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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.  

Answer: This isn'tdirectly addressed in the Bill, but since it is the space that is being rented, and the home with tenants have been there three years, I don't view this as a new tenancy. As I see it, rent increases going forward are for a home that has been on the space to the same residents for three-years; bringing in an additional tenant who has been there less than one year is not a factor, since the base rent is for the home on the space, and is not measured on a per tenant basis. But this could be subject to differing interpretations.

By the way, I do not view the first-year freeze on rent increases as particularly harsh, since the landlord can negotiate the first year's rent before allowing the tenant to come in. For example, if current residents are paying $400/month for space rent, but you are planning a rent increase - or have already issued one, for $40 dollars, you would presumably accept the new tenant at $440 - thus making the first-year freeze irrelevant.

On month-to-month tenancies, there is no "cap" on the amount of the initial base rent - it may start at whatever level the landlord and tenant agree upon. However, it cannot be increased thereafter during the first year of the tenancy. For fixed term tenancies, i.e. leases, landlords generally have their rents established through a formula contained in the written agreement. SB 608 only modified ORS 90.600, which governs periodic tenancies, such as month-to-month tenancies.

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

Senior Trends are definitive, and developers and builders need to get ahead of the trends seniors are demanding. Will the product we build today be desirable or outdated in 5, 10, 15 years? Why do we insist that seniors should live in small apartments with no dishwashers? Why do we expect seniors to dispose of all their possessions to live in one of our units with 600 square feet? My sister turned 55 last year, and if she were to move into a typical senior community, she would expect the amenities she has always had. Senior housing is not just for little old ladies anymore! The rules of the past may not apply to this new generation of seniors. Boomers have already shown signs of not following their predecessors in the products and services they desire. They will work longer (don't skimp on parking places) prefer to age in place (smart floor plans, upgraded interior appointments, green features), 89% of seniors are on-line at least once a day (think Wi-Fi, not computer classes), and desire more active retirement scenarios (think wine tasting rather than a quilting bee). For example, on site movie theatres, a concierge (not "activities director"), opportunities that reflect current social trends (golf, gardening, cooking, decorating), concerts with varied options, a technology driven entertainment center (think XBox, not shuffle board) are just some ideas of how to attract the new generation of seniors. Remember, "Oldies" are not just Frank Sinatra and Doris Day, but the Beatles and The Stones!

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

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

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

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

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

By Elliot Njus | The Oregonian/OregonLive

Rent increases will be capped at 9.9% through 2020, the first full year Oregon’s new rent control law will be in effect, state economists announced Wednesday.

The Oregon Legislature this year passed Senate Bill 608, which imposed the nation’s first statewide rent control policy. The law caps rent increases at 7% plus the rate of inflation for the urban West. For 2019, that number came to 10.3%. 

Not all rentals are subject to the policy. The rent cap doesn’t apply to buildings that are less than 15 years old — an attempt to avoid a damper on housing construction — nor to government-subsidized rents. Landlords may raise rent without any cap if tenants leave of their own accord. 

Typical rents across Oregon are rising at a far slower rate than what’s allowed under the cap. 

But lawmakers who supported the policy said it would avert the biggest rent hikes that functioned as de facto evictions. Such increases, in which rents sometimes doubled or more, grabbed headlines in recent years, frequently after apartment buildings were sold to a new owner. 

The new law also requires most landlords to cite a cause, such as failure to pay rent or other lease violation, when evicting renters after the first year of tenancy.

Some “landlord-based” for-cause evictions are allowed, including the landlord moving in or a major renovation. In those cases, landlords are required to provide 90 days’ notice and pay one month’s rent to the tenant, though landlords with four or fewer units would be exempt from the payment.

-- Elliot Njus

Answer: For purpose of addressing this issue, I will assume that the community currently includes the operating costs for the well in the base rent, i.e. it is not a charge to residents outside of base rent that is allocated to them on a prorata (i.e. per space) basis. Well water is not something you may separately charge the residents for under ORS 90.532. There is no recognized method under Oregon law to recover it separately from – or outside of – base rent. Since base rent may only be increased in accordance with the 90-day rent raise protocol described in ORS 90.600, there is no pass-through alternative for communities serviced by well water for drinking. Subsection (8) of ORS 90.532 limits utility charges for water through the following means: A landlord may not assess a utility or service charge for water unless the water is provided to the landlord by a: (a) Public utility as defined in ORS 757.005; (b) Municipal utility operating under ORS chapter 225; (c) People’s utility district organized under ORS chapter 261; (d) Cooperative organized under ORS chapter 62; (e) Domestic water supply district organized under ORS chapter 264; or (f) Water improvement district organized under ORS chapter 552. (9) A landlord that provides utilities or services only to tenants of the landlord in compliance with this section and ORS 90.534 and 90.536 is not a public utility for purposes of ORS chapter 757. Your question does not indicate whether the new water system falls into one of the above categories. If it does, then you are entitled to assess a pass-through protocol, so long as the other submetering statutes are followed What follows is brief summary of the applicable statutes. As you will see, the issues are technical and complex. In short, you should secure competent legal advice from an expert familiar with your particular situation. This article or summary should not be relied upon to the exclusion of obtaining that legal advice. • 90.532 This statute sets forth the permissible billing methods park owners may use for their water charges. • 90.534 This statute describes how a landlord may charge for providing a utility or service directly to the residents’ spaces by apportionment of the costs per space. • 90.536 This statute describes the use of submeters to each space and the appropriate billing method. • 90.537 This statute instructs landlords on how and when they may convert from one billing method to another. • 90.538 This statute describes the tenants’ rights to inspect billing records when an owner converts from one billing system to another. In your case, since you are on well water, the only records I imagine you would have would be the well water maintenance costs, since there is no direct water charge to you. • 90.539 This statute describes the park owner’s rights to access a resident’s space to read the submeter. Conclusion. Without knowing more, it is hard to say definitively whether your proposed billing method [assuming the system is permissible under ORS 90.532(8)], would be allowed. However, my guess is that it is not. The reason is that the legislation and legislative history that resulted in these statutes is based upon much discussion and anecdotal experience. The categories and protocols are very specific. If you were to submeter, I suspect you could not “blend” your charges to include the equivalent of a fixed fee for everyone, with a metered rate for the higher users. The concept behind submetering is that everyone pays for exactly what they use – no more, no less. You proposed system does not appear to do that. Additionally, I do not believe you may “convert” to this new system without making some downward adjustment in base rent, to account for the fact that the residents will no longer be using the well water – and therefore should no longer be paying the well maintenance cost. [Of course, if the well water were converted to irrigation, that cost – already in the base rent - would seemingly be permissible.]

Answer: ORS 90.100 (Definitions) provides as follows:

(13)"Essential service" means: (b) For a tenancy consisting of rental space for a manufactured dwelling, floating home or recreational vehicle owned by the tenant or that is otherwise subject to ORS 90.505 to 90.850: (A)Sewage disposal, water supply, electrical supply and, if required by applicable law, any drainage system; and (B)Any other service or habitability obligation imposed by the rental agreement or ORS 90.730, the lack or violation of which creates a serious threat to the tenant's health, safety or property or makes the rented space unfit for occupancy. (Emphasis added.)[1]

Bottom line:Providing phone service is not defined as an "essential service" under Oregon's landlord-tenant law, and therefore is not required to be provided. Since most people have cell phones, I see little inconvenience in not having a land line - with the exception of the infirm or elderly, who may not have cell phone service. I would hope that for such residents, neighborhood efforts by other tenants would possibly provide welfare checks, since a phone line could be a life line in some instances.

The only exception to the above would be if the park's rental or lease agreement provided for phone service. In such case, the absence of it could arguably be construed as '_a serious threat to the tenant's health, safety or property... ."

[1]ORS 90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition) provides:

(1) As used in this section, "facility common areas" means all areas under control of the landlord and held out for the general use of tenants.

(2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord's habitability duty under this section includes only the matters described in subsections (3) to (6) of this section.

(3) For purposes of this section, a rented space is considered unhabitable if it substantially lacks:

(a) A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;

(b) If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;

(c) A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;

(d) An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;

(e) A natural gas or propane gas supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

(f) At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

(g) Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord's duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; and

(h) Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation.

(4) A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727.

(5) A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury.

(6) A facility common area is considered unhabitable if it substantially lacks:

(a) Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

(b) Safety from the hazards of fire;

(c) Trees, shrubbery and grass maintained in a safe manner;

(d) If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord; and

(e) Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal.

(7) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

(a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

(b) The agreement does not diminish the obligations of the landlord to other tenants on the premises; and

(c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated. [1999 c.676 _6; 2007 c.906 _40; 2011 c.503 _10; 2013 c.443 _2; 2015 c.217 _7]

Covid19, along with the social unrest this spring has taught us that emergencies can and will happen.  We need to be prepared for the matter of “when”, not “if”.  This virus and the riots have forced organizations to look inward and consider the safety and well-being of our employees and customers.   There has never been a better time to evaluate your resources, memorialize your “Lessons Learned”, and create an EAP (Emergency Action Plan). A little planning will go a long way in dealing with our current situation and will be valuable when (not if) we are presented with another emergency.  As leaders, we are expected to facilitate and execute these plans, as well as conducting a critical assessment to determine if we are ready for whatever may happen next.

Our role in residential property management requires us to have a responsible and sensible approach to keeping our staff and residents safe during critical times.  As I lay out the basics of an EAP and Disaster Plan, keep in mind that this plan is only as good as the training and accountability of each team member.  

Emergency Action Plans can be a simple written plan. EAP’s consist of:

1.   Lists of emergencies that can happen and how to approach them: fire, bomb threat, hazmat spill, earthquakes, medical emergency, flood, weather related issues (tsunami, wind, hurricane, etc.). 

2. Evacuation routes, location of fire extinguishers, location of first aid kits, wheelchairs, flashlights, and alarm systems. (should be inspected regularly) 

3. A written guide of who to call in case of an emergency including Managers, Maintenance Personnel, Regional/District Managers, and ownership. These numbers must be continually updated with employee turnover and chain of command established. 

4. Evacuation locations with a system to be used to ensure that everyone on the property is accounted for. 

5. Locations (addresses) of any disabled person who will need evacuation assistance.

6. Maps and locations of utility shut offs along with “how to” and the location of any special tools that may be necessary. (perhaps stored with the EAP)

EAP’s should be distributed to each employee as well as located in offices and workshops.  Each employee should receive training on the EAP during new hire orientation and sign that they have received the information. 

Disaster Plans:

This is a comprehensive plan intended to provide preplanned response to those unexpected or disastrous events such as:

Hurricane, Earthquake, Flooding, Terrorist Attacks, Active Shooter, Civil Unrest

Disaster Plans are prepared by the company with input from security companies, insurance providers, and risk management. This plan will focus on the immediate short-term needs of employees, residents, and the public. Maintaining communication, access, identifying the injured, and providing medical attention are key components to this chapter of the plan. Consideration should be made for long-term needs, food, shelter, and transportation.  Additional emphasis will be on the protection of the property and environment as well as the restoration of business to normal. 

It is necessary to evaluate potential hazards and assess potential harm to 1.) people 2.) environment, and 3.) property.

Identify the resources you will need for:

People- food, clothing, shelter, sanitation (water and toilets)

Property- protection from fire, flood, and further damage

Environment- identify controls needed to protect from further damage or release

Include instruction on how to establish your chain of command, establish your communication systems, implement medical services, and shutting down existing systems. Complete instructions on how to evacuate, locate auxiliary power, implement support systems, and how to perform post responsive activities (turning systems/utilities back on)

The most important component to any EAP or Disaster Plan is that you must train your employees and management team if you want a smooth disaster response.  Conducting drills will prevent panic and confusion during disasters and employees will know and understand their roles. 

If you feel like you have been ambushed by the events of 2020, you are not alone.  No EAP could have prepared us for the confusion and anxiety that we have experienced this year. We are all facing extraordinary circumstances where real world solutions are necessary in a workspace facilitated by Zoom.  Each of us has had to pivot our personal and professional plans, goals, objectives, and not to mention our budgets (do not get me started on rent deferrals!). As leaders, our teams are looking to us to respond and react appropriately with empathy and compassion. And we need to do this while taking care of ourselves and our own families.

I found a great reference by Navy SEAL leadership expert LT. Janson Redman.  He writes about how to thrive under a “life ambush”, anything that leaves physical, mental, emotional, or even financial scars.  It can be the loss of a job, divorce, illness, or even a pandemic. LT. Redman says it is time to REACT!

R         Recognize your reality.

E          Evaluate your assets and position.

A         Assess your options and outcomes

C          Choose a direction and communicate it

T          Take action

I, for one, am trying to take this approach with each new obstacle that comes my way this year.  Adapting to change is imperative and long-term thinking is vital if you are going to survive the short-term challenges.  Executing and implementing an EAP and a Disaster Plan is a great first step in REACTing.