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Spot the Discrimination Mistake

The precise rule: “Children ages 18 and younger may not use the swimming pool unless they are supervised by a parent.”

Pitfall: As HUD acknowledges in a 1992 Memo, “requiring a responsible adult to supervise young children and provide written designation of an adult supervisor are policies which appear more tailored to protect legitimate health and safety interests and appear less problematic” than a total or partial ban on children’s use. However, the legality of adult supervision rules depends on how they’re framed. Basic Rule: You can require adult supervision as long as the rule is narrow and no more restrictive than it has to be to accomplish the purpose.

While it’s true that many young kids can’t swim, lots of adults also lack proficiency in swimming. The danger of swimming unsupervised, in other words, is based not on a person’s age but the fact that they can’t swim. Once you introduce age and family relationship into the equation, you take the supervision rule to places it shouldn’t go. 

Example: The parents of three young children sued their California landlord for adopting a rule stating that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.” Too restrictive, said the federal court. A “prohibition on unsupervised swimming which would prevent even a 17-year-old certified lifeguard from swimming unaccompanied is overly restrictive.” While recognizing “the inherent dangers of unsupervised swimming,” the court concluded that requiring that a parent or legal guardian to supervise “transforms this rule” from a legitimate safety precaution to an unjustified restriction on children and their families” [Iniestra v. Cliff Warren Investments, Inc., C.D. Cal. 2012, 886 F.Supp.2d 1161].

Solution: The least restrictive and most nondiscriminatory way to accomplish the safety objective of the adult supervision rule is to frame the rule in terms of swimming proficiency and the ability to supervise responsibly. Options:

• Require supervision of not just children of certain ages but any person who can’t swim;
• Require all would-be pool users—and not just children—to pass a swimming proficiency test administered by a competent lifeguard or swim instructor; and
• Rather than a “parent” or “adult guardian,” require non-proficient swimmers to be supervised by a proficient swimmer.

Revised Pool Rule: In the interest of safety and in accordance with local laws, individuals who are not proficient swimmers may not use the community pool unless they are supervised by a person who is a proficient swimmer.

The owners and managers of a single-family rental home in Idaho recently agreed to pay $15,000 to settle allegations that they violated fair housing law by refusing to rent the large home to a married couple because they have more than four children.

The federal Fair Housing Act makes it unlawful to deny or limit housing because a family has children under the age of 18, make statements that discriminate against families with children, and impose different rules, restrictions, or policies on them.

The settlement resolves a HUD charge, alleging that the homeowners discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they have seven minor children. Specifically, HUD’s charge alleges that when the couple met with the property manager about renting the home, he told them that the owners had set a limit of four children for the home. The charge also alleges a policy restricting the number of children was written in the rental contract.

“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s action will hopefully serve as a reminder to all housing providers of the importance of meeting their obligations to comply with the requirements of the Fair Housing Act.”

Background. Hickey v. Scott was an eviction action. Under the lease at issue, the tenants were to pay a $1,500 security deposit and $850 in monthly rent. Upon move-in their landlord received the $1,500 as a subsidy from a not-for-profit institution, but only $525 in “rent” from the tenants. Two months later the landlord issued the tenants a notice of nonpayment saying that they must pay $1,700 (two month’s rent at $850/month) to cure or face eviction. The tenants did not pay, and the eviction was filed.

The trial court sided with the Landlord on the eviction but ultimately determined that the tenants only owed $1,175 (i.e., the remaining $325 of the first month’s rent ($850 - $525), plus the full $850 for the second month). The tenants appealed contending that, because the Landlord asked for an overstated amount, the 72-hour notice was defective, and the case must be dismissed.

The Court of Appeals agreed with the Landlord, upholding the trial court’s eviction. The tenants appealed to the Oregon Supreme Court, who disagreed with the Court of Appeals and trial court. It held that the eviction notice was faulty since the notice sought an overstated amount of rent due and therefore automatic dismissal was required.

Supreme Court’s Reasoning. The Court’s written opinion engaged in both statutory interpretation and an expanded look at the nature of the landlord-tenant relationship. 

1. Statutory Interpretation. The Court reasoned that an FED proceeding requires two events: (a) That the tenant violated the rental agreement in some manner, and (b) That the landlord delivered a valid notice of termination. 

While it wasn’t disputed that the tenants had violated their rental agreement by failing to pay their rent, the landlord had not provided a valid notice of termination because the 72-houe notice had overstated the amount of money required to cure.

In short, the Court’s interpretation of ORS 90.394(3) was that there be a specific sum due and a date and time within which the tenant had cure. This led to the inescapable conclusion that the rent demand must be accurate. Overstating the demand, even innocently, renders the notice invalid and requires a dismissal of the case. Understating it is OK.[2]

2. Landlord-Tenant Relationship. The Court also acknowledged that there is an imbalance of power in the landlord-tenant relationship. Because of their business, landlords are in the best position to accurately determine the amount they will accept to cure the tenant’s default. If the landlord’s notice is wrong, the case is dismissed, but the eviction can be refiled seeking the proper amount. 

Where Does This Leave Oregon Landlords? The Court recognized that the ruling appears to be overly harsh to landlords, since there is no requirement that a landlord act in bad faith. An innocent mistake over the amount due will merit a dismissal just as quickly as an intentional act.

Landlords have two options if their claim is dismissed for an invalid notice.

1. Option #1. If an FED is dismissed because the Landlord overstated the amount due in the termination notice, the landlord may re-issue a notice with the correct amount and immediately re-file the eviction. It is the summary nature of FEDs, i.e., the speed with which a landlord may have the case decided, that requires absolute accuracy.

2. Option #2. In Hickey, the Court was only concerned with landlords overstating the amount of rent due. The Court, however, had no problem with a landlord stating an amount of rent necessary to cure that is less than the full amount of rent due. They make a distinction between the amount that will be accepted to “cure” versus the amount “owed.”[3]

MHCO Form Changes. MHCO Form 82A, the ten-day notice of nonpayment of rent has been modified (a) to encourage tenants to notify management if they dispute the “Total Rent Due,” and (b) to encourage landlords to (i) make sure the “Total Rent Due” is accurate, (ii) if the amount is disputed, to verify the figures, and (iii) if there are questions, to check with legal counsel before proceeding.

Conclusion. Landlords should use caution to accurately determine the amount of outstanding rent due before issuing the notice of nonpayment. The risk for having an overstated figure is automatic dismissal of the eviction. 

If an accurate amount is difficult to arrive at, or there is disagreement over the amount, landlords should consult with their legal counsel. One consideration may be that rather than risking an overstated disputed amount, is to accept a lesser amount to cure. An inaccurate, but lower, estimate of the outstanding rent will not trigger an automatic dismissal, and if that sum is not paid, the eviction will still be legal.

Last week, the Senate Banking Committee passed legislation to clarify that a manufactured housing retailer or seller is not considered a "loan originator" simply because they provide a customer with some assistance in the mortgage loan process.  This is a key tenet of S. 1751, the Preserving Access to Manufactured Housing Act, which excludes manufactured housing retailers and sellers from the definition of a loan originator so long as they are only receiving compensation for the sale of a home.  

The language was passed as a part of S. 2155, the "Economic Growth, Regulatory Relief and Consumer Protection Act," which is a package of reforms intended to improve the national financial regulatory framework and promote economic growth. S. 2155 was passed by the Senate Banking Committee by a bipartisan vote of 16 to 7. 

In opening the Committee's consideration of the bill, Senate Banking Committee Chairman Crapo (R-ID) said, "The reforms in this bipartisan bill help tailor the current regulatory landscape, while ensuring safety and soundness and relieving the burden on American businesses that are unfairly being treated like the largest companies in our economy."  

MHI worked closely with Senator Joe Donnelly (D-IN), author of the Preserving Access to Manufactured Housing Act (S. 1751) and long-time supporter of manufactured housing, to include this important consumer access provision in the package. The language, included in Section 107 of the package, amends the Truth in Lending Act (TILA) to exclude from the definition of "mortgage originator" an employee of a retailer of manufactured or modular homes who does not receive compensation or gain for taking residential mortgage loan applications while maintaining consumer protections. 

U.S. Senator Joe Donnelly said, "For many hard-working Hoosiers and Americans, manufactured housing provides the most affordable option available when they look to buy a home. I'm pleased the bipartisan regulatory relief legislation that I helped craft and that passed the Senate Banking Committee includes a provision based on my Preserving Access to Manufactured Housing Act. This measure would help prevent federal regulations from getting in the way of financing that families need as they step into homeownership."

The passage of S. 2155 by the Senate Banking Committee affirms MHI's longstanding position that it is inappropriate for a manufactured housing retailer or seller - whose business is to sell homes and who is not receiving any gain or compensation for minimally helping the borrower with the mortgage loan process - to be subjected to compliance requirements and potential liability for areas that are clearly designed to apply only to the actual entity making the mortgage loan. MHI will continue working with its champions as the bill moves through the legislative process.

The inclusion of this language in the Senate's financial regulatory relief package is the result of MHI's persistent efforts to ensure the needed changes contained in the Preserving Access to Manufactured Housing Act are passed into law as soon as possible. In addition to the Senate regulatory reform package, H.R. 1699, the Preserving Access to Manufactured House Act, was passed by the U.S. House of Representatives on December 1.  The language was also passed as a part of the House's financial reform package (H.R. 10) in June. In September, the House also passed the bill's provisions as a part of its Fiscal Year 2018 Appropriations package. 

Answer:  It’s easy to get confused. There is a lot to remember.  Generally all of the answers are contained in ORS 90.630[Termination by landlord; causes; notice; cure; repeated nonpayment of rent].[1]Here is a short summary:

· The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ noticein writing before the date designated in the notice for termination if the tenant:

• Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740[Tenant Obligations];
• Violates a rule or rental agreement provision;
• Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or
• Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534or 90.536.

· The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written noticespecifying the violation and the date of termination of the tenancy.  In such cases, the tenant does nothave a right to correct the violation – and the notice must so state. 

· Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period.  [Caveat: All three notices must have been validly prepared and delivered or served. – PCQ]The “three strikes” law is found at ORS 90.630(8)-(10).As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.

Answer: Making an accommodation like this without a writing is an invitation to problems. You can easily enter into an addendum to the Rental Agreement saying that "Rent will be paid by the 11thof the month, and late after the 15th"(i.e. 4 days per statute).

Under this scenario, a 72-hour Notice could issue no earlier than the 18th(seven days from first date rent is due, per statute). If the Rental Agreement provides that there will be a fine of $X for a bounced check and a late fee of $X, then you're OK to do so.

As to whether you created a problem for yourself by allowing the late payments, I would say "No" so long as you have it in writing. Without a writing there is too much chance for argument as to when rent is late and when a late fee can issue.

MHCO does not have a form for this, but could. I will check.

Lastly, to your question about insisting on a certified check or money order, I would like to see it in the Rules or Rental Agreement, so it is enforceable. If it is not in your rules, you can still tell the client that henceforth, he or she will have to pay the rent by certified check or money order, but you could not enforce it, if they refused.

The rule can simply say: "In the event a Resident's rent check bounces on more than one occasion within any twelve month period, all further payments for the following 12 months shall be paid by certified check or money order."

But this would have to be an amendment to your current rules, following ORS 90.610.

• |Published: Nov. 10, 2024, 6:00 a.m.

By Carlos Fuentes

While Democrats nationally react to stinging losses in the presidential race and U.S. Senate, Democratic lawmakers in Oregon received a boost in this fall’s election, flipping a key seat in the Legislature to expand their control in the state Senate.

However, the party appears to have failed to flip any seats in the House, leaving it just one seat short of regaining a powerful supermajority in both chambers, which would have allowed it to push through new taxes or increase existing ones without Republican support.

Although Democrats were widely expected to keep their legislative majority, it was less clear whether they could reclaim the three-fifths majority in both chambers they lost in 2022.

In the Senate, they managed to do so, flipping the Bend seat long held by former Senate Republican Leader Tim Knopp, who was barred from running for reelection for participating in a walkout during the 2023 legislative session.

Voters in that district had reliably supported Republicans for years before the map was redrawn in the wake of the 2020 census, turning it into what is likely to be a reliably blue district going forward. Democratic Bend City Councilor Anthony Broadman easily beat Redmond School Board Chair Michael Summers, a Republican, to claim the seat, with results as of Friday showing him up 59% to 41%.

“We are thrilled to be in the supermajority again,” Senate Majority Leader Kathleen Taylor, a Democrat from Southeast Portland, told The Oregonian/OregonLive. “Oregonians spoke up and said they wanted the Democrats to be running things, and they had the opportunity to make a different decision, but they absolutely chose the Democrats in a really strong way.”

Democrats didn’t fare quite as well in the House as four vulnerable House Republicans – Reps. Kevin Mannix, Tracy Cramer, Cyrus Javadi and Jeff Helfrich – all appeared to secure reelection.

Helfrich, the House Republican leader, led his Democratic opponent Nick Walden Poublon, a drug and alcohol prevention specialist, by just 1,000 votes as of Friday afternoon. The small margin separating the candidates comes despite Helfrich, who lives in Hood River, outraising his opponent $1 million to only $86,000.

While the race still remains too close to call, Helfrich, who trailed on election night, has since pulled ahead and extended his lead as more votes have been tallied.

Assuming results hold, Democrats will have an 18 to 12 supermajority in the Senate and a 35 to 25 majority in the House.

A Democratic supermajority in the Senate could have implications in next year‘s legislative session, in which lawmakers aim to create more funding sources to address a massive shortfall in Oregon’s transportation budget. However, Democrats’ failure to net any seats in the House could temper their power, especially since revenue bills must originate in the House and Democrats will need at least one Republican vote to pass any tax increases.

Democratic lawmakers are generally more supportive of tax increases than their Republican counterparts. For example, the 2019 Student Success Act, which raised corporate taxes to provide more funding for schools, passed with no Republicans voting in favor.

Officials say the need for more transportation funding is dire. The state transportation agency warned lawmakers earlier this year that it would have to lay off approximately 1,000 workers without more funding, and cities and counties have asked for increased state funding to better maintain their roads and traffic infrastructure.

Even when Democrats had a supermajority, “it definitely was always challenging to (raise taxes), because they’re serious votes,” Taylor said. “You don’t just say yes, you have to really be convinced that it’s the right thing to do.”

Although Republican lawmakers tend to oppose most proposals for new taxes, there are exceptions. Last year, four Republicans voted in favor of a bill that instituted a new tax on landlines and other telecommunications services to fund a suicide prevention hotline.

Republicans say it’s too early to determine which, if any, proposals to increase transportation funding they would support. Work groups are currently sifting through many options, including raising the state’s gas tax or imposing a tax on Oregon drivers based on the number of miles driven.

“We look forward to partnering with our colleagues on both sides of the aisle on bipartisan solutions to tackle our state’s challenges, but House Republicans will also serve as a crucial check against unnecessary tax increases,” Helfrich said in a statement.

Despite their Senate supermajority, top Democrats have said they want any transportation package next year to receive bipartisan support.

They point to past efforts that received bipartisan support, such as lawmakers this year rolling back Oregon’s landmark drug decriminalization law, as evidence that both parties can reach a consensus on the state’s most pressing issues.

“We do need a bipartisan majority in order to pass the transportation package, and I don’t think that’s a bad thing. I think that was always the plan,” said House Majority Leader Ben Bowman, a Democrat from Tigard. “If we’re going to get it done, it’s going to force us all to collaborate and work together.”

Despite some Democrats expressing hope for compromise, some Republicans remain skeptical about the promise of bipartisan cooperation.

“As far as policy goes, under a supermajority, (Democrats) don’t have to have any discussion about it with us,” said Deputy Senate Minority Leader Cedric Hayden, a Republican from Fall Creek. “They just choose what they’re going to put through, and that’s it.”

As the minority party, Republicans have few options to prevent Democrats from passing their full agendas. In recent years, they have increasingly resorted to boycotting floor sessions to deny Democrats the two-thirds quorum necessary to vote on bills, but the days of extended walkouts might be over.

Measure 113, passed by voters in 2022, prohibits lawmakers from running for reelection if they accumulate 10 or more unexcused absences from floor sessions. Ten Republicans who participated in a six-week walkout in 2023 were barred from seeking reelection under the law.

“The whole system is set up so that one side has the authority,” Hayden said. “For me, that’s a bit of a stretch to say, ‘It’s gonna be great, it’s gonna be bipartisan.’ But we’ll see.”

Fair Housing Update on Advertising Fair housing law prohibits housing providers and the media from printing or publishing an advertisement that indicates a preference, limitation, or discriminates based on a protected class. Currently state and federal law protects people from housing discrimination based on an individual's race, color, national origin, religion, sex, family status, or disability. State law also protects marital status and source of income, and some cities or counties protect age, sexual orientation and gender identity. What should be avoided? o Direct discrimination, such as "No Children" or "Healthy Only" o Pictorial inserts that only show non-disabled white adults communicate the same illegal message as the words "non-disabled white adults only" What else should I know? o Words that describe behavior - not status - are generally permissible. Examples of acceptable words are "responsible" or "reliable." If the word "independent" is used, it should be clear that a person with a disability who can live alone with some outside assistance is not excluded. o Words that describe an attribute of a dwelling unit are permissible unless the ad restricts who can live there. For example "family room" or "mother-in-law apartment" are okay as long as it does not really mean only a mother-in-law can live there. Similarly "view" or "within walking distance of downtown" are descriptive and acceptable. What would be illegal are "no blind persons" or "no wheelchairs". o Age. Age is a protected class only in some areas, but beware of any ads limiting age, because they may discriminate against families with children. o Senior housing and "adults only". Senior housing may exclude families with children, but it must meet certain criteria, including an intent to be senior housing. Using "adults only" does not express the intent to be "senior housing." The ad should indicate the housing is for those over age 55 or age 62 or seniors. o Words that do not directly prohibit a protected class but are "neutral" are permissible. Permissible are phrases like "choice location, "executive home," "private." But if you know that your client wants to use "code" words because of an intent to exclude protected class individuals, follow the spirit of fair housing and do not do it. Other suggestions -- o Use the HUD fair housing logo where possible o If a dwelling unit is accessible to persons with mobility impairments, mention it in your ads

A fire or ambulance crew can’t safely respond to a medical emergency in a single family home because the resident has belongings stacked up to the ceiling and blocking many windows or doors.

A tenant living in an apartment faces eviction when he or she fails to pass a follow-up inspection after several warnings about lease violations related to items that create a tripping hazard, fire danger, or limit access to maintenance staff. The tenant then contacts their case manager in a panic.

These are just two examples of possible complications in housing settings that could impact housing providers.  Hoarding is distinct from simply building a collection, which is usually displayed with pride, or letting a few days of dishes and laundry pile up when life gets busy. A person who has been diagnosed with hoarding has a disability under the Fair Housing Act1. Hoarding has been added to the DSM-5, the latest version of the American Psychiatric Association’s classification and diagnostic tool, and is now recognized as diagnosable condition independent of other mental health conditions.

FHCO had received a few calls about potential hoarding situations by the time an invitation came in the spring of 2013 to participate in a collaborative Multnomah County conversation about the issue. Two graduate social work students serving as interns in the Multnomah County Office of Aging and Disability Services convened various agencies to meet for a “community assessment.” Attendees have included representatives of several nonprofit and for-profit housing providers, Aging and Disability and Adult Protective Services, Legal Aid, Animal Control, and Assessments and Tax. This Hoarding Task Force has continued to meet regularly, researching resources and bringing in experts to assist in coordinating services and developing best practices. The group is now beginning the process of staffing cases and developing a more formal protocol.  The good news is that there are new cognitive behavioral therapy models that can be successful in treating hoarding.

Since hoarding disorder is a disability under the Fair Housing Act, these individuals have the right to request a reasonable accommodation (RA) from a housing provider. This might include providing an agreed upon length of time to bring in a professional cleaner / organizer to help clear pathways, reduce pile heights, clear materials in front of heating vents, etc. More will probably be needed than a single deep clean. There may be several steps to the RA request, prioritizing the most immediate safety needs and then allowing a more gradual timeline for reducing other clutter, in conjunction with a professional organizer or mental health provider.

As with any RA request, housing providers need to evaluate the request and the verification of disability and respond in a timely manner. Housing providers are always well advised to review the legal reasons for denial, consult with a fair housing attorney, document the rationale for their decision, and feel comfortable defending it if a complaint / case follows when making a decision on a RA request.  As always, regardless of the request that’s made or what the disability is, if a denial is made, HUD says a conversation should ensue about what would work for the individual with the disability. 

Want to learn more?  Suggested reading list:

• Hoarding basics: www.psychiatry.org/hoarding-disorder -- American Psychiatric Association: “Hoarding Disorder”
• "The Hoarding Handbook: A Guide for Human Services Professionals" – Bratiotis, Christina, et. al., New York: Oxford University Press, 2011
• “Task Forces Offer Hoarders a Way to Dig Out” – The New York Times, Jan Hoffman, 5/26/13
• “Obsessive compulsive and related disorders” – American Psychiatric Publishing

This article brought to you by the Fair Housing Council; a civil rights organization.  All rights reserved © 2015. 

[1] Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.

Answer: Storage agreements are not specifically defined under ORS 90.100 in the Landlord-Tenant Act. They are addressed in ORS 90.425 and 90.675, the abandonment statutes that pertain to the storage of a tenants personal or real property (respectively).

Storage agreements allow for the storage of a tenant’s property (usually at the premises) after their tenancy has ended. They are most frequently used following the termination of a lease, often after default. They address the terms of the storage, the agreement’s duration, rights of access, and storage fees. 

ORS 90.675(20) deals with storage agreements between landlords and lenders who hold liens on an abandoned home in the park. The statute does not specifically address storage of the home for the tenant, although there is no reason they could not be so used if done carefully with your attorney’s direction.

The lienholder’s right to a storage agreement arises upon the failure of the tenant or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee, to remove or sell the dwelling or home within the allotted time.

However, a person who is engaged in the flipping of homes at the park should not be permitted to use the storage agreement document to facilitate their business model. Even if the person acquired the home by inheritance, etc., unless he/she is or was a “tenant” under a rental agreement, and is no longer occupying the rented space, they should not be permitted to use this instrument.

The business model of flipping homes is regulated by the Construction Contractors Board and requires that the flipper be licensed. He/she would also be subject to various consumer protection laws.

The idea of allowing a non-tenant to remodel homes at the park on speculation (i.e., for later sale to a tenant/purchaser) possibly without permits; and using various contractors or other persons to perform the work raises a plethora of liability issues; who will be liable for injuries? Fire? Construction defects? Fraud? Etc. The entire operation is well beyond the scope of services you are legally entitled to provide in a manufactured housing community. You may not even have any insurance to defend you if there was a claim.

My suggestion is that you discuss with your attorney whether you can terminate the Storage Agreement immediately.