You will hear about the vast disparity between “the new senior” and “the elderly,” the trends seniors are setting, the financial issues many seniors are facing, the troubling issue of increasing mental illness in seniors, and the demands seniors are making on staff. How does all this affect not only the senior market, but how will it affect the market at large? How do we stay on top of trends, and how do we assist the employees in this highly specialized market segment? 

Let’s start with the Baby Boomers vs. the Elderly.  Senior citizens are now at the top of the heap in U.S. Census numbers. The Baby Boomers are now officially “seniors” as they started turning 65 in 2011. In fact, 10,000 people turn 65 every day! The 85- to 94-year-olds experienced the fastest growth between 2000 and 2010. The senior age group is now, for the first time, the largest in terms of size and percent of the population in the US. While the overall senior population has increased, there are major social and financial differences within the group. For example, the Baby Boomers were young adults during the 1960’s and are therefore a more “free thinking” group than their parents, the 85-94 group. While the Baby Boomers generally are not cookie baking grandmothers, they still require specific attention to their needs. Socialization is a key component for any successful senior living community program, but Baby Boomers are not interested in Bingo. The Boomer generation is driven, and “self’ centered. They want control and believe in personal gratification. In contrast, the Elderly group is concerned about being a burden to their families and how long they will be able to maintain any independent living status. Boomers have the greatest percentage of wealth in our society, where the elderly group is amongst the poorest. 

Senior Trends are definitive, and developers and builders need to get ahead of the trends seniors are demanding. Will the product we build today be desirable or outdated in 5, 10, 15 years? Why do we insist that seniors should live in small apartments with no dishwashers? Why do we expect seniors to dispose of all their possessions to live in one of our units with 600 square feet?  Just because someone has a birthday does not mean they should automatically relinquish the amenities one would expect, or the amenities they have always had. Senior housing is not just for little old ladies anymore! The rules of the past may not apply to this new generation of seniors. Boomers have already shown signs of not following their predecessors in the products and services they desire. They will work longer (don’t skimp on parking places) prefer to age in place (smart floor plans, upgraded interior appointments, green features), 89% of seniors are on-line at least once a day (think Wi-Fi, not computer classes), and desire more active retirement scenarios (think wine tasting rather than a quilting bee). For example, on site movie theatres, a concierge (not “activities director”), opportunities that reflect current social trends (golf, gardening, cooking, decorating), concerts with varied options, a technology driven entertainment center (think XBox, not shuffleboard) are just some ideas of how to attract the new generation of seniors. Remember, “Oldies” are not just Frank Sinatra and Doris Day, but the Beatles and The Stones! 

Financial Issues We are living a decade longer than our parent’s generation due to healthy aging and increased access to healthcare. Although this would seem to be a welcome fact, there are many seniors who live with the very real threat of running out of financial resources to sustain this longevity. Nearly half a million elderly living alone in California cannot make ends meet. These seniors lack sufficient income to pay for a minimum level of housing, food, health care, transportation, and other basic expenses. “As the economy wipes out retirement savings and destroys home equity, our parents and grandparents will find paying for a roof over their heads and affording basic necessities even more of a struggle,” said Steven P. Wallace, Ph.D., Center of Human Policy Research. This research shows that elder economic insecurity is problematic in both more and less affluent counties. A majority of all single elders aged 75 or older are economically insecure.  The numbers of affected seniors are likely to be even higher as the current recession deepens. So, what do we do? It may be a reasonable accommodation to change the rent due date to allow for the changing dynamic with assistance payments. All resources should be explored to keep the senior in their housing with eviction as a last resort.

Mental Illness affects one out of every five seniors in America. Just a handful of significant mental health problems that may occur are delirium, dementia, depression, and schizophrenia. Older adults who suffer with mental health conditions often have very abnormal behavior and patterns that create a decreased capacity for them to function independently. In many cases, mental health problems in seniors are too often ignored by health care professionals and attributed to “old age.”  Traditionally, our culture does not show any type of respect or dignity for those suffering from mental health disease. As our population ages, this challenge will become more prevalent. Many of our residents relocated to California and left their families to pursue the “golden dream.”  This has left them alone in their elderly years, and they look at us to fill that role for them. Our roles as rental housing professionals will need to evolve into a position of being able to locate resources that can help our aging residents.  This is why partnering with various social service agencies is such a vital component to add to our amenities on senior communities. 

So, how do we support the staff? I believe that there is a special place in property management heaven for our staff members that contribute to the success of our senior communities!  We depend on these employees to provide customer service on a completely different level. The demands of the senior resident are wide and varied….” why does that animal live here?”  “I do not like the looks of my neighbor;” “She is looking at my husband?” “Why can’t you take me to the store?” …. etc. Our responses must be kind but firm, and conversations must be conducted in terminology that seniors understand. Many seniors believe that the management of our communities have a greater responsibility to them – this makes sense if we keep in mind that they have owned their own homes for many years and probably had some resistance to moving into a “retirement home” that they may think is Assisted Living. Their sense of entitlement runs deep after so many years of being valued and contributing members of our society. Employees are challenged with understanding the perspective of the senior resident. We need to provide major support to these employees and provide continual education on how to interact with seniors. A little pampering and wide shoulders to cry on wouldn’t hurt either!

Professionals in the senior housing industry provide a vital service that goes beyond housing. We provide care, comfort, and a sense of family to our residents. This population segment will only increase so as an industry we need to get ahead of the trends and prepare for the influx of senior residents that will come our way. Our senior consumer wants reasons to believe, not empty facts. They want an emotional connection that goes beyond the walls and floors. Will you be ready for them?

For more information on training topics, including newly developed curriculum devoted to Senior Housing, contact Angel Rogers at (909)725-2700 or angel@angelrogers.com

The U.S. Supreme Court Weighs In. 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.

The factual background of the case is as follows: In 2008, Inclusive Communities, a Dallas non-profit, sued the Texas Department of Housing, claiming that the state was awarding tax credits for the construction of affordable housing more frequently in minority neighborhoods than in Caucasian neighborhoods. They argued that this practice resulted in a higher concentration of low-income housing in minority neighborhoods, thus perpetuating de facto segregation in violation of the Fair Housing Act.

The lower federal district court had ruled in favor of Inclusive Communities and the Fifth Circuit agreed, requiring Texas to allocate the subsidies more evenly. The Texas Department of Housing appealed to the U.S. Supreme Court, arguing that it was on the horns of a dilemma: On the one hand it was required not to discriminate based on race, and on the other, it was required to issue housing credits that disproportionally [albeit unintentionally] benefitted neighborhoods with large minority populations.

Thus, so goes the argument, disparate impact theory has created a perverse incentive for businesses, lenders, and municipalities to subtly engage in a form of “reverse discrimination” i.e. benefiting certain protected classes, in order to avoid disparate impact claims. Ironically, in Inclusive Communities, that appears to be exactly what occurred, i.e. the state of Texas tilted in favor of the neighborhoods populated with minorities, rather than poor white communities, in order to avoid a claim of disparate impact against the minorities. But ironically, disparate impact theory can be a two-way street; in the Inclusive Communities case, Texas’s efforts to avoid disparate impacts resulted in exactly what it sought to avoid.

The Majority Opinion. Justice Anthony M. Kennedy wrote for the Majority.[4]

Although the decision was based upon multiple grounds, I will address the most basic – i.e. those relying upon the text of the FHA, rather than delving into the Court’s discussion of prior case holdings.

In order to put the issue in sharp relief, it is important to remember the difference between conduct vs. consequences. One the one hand, the argument is that the FHA only outlaws conduct, i.e. discrimination based upon (or because of) race, color, religion, etc. On the other hand, there are those who believe that the FHA also proscribes consequences, i.e. outcomes that are discriminatory, even though not intentional.

1. Justice Kennedy’s opinion relied upon Section 804(a) of the FHA, which provides that it is unlawful:

“To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the  sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”   42 U. S. C. §3604(a). [Underscore mine. ~ PCQ]

He also pointed to Section 805(b) of the Act, which provides that:

“It shall be unlawful for any person or other entity whose business includes engaging in real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.” §3605(a). [Underscore mine. ~ PCQ]

Based upon the text underscored above, he concluded that:

“Congress’ use of the phrase “otherwise make unavailable” refers to the consequences of an action rather than the actor’s intent. See United States v. Giles, 300 U. S. 41, 48 (1937) (explaining that the “word ‘make’ has many meanings, among them ‘[t]o cause to exist, appear or occur’” (quoting Webster’s New International Dictionary 1485 (2d ed. 1934)). This results-oriented language counsels in favor of recognizing disparate-impact liability. See Smith, supra, at 236. The Court has construed statutory language similar to §805(a) to include disparate-impact liability. See, e.g., Board of Ed. of City School Dist. of New York v. Harris, 444 U. S. 130, 140–141 (1979) (holding the term “discriminat[e]” encompassed disparate-impact liability in the context of a statute’s text, history, purpose, and structure).” [Underscore mine ~ PCQ]

1. The Majority’s next major argument was based upon the fact that although disparate impact theory had been recognized in the lower federal courts, when Congress had the chance to clarify the matter in its 1988 amendments to the Act, it did not do so:

“In addition, it is of crucial importance that the existence of disparate-impact liability is supported by amendments to the FHA that Congress enacted in 1988. By that time, all nine Courts of Appeals to have addressed the question had concluded the Fair Housing Act encompassed disparate-impact claims.[5]

***

When it amended the FHA, Congress was aware of this unanimous precedent. And with that understanding, it made a considered judgment to retain the relevant statutory text.

***

Against this background understanding in the legal and regulatory system, Congress’ decision in 1988 to amend the FHA while still adhering to the operative language in §§804(a) and 805(a) is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. “If a word or phrase has been . . . given a uniform interpretation by inferior courts . . . , a later version of that act perpetuating the wording is presumed to carry forward that interpretation.”

Then in a somewhat about-face, the Majority identified what it called three “exemptions” from liability in the 1988 amendments to the Act[6] that it said “…assume the existence of disparate impact claims.” In other words, although Justice Kennedy acknowledged that the 1988 did not expressly identify disparate impact as a violation of the FHA, he focused on certain provisions of the 1988 Amendments he believed would not have been created, but for the existence of disparate impact claims. He opined:

“The most logical conclusion is that the three amendments were deemed necessary because Congress presupposed disparate impact under the FHA as it had been enacted in 1968. [Underscore mine. ~ PCQ]

***

In short, the 1988 amendments signal that Congress ratified disparate-impact liability.”

I focus on the above two arguments, since without them, the tertiary arguments – which I will not address – are insufficient to stand on their own.

However, in an effort to clarify that disparate impact claims relying solely upon mere statistical outcomes are insufficient, Justice Kennedy 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.”

The Dissenting Opinion. Writing for the minority, Justice Samuel A. Alioto looked directly to the text of the Fair Housing Act, and correctly noted there was nothing in that law to support non-intentional discrimination.

He pointed to the 2010 case of Gallagher v. Magner, as a cautionary tale of how disparate impact theory can result in bizarre and unpredictable results. In Magner, the plaintiff slumlords landlords, challenged the efforts of St. Paul, Minnesota to combat rats and other unsafe conditions in the city’s poorer rental housing neighborhoods, by aggressively enforcing the local housing codes.

Plaintiffs argued that these enhanced code enforcement efforts drove up housing rents, thus having a “disparate impact” on minorities, who were more likely to be lower income.  The U.S. Supreme Court had agreed to hear the case, but before it was scheduled, the litigants jointly agreed to dismiss, thus paving the way for Inclusive Communities to become a footnote in Fair Housing history.

Quoting from the first paragraph of Justice Alito’s vigorous dissent:  

“No one wants to live in a rat’s nest. Yet in Gallagher v. Magner, 619 F. 3d 823 (2010), a case that we agreed to review several Terms ago, the Eighth Circuit held that the Fair Housing Act (or FHA), 42 U. S. C. §3601 et seq., could be used to attack St. Paul, Minnesota’s efforts to combat “rodent infestation” and other violations of the city’s housing code. 619 F. 3d, at 830. The court agreed that there was no basis to “infer discriminatory intent” on the part of St. Paul. Id., at 833. Even so, it concluded that the city’s “aggressive enforcement of the Housing Code” was actionable because making landlords respond to “rodent infestation, missing dead-bolt locks, inadequate sanitation facilities, inadequate heat, inoperable smoke detectors, broken or missing doors,” and the like increased the price of rent. Id., at 830, 835. Since minorities were statistically more likely to fall into “the bottom bracket for household adjusted median family income,” they were disproportionately affected by those rent increases, i.e., there was a “disparate impact.” Id., at 834. The upshot was that even St. Paul’s good-faith attempt to ensure minimally acceptable housing for its poorest residents could not ward off a disparate-impact lawsuit.

Today, the Court embraces the same theory that drove the decision in Magner. (footnote omitted.) This is a serious mistake.”

Justice Alito rejected the Majority’s wordsmithing, and focused on the plain language of Section 804 of the FHA:

“I begin with the text. Section 804(a) of the FHA makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U. S. C. §3604(a) (emphasis added). Similarly, §805(a) prohibits any party “whose business includes engaging in residential real estate-related transactions” from “discriminat[ing] against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.” §3605(a) (emphasis added).

In both sections, the key phrase is “because of.” These provisions list covered actions (“refus[ing] to sell or rent  . . . a dwelling,” “refus[ing] to negotiate for the sale or rental of . . . a dwelling,” “discriminat[ing]” in a residential real estate transaction, etc.) and protected characteristics (“race,” “religion,” etc.). The link between the actions and the protected characteristics is “because of.”

What “because of ” means is no mystery. Two Terms ago, we held that “the ordinary meaning of ‘because of ’ is ‘by reason of ’ or ‘on account of.’”

***

Without torturing the English language, the meaning of these provisions of the FHA cannot be denied. They make it unlawful to engage in any of the covered actions “because  of ”— meaning  “by  reason  of ”  or  “on  account  of,” ….

Put another way, “the terms [after] the ‘because of ’ clauses in the FHA supply the prohibited motivations for the intentional acts . . . that the Act makes unlawful.” *** Congress accordingly outlawed the covered actions only when they are motivated by race or one of the other protected characteristics. [Underscore mine.]

The Dissent also rejects the Majority’s theory that just because Section 804(a) of the FHA used the phrase “or otherwise make available” signaled Congressional intent to include disparate impact theory in the law.  Justice Alito wrote:

“It is anachronistic to think that Congress authorized disparate-impact claims in 1968 but packaged that striking innovation so imperceptibly in the FHA’s text.”

It is perhaps the coup de grâce of legal debate to remind an opponent that their current position conflicts with their prior position. Justice Alito did so when he reminded the U.S. Solicitor General, arguing on behalf of HUD, that the United States had previously claimed that the FHA did not recognize disparate impact:

“Shortly before the 1988 amendments were adopted, the United States formally argued in this Court that the FHA prohibits only intentional discrimination. See Brief for United States as Amicus Curiae in Huntington v. Huntington Branch, NAACP, O. T. 1988, No. 87–1961, p. 15.

(“An action taken because of some factor other than race, i.e., financial means, even if it causes a discriminatory effect, is not an example of the intentional discrimination outlawed by the statute”); id., at 14 (“The words ‘because of ’ plainly connote a causal connection between the housing- related action and  the  person’s  race  or  color”).(footnote omitted)  This was the same position that the United States had taken in lower courts for years.”

Although the dissent continued to address other, more arcane, issues in the disparate impact debate, the theme was the same:

“The FHA is not ambiguous. The FHA prohibits only disparate treatment, not disparate impact. It is a bedrock rule that an agency can never “rewrite clear statutory terms to suit its own sense of how the statute should operate.” [Underscore mine.]

If we acknowledge that judges in all courts, from the lowest to the highest, do not begin writing legal opinions without first knowing how their decision will end, then we must conclude that their published opinions represent little more than the written justification for a decision already reached. In other words, the opinion is written to justify the conclusion.

In the majority’s written opinion, it is apparent they dug deep and hard to find justification for a theory of liability never expressed, described, or proscribed, in either the Fair Housing Act of 1968, or the Fair Housing Amendments Act of 1988. In doing so, it was forced to rely upon intellectual “constructs” based not upon words, but inferences.

Thus, despite the clear use of express proscriptions against discrimination based upon conduct in the FHA, the court construed the words “to otherwise make unavailable,” (with no supporting legislative history) to mean that a statistical outcome, with no prior intent, is illegal under the Act.  Justice Alito’s response was akin to calling the Majority’s theory puffery: “It is anachronistic to think that Congress authorized disparate-impact claims in 1968 but packaged that striking innovation so imperceptibly in the FHA’s text.”

And, doubling down on the same theory, the Majority concluded that since several lower courts had previously recognized disparate impact theory before the Act was amended in 1988, the failure to disavow it in the amendments (again with no supporting legislative history), must have meant Congress intended to adopt the theory – to which Justice Alito respond in his dissent: “…this Court does not interpret statutes by asking for ‘a show of hands’”.[7] 

Although Justice Kennedy sought to contain the inevitable flood of litigation invited by the Majority’s decision (“…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.”), there is little question that the country’s class action attorneys are already sharpening their knives.

Although the Inclusive Communities case will be followed by years of litigation and rulings over what additional evidence must accompany a disparate impact claim, the die is cast. Perhaps worst of all is the fact that the Majority chose to make its decision based not upon what the FHA says, but upon what it failed to say. This is a very poor rationale upon which to interpret Congressional intent. It is also very poor precedent for municipalities to follow when seeking to improve housing availability.  Applying the Court’s rationale to the Mauger case, St. Paul would have been prohibited from enforcing its own rat abatement programs in poor neighborhoods, since “statistically” that is where the protected classes live.

What Does This Have To Do With Occupancy Limits?  After the Supreme Court’s decision in the Inclusive Communities case, occupancy limits imposed in manufactured housing communities, must be very carefully enforced – if at all.

Under the federal and state fair housing laws, discrimination based upon “familial status” is prohibited. According to the Oregon Fair Housing Council, Familial status

“…means having a child under age 18 in the household, whether living with a parent, a legal custodian, or their designee. It also covers a woman who is pregnant, and people in the process of adopting or gaining custody of a child/children.”

Thus, under the Inclusive Communities holding, by placing occupancy limits for homes in manufactured housing parks, it has the unintended consequence of imposing a disparate impact on persons with children under the age of 18.

 ORS 90.510(7) provides as follows:

(a) A landlord who rents a space for a manufactured dwelling or floating home may adopt a rule or regulation regarding occupancy guidelines. If adopted, an occupancy guideline in a facility must be based on reasonable factors and not be more restrictive than limiting occupancy to two people per bedroom.

(b)As used in this subsection:

(A)Reasonable factors may include but are not limited to:

(i)The size of the dwelling.

(ii)The size of the rented space. (Emphasis added).

Unfortunately, while federal law gives lip service to a 2-person per bedroom limitation, it is not etched in stone, as Oregon’s law suggests. Since federal law is more restrictive (i.e. it recognizes exceptions, e.g. use of the living room for sleeping), it supersedes state law. This means that park owners and managers are not safe by simply imposing a hard and fast 2-persons per bedroom rule. The factors set forth in ORS 90.510(7)(b) must be very carefully and prudently applied – if occupancy limits are to be imposed at all.

In its FAQs, the Oregon Fair Housing Council says:

Can a housing provider set limits on the number of occupants?

Overly restrictive occupancy standards can have a disproportionate effect on families with children and are, therefore, illegal. According to HUD, any occupancy standards in housing should not be more restrictive than two individuals per bedroom, assuming average sized bedrooms.

Conclusion.  Park owners and managers may have had a “safe harbor” under ORS 90.510(7) in the past. After Inclusive Communities, in which the U.S. Supreme Court - for the first time – approved disparate impact theory under the Fair Housing Act, as amended, there is no question that for communities open to families (as opposed to 55+ communities), occupancy limits (except in rare cases, such as limitations on well water or sewage facilities), occupancy limits or charges for extra occupants, should be avoided, or very carefully applied on a case-by-case basis.  

[1] Per the Oregon Fair Housing Council : "Familial status" means having a child under age 18 in the household, whether living with a parent, a legal custodian, or their designee. It also covers a woman who is pregnant, and people in the process of adopting or gaining custody of a child/children.

[2] 42 U. S. C. §3604(a)

[3] And, in fact, as discussed below, the actions were taken with the best of intentions of helping members of those protected classes.

[4]  Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, joined Kennedy for the Majority. Justice Samuel A. Alito Jr. penned the dissenting opinion, and was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas (who wrote a separate dissent, agreeing with the minority, but addressing a separate issue raised by the Majority).

[5] Justice Alito, writing for the minority, summarily disposed of this argument by noting: “…this Court does not interpret statutes by asking for ‘a show of hands’”. 

[6] “First, Congress added a clarifying provision: “Nothing in [the FHA] prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status.” 42 U. S. C. §3605(c). Second, Congress provided: “Nothing in [the FHA] prohibits conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance.” §3607(b)(4). And finally, Congress specified: “Nothing in [the FHA] limits the applicability of any reasonable . . . restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” §3607(b)(1).”

[7] A likely reason that Congress ignored mentioning disparate impact was that the Republicans and Democrats could not agree upon the theory, and simply left it out of the legislation, agreeing to disagree.  That is not an unusual approach, when the alternative would mean bickering and delay on all of the remaining points agreed upon. If there was no legislative history indicating acceptance of the theory, it is specious to assign as the reason that Congress intended to include it. Silence may signal consent in some matters of daily life, but not when it comes to legislative enactments of the magnitude and importance of fair housing law.