Search

1. ADVERTISING. Advertising is one of the most common ways landlords find people to place in rental properties. When advertising, landlord clients should describe property attributes and/or amenities, not what they are or are not looking for in a resident. Landlords should not say "great for a young couple" as it may be considered discriminatory to families with children. Nor should landlords say "safe" or "exclusive" as this may imply they only rent to certain groups. At the end of the advertisement, landlords should use either the fair housing logo or a disclaimer such as "This community does not discriminate on the basis of race, color, religion, national origin, sex, disability or familial status." Photographs need to be carefully considered before use in advertising and only after speaking with an attorney.

2. STEERING. "Steering" occurs when a landlord attempts to direct a resident, for whatever reason, to a specific area of the property. To help avoid claims of "steering" by a prospective resident, landlords should show all available properties to prospects, let the prospect decide what to see and what to skip, and finally present only facts about the property and the community, not about other residents or neighbors. Landlords should never say "you would really like this particular apartment because it is nice and quiet with few children around", or "there are lots of other children in the same age group as your own" as both statements may be considered a violation of fair housing law. Failing to show a handicapped person the recreational areas (on the assumption the prospect would not use those facilities) may create potential liability. However, if a prospective resident expressly states they are not interested in seeing a specific area it is okay to skip that area. Even if asked, landlords should never comment on the "types" of persons who live in the community.

3. SCREENING/APPLICATIONS. Fair housing claims arise frequently as a result of the application and screening process. Landlords should have a written rental policy detailing the criteria necessary for approval to live in their property. The rental policy should include occupancy guidelines, availability policy, rental criteria (i.e. employment history/income, credit standards, etc.) with an explanation of what the criteria are, an outline of the application process and that your client adheres to all applicable fair housing laws. Questions included on the application should not ask about physical or mental disabilities, and landlords should limit questions about drug/alcohol use and lawsuits. Asking questions regarding prior evictions, prior money judgments, bankruptcy and why prospective residents are leaving their current landlord are acceptable and may provide important information. Once a written policy is created, the landlord should expect strict adherence and compliance with the written policy. Additionally, landlords need to keep good records of each applicant or inquiry. However, if an applicant requests a deviation from the written policy based on a disability, the landlord should consult you immediately before making a decision.

4. OCCUPANCY STANDARDS. In 1996 Congress enacted a law based upon a 1991 HUD memo stating that a 2-person-per-bedroom occupancy standard was acceptable in most situations. This is by no means a hard and fast rule with regard to the number of occupants for a particular residence. This figure can change depending on how the property is laid out. More occupants may be allowed if there are unusually large living spaces or bedrooms, and fewer occupants if the opposite holds true. Many fair housing experts believe that infants do not count when calculating occupancy standards.

5. APARTMENT RULES. It is absolutely acceptable for a landlord to have a set of "house rules" for all residents to live by. The house rules should be basic and non-discriminatory. Rules should be written so they are applicable to all residents and not just specific groups of residents. Rules stating "Children shall not roughhouse in the hallway" may be discriminatory. Using general terms such as "Residents or guests" should keep the rule unbiased, fair and applicable to all residents. Rules must be enforced uniformly against all residents and records regarding rule violations need to be kept. The records should include the time/date and manner of the violation, how the landlord became aware of the violation and what actions were taken to enforce the rule. As a special note, pool rules should be carefully scrutinized to insure they do not discriminate against children. A rule saying "no children under 4 in the pool area" is discriminatory, while a rule saying "children under 12 must be supervised by an adult over 18" is likely not discriminatory. As always, landlords should consult you for specific state or local laws on these issues as well.

6. REASONABLE ACCOMODATION. A reasonable accommodation is at the resident's request and when a client voluntarily makes exceptions to their standard rules/policies to accommodate the resident's disability. The requested accommodation must be reasonable and should not present an undue burden on the landlord. If the accommodation is not reasonable or if it would impose an undue hardship on the landlord, the request may be denied. If the request is denied a letter should be sent to the resident explaining the denial, the facts behind the denial, how those facts were discovered and offering to meet with the resident. Landlords should not offer to make an accommodation to a resident but should wait for a resident to request the accommodation. Offering an accommodation before it is requested may subject your client to a claim of discrimination.

7. REASONABLE MODIFICATION. This should not be confused with a reasonable accommodation. Landlords may require a resident to pay for modifications to the property and require that those modifications be removed when the resident vacates the property. If the modification were for something that federal law already requires a landlord to have in place then the landlord would be responsible for the cost of the modifications. Landlords should check with you to determine where financial responsibility for common-area modifications lay, and whether the resident would be responsible for both the installation and removal of the modifications. As with accommodations, the modifications must be reasonable.

8. RECORD KEEPING. Landlords need to keep records on all prospective residents, in addition to current/past residents. Landlords can create a system of guest cards or logs with relevant information (i.e. date/time of visit, properties shown, prospective move-in date, etc.) as well as a log of all calls made by prospective residents, even if the resident never comes to see the property. Records regarding available properties also need to be kept and updated every time there is a change in availability. Additionally, all applications should be retained, even if the applications were rejected or withdrawn. Landlords should contact you regarding how long the records should be saved in order to comply with changing requirements in federal and state law, as well as what types of records to maintain. Being able to produce consistent records showing nondiscriminatory application of written screening criteria in every case can usually successfully defend a Fair Housing claim.

9. EMPLOYEE TRAINING. Landlords need to ensure that there is a written policy to avoid claims for harassment, particularly sexual harassment. Every time a new employee joins the staff there should be a training meeting about fair housing laws and how to comply with them. The meeting should include copies of all memos regarding policies about how to comply with fair housing, what can happen to the landlord for a violation and what will happen to the employee who violates fair housing.

10. EVICTION. Landlords should not be afraid to evict a resident for legitimate reasons because of a fear of a fair housing violation claim. The rules set by the landlord apply to all residents equally. When contemplating an eviction for other than non-payment of rent advise your client to ask themselves the following two questions: (1) Has there been a serious violation of the lease agreement? (2) Do you and have you evicted other residents for the same type of problems or behavior? If the answer to these questions is yes, then an eviction would be warranted under the circumstances. Resident files should contain records of all complaints against the resident and what has been done in response to each of the complaints. HUD has historically looked for five types of documentation when dealing with fair housing claims. Landlords should document and include in resident files the following information: (1) warning letters/eviction notices, (2) written complaints by third parties, (3) written logs kept by management, (4) police records and (5) photographs. Resident file documentation needs to be consistent for all residents. This documentation may prove there was a legitimate reason, unrelated to any fair housing claims, for evicting the resident.

All information contained in this article is consistent with the Fair Housing Act (42 U.S.C.A. 3601 et seq.) Information was also obtained from the Federal Housing and Urban Development website ( http://www.hud.gov).

Kristi Bunge is a partner with the law firm of Springman, Braden, Wilson & Pontius, PC in Denver, Colorado, a firm that handles more than 500 evictions each month. Ms Bunge focuses on representing landlords in eviction and collection matters. Ms Bunge also represents property managers and Associations, advising them on Community Association issues.

Rule 1. Do not accept rent if you know that the tenant is in violation of the Park Rules and you intend to issue a 30-day notice of default. Example: If the tenant has an unpermitted pet or has someone living with him/her who has not applied for residency as a tenant do not accept rent if you are planning to give the tenant a 30-day notice of default. As soon as you are aware of a violation give the appropriate written notice to the tenant. If the notice is simply a warning asking the tenant to correct the situation it probably is safe to accept rent since you are asking the tenant to cooperate voluntarily, rather than actually terminating their tenancy.

Rule 2. Do not accept performance by a tenant if it varies from the terms of the rental agreement or Rules and Regulations. If the rental agreement provides for a late charge after the 4th day of the month, you should not accept late rent on the 5th day or thereafter without assessing the late charge. A consistent pattern of accepting late rent without assessing the late charge may be construed as a waiver of the right to do so later. This is also true where you have not assessed it against one tenant and then try to assess it against another.

Rule 3. Unless you and the tenant have agreed otherwise in writing, you will waive the right to terminate a rental agreement for nonpayment of rent if you accept partial rent after issuing a 72 or 144 hour notice. The reason is simple: Oregon law says that you may avoid a waiver and accept partial rent, if the arrangement is set forth in a written agreement signed by both parties. Say, for example, that following issuance of a 72 or 144 hour notice to pay rent you enter into a written agreement with the tenant which provides that you will accept a partial payment of $100 on the 10th with the balance to be paid by the 20th. If the tenant pays the $100 but fails to pay the balance on the 20th as agreed you may immediately file for eviction. However, your written agreement with the tenant should also include an express provision that if the balance is not paid as agreed - no new 72 or 144 hour notice will be required before filing the eviction.

Rule 4. If you have already issued a 20 or 30-day notice for violation of the park rules you may accept rent so long as it is prorated to the termination date specified in the notice. Never accept a rent tender which extends beyond the period in the rules violation notice. For example, if on May 15, you gave the tenant a 30-day notice which requires correction by June 15th, you should only accept rent from the tenant for the first 15 days of June. Accepting a full month's rent means that the tenant has"bought" the right to remain in the park for all of June - which is inconsistent with your demand that he/she cure the violation or vacate by the 15th. If the violation notice is for 30 days and its delivery can be put off a few days it is recommended that it be issued on the first of the month so no proration would be required.

Rule 5. If you have filed an eviction against the tenant "for cause" you may accept rent beyond the period in the notice if (a) you give the tenant written notice that acceptance of rent will not waive your right to proceed with the eviction and (b) the amount paid does not extend beyond the date the rent is tendered. You should not accept rent prospectively. For example, assume that (a) your 30-day notice on May 15 expressly notified the tenant of your right to accept rent without waiver and (b) you filed an eviction on June 16th, and (c) on June 25 the tenant tendered rent up to June 25 - you could accept it. In other words, acceptance of a tenant's rent solely for the period he/she has already been there will not constitute a waiver of the right to continue your eviction against the tenant.

Rule 6. You may serve a 72 or 144 hour notice of nonpayment of rent upon a tenant against whom you have already filed an eviction for cause. This is expressly allowed by Oregon Law. Although the statute does not specifically say so, it is strongly recommended that the amount sought in the 72 or 144 hour notice not demand payment for period beyond the date of issuance on the notice. For example, if you filed for eviction on June 1 because of an uncured rules violation on June 8th you could issue a notice for nonpayment of rent - however, the notice should only demand rent for the first 8 days of June. If you waited until June 25 to issue the nonpayment notice you would demand rent for the first 25 days of the month.

Admittedly, these rules can be confusing. If you have any questions you should speak to an attorney familiar with landlord-tenant laws. If in doubt, refuse the tenant's rent tender until you are absolutely sure that acceptance will not constitute a waiver of your rights. If the defaulting tenant mails in a rent check for more than is acceptable based upon the above rules or places it in a drop box at the office it should be promptly returned within six (6) days. Holding on to such payment beyond that time could give rise to the argument that you waived your right to proceed with the eviction.

Spurred by the death of George Floyd, protests across the country have rekindled attention on the Black Lives Matter movement and racial inequities involving policing practices and the criminal justice system. Against the backdrop of the coronavirus crisis, the movement has also drawn attention to broader issues of systemic racism in healthcare, employment, and housing.

The fight against racial discrimination and segregation was one of the main reasons that the federal Fair Housing Act was passed more than 50 years ago. When the landmark legislation was passed in 1968, Congress declared that ensuring fair housing throughout the United States was a national policy of the “highest priority.” The goal of the new law was to replace racially segregated neighborhoods with “truly integrated and balanced living patterns.” 

In the years that have passed since then, the number of complaints of race discrimination, which once held the top spot, have steadily decreased. In the meantime, the number of disability discrimination complaints have steadily increased, now accounting for more than half of all formal fair housing complaints.  

Some see the decreasing number of race discrimination complaints as a sign of progress to achieve equal housing opportunities regardless of race. But others say the country still has far to go to eliminate racial discrimination in housing. Though it’s rare to hear reports of blatantly racist practices, fair housing advocates believe racial discrimination has simply gone underground, replaced by more subtle forms of discrimination that are more difficult to detect.

Example: A June 2020 study by a research team from Suffolk University Law School found that Greater Boston landlords and agents discriminate against Black renters and those with Section 8 housing vouchers, illegally shutting out qualified renters. 

According to researchers, the study revealed that housing providers, mostly real estate brokers, showed Black testers about half the number of apartments they showed to white testers. They told white testers that more units were available, showed them more units, offered them more incentives to rent, and made more positive comments about the units.

Overall, the study showed that Black testers faced discrimination in 71 percent of the tests (for example: not being able to make an appointment, not being offered an application, not being offered financial incentives, like a free parking space or rental discount, that were offered to white testers). When agents dealt with Black testers, the incidence of “ghosting”—cutting off communication—was much higher. White testers continued to hear back from agents 92 percent of the time. Black testers heard back only 62 percent of the time.

The testing also uncovered high levels of discrimination against people with Section 8 housing vouchers, regardless of race. Ninety percent of the testers who indicated they were using a voucher faced discriminatory behavior from a rental agent (such as cutting off communication with the tester, not offering a rental application, not setting up an appointment to visit properties).

“The COVID-19 crisis and killing of George Floyd and so many other unarmed Black people has shone a bright light on the negative effects of the structural racism that has always existed in our country. This is a problem right here in our own community,” said Law Professor William Berman, director of Suffolk Law’s testing program.

Whatever your views in this volatile political climate, it’s essential to remember that multifamily housing communities and other housing providers have a duty to comply with longstanding fair housing laws banning discrimination based on race and color.

In this lesson, we’ll review fair housing requirements and offer six rules to help you fulfill your obligation to prevent race discrimination at your community. Then you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) forbids housing discrimination because of race or color, national origin, religion, gender, disability, and familial status (having children under age 18). The law applies to rental, sales, lending, and other housing transactions.

With respect to rental housing, the FHA declares certain practices to be unlawful when based on race and color-and any other protected characteristic. Among the prohibited practices are:

• Making housing unavailable by excluding or otherwise denying housing;
• Imposing different terms, conditions, or privileges for rental, such as higher rental payments or fees, more stringent screening criteria, or different housing services;
• Making discriminatory statements, including advertising;
• Misrepresenting the availability of rental units;
• Threatening, harassing, or retaliating against anyone for exercising their rights under fair housing law.

Tip: Anyone who experiences discrimination because of race or color may pursue a fair housing claim—whether or not she’s a member of a minority group. Early court cases established that white residents may make claims of racial discrimination based on a denial of their right to associate with African Americans. Allegations of fair housing violations have been brought by interracial couples and the parents of biracial children, as well as white residents who were subjected to discrimination because of the race of their family members, friends, or guests.

SIX RULES TO FOLLOW FOR PREVENTING RACE DISCRIMINATION

Rule #1: Keep Race Out of the Leasing Process

Don’t allow race to play any part in decisions about who may live in your community. Under the FHA, it’s unlawful to deny housing or treat people differently based on their race or color. Discriminatory conduct can be overt or subtle—it’s just as unlawful to blatantly refuse to rent to African-American prospects as it is to treat them differently than whites by misrepresenting availability, quoting higher rent requirements, or applying more stringent screening criteria.

Example: In June 2020, HUD announced that it approved a $35,000 settlement resolving claims of racial discrimination at a multifamily community on Long Island, N.Y. Specifically, the complaint alleged that the employees treated white testers posing as prospective residents who were inquiring about apartments more favorably than Black testers posing as prospective residents.

A fair housing organization filed the HUD complaint after several African Americans reported that they believed they were denied the opportunity to rent apartments at the community because of their race. As a result, the organization conducted fair housing testing using white and Black testers who posed as prospective renters. According to the complaint, the organization’s investigation showed that white testers received more favorable treatment, including being told about the upcoming availability of units, while Black testers were told that there was a long waiting list and that no units were available. The owners denied the allegations but agreed to settle the complaint.

“The color of a person’s skin shouldn’t determine whether they have the opportunity to obtain a place to live,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said. “That type of discriminatory treatment is unacceptable, and today’s settlement reaffirms HUD’s commitment to taking appropriate action when housing providers violate the law.”

Example: In March 2020, the Fair Housing Justice Center (FHJC) announced a $300,000 settlement to resolve a fair housing case against the owners, broker, and building superintendent of a 48-unit community in a predominantly white neighborhood in Brooklyn. The lawsuit, filed by the FHJC and five African-American testers, alleged that the community racially discriminated against African-American prospects in violation of federal, state, and local fair housing laws. According to the FHJC, its investigation found that African-American and white testers were treated very differently based on race. The FHJC alleged that for years, white testers were repeatedly shown available apartments at the building while no African-American testers ever saw an apartment. The defendants denied liability but agreed to the settlement.

FHJC Executive Director Fred Freiburg,  “African-American renters and home buyers continue to face persistent and pervasive racial discrimination in housing fifty-two years after the passage of the federal Fair Housing Act. Over the next few years, the FHJC will focus more of its investigative and enforcement resources on ferreting out racially discriminatory housing practices throughout the New York City region.”

Example: In December 2019, the South Suburban Housing Center (SSHC), a regional fair housing agency serving the south metropolitan Chicago area, announced that it filed a lawsuit accusing the owners and managing broker of a community in the metropolitan Chicago area of race discrimination. Specifically, the complaint alleged that the defendants refused to make appointments to show available apartments to African-American prospects and misrepresented the availability of housing to an African-American prospects.

According to SSHC, its fair housing investigation showed that white prospects responding to the community’s online apartment availability ads were able to call and schedule appointments, see the available apartment, and were encouraged to submit applications. When equally qualified African-American prospects responded to the online ads, SSHC said, they were not able to obtain the address of the unit, confirm or set up times to view, and in one instance were falsely told the unit was no longer available.

“Defendants’ actions in not allowing qualified African-American renters to literally get inside the door to apply for their advertised apartment, is the dramatic evidence that compelled SSHC to file this complaint,” SSHC Executive Director John Petruszak said.

Answer. What follows is a complicated answer to a simple question.

ORS 90.302 (Fees allowed for certain landlord expenses), Subsection (3) (b) (A) authorizes the assessment of a “fee” for noncompliance with written rules or policies governing, among other things, “(t)he late payment of a utility or service charge that the tenant owes the landlord as described in ORS 90.315” (Utility or service payments).

But that statute provides that the written rental agreement must expressly permit this fee. If it’s not in the agreement, ORS 90.302 (9) permits park owners to unilaterally amend it to impose noncompliance fees. A 90-day written notice must first be sent to the tenant.

But as occasionally occurs with legislation written by committees composed of disparate stakeholders, the sausage bill that results can become almost incomprehensible. That is the case with ORS 90.302(3) which describes a complicated implementation process, at best.[1]

If the above discussion isn’t sufficient in discouraging park landlords assessing fees for delinquent water charges, the information below should cinch the deal.

First, remember that the Oregon landlord-tenant law, ORS Chapter 90, is divided into two parts, (a) the non-manufactured housing side, and (b) the manufactured housing side. The latter side commences at ORS 90.505.[2]

Secondly, there is nothing in the manufactured housing utility billing statutes (ORS 90.560 – 90.584) which authorizes the assessment of a late fee for overdue utility charge payments. On the non-manufactured housing side, ORS 90.302 (3) (b) (A) does authorize the assessment of fees for late utility charge payments “… that the tenant owes the landlord as described in ORS 90.315.” (for utility or service charges).

Here is the conundrum: Does ORS 90.302 (3) (b) (A) refer to the utility charges described in ORS 90.315 or the obligation to pay the landlord as described in 90.315?

In ORS 90.560 (the definitions of utilities and services for the manufactured housing side of Chapter 90) it says that the term “utility or service” has the meaning given in ORS 90.315 (i.e., on the non-manufacturing housing side of ORS Chapter 90). The problem with this cross-reference is that the process for charging utility and service charges for manufactured homes and nonmanufactured homes are not the same – in fact, they are quite different.

For example, the procedure for billing utilities to an apartment tenant is described in ORS 90.315 (4) expressly does not apply to manufactured home tenancies. And the procedure for billing utilities to tenants in manufactured housing communities is set out in 90.562 (3) and (4).

Confused? Frustrated? Join the club! The best solution would be a legislative one, i.e., amend 90.302 (3) (b) (A) to include an express cross-reference to ORS 90.562 which would clarify the legislative intent to include both manufactured and non-manufactured housing.

Until then, there is room for disagreement on late fees for unpaid utility charges in manufactured housing communities; and disagreement can lead to litigation – something you don’t want. In the past I have seen park tenants bring claims against landlords for (allegedly) improperly imposed charges, fees, etc. The result is not pretty since each space may have a claim against the landlord for reimbursement of the past twelve months[3]of improperly assessed charges – plus attorney fees.

So, the short answer to your seemingly simple question, is that you do not want to risk assessing fees to residents for overdue payments of their water charges until the legislature clears up the confusion.

This is not to say you are without a remedy, but assessing a fee is not one I would recommend until the legislation clears up. Nonpayment of a utility or service charge is grounds for termination for cause under ORS 90.630. But beware, a landlord may not give a notice of termination under that statute for nonpayment of a utility or service charge sooner than the eighth day (including the first day it is due), after the landlord gives the tenant the written notice stating the amount of the utility or service charge.

Many thanks to John Van Landingham for his assistance in helping me detangle these statutes and their legislative history. Nobody has better institutional knowledge, perspective and understanding of Oregon’s landlord-tenant laws than John.

Effective July 1, 2021 the process for evicting residents who have not paid rent since July 1, 2021 forward will require a new process and forms.  The necessary forms for the new non payment of rent process are attached above to this article.  These new forms ARE NOT posted under the "Form Section" of MHCO.ORG due to frequent changes mandated by the Legislature.  Do not use any forms that you downloaded prior to July 1, 2021 as those forms are out of date.  Always download forms from MHCO.ORG on the day of use to make sure you are in compliance with a frequently changing regulatory environment.

Notes on the new process and forms:

• The 10-day (formerly 72-hour) notice can only be issued after 7 days of nonpayment – so if the payment date is the first, then you’d have to wait until the 8th to issue - this did not change under HB 4401.  
  • However, as you must realize with all the legislative stuff, rents between 4-1-2020 and 6-30-21 cannot be collected before 3-1-2022.
  • And notices of nonpayment or FEDs rents for 7-2021+ can commence but (a) only with the eviction protection notice and (b) if tenant provides documentation he/she is applying for funds, the landlord or court has to wait another 60 days.  Bottom line is that residents can drag out nonpayments if they want for months is landlord's only recourse is state/federal funds)

MHCO is working on additional tools to help managers and landlords understand the new regulations.  Look for a ‘flow chart’ in early August and we will do an extensive Q&A article as questions become more apparent.

The two previous articles by Phil Querin on the new process as a result of SB282 and SB278 which are posted under "Community Updates" are probably worth reviewing now that you have the forms in hand.

This has been a long trying process – MHCO appreciates the efforts of all those involved to draft forms that are useful and accurate.  We are especially appreciative of Phil Querin's knowledge and expertise.  More information will be forthcoming in the weeks ahead.  Thank you for your patience.

Answer. Here is a summary of what you can and cannot do. The statute is found at ORS 90.300.

• A "security deposit" includes any last month's rent deposit;
• You must provide the tenant with a receipt for any security deposit the tenant pays;
• If you sell the park you need to turn over all deposits to the new owner, since he/she then has the responsibility to return the deposit at the end of the tenancy;
• The rental agreement must identify the deposit(s) and amounts;
• You may not increase a security deposit during the first year of the tenancy (if it's increased after the first year, the tenant must be given three months to pay);
• However, if you and the tenant agree to modify the rental agreement, say for a pet, then you may increase the deposit;
• You may claim from the security deposit only the amount reasonably necessary:
  • To remedy the tenant's defaults in the performance of the rental agreement including, but not limited to, unpaid rent; and
  • To repair damages to the premises caused by the tenant, not including ordinary wear and tear.
• You are landlord not required to repair damage caused by the tenant in order to claim the deposit for the cost to make the repair. Any labor costs assessed for cleaning or repairs must be based on a reasonable hourly rate. You may charge a reasonable hourly rate for you own time if you do the cleaning or repair work;
• The type of defaults and damages for which you charge the security deposit include (but are not limited to):
  • Carpet cleaning, other than the use of a common vacuum cleaner, if the cleaning is performed by use of a machine specifically designed for cleaning or shampooing carpets;
  • There are several other carpet cleaning provisions (check the statute);
  • Loss of use of the dwelling unit during the performance of necessary cleaning or repairs for which the tenant is responsible if the cleaning or repairs are performed in a timely manner.
• You may not require a tenant to pay or forfeit a security deposit or prepaid rent for the tenant's failure to maintain a tenancy for a minimum number of months in a month-to-month tenancy;
• You must apply any last month's rent deposit to the rent due for the last month of the tenancy:
  • When you or the tenant gives to the other a notice of termination, other than a notice of termination under ORS 90.394 (failure to pay rent);
  • When you and the tenant agree to terminate the tenancy; or
  • When the tenancy terminates in accordance with the provisions of a written rental agreement for a fixed term tenancy.
• You must account for and refund any portion of a last month's rent deposit;
• Unless you and the tenant agree otherwise, the tenant may not require you to apply a last month's rent deposit to rent due for any period other than the last month of the tenancy;
• In order to claim all or part of any prepaid rent or security deposit, within 31 days after the tenancy terminates and the tenant returns possession you must give the tenant a written accounting that states specifically the basis of the claim(s) against the deposit;
• You must give a separate accounting for security deposits and for prepaid rent;
• You must return the unclaimed deposit or prepaid rent not later than 31 days after the tenancy terminates and the tenant returns possession to you;
• The written accounting and refund of unused deposit or prepaid rent to be by personal delivery or by first class mail;
• For situations in parks where the tenant has abandoned the home (or floating homes in marinas), the 31-day accounting and return period commences on the earliest of:
  • Waiver of the abandoned property process;
  • Removal of the manufactured dwelling (or floating home) from the rented space;
  • Destruction or other disposition of the manufactured dwelling or floating home; or
  • Sale of the manufactured dwelling or floating home.
• If you fail to comply with the accounting and return provisions of the statute or it is in bad faith (e.g. improper charges, etc.), the tenant may recover the money due in an amount equal to twice the amount:
  • Withheld without a written accounting; or
  • Withheld in bad faith.
• Claims arising under the security deposit statute do not preclude you or the tenant from recovering other damages under the Landlord Tenant Act.

Answer: Since the tenant does not own the home, the answer is found on the general landlord-tenant side of ORS Chapter 90 (as opposed to the manufactured housing side). Here is a summary of the tenant duties under ORS 90.325: - Use the parts of the premises including the living room, bedroom, kitchen, bathroom and dining room in a reasonable manner considering the purposes for which they were designed and intended. - Keep all areas of the premises under control of the tenant in every part as clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, as the condition of the premises permits and to the extent that the tenant is responsible for causing the problem. The tenant shall cooperate to a reasonable extent in assisting the landlord in any reasonable effort to remedy the problem. - Dispose from the dwelling unit all ashes, garbage, rubbish and other waste in a clean, safe and legal manner. With regard to needles, syringes and other infectious waste, as defined in ORS 459.386, the tenant may not dispose of these items by placing them in garbage receptacles or in any other place or manner except as authorized by state and local governmental agencies. - Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits. - Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances including elevators in the premises. - Test at least once every six months and replace batteries as needed in any smoke alarm, smoke detector or carbon monoxide alarm provided by the landlord and notify the landlord in writing of any operating deficiencies. - Behave and require other persons on the premises with the consent of the tenant to behave in a manner that will not disturb the peaceful enjoyment of the premises by neighbors. The underscored portion above clearly applies. The next question is the right of access. That is covered in ORS 90.322. The statute is quite long and complicated. Here is a summary of the relevant portions applicable to your situation: - A landlord or, to the extent provided in this section, a landlord's agent may enter into the tenant's dwelling unit or any portion of the premises under the tenant's exclusive control in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, perform agreed yard maintenance or grounds keeping or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers or contractors. The right of access of the landlord or landlord's agent is limited as follows: - In case of an emergency, a landlord may enter the dwelling unit or any portion of the premises under a tenant's exclusive control without consent of the tenant, without notice to the tenant and at any time. "Emergency" includes but is not limited to a repair problem that, unless remedied immediately, is likely to cause serious damage to the premises. If a landlord makes an emergency entry in the tenant's absence, the landlord shall give the tenant actual notice within 24 hours after the entry, and the notice shall include the fact of the entry, the date and time of the entry, the nature of the emergency and the names of the persons who entered. - If the tenant requests repairs or maintenance in writing, the landlord or landlord's agent, without further notice, may enter upon demand, in the tenant's absence or without the tenant's consent, for the purpose of making the requested repairs until the repairs are completed. The tenant's written request may specify allowable times. Otherwise, the entry must be at a reasonable time. The authorization to enter provided by the tenant's written request expires after seven days, unless the repairs are in progress and the landlord or landlord's agent is making a reasonable effort to complete the repairs in a timely manner. If the person entering to do the repairs is not the landlord, upon request of the tenant, the person must show the tenant written evidence from the landlord authorizing that person to act for the landlord in making the repairs. - A landlord may not abuse the right of access or use it to harass the tenant. A tenant may not unreasonably withhold consent from the landlord to enter. - If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement under ORS 90.392 and take possession as provided in ORS 105.105 to 105.168. In addition, the landlord may recover actual damages. You have two choices in this situation: (a) Declare an emergency and enter to remediate the problem, carefully following the provisions of the access statute; (b) Try to secure the tenant's consent to have an exterminator enter and remediate the problem; (c) Terminate the tenancy and then fix the problem. Note that if you seek consent and the tenant refuses, you cannot then enter under the emergency provisions of the law, since the tenant has already refused access. As for damages, yes you can recover the cost, assuming that the exterminator confirms that this was a tenant caused problem.

Question. We have a problem and I'm looking for guidance as to the proper way to handle it. Our well is going dry. Upon inspection, our well expert said we had only four feet of water. Although the system recovers overnight, there have been numerous occasions when the holding tank (2600 gallon capacity) is below 500 gallons. Fortunately, our pump has a system that prevents it from overheating or working when no water is available.

Our water system serves a community of 29 mobile homes and 41 RV spaces.

I have issued two notices informing residents of the water problem and requesting that they voluntarily conserve water use. Most have complied. Although the park owner is currently working with the local municipality to get our park on city water, this may not happen soon enough to avoid a serious water crisis.

I do not have the background to know what can legally be done to compel users to conserve. Can you point me in the right direction?

Answer. First, I will assume that you have confirmed the well is going dry - as opposed to other problems having to do with the pump.[1]

90.730(2) ("Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition") provides that community landlords have a duty to maintain the rented spaces, vacant spaces, and common areas in a "habitable condition". For purposes of your water supply, 90.730(3)(c) says a space is considered unhabitable if it substantially lacks 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."

My reading of this means that even though your system is failing in terms of providing an adequate supply of water, the spaces for residents owning their homes, are not "unhabitable" so long as it is safe and in good working order to the extent you can control the system.

As to your RV residents, your duties are not defined by the manufactured housing section of the landlord-tenant law, but by the general landlord-tenant law. See, ORS 90.320(1)(c). This statute imposes essentially the same obligation as that is contained in ORS 90.730.

One caveat: Your habitability obligation is subject to the extent you can control the water supply system. While you cannot "control" a failing well, you can explore the feasibility of (a) digging a new well, (b) digging the existing well deeper, or (c) making sure the water problem is not due to problems with the pump.[2] I can't tell from your question whether you've explored those possibilities.

Assuming that you are unable to do either (a) or (b), due to the current condition of the underground aquifers, or financial constraints, and (c) is not the problem, then it appears your only alternative is to continue working with the municipality to bring in city water - and hope a crisis can be avoided.

This brings me to your question, i.e. what can you do to "compel users to conserve"? Under the Oregon landlord-tenant law, I believe your options are limited. You could institute a water conservation regime for those owning their manufactured home through a rule change[3] - assuming not over 51% objected, and assess fines for the scofflaws. For RV tenants, you may institute the change anytime, although I suggest not less than 30-day notice.[4] Of course, enforcing this, would be difficult, since it would turn neighbor vs. neighbor.[5]

On the other hand, the threat of fines, may be sufficient to compel voluntary compliance. Education is the first step, i.e. making sure that everyone is water conscious. This would include providing information to residents about detecting and repairing leaks, and installing water saving devices.

Lastly, you need to prioritize your conservation efforts. Here is what I mean:

• RV tenants who come into the park should be informed of the situation, and told that if they don't conserve, they will be asked to leave with a 30-day notice. Before accepting them as tenants, you could require that they certify they have no leaks, and that they have installed certain water saving devices. In other words, the certification would be required as a condition of occupancy.
• Existing RV tenants already in the park who have been residents less than one year, can also be informed of the need to conserve, or they will be asked to leave with a 30-day notice. They too could be asked to certify they have undertaken the above-referenced conservation efforts.
• Existing RV tenants who have resided in the park over one year, should be informed of the need to conserve, or they will be asked to leave with a 60-day notice. They too could be asked to certify they have undertaken the above-referenced conservation efforts.
• For manufactured home tenants who come into the park, they should be informed of the situation and asked to certify they have no leaks, and that they have installed certain water saving devices.

For existing manufactured home tenants, you can ask, but can't require (short of a rule change) that they conserve, and certify having done so.

If the problem appears to be getting worse and residents leave, you should consider not filling the space - especially owners of manufactured homes - until you can get on city water.

[1] For a discussion of well water problems, see: http://wellwater.engr.oregonstate.edu/well-going-dry.

[2] I'm not an expert in this area of the law, so am limited as to what your viable options are. These issues are better left to your well driller and other experts in the area.

[3] See, ORS 90.610(3) - (7).

[4] The statute, ORS 90.262 allows rule changes "from time to time" which tells me you do not need advance notice. However, if some existing residents believed it worked a substantial modification of their bargain, they could object.

[5] Assessment of a fine should clarify that it is not a "charge" for the use of the extra water, but a "fine" for violation of the rule. The reason is that ORS 90.532(9) states that 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; (b) Municipal utility; (c) People's utility district; (d) Cooperative; (e) Domestic water supply district; or (f) Water improvement district. Thus, since your water comes from a well, you must avoid the appearance of assessing a "charge" for the excess water use.

Answer:  You must have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.  Generally, communities strive to be over 80%, since falling below 80% occupancy[even upon death of a qualifying 55+ resident]means immediatedisqualification.  Does this mean that your 15% safety margin must be reserved for families with children? The answer is “No.”  In fact, a 55+ community should strive for 100% occupancy by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age? Again, the answer is “No.”  If desired, a 55+ community may impose a minimum age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   

However, it is also important for you to publish and adhere to policies and procedures that demonstrate an intent to operate as a 55+ community. This requirement is fairly self-explanatory; i.e. you should make sure that in all advertising, rules, rental agreements, and  policies, you alwayshold the community out as a 55+ facility.  

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

UPDATE: Thanks to John VanLandingham for reminding me that pursuant to the recently enacted Senate Bill 970, ORS 90.303 was amended to provide that when evaluating an applicant for tenancy, the landlord may not consider: (a) A criminal conviction for possession of marijuana; nor (b) Possession of a medical marijuana card, or status as a medical marijuana patient. This new law becomes effective on January 1, 2020. ~ PCQ

Answer.  This applicant seems to believe he makes the rules. Please remind him otherwise. Regardless of the guest policy, you know he has a “lengthy criminal record” so you need to exercise extreme care in permitting him into the park under any circumstances.  

I do have some questions:

• It is unclear to me whether all his criminal history is over 10 years old, or just some of it. If all of it is over 10 years ago, the cuts in his favor.
• You did not describe the nature or severity of the crimes. Are they misdemeanors or felonies? Repeat offenses? 
• Crimes against persons or property? The former warrant more careful attention.
• Lastly, and perhaps most critical to any analysis is whether this person is a member of a protected class. Ex-cons are not, per se’ a protected class. If he is not, there is little he can do from a fair housing standpoint. However, this is not to say you can drop your guard. The main rule-of-thumb to always follow is to be consistent. 

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

At footnote 43 of the Memo, the following appears: 

***see Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven yearswithout reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record). (Emphasis added.) 

Does this mean that six or seven years is the maximum look-back that landlords can make when screening someone’s criminal background? I submit that for non-violent crimes, this is not an unreasonable review period. But in cases of crimes to the person, and most significantly, rape and child molestation, I agree a ten-year period is not unreasonable. 

However, the Memo is not to be read to say that anyconviction over seven years may not be taken into consideration when screen potential tenants or temporary occupants. Its purpose is to “…issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result.”  

 Here are some tenant screening tips I’ve suggested in past articles:  

1. Beware of testers, calling over the phone and asking if you will rent to persons with a criminal background.Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address.  

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

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

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

1. Be sure that all rules or policies concerning criminal records are uniformly enforced – no exceptions.  However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violent crimes over the past five years. 

1. If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these other criteria, then the rejection can be based on that, rather than a criminal background report, thus avoiding the disparate impact issue entirely. 

1. In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before deciding to reject a prospective tenant based upon criminal history. For example: 

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

·     What has the person been doing since their release? 

• Has the person been convicted once, or on multiple occasions? 
• What was the nature and severity of the crime?  

1. Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (notmere possession) of a federally defined controlled substance ispermissible and not subject to a disparate impact claim.In other words, a landlord or manager may legally base the refusal to rent based upon a conviction for manufacture or distribution is nota violation of the Act, based upon disparate impact. Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’” 

1. ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all of them. And where there is similarity, Oregon law does not go as far as the Memoon the issue of criminal records and disparate impact. Oregon’s statute provides: 

(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168(Oregon’s eviction statutes – PCQ)if the action: 

       (a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application. 

      (b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application. 

(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application. 

(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is: 

     (a) A drug-related crime; 

     (b) A person crime; 

     (c) A sex offense; 

     (d) A crime involving financial fraud, including identity theft and forgery; or 

     (e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect: 

     (A) Property of the landlord or a tenant; or 

     (B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent.  

1. Landlords should notassume that compliance with ORS 90.303 means that a denial of tenancy automatically avoids a disparate impact claim.  Landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  Thus, compliance with state law, but non-compliance with federal law, can still result in a disparate impact claim under the Fair Housing Act, as amended. 

Here are some considerations to keep in mind: 

1. The Memo and ORS 90.303 bothprohibit screening applicants for arrests, regardless of the conduct that led to the arrest; 

1. ORS 90.303 says that an arrest which has not been dismissed but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (i) When the matter will be resolved, e.g. a week, a month, or a year? (ii) What was the charge? (iii) If convicted, would the applicant automatically be denied? As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds.If so, there is no need to rely upon a landlord’s criminal background policy at all. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases.  

1. ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo. 

1. Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred or require an evaluation of what the applicant had been doing since the conviction. (e. g. evidence of rehabilitation). In the past, earlier Landlord-Tenant Coalitions could not reach agreement on whether to use a five- or seven-year standard in the statute3, nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this issue.  

Conclusion.  Landlords could be forgiven for feeling they are caught on the horns of a dilemma. If they follow Oregon statutes, it may not be enough. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines” based upon anecdotal information.  

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

So, to your two questions:

1. Can you still deny the temporary occupant based on a criminal record from 10 years ago, I would say yes, if the crimes were violent/sexual in nature, were repeated, and during the intervening years, the applicant had not exhibited any stability or rehabilitation. (Note, if the applicant is a member of a protected class, you probably should consult with your lawyer first.)
2. Can he “couch surf”? If your decision is to decline him as a temporary occupant, using the above screening criteria, you certainly don’t want him in the community under any other category. Just say No and let any residents who would aid him in this work-around know that.

Remember this: In the final analysis the decision is easy. Which would you rather defend against: (a) an angry ex-con, or (b) the parents of a child harmed by the ex-con you allowed into the community because he tried to make you bend to his rules?

UPDATE: Thanks to John VanLandingham for reminding me that pursuant to the recently enacted Senate Bill 970, ORS 90.303 was amended to provide that when evaluating an applicant for tenancy, the landlord may not consider: (a) A criminal conviction for possession of marijuana; nor (b) Possession of a medical marijuana card, or status as a medical marijuana patient. This new law becomes effective on January 1, 2020. ~ PCQ