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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.

The Basic Rule for Liability Avoidance in a Mobilehome Park 

It is the parents’ responsibility, not management’s, to decide ability to swim and access privileges for minors. Access, hours, and supervision restrictions are illegal under the Federal Fair Housing Amend- ments Act of 1988 (FHAA).1 While narrowly drawn rules may differentially impact children (persons under 18 years of age), these are not advised. The “default setting” is best: the law requires that the parents be vested with exclusive discretion to decide, control and live with their choices for kid’s access and supervision issues. Likewise, scour the rules and regulations (and now, internal management policies, manuals, agreements and memoranda) to eliminate any rule which mentions “children.” Use of the term “children” is a trigger word, no different than use of any other label for a person in a protected class. The Department of Housing and Urban Development (HUD) treats children as “small adults” for purposes of scrutinizing rules.

The Federal Fair Housing Amendments Act of 1988 (FHAA) created a new protected class of “familial status”. In California, the federal courts have addressed this requirements by ruling that “all age” communities may not discriminate against children, no more than management can discriminate against any other protected class.

Federal Requirements and Over-Regulation 

Let’s face it; some parents are not responsible. According to the Centers for Disease Control and Prevention, of all children one to four years old who died from an unin- tentional injury, almost 30% died from drowning. Fatal drowning remains the second-leading cause of unintentional injury-related death for children ages one to 14 years. The same report reveals that “the fatal drowning rate of African American children ages 5 to 14 is 3.1 times that of white children in the same age range.”

1. E.g., United States v. Plaza Mobile Estates, 273 F.Supp.2d 1084 (C.D. Cal. 2003); Bischoff v. Brittain, No. 2:14-cv-01970-KJM-CKD, United States District Court, E.D. California (May, 2016).

Mobilehome park swimming pools are deemed public, and re- quire fencing, postings and related equipment. In years past, it was believed that parkowners could require adult supervision in the swimming pool area, but it is for the parents to decide and control.

State Requirements and Conflict with the FHAA and the FEHA

California, meanwhile, promulgated modifications to Title 24, but apparently did not clear their proposals with any lawyer or the children’s rights lobby. The state mandated sign includes language mandated by Title 24 of the California Code of Regulations, as follows:

“WARNING: NO LIFEGUARD ON DUTY Children under the age of 14 shall not use pool without a parent or adult guardian in attendance.”

This language is a prima facie violation of the FHAA protections against discrimination on the basis of familial rights.2 Posting this sign places every operator of a Title 22 swimming pool (that’s us parkowners) in violation of the FHAA. If posted, any aggrieved family member may sue just because it is posted (enforced or not). Since posting this sign exposes a parkowner to liability, what should the parkowner do? First, offer to post the sign which would be consistent with the FHAA:

“WARNING: NO LIFEGUARD ON DUTY Children under the age of 14 should not use pool without a parent or adult guardian in attendance; management recommends no one swim alone.”

Despite entreaties made for clarification to resolve this conflict, to both the Department of Housing and Community Development (HUD) and the Department of Fair Employment and Housing (DFEH), there has been no response. This problem does not lie in an older persons (55+) park, by the way. This is because the “older persons” park is exempt from the familial status requirements. Since a parkowner may entirely exclude children due to the effect of the 55+ regulation, allowing kids at all is a benefit that is not required (total exclusions, pool hours, supervision are all allowable restrictions) all permissible in the “older persons” community at this time.

2 . In striking down the legal requirement for signage as a discrimination defense, the central district judge held that " . . . there is nothing magical about the age of 18 or 14 years old if defendants' concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement." U.S. v. Plaza Mobile Estates. 

In many counties, the illicit requirement is not applicable until capital renovation of the pool area. But if not, what do you do if the county representative refuses to consent to the suggested modification? Do you refuse to comply with state law in order to comply with the FHAA, or do you comply with the state mandate and violate the FHAA? As of this time, you must seek out counsel, pay them, obtain advice, and follow it.

Management Communications Can Violate the FHAA

In a housing case decided in Northern California in May, 2016, the landlord was called out for discrimination against children in an all age facility. In Bischoff v. Brittain,3 the on site management received training, including a “Resident Relations Training,” at seminars pro- vided by independent experts. A “Brief Recap of Notes” document summarizes several meetings and was distributed to the managers. The document stated that as to handling unsupervised children:

1. If you have a young child not being supervised, walk the child home and speak with whoever is in charge.

2. Have your supervisor write a letter after you speak with the person in the apartment, which will alert whoever opens the mail, that you are worried over the child’s safety-you are now showing safety concerns and are not attacking their parenting skills or being discriminatory.

1. If nothing changes and the child is once again outside un- supervised, notify your super- visor who will now contact so- cial services and/or the police. 

2. If nothing still changes, we will then consider eviction and note the reasoning on their notice. 


The landlord’s property director said the document is “simply a statement of suggested guidelines for the managers’ reference and discretionary application to unsupervised young children.” However, the court found that the reasoning violates “familial status” rights. The director relied on a mistaken understanding that “young children require regular adult super- vision.” She felt that management should “encourage [...] parents and guardians to exercise such supervision for the safety of their young children and for the benefit of other residents.” She believed that “such supervision is necessary so that young children who are tenant residents “will not be at risk of injuring themselves” or other residents, or “engaging in disruptive or destructive activities.”

“In an effort to promote such supervision and discourage parent-guardian neglect, we developed internal suggested guidelines for managers to use in their discretion as circumstances might war- rant.”

3. U.S.Dist.E.D.Ca. April 29, 2016, Decided; May 2, 2016, No. 2:14-cv-01970-KJM-CKD, 2016 U.S. Dist. LEXIS 58280.

The guidelines do not pass muster, said the court. While intended to protect the safety and well-being of young children in need of supervision, to encourage parents or guardians to provide that needed supervision, and to limit disturbances to other residents, they also allow differential treatment. It is no help that the guidelines serve the concomitant business purpose of protecting against liability that might arise from injuries to such young children.

The court found that the landlord’s policies “[...] toward unsupervised young children inherently treats children differently than adults by limiting when they may use the common areas of the complex to times when they are supervised by an adult.” The guidelines also treat parents of young children differently by subjecting them to certain consequences if their children are found unsupervised. Adult-only households may use the complex without limitation and warnings or facing eviction for violating the adult supervision guidelines. Be- cause children are subjected to explicitly differential treatment there was a validly claimed discrimination based on the face of the guide- lines.

The landlord claimed the guide- lines are not discriminatory: they are not a formalized, mandatory “policy” or rental provision; they only limit young children to the ex- tent the children are unsupervised; they apply only to young children; they have nondiscriminatory justifications; and they originated from a “neutral” source (educational sources). The court replied that the landlord did not understand the law: “[...]to establish a prima facie case of facial discrimination, a plaintiff must show only that the defendant subjects a protected group to explicitly differential treatment”4. But the landlord did not dispute that it treated unsupervised young children and their parents differently than adults sans children.

The guidelines were violations even if just “[l]imiting the use of privileges and facilities [which] is a violation of [§ 3604(b)].” The court also found it irrelevant that the guidelines distilled “neutral” information. The courts have held that “all-age” park rules which: (i) treat kids differently; (ii) are not based on a “compelling business necessity” and (iii) did not represent the “least restrictive intrusions” on familial status rights in promoting a health and safety interest, violate the law.

Any age restrictive rules which treat children, (and thus, families with children), differently and less favorably than adults-only house- holds violate the law. Period. In other words, no matter how ad- ministered, the rules were invalid as drafted. Even if never enforced, such rules may lead to a resident’s belief about allowable restrictions in use of the facilities. And now, the right to sue extends to internal policies handed down to on site personnel.

4. Citing Community House, Inc. v. City of Boise (9th Cir. 2007) 490 F.3d 1041 at 1050.

Safeguards Against Harm? 

Well-meant intentions are no defense, said the court. The court noted that the landlord submitted no evidence that managers were told to apply the policy only if a young child’s safety was threatened, or that managers in practice applied the policy in such a way. Land- lord also said, diluting the safety defense, that one of the “primary goals” of the guidelines is to limit disturbances to other residents by children, which “likely encompasses situations beyond those in which a child’s safety is legitimately threatened.” Peace and quiet is not a licit basis for the special treatment of children. Broad exclusionary policies without very particular narrowly tailored terms will be struck down. No cases specify what those narrow, least intrusive regulations might look like. And, it is submitted that seeking to develop children-specific rules is so fraught with difficulty and exposure as not to be worth the time and effort. Again, let the parents and guardians decide.

Eliminate the Exposure You May Have: 

Scour on-site management directives, policy handbooks, instructions, procedures manuals, emails. In other words, audit your intermediate level of management documentation; the entire body of memorialized supervision instructions, policies and requirements that apply to on site management. Do your employment agreements contain your fair housing policy? Do your agreements prohibit discriminatory statements, actions, conduct, communications, jokes, or notices? None of these documents is privileged from the prying eye of the plaintiff class counsel. It may be time to update these documents.

Remember: requiring adult supervision is NOT allowed in all age parks. 

An adult supervision requirement is outlawed by several decisions citing United States v. Plaza Mo- bile Estates: it is the parents, not management, who act as the “gate- keepers” of the facilities including swimming pool access and usage of facilities in “all age” communities. Requiring any form of super- vision constitutes a violation of the FHAA.

The FHAA Examples of Improper Rules to Update 

Rules and regulations in “all age” communities which discriminate include the following. If your rules contain any of the following restrictions, or any rules similar to them, it is strongly advised that a legal advisor conversant with the FHAA (and implementing regulations and judicial and administrative interpretations) be promptly consulted.

• “Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas [or] jet pool at any time;” 

• “Residents and visitors under the age of fourteen (14) years old are not permitted to use the saunas or jet pool (spa) at any time;” 

• “Use of the spa is prohibited to children under eighteen (18) years old;” 
“Use of the pool by children fourteen (14) years old and un- der requires accompaniment by a resident;” 

• “Parent of resident child or resident host must accompany 
children at all times in the pool or pool area;”
• “No one under the age of four-
teen (14) years old is allowed • to use the Jacuzzi;”
• “Guests and residents under the age of eighteen (18) years
old are permitted to use the swimming pool and sun deck from the hours of 10:00 a.m. to 2:00 p.m. only and must be accompanied by an adult park resident;”
• “Parent or responsible adult must accompany all children under fourteen (14) years old at all times [in the swimming pool and/or pool area];”
• “Minors under 16 years old are not permitted in the therapeutic pool;”
• “At 2:00 p.m. children are to be out of the pool area;”
• “All children must be accompanied by an adult to use the pool;”
• Children under the age of fourteen (14) years old shall not be allowed to ride a bicycle on the park streets without the accompaniment of an adult registered to the mobilehome in which they reside;
• Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence;
• “Children under 18 years old must be accompanied by a parent when they are in the swimming pool;”
• Children shall not be allowed to play on park streets, or in any other common areas;
• Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the mobilehome in which they reside;
• Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (club- house);
• Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10:00 a.m. to 12:00 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12:00 noon;
• Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or the therapeutic jet pool at any time; 

• Children under the age of four- teen (14) years old must be ac- companied by a registered resident adult to be allowed to ride a bicycle in the park streets; 

• The adult resident host must accompany all guests of their mobilehome who use the recreation building (clubhouse) or any of the recreational facilities of the park; 

• Children under the age of fourteen (14) years old must be ac- companied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (club- house); 

• When using the clubhouse, persons under ten (10) years old must be accompanied by an adult resident; use of the billiards room was restricted to residents over eighteen (18) years old; 

• Use of the spa was prohibited to children under eighteen (18) years old; 

• Use of the pool by children fourteen (14) years old and under required accompaniment by a resident; 

• Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host; 

• Parent of resident child or resident host must accompany children at all times in the pool or pool area;
• Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 9.00 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host;
• No one under the age of eighteen (18) years old is permitted in the billiard room at any time;
• No one under the age of four- teen (14) years old is allowed to use the Jacuzzi;
• At 2:00 p.m. children are to be out of the pool area;
• Children are not to walk around the park without adult supervision;
• Minors under 16 years old are not permitted in the therapeutic pool;
• For safety, children are not to ride bicycles, roller skates, skateboards, play in the street, play in RV storage, car wash, or wander around the park;
• Children under 8 years old shall be confined to a play area in the rear fenced yard of the family residence;

Age restrictive rules are “facially” discriminatory when they treat children, and thus, families with children, differently and less favor- ably than adults-only households. In other words, no matter how ad- ministered, the rules were invalid as drafted. Even if never enforced, such rules may lead to a resident’s belief about allowable restrictions in use of the facilities.

The FFHA 

In 1988, Congress amended the Federal Fair Housing Act (“FFHA”) to prohibit not just discrimination on the basis of race, color, sex, religion, disability or national origin, but also included “familial status” discrimination. “Familial status” is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent or another person having legal custody of such individual or individuals.” Among other provisions, it is unlawful:

“To discriminate against any persons in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... familial status ...”

Thus, in an all-age community, restrictions on access or use of common facilities and amenities based on age of a child (“familial status”) is a violation of the FHAA, absent “compelling business necessity.” 5 Any such rule must be proved to be the “least restrictive means” to achieving a health and safety justification. What does this legalese mean to the parkowner in practical terms? A full blown trial, risks of heavy penalties, damages and attorney’s fees and costs. This is because there is no bright line test for any age-restrictive regulation: the law is bereft of any standards

or guidance to make a reasonable, predictable risk-assessment or likelihood of success. Each case de- pends on the facts and surrounding circumstances. In other words, each case is a “test-case.” In sum, the penalties are so severe that prudent counsel would admonish all to eliminate age-restrictive rules and regulations.

“Children” are as protected as any other protected class. Thus, a simple way to test a rule for FHAA compliance is this: insert any other protected class in the place of “children” when testing a rule and regulation. For example, a common past rule (and no longer a valid one) is “all children under 14 years of age must be accompanied by an adult resident when in the pool area.” How does this sound: “All Methodists must be accompanied by an adult resident. . .” Obviously, such a rule would violate the FHAA.

It is also a violation of the FHAA to express to agents, brokers, employees, prospective sellers, or renters a preference for certain types of ten- ants. Another issue is the use of selective advertisements, or denying information about housing opportunities to particular segments of the housing market because of their race, color, religion, sex, handicap, familial status, or national origin. It is a violation to place ads that specify a preference for: “mature ten- ants,” stating an aversion to “families with children, teenagers in the building; advertisements stating no more than “one child,” or stating that the parkowner does not “rent to children.” “Adult Community” at the entrance to a non-exempt com- munity also violates the FHAA. Use of the word “adult” without in- dicating it is housing for older per- sons, constitutes a violation of the

FHAA. There are no such things as “adult” mobilehome parks, and use of the phrase is deemed to chill family applicants from applying for tenancy in them.

The court held that these rules were not based on “compelling business necessity” and did not represent the “least restrictive” intrusions on “familial status” rights in promoting a health and safety interest. Having held that these rules were unlawful, the issues remaining for trial in the Plaza Mobile Estates case included damages, punitive damages, civil penalties, injunctive relief and attorney’s fees and costs for the private plaintiffs. While the action was brought as a class claim (in which all of possibly thousands of affected tenants could have been included in damages awards), class certification efforts were defeated, allowing only the named parties to seek damages.

The court’s comments regarding the invalidation of these rules is telling and troubling. The court stated that the age restrictive rules were “facially” discriminatory. In other words, no matter how ad- ministered, the rules were invalid as drafted. Even if never enforced such rules might dissuade a prospective applicant from applying for tenancy.

What Can We Do to Avoid This Mine Field? 

Even in the absence of specific rules and the ability to craft them, educational materials may help parents understand common risks associated with the very youth. When educational information is provided as an adjunct to an activity rather than a rule restricting an activity, the chance of a claim of discriminatory preference is less likely to be made. For example, when a parkowner offers such educational material from organizations who seek better protection of children (e.g., police departments, charitable organizations, etc.), the parkowner is providing a service - disseminating information and facts - not discriminating against children. 6

Conclusion 

All the parkowner wants is to know what the law is! What we do know is that certain rules are not permissible. Does it make any practical sense to promulgate new regula- tions affecting treatment of children? No.

The best policy for the all-age park is to have no references to children, child, adult, or other words which suggest differential treatment be-tween adults and children. The de- cisions affecting the young are for the parents to decide on.

Even with neutral rules and regulations, the enforcement of the rules needs to be considered. Does your manager have different attitudes, tone, manner or demeanor in general in dealing with kids and their parents? There is no room for derogatory comments, insults, or force beyond the same level applied to parents and other childless adults. Our mantra: Professional- ism. First and always! ◆

5. Some cases phrase the test differently (least restrictive, narrowly tailored, not speculative, etc.), but the reader is best advised to apply the standards applicable to the most stringent precedents in effect at this time, until variations on the articulation of the proper test for rules is made judicially and clear through further appellate court development. This is what plaintiff lawyers do. They will make the claim that the rules do not pass muster under the most difficult of possible tests. If you wish to preclude court tests of your rules, they will be drafted based on clearing the highest possible legal hurdles.

6. For example, educational material exist which explain that young children have peripheral vision which is two-thirds that of an adult; they have difficulty determining the source of sounds; traffic noises and sirens may be confusing; they may not understand that an automobile may seriously hurt or kill them; most children cannot understand a complex chain of events; children believe that all grownups will look out for them; they think that if they can see an adult driving a car toward them, the driver must be able to see them; children often mix fantasy with reality - they may give themselves superhuman powers and do not understand that a moving vehicle can hurt them; they have difficulty judging the speed and distance of oncoming vehicles.

Terry R. Dowdall, Esq. has specialized in manufactured home communities’ law since 1978. Mr. Dowdall can be reached at Dowdall Law Offices, APC Orange County office; 284 North Glassell Street, 1st Floor, Orange, CA 92866; 714.532.2222 phone; 714.532.3238 fax. email: trd@dowdalllaw. net; www.dowdalllaw. com.

This article is reprinted from WMA "Reporter", July 2016.  MHCO would like to express our deep appreciation to WMA for their permission to reprint this informative article.

Answer: You should discuss this with the applicant. Reasonable cause for rejection includes the failure of their references to respond to your request for verification within the time allowed for acceptance or rejection. If your rental application provides that it must be rejected within the 7-day statutory approval period (or it is deemed accepted), you may need to terminate first and then ask questions. If you carry on a dialogue with the applicant and let the 7-day period expire without rejection, the law provides that you will have automatically accepted them. So the best approach is to issue the rejection first and then find out the nature of the problem. You can always rescind your rejection once you are satisfied. Additionally, in the future, if you feel that the statutory 7-day period is too short, you may increase it, so long as the applicant agrees. The 7-day statutory period only applies in the absence of the landlord and applicant agreeing to a longer time. Subject to your attorney's approval, I suggest you consider inserting a provision in your applications expressly stating that the approval time will be 10, 12, or some other number of days that you feel is reasonably necessary. Once it is in writing and on the application, then have the applicant sign and agree.

MHCO has uploaded a revised Form 1 (Resident Application) and a completely new Form 1A. MHCO created the additional form (Form 1A) to accompany the general application (Form 1) to be used if the applicant reports any criminal history. These changes will go a long way in complying with the HUD memo, without unduly burdening landlords and managers.

We are currently working on language for your 'screening criteria' - we hope to have that available shortly. There will be an extensive seminar on the new application process at the MHCO Annual Conference on October 24th and 25th. In the meantime MHCO will be providing information as it becomes available.

If you have any questions please contact the MHCO office at 503-391-4496.

The Rental Application form provides the basic information needed to make a decision on accepting the applicant. Under current Oregon Law you will have not more than 7 days from application to accept or decline a prospective resident. Used properly, the rental application and personal interview will prove helpful in countering charges of discrimination in renting spaces. When completed, a rental application should reveal:

• Financial information
• Employment information
• Residence history
• Household members
• Social security number(s)
• Driver license number(s)
• Ownership or lien-holder of the unit
• Age, size and condition of the unit
• Information about motor vehicles
• Pets
• Age verification if the community is classified as 55 or older or 62 or older housing
• Credit references
• Emergency contacts
• Authorization to do credit and criminal checks
• Acknowledgement of receipt of disclosure documents

At the time the prospective tenant returns an application for residency, the manager or landlord should provide the prospective tenant with copies of the Statement of Policy, the rent history of the space, the Rental Agreement and the Rules and Regulations. These documents may have been provided earlier in the application packet. You may provide these documents anytime prior to the signing of the rental/lease agreement (ORS 90.510(3)(a). However, make sure that the receipt for receiving these documents is signed prior to signing the rental agreement.

As mentioned earlier, it is advisable to provide the prospective resident these documents with the application so that the prospective resident can make an informed decision regarding where they would like to apply. Take time to make sure the prospective resident is aware of the content of each of these documents. It will do the community or the resident little good to have the prospective resident move in without taking the time to read and understand the Statement of Policy, the rent history of the space, the Rental Agreement and the Rules and Regulations. Poorly informed residents will likely result in future problems in the community. 

Answer. First, as we know, the 72-hour notice for nonpayment of rent does not require payment of the late fee in order to cure the notice. It is sufficient if the tenant only pays the rent within the specified time.  For nonpayment of rent only, you use MCHO Form N0. 42.

For nonpayment of late fees, you have two choices:

1. 1. Form 43A (Distinct Act or Omission). This arises under ORS 90.630, and gives the tenant 30-days to cure by payment. Nonpayment within the 30-days will entitle you to file for an eviction.

1. 2. Alternatively, you can ignore the nonpayment as a violation under ORS Chapter 90, treat it as an unpaid debt, and file in Small Claims Court (which generally does not allow attorneys to appear on behalf of the defendant). It’s you versus the tenant.  If the tenant is a serial late-payer of rent, and you’re constantly issuing 72-hour notices, you could accumulate the late fees until they get to a point, say $100 or $200, etc., and then file in Small Claims Court. You would get a judgment and could use it to garnish wages or bank accounts. But don’t let nonpayment of late fees go too long, as there is a one-year statute of limitations for breach of violations under ORS Chapter 90.

Also, remember that if the tenant is a serial late- payer, you can also issue a 3-strikes notice using Form 43D. See, ORS 90.630. This is non-curable, which means that the tenant cannot tender the rent and stay in the community.

Conclusion. It the tenant isn’t a serial non-payer, using the 30-day notice with MHCO Form No. 43A is probably you best bet for quick results.

Situation: A tenant claimed he was sexually harassed by his next-door neighbor, citing a series of incidents in which the neighbor allegedly:

• Insulted him in Spanish;
• Blocked his path so that his chest touched the neighbor’s chest;
• Leered at his crotch area;
• Snuck up behind him; and
• Told gardeners to use a leaf blower to blow dust toward his apartment.    

The tenant claimed that all of this amounted to a hostile housing environment and sued the landlord for sex discrimination.

You Make the Call: Did the tenant have a valid claim for tenant-on-tenant harassment?

Answer: No

Ruling: The California federal district court granted the landlord’s motion for summary judgment. A landlord could, in fact, be liable for a hostile housing environment, as long as tenants can show they were subjected to: (1) unwelcomed (2) sexual harassment that was (3) “sufficiently severe or pervasive so as to interfere with or deprive the tenant of [his] right to use or enjoy [his] home.”

However, the court continued, the neighbor’s alleged conduct in this case, while no doubt annoying, wasn’t severe enough to prove a hostile housing environment interfering with the tenant’s enjoyment of his apartment [Pardo-Pena v. Spector, 2023 U.S. Dist. LEXIS 13904, 2023 WL 2202515].      

Takeaway: The issue of landlord liability for tenant-on-tenant harassment remains unresolved, except, arguably, in the Second Circuit, which has rejected the theory. While ultimately decided in favor of the landlord, the Pardo-Pena ruling opens a new dimension in the controversy by likening housing to the workplace and exposing landlords to the risk of liability for “hostile housing environment” the way an employer can be liable for a “hostile work environment.”

Bottom Line: Regardless of what the law says, landlords have not only a moral but business imperative in seeking to provide a respectful housing environment in which no tenant has to endure harassment of any kind. Best practice: The starting point for preventing tenant-on-tenant harassment is to create and implement a written anti-harassment policy as part of your community rules. Such a policy should include seven elements:

• A statement of policy that condemns harassment and expresses your company’s commitment to provide a respectful housing environment enabling all tenants are to enjoy their tenancy;
• A clear and broad definition of harassment as including any “action, conduct, or comment that can reasonably be expected to cause offense, humiliation, or other physical or psychological injury or illness to a tenant or other person,” accompanied by a list of examples;
• A process or mechanism that tenants can use to report the harassment they experience or witness;
• Assurances that tenants will suffer no retaliation of any kind for reporting harassment in good faith;
• Protocols and procedures for responding to, investigating, and resolving the harassment complaints that you receive;
• Language indicating that tenants will be held accountable for any harassment they’re found to have committed; and
• Clarification that filing a harassment complaint with you doesn’t take away a tenant’s right to file a housing discrimination complaint (to the extent the harassment is based on race, sex, etc.) with HUD or state fair housing agencies.

A 55 plus Community has been in existence for fifteen (15) years. During that time two sets of on-site managers have managed the property. Each management team has allowed a few families to move in believing the community was well within the 20% margin allowed by Federal Fair Housing regulations. Unfortunately, a few of the original residents have had a death in the family leaving the youngest (younger than 55) resident remaining as the head of household. An annual age survey of the residents has not been maintained by either of the on-site management teams. A prospective resident (younger than 55) has now been denied as a new tenant and is challenging the 55 plus status of the Community. Without an accurate age survey of the existing residents how is the Community/Owner going to prove the Community satisfies the Federal Fair Housing requirements of a 55 plus Community ? This Community/Owner in all probability will face costly litigation while attempting to collect the necessary data and the Community may even lose its 55 plus status. If the on-site manager/owner had completed an annual age survey of the residents this costly experience could have been avoided. Does your 55 plus community have a current "age survey"?

MHCO has a number of forms for 55 and Older Communities:

• MHCO Form 71A: Addendum to the Rental/Lease Agreement for Age 55 & Older Communities
• MHCO Form 71B: 55 & Older Community Occupancy Determination and Age Verification
• MHCO Form 71C: HUD Verification of Occupancy Survey

Another example of ongoing record keeping includes updated copies of any insurance certificates naming the Community/Owner as an additional insured. If the Community requires pet owners to name the Community/Owner as an additional insured on their homeowners insurance policy an annual review of the certificates of insurance is necessary. If a resident's pet bites another resident and the insurance certificate has lapsed or the Community has been dropped as and additional insured the Community/Owner will not be afforded any protection. When is the last time you reviewed the certificates of insurance which name the community/owner as an additional insured ?

Either one of the above examples can potentially have a devastating effect on your Community's profitability. Protect you investment's profitability by making records management an integral part of your office activities.

While landlords who deliberately abuse their power in this way deserve whatever liability they incur, retaliation can also happen inadvertently. Risk of liability comes into play any time you reject, evict, raise the rent, or make housing decisions that negatively affect a person who’s previously exercised a fair housing right. This is true even if retaliation was the furthest thing from your mind. Moreover, while prohibition against retaliation has always been a fundamental part of fair housing laws, retaliation claims against landlords have increased noticeably in recent years.

How does retaliation happen and what can you do to avoid it? Those are the questions this month’s lesson will answer. First, we’ll explain the laws of retaliation and the conundrum they pose when dealing with protected individuals after they’ve engaged in protected activities. Then, we’ll outline eight rules to follow to ensure that your rental staff is sensitive to retaliation liability risks and the actions they can take to defuse them. At lesson’s end, you can take the Coach’s Quiz testing your knowledge of the lessons and ability to apply them in real-life situations.

WHAT DOES THE LAW SAY?

Retaliation is a form of discrimination that the federal Fair Housing Act (FHA) bans. The rule stems from Section 818 of the FHA, which makes it illegal to “coerce, intimidate, threaten, or interfere with” any person “on account of his having exercised” any right the law protects. Regulations and court decisions interpreting the provision have made it amply clear that acts of retaliation violate Section 818.

In a retaliation proceeding, there are four things that the rental applicant, tenant, or other complainant (which, for simplicity’s sake, we’ll refer to as “tenant,” except where the context requires otherwise) must prove to make a valid case:  

1. Tenant Exercised a Fair Housing Right

First, tenants must show they exercised a fair housing right. Suing the landlord is an obvious example. However, “exercising” a fair housing right can also take more subtle forms, such as:

• Requesting accommodations for a disability;
• Reporting a discriminatory housing practice to a landlord or an authority; and/or
• Talking to a HUD official, bringing a complaint, testifying, assisting, or participating in any way in an FHA proceeding.

2. Landlord Knew of Tenant’s Exercise of the Right

To be liable for retaliation, tenants must show that the landlord knew that they exercised a fair housing right. A landlord is considered to have knowledge if a leasing agent or other employee knew of the activity.  

3. Landlord Took Adverse Action Against Tenant in Response to the Exercise

Next, tenants must show that they were on the receiving end of some “adverse action” from the landlord after they exercised the fair housing right. Examples include:

• Rejection of a rental application or renewal;
• Eviction;
• Rent increases and other unfavorable rental terms;
• Bringing a lawsuit without any reasonable basis;
• Threats to engage in the above or any other adverse actions; and
• Harassment.

4. The Landlord Took the Adverse Action Because of the Exercise

The first three requirements are usually easy to prove. That’s why most retaliation cases come down to the fourth element: Whether the exercise of the fair housing right was the reason the landlord took adverse action against the tenant. Note that retaliation doesn’t have to be a landlord’s only motive for taking adverse action against a tenant; it need only be one of the factors in the decision. In other words, a retaliatory motive taints the entire decision even if there were legitimate, nondiscriminatory motives as well.

Timing Is Everything—Or Is It?

Because landlords rarely admit that the adverse actions they take are in retaliation for the exercise of a fair housing right, there usually must be some other evidence of the landlord’s retaliatory motive. The most common form of evidence is timing. Adverse action that occurs after a tenant exercises a protected right creates the inference that it happened because of the exercise. The smaller the time interval, the stronger the inference. Thus, evicting a tenant 24 hours after she makes a fair housing complaint puts you in a terrible position at trial.  

Even so, the mere fact that adverse action comes after exercise of a right isn’t enough to prove retaliation. Maybe the timing was just coincidental. Besides, exercising a fair housing right doesn’t mean tenants can do whatever they want. After all, a tenant who hasn’t paid rent in months shouldn’t be able to avoid eviction simply because he previously filed a discrimination complaint against his landlord.

Example: A tenant claimed that her Colorado landlord threatened to evict her after she complained that he was discriminating against families with children. The landlord admitted to making the threat but insisted he made it because of the tenant’s refusal to follow a community rule requiring all tenants to put heat tape on their water supply pipe. The HUD administrative law judge (ALJ) found that the evidence supported this explanation and tossed the retaliation case [HUD v. Quintana, HUDALJ 08-92-0239-1 (1994)].

Compliance Strategy

Tenants suing for retaliation have the burden of proving each of the above four elements. That can be a huge advantage in your favor. It means that all you have to do to defeat a case—or better yet, deter tenants from bringing it in the first place—is knock out one of the required elements. While any one of the four elements will do, targeting the fourth element requiring proof of retaliatory motive is almost always the most promising strategy.

8 RULES FOR AVOIDING RETALIATION LIABILITY

You can minimize your liability risks for fair housing retaliation by ensuring your leasing agents and management staff follow these eight rules.

Rule #1: Don’t Retaliate Deliberately

The starting point is to strictly prohibit your staff from targeting tenants for complaining about discrimination or engaging in any other form of protected activity. “Weaponizing rental, renewal, or other leasing decisions to punish fair housing ‘trouble makers’ is a recipe for liability disaster,” cautions a Georgia fair housing consultant. Unfortunately, the six-figure damage awards being handed out against landlords suggests that deliberate retaliation remains an all-too-common occurrence.

Example: A Los Angeles area landlord shelled out $225,000 to settle charges of raising the rent, threatening to evict, and taking away a family’s parking space because of their association with another family that was evicted because they had a disabled child [Downey Property Management, et al., Calif. Dept. of Fair Employment and Housing press release, October 2018].

Example: An Ohio landlord paid $177,500 to settle charges of sex harassment against at least 20 tenants, including refusing to make repairs for women in retaliation for spurning sexual advances [US v. Klosterman, (S.D. Ohio), Oct. 1, 2020].

Taking adverse action might be especially tempting when a tenant’s discrimination accusation or complaint is totally bogus. But while it may seem unfair, retaliation is still illegal even if the accusation that brings it on is false; all that’s required is that it be made in good faith.  

Rule #2: Don’t Try to Keep Tenants from Exercising Their Fair Housing Rights

Don’t do or say anything to pressure or persuade a tenant who expresses fair housing complaints or concerns not to pursue a fair housing complaint. Once a tenant comes to you with a fair housing complaint, your first reaction might be to try to set things right so you don’t end up getting sued. The irony is that in seeking to prevent a fair housing lawsuit, you might actually be inviting one. That’s because your efforts might be seen as an illegal act to “coerce, intimidate, threaten, or interfere” with fair housing rights.

So refrain from making not just threats but also promises or inducements that may be seen as bribes designed to stop the exercise of a fair housing right. Although you can offer constructive solutions, you should make it clear that your suggestions are just that—suggestions—and don’t preclude tenants from filing a complaint or pursuing their other fair housing remedies.

Rule #3: Don’t Charge Tenants Fees for Exercising Their Fair Housing Rights

Another form of retaliatory activity banned by Section 818 is charging tenants fees, deposits, or extra rent for exercising their fair housing rights. Common examples include charging fees for providing disabled tenants handicap-accessible parking spaces or other reasonable accommodations that the FHA requires.

Example: A Colorado condo association fined a tenant with epilepsy for allowing her to keep a service dog in violation of its “no dogs” policy. The tenant sued for retaliation. The association asked for dismissal without a trial. HUD considered the case so important that it intervened on the tenant’s behalf. Fining a tenant for requesting an accommodation is evidence enough to support a retaliation claim, regardless of whether the underlying accommodations claim was valid, the government argued. The federal court agreed and allowed the case to go forward. Retaliation claims stand on their own and aren’t dependent on the validity of the underlying discrimination claim that prompted them, the court concluded [Arnal v. Aspen View Condo. Ass’n, et al., 226 F. Supp. 3d 1177 (D. Colo. 2016)].

Rule #4: Differentiate Between Retaliation and Legitimate Enforcement

This is the most important rule of the entire lesson. There’s a big difference between retaliation and enforcement of rental application and lease rules. Stated differently, protection from retaliation doesn’t require you to accept an unqualified rental applicant or tolerate a tenant’s failure to pay rent or other serious violations. Thus, a tenant isn’t allowed to create a serious disturbance on Tuesday just because he complained about a fair housing issue on Monday.

The key question: How do you enforce your rental qualifications and lease rules against applicants and tenants after they’ve exercised a fair housing right? The answer is not by refraining from taking the action but by ensuring that you can justify it by showing that you did it for legitimate, nondiscriminatory reasons having nothing to do with the previous exercise of a fair housing right.

Example: A Pennsylvania public housing tenant filed a state discrimination complaint contending that she was sexually harassed by maintenance workers and her neighbors over the course of her 10-year tenancy. A few months later, she was evicted. Although the timing was mighty suspicious, the federal court ruled in the landlord’s favor and dismissed the case.

The landlord won because the tenant couldn’t get past the fourth prong of the retaliation test by proving there was a causal link between the eviction and the fair housing complaint. And the reason she couldn’t prove this was because the landlord was able to demonstrate that it had received multiple complaints about the tenant in the months after the sexual harassment complaint. Neighbors accused her of verbal assault, beheading a neighbor’s cat, and inviting a neighbor’s child into her apartment and not letting her go until the police arrived. So, the court concluded that the eviction was for a legitimate and nondiscriminatory reasons and not an act of retaliation for filing the sexual harassment complaint [Madison v. Philadelphia Housing Authority, Civil Action 09-3400, E.D. Pa., June 2010].

Rule #5: Document Legitimate Reasons for Taking Adverse Actions

Doing what the landlord was able to do in the Madison case is the blueprint for not only defeating but preventing retaliation claims. To achieve that objective, you must keep careful records documenting your rental and leasing decisions. Specifically, you must be able to demonstrate the legitimate and nondiscriminatory bases for the rules and standards you establish and the actions you take to enforce them.

Without these records, it will be easy for the people you reject, evict, fail to renew, etc. after they engage in protected fair housing activity to claim that you retaliated. The documents are essential to counteract these claims and show the policy, action, or decision was justified and not a pretext for retaliation.

You also need documentation any time you amend your community bylaws, policies, rental standards, and rules of conduct. Otherwise, a tenant might claim that you made the change to retaliate against them for exercising a fair housing right.

Example: The owner of a Georgia condo claimed the community association deliberately adopted new rent restrictions to keep her from following through with her plans to rent the unit to an African-American woman. Although the deal did go through, the owner sued the association for trying to stop it. The association denied the charges and insisted that the bylaw changes had nothing to do with the proposed rental.

Thus, as is often true in retaliation litigation, the case boiled down to the evidence of the housing provider’s intentions. Unlike the landlord in Madison, the association in this case couldn’t come up with evidence justifying its proposed new rental restrictions. In fact, the absence of discussion of the change in the corporate meeting minutes belied the association’s contention that they were already in the works at least a year before the proposed rental arrangement.

By contrast, there was evidence suggesting that the association was concerned that leasing the unit to an African-American tenant would reduce property values and lead to protests by other owners in the community. Result: The Georgia state court ruled that there was enough evidence to allow the case to go to trial. Having lost its bid for dismissal, the condo association then faced an unenviable choice: Pay a hefty settlement or risk a trial [Bailey v. Stonecrest Condo. Assoc., Inc., 2010 WL 2472501 (Ga.App.)].

Rule #6: Enforce Your Rules and Rental Criteria Consistently

Showing that an enforced policy is legitimate and nondiscriminatory isn’t enough to justify an adverse action against a tenant who has engaged in protected activity; you must also be able to show that the action is consistent with your previous practices. Otherwise, it might look like you’re singling out the tenant for selective enforcement. Thus, for example, failure to follow pool rules would look like a pretext for not renewing a tenant if you let other tenants get away with similar violations.

Deciding not to renew the lease of a person who has engaged in protected activity is a frequent source of retaliation claims, attorneys warn. Accordingly, they suggest that you create a policy for nonrenewals and apply it consistently to all tenants. In addition to listing clear and legitimate criteria for nonrenewals, the policy should require staff to create a memo documenting its discussions about and reasons for not renewing a tenant. These records can put you in a strong position to defend against a claim for retaliatory nonrenewal.  

Rule #7: Don’t Retaliate Against Third Parties

FHA protection from retaliation covers not only rental applicants and tenants claiming to be victims of discrimination, but also third parties who help or encourage them to pursue their fair housing rights. That includes fair housing associations and even your own employees. Result: It’s illegal to fire, demote, transfer, cut the pay of, harass, or take other unfavorable employment action against an employee for speaking up against discriminatory practices or advising aggrieved tenants to contact HUD or other fair housing agencies.

Example: Owners and managers of a Kansas City high-rise rental community shelled out $2.13 million to settle allegations of creating a racially hostile environment and retaliating against a former employee for cooperating with HUD investigators and helping others file complaints with HUD. The abuse, complete with hangman’s nooses and racial slurs, was so bad that the federal court also issued an order permanently banning the community manager from working in rental housing and ordering her to pay a $55,000 civil penalty [U.S. v. Sturdevant, Civil Action No. 07-2233-KHV, Fed. Dist. Ct. Kansas, May 2010].

You can also get into trouble if you take retaliatory action against tenants for opposing discrimination against their neighbors. This is true even if the tenant targeted for retaliation is white or otherwise not part of a protected class under the FHA.

Rule #8: Implement a Non-Retaliation Policy

Although it’s never fun when a rental applicant or tenant comes to you with a discrimination complaint, discouraging such reports could expose you to liability for interfering with the exercise of fair housing rights under FHA Section 818. Moreover, these reports should be welcomed because they can help you identify and root out hidden discrimination problems in your community.

The problem is that people may be reluctant to speak up because they fear retaliation. For example, suppose an applicant hears a leasing agent use a racial slur. What you want her to do is come forward and tell you. But the applicant won’t do that if she thinks it might lead you to reject her. As a result, she may tell a local fair housing organization instead.  

 We are in the home stretch of the 2017 Oregon Legislative Session. The target adjournment date is June 23rd, the constitutional deadline for adjournment is July 10th. The actual date will fall somewhere between the two - most likely in late June. Significant budget, tax, transportation issues still need to be haggled over as the legislative session draws to a close.

Nearly all legislative proposals MHCO has been tracking (mostly opposed) have died in committee.

Click Here or at the top of this article  "MHCO Legislative Update"  for links to bill drafts and the status of all bills actively tracked by MHCO.

Two significant legislative proposals addressing manufactured home communities are on their way to the Governor's desk for signature. Here is a summary of these two bills:

SB 277A - This is the landlord tenant coalition bill that was negotiated over several months and addresses changes to disrepair and deterioration. The bill provides clear definitions of disrepair and deterioration as well as making it clear that cosmetic or aesthetic concerns are not disrepair or deterioration. The 30 day cure period is extended to 60 days. The bill also clarifies the responsibility of new residents who purchase an existing manufactured home in the community for repairs including cosmetic or aesthetic concerns as long as those concerns are included in the community rules and the community owner gives written notice to a prospective purchaser before he or she becomes a new resident.

HB 2008A - this bill caused a great deal of anxiety for community owners when it was introduced in January. The original bill contained nearly every legislative concept that MHCO has been fighting against for the past 20 years. MHCO negotiated with John VanLandingham (Lane County Law Center) and Representatives Marsh, Fahey and the House Speaker to reach a compromise that removed nearly all of HB 2008 and replaced it with three issues.

The first issue increases the amount homeowners are compensated when a community CLOSES from $5,000 (single wide), $7,000 (double wide), $9,000 (triple wide) to $6,000 (single wide), $8,000 (double wide), $10,000 (triple wide) and tied future increases in compensation to CPI.

The second issue in the compromise addressed resident-owned communities. USDA Rural Development would like to pilot their 502 1% loan program in resident-owned cooperatives, however, they won't if there are restrictions requiring a lien holder to remove an abandoned or foreclosed MH after 12 months. The compromise will give resident-owned cooperatives the flexibility to negotiate storage terms with lien holders that are beneficial to the cooperative. This, in turn, will allow the cooperative to attract lenders who offer extremely affordable loan products to manufactured homeowners in cooperatives who wish to replace older or unsafe homes with new, energy-efficient ones.

The third issue, when a community sells the new community owner will need to report to the state - the number of vacant spaces and homes in the manufactured dwelling park; the final sale price of the community; the date the conveyance became final; and the name, address and telephone number of the new owner.

Finally, the other issue of great concern to all landlords is RENT CONTROL. HB 2004A (the rent control bill) is in the Senate. In March the HB 2004A passed out of the Oregon House and has had a public hearing in the Senate. Final action on the bill (work session) is scheduled for the end of May. There is no indication what the Senate will do, but a number of Democratic Senators have expressed opposition. At this time all eyes are on the Senate - we should have a good idea later next week on what direction the Senate will take on rent control and the elimination of 'no cause' eviction. We will keep you posted on any developments - all should be revealed within the next two weeks.

MHCO Legal Counsel Phil Querin will do a complete analysis and provide practical advice for all MHCO members (managers and community owners) on these new laws later this summer. In addition all necessary changes to MHCO Forms will be made as well.

If you have any questions or concerns please feel free to contact the MHCO office at 503-391-4496.