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Answer. This can be a complicated issue. First, there are a series of state statutes governing the towing of vehicles from private property (here). They should be carefully reviewed before undertaking this process.

Here is a relevant portion of the law:

98.810 Unauthorized parking of vehicle on proscribed property prohibited. A person may not, without the permission of:

(1) The owner of a parking facility, leave or park any vehicle on the parking facility if there is a sign displayed in plain view at the parking facility prohibiting or restricting public parking on the parking facility.

(2) The owner of proscribed property, leave or park any vehicle on the proscribed property whether or not there is a sign prohibiting or restricting parking on the proscribed property.

Also, some cities and counties may have their own ordinances. The City of Portland, for example, has very specific rules (here). Gresham and Tualatin do as well. Plus, the Oregon Department of Justice has various consumer protection rules against "predatory towing". (here).

For manufactured housing communities, I suggest going much farther than relying on state or local laws. If your community decides to do this, it should be clearly disclosed in the rules and regulations. Of utmost importance is proper visible signage, which can either be created by management, or provided by the towing company you decide to use. Make sure the company has a good reputation in all respects, and no records of consumer complaints.

If the violator is a resident, I suggest one or more warnings (following a protocol in your rules) before having the vehicle towed. Once towed, the car is impounded, and the cost of getting it released is not insubstantial, and the towing company has storage lien rights. If the process is not strictly followed, the owner could have a claim against management for conversion, i.e. the civil side of theft.

Fining is a much safer alternative, but must also follow community rules. The worst that can happen if the fine is levied in error is to rescind it. Making an error in the lead-up or during a tow, can be much more costly to management.

Fines can be enforced with a 30-day notice under ORS 90.630, so long as it is found in the rules. I suggest a warning notice first. Take a picture of it on the car, with the plate visible. Include the date and time. Mail a copy of the notice and the picture to the resident within 7 - 10 days. Use a certificate of mailing.

Make sure there is proper visible signage describing the proscribed area, the times, if applicable, and the amount of the fine.

If the fine increases on multiple violations, describe that, or reference the park rule. Do not make the fine punitive. If other communities have such violations, find out what their fines are. Always use the rule of reason; don't impose a fine that most residents could not afford.

The issue of visitors is somewhat different, but rules may be enforced against the resident whose guest they are. That is why a warning notice should first be given. The notice and picture would go to the resident, who will, hopefully, warn their visitor about obeying marked No Parking signs.

Always Use A Calendar

Virtually all legal notices in the landlord-tenant law give a certain number of days (or hours) for compliance. If a 30-day notice is mailed, three additional days must be added. This means that the deadline for compliance is at least 33 days. However, landlords and managers frequently count the day of mailing toward the 33 days. This is incorrect. Additionally, the 33d day is frequently identified as the deadline, when it should be the day after the 33d day. When notices are sent in the month of February, the 33-day calculation can get confusing, since there are only 28 days – or 29 in the case of leap years. Rather than trying to do it in your head, it is far better to physically count the number of days on a calendar. Don’t do it once. Count out the necessary number of days at least three times, just to make sure that you’ve gotten it right.

Don’t Cut Deadlines Too Close

Frequently, landlords and managers give only the minimal number of days for compliance. This can be dangerous. While the court will always throw out a notice that is too short, it cannot throw one out that is too long. Since the risk of error is so high in the calculation of the necessary number of days, it is always prudent to give a couple of extra days, just to be safe. Rather than giving just 33 days on mailed 30-day notices, give 35. The statute governing the calculation of days can be confusing. Rather than trying to remember each rule, it is far better to simply add a couple of extra days, in order to avoid the risk of miscalculation.

Avoid All Ambiguity

For all maintenance and repair notices, be as specific as possible. Assume that a judge or jury will be looking at it. Assume that they know nothing about the problem. Will they be able to understand it? For example, saying “Clean up your yard” will not be understood by a judge or jury to mean “Mow and edge the lawn, and remove the weeds and blackberry bushes.” While tenants may know, in their heart of hearts, exactly what the landlord is referring to when he says “Clean up your yard,” by the time the matter gets into court, the tenant’s attorney will argue that the notice was so vague as to make compliance impossible.

On disrepair notices, landlords and managers should be sure to tell the tenant exactly what is wrong with the home and exactly what is necessary to remedy it. To say “fix the steps” will be argued as too vague. This cannot be said of a notice that says “repair or replace the broken steps and handrail located along the side of the sundeck behind the house.”

Use Current MHCO Forms

Most forms have a copyright date at the bottom. Remember that the Oregon Legislature meets every two years and that a session never goes by without some changes being made to the landlord-tenant laws. There is a good chance that a 1996 form will not legally comply with those laws generated during the 2001 Legislative Session. Accordingly, if you have a form that is copyright dated before the latest legislative year, you should check to find out if it is still current.

Make Sure You’re Using the Right Form

While this seems obvious, errors can occur. This is especially true when sending out notices to repair a home due to damage or deterioration. ORS 90.632 expressly governs this situation. There is a special form that must be used. The law requires that the form must contain specific notice to the tenant regarding their rights to obtain an extension of time for compliance if certain repairs, such as painting, are required by the landlord. Landlords and managers frequently confuse damage and deterioration situations with failure to maintain issues. If a house is in need of paint or the skirting is rusted and broken, a notice under ORS 90.632 must be issued, since this deals with damage or deterioration. However, this is not so, if the problem is simply maintenance, such as debris in the yard, or the home needs to be power-washed.

Be Careful Using 24-Hour Notices

While there are several good reasons to use a 24-hour notice, before issuing one, you should first ask two questions: (a) Is the conduct expressly prohibited by the park rules, and (b) is it of such a magnitude that it jeopardizes the health and safety of the tenants or managers in the park. If the violation is a breach of the rules, but is not a health or safety issue, it is better to give a 30-day notice for a rules violation. Here’s why: 24-hour notices are not curable. This means that the court will be faced with having to kick someone out of their home. If there is any doubt whatsoever, the judge or jury will normally come down on the side of the tenant. However, a 30-day notice is curable. If the conduct stops, there is no further issue for the landlord. If it is repeated within six months of the date of the 30-day notice, the landlord may issue a 20-day non-curable notice. If the landlord must file an eviction based upon the tenant’s failure to vacate after the issuance of a 20-day notice, the judge or jury will know that the tenant was first given an opportunity to avoid termination of the tenancy but they ignored it.

Only Use Notices of Termination As A Last Resort

Several changes ushered in by the 2001 Legislative Session make it easier for landlords and managers to first seek voluntary compliance from a tenant before issuing notices of termination. The waiver statute is not as harsh as it once was. Additionally, since informal notices are not intended to be the basis of an eviction action, they do not need to be in any particular form. They can be mailed or hand delivered without the necessity of counting days. They do not have to threaten termination of the tenancy. They do not need to have a fixed deadline for compliance. They can say “please.” Perhaps most important, they make management look better, since they show that the landlord or manager “walked the extra mile” with the tenant, rather than simply terminating the tenancy. Most landlord attorneys would prefer to be in court with a tenant’s file that is thick with requests for voluntary compliance. By the time a legal notice of termination is sent, it should say to the judge or jury “this was the landlord’s last resort.”

Only Use Notices Of Termination If You Mean It

Landlords and managers who issue notices without enforcing them create the appearance they are “crying wolf.” If a notice is issued, say for failure to maintain the yard, but no enforcement occurs upon noncompliance, the notice loses importance. If this occurs park-wide, the minute an eviction is filed based upon a particular tenant’s refusal to comply, the argument occurs that management is engaging in “selective enforcement,” since it had never done it before.  Consistent with the “last resort” approach, discussed above, landlords and managers should reserve the legal notice of termination only for those cases in which they intend to follow through.

Conclusion

While legal notices of termination are a necessary precondition to filing an eviction, they can also prove to be management’s undoing, if not properly used. They should be reserved for those cases in which the landlord or manager has no other viable alternative, and when used, they must be properly prepared.  Indiscriminate use or sloppy preparation of notices of termination will do management more harm than good.

One of the measuring sticks of great managers, as well as great regional managers, is their ability to be friendly while at the same time, keeping their eyes firmly upon the objectives of the community. The responsibilities of property management are immense and sometimes thankless. It is hard to believe that any of us could add another thing to our schedules to strive for better resident relations. But we must, and we must go at it with an eager, devoted, and intense passion to be successful. The only way to achieve this and still maintain the quality of the community is great organizational skills, resident, participation and the initiative to be creative.

No matter how large or small a community and its budget, the following simple steps will bring a community to its peak performance and create strong resident relations.

Get the Residents Involved

Make photo albums or scrapbooks of residents enjoying their community or community activities. Seniors enjoy donating photos from their past and the fun time they've had with neighbors or friends. Residents can form a photography club to take pictures of all community events, funny resident situations and neighbors helping one another. Photo clubs are a good source for pictures submitted by residents. Volunteers can help with the collection of photos and putting together the album. Display the album(s) proudly in the activity center or community lounge area for all to enjoy. Managers should look through the books from time to time to ensure quality content.

Encourage residents to write positive letters or stories about the community. Resident writings can be collected in an attractive album, which is also to be displayed in the community activity center. When the letters have been submitted, ask if they may be used in the community newsletter. Pick one letter a month to exhibit in an attractive picture frame under the caption, "Letter of the month" or "Why we enjoy living in this community."

Create a journal to pass around the community (it may be a spiral notebook) for all residents to write in. A note stating the topic should be firmly attached on the outside of the journal for all to read before inserting thoughts. The note may ask for how long the resident has lived in the community and a short biography. Encourage the use of photos or themselves, their families and/or pets. The final instruction should be "When you are finished with your thoughts, please pass this on to your neighbor. If you do not wish to be a part of this project, please call the community office, and we will pick it up." The notebook should be placed inside a weatherproof cover and given to the first home in the community. Many 55+ communities have seasonal residents. You might want to wait to start until they return, so all may participate.

If your community activity center has a television set and VCR, you can host movie matinees on adverse weather days. Rent a latest release (within the confines of movies seniors love), make popcorn for all (no salt or butter) and offer a non alcoholic beverage. Make sure the television is placed where everyone may comfortably view it, such as a stage as or the center of the room, and make the viewing room dark. What other thoughtful task can one do for less than $20 that gives joy to so many residents?

Everyone loves to show off their pets, especially seniors. Host a pet show. Purchase certificates and first, second, third place ribbons to award. Volunteers may acquire donations from local pet stores or other businesses to be awarded as prizes. Use an outside volunteer to pick the winners based on show, grooming, posture and training. Participants of local pet shows may be willing to volunteer their time to judge.

The same idea can work for a car show. Many residents have classic cars of which they are very proud. You may want to look in your local auto trader magazines for people who host car shows professionally. Many communities are looking for locations to hold their shows, complete with DJs, prizes, emcees and media. Use the same ideas from the pet show for great results.

Consider opening your clubhouse to local hobbyists. Most cities have model train clubs, remote-control airplane clubs, coin collectors and other hobbyists who are always looking for new places to meet and show off their labors of love. This effort provides seniors a pathway back to their childhood.

Keep yourself involved

In 55+ communities, residents are more interested in local government and have the time to help coordinate and change issues of concern. Some merely need the leadership and backing of the property owners or managers and the knowledge of who to contact to start the ball rolling. Cooperation of managers and residents can create great things and bond them together for the common good of everyone.

Perhaps the very best resident relations trick is getting outside the comfortable walls of the community to make changes that affect all the residents. If there are local or state issues of concern to manufactured housing communities or their residents, they need to get involved. Our government works for us, and is more likely to listen than it is often credited as being. One method toward such change is finding a government official who truly cares or is up for election. Their voters live in our communities. Working with the government takes patience and dedication. Although this kind of dedication may be very time consuming, in 55+ communities it is just as valuable as anything else a property manager does.

Start by reading every government mailing received. Items come up for vote on a regular basis that often negatively affect seniors and are addressed in a public forum prior to election. These forums are great opportunities for retirees and managers to give input toward change. Retired residents have the knowledge, spirit and time to investigate, preparing everything it takes to help present ideas in public forums.

Read all the fine print on every utility bill. Rates may increase and go unnoticed. If the utility companies are approached when proposing these changes, very often they may be overturned. It is not hard to present options to officials devising change. For example, in 1992 the managers of a small senior community discovered the water department offered water-leak rebates for site-built homes, but did not offer any solution to water leaks in manufactured housing communities with master meters sub-metered by the community.

With little effort this issue was approached, and the property managers found the city water department to be very cooperative in helping to resolve this problem. Today, a program is in place for all the residents in the city under these conditions, to receive rebates when residents have water leaks.

The same situation happened in a large Florida county. Residents in mater-metered communities also could not receive water leak rebates. Given the equation for determining sewer rates, when residents had leaks, the charges were exorbitant. This seriously affected the fixed-income seniors in the county. In 2000, because of a cooperative effort between water department, community management, and the homeowner's association of a 55+ community, this oversight was resolved. The effort only took a few phone calls, two meetings, a couple of faxes and the designing of a form that would work for the county and the community. Within 30 days of the community's first request, a program was in place for the entire county making it possible for all residents to receive rebates on water leaks.

In 1997, a county water department implemented an ideal way to dispose of waste water by a unique filtering system, then piped the filtered water throughout the county to be used for irrigation (reclaimed water). The process cost the county millions of dollars in construction. The county water department proposed a lengthy, complicated billing system to its customers, in the form of a "base rate." The proposed rate would have a devastating effect to senior residents in manufactured housing communities under the same metering conditions as described above because the master-metered system is considered "commercial".

Many phone calls were made by two community managers, in an attempt to find someone in the water department willing to explain the complex proposal, and willing to work with the communities to lower the billing rate. This six-month process required many meetings with the water department and a dedicated effort to get all the affected communities involved in the process. Today, as a result of this effort, all of the manufactured housing communities in that county now have a new category for billing commercial at residential rates. This new category lowered residents' base rate more than half of the original proposed increase. This lower rate was a big help to set-income seniors.

Keeping the media involved

Local TV media and newspaper reporters are always looking for human-interest stories. Every time a manager discovers a resident who has done something extraordinary, the media needs to be alerted. This includes Senior Olympics medalists, golfers who shot holes in one, shuffleboard champions and bowlers with a 300 game or a high series. Press releases should be sent to local papers to thank residents for special things they do in the form of "Volunteer of the Month" or "Hero of the Month." You might also want to invite the media to special events, such as National Night Out or other unique activities. Not only does the media coverage give residents a terrific boost, it is the best free advertising available.

These ideas and the examples above prove dedication and cooperative efforts between managers, residents, government officials and media to preserve and enhance the lifestyle seniors worked tirelessly to earn. What better way to thank the people who shaped our world, than to work passionately to help preserve the lifestyle for which they worked so hard. Home is where they should feel safe, respected, cared for and appreciated. Home is what we are to provide.

Reprinted from MHCO "Community Management"

Answer: Landlords should become intimately familiar with ORS 90.680, and then make sure their rules and rental agreements conform to what is allowed. Set forth below is a summary of those portions of the statute that address your questions:

• If the prospective purchaser of a manufactured dwelling or floating home desires to leave the dwelling or home on the rented space and become a tenant, the landlord may require the following:
  • That a tenant give not more than 10 days' notice in writing prior to the sale of the dwelling or home on a rented space;
  • That prior to the sale, the prospective purchaser submit to the landlord a complete and accurate written application for occupancy of the dwelling or home as a tenant after the sale is finalized;
  • That a prospective purchaser may not occupy the dwelling or home until after the prospective purchaser is accepted by the landlord as a tenant;
  • That a tenant give notice to any lienholder, prospective purchaser or person licensed to sell dwellings or homes of the requirements of the resale requirements [Emphasis mine - PCQ];
  • If the sale is not by a lienholder, that the prospective purchaser pay in full all rents, fees, deposits or charges owed by the tenant prior to the landlord's acceptance of the prospective purchaser as a tenant [Emphasis mine];
• If the landlord's rules and/or rental agreement requires prospective purchasers to submit an application for occupancy as a tenant, at the time that the landlord gives the prospective purchaser an application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale[1];
• The following conditions apply if a landlord receives an application for tenancy from a prospective purchaser:
  • The landlord shall accept or reject the prospective purchaser's application within seven days following the day the landlord receives a complete and accurate written application[2];
  • An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation, including any financial data and references, required by the landlord;
• The landlord may not unreasonably reject a prospective purchaser as a tenant. Reasonable cause for rejection includes, but is not limited to:
  • Failure of the prospective purchaser to meet the landlord's conditions for approval;
  • Failure of the prospective purchaser's references to respond to the landlord's timely request for verification within the time allowed for acceptance or rejection;
  • In most cases, the landlord must furnish to the seller and purchaser a written statement of the reasons for any rejection[3];
• The landlord may give the tenant selling the home a notice to repair the home [e.g. for damage or deterioration] under ORS 90.632. The landlord may also give any prospective purchaser a copy of that notice.
  • The landlord may require as a condition of tenancy that a prospective purchaser who desires to leave the dwelling or home on the rented space and become a tenant must comply with the repair notice within the allowed period under ORS 90.632.
  • If the tenancy has been terminated for failure to timely complete the repairs under ORS 90.632, a prospective purchaser does not have a right to leave the dwelling or home on the rented space and become a tenant.

Obviously, the statute was drafted with tenant/purchasers in mind. However, as long as the home remains on the space, the landlord has complete control over the situation. In your case, I suspect the delinquent tenant made no effort to notify the landlord of his planned sale to the dealer. However, that does not prevent him from imposing these requirements on the dealer if he wants to put a tenant in the park.

Going forward, it might be advisable for all landlords who have faced this situation before, to prepare a summary of requirements to give dealers when they purchase homes from tenants already sited in the park. They may want to expressly address this in their rules, so tenants cannot say they didn'tknow. The written summary to dealers should clearly state that if a departing tenant owes monies to the landlord, repayment will be required before occupancy of the home will be permitted by a new resident. [A more difficult question that is not addressed by the statute, ORS 90.680, is whether the landlord may prevent the dealer from removing the home without paying the past due sums. I suspect the answer may be "Yes" a landlord may do so, but it would require my examination of the statutory storage or retaining lien rights, which is beyond the scope of this question. - PCQ]

[1] The terms of the statement of policy, rental agreement and rules and regulations need not be the same as those in the selling tenant's statement, rental agreement and rules and regulations.

[2] The landlord and the prospective purchaser may agree to a longer time period beyond seven day for the landlord to evaluate the prospective purchaser's application or to allow the prospective purchaser to address any failure to meet the landlord's screening or admission criteria. If a tenant has not previously given the landlord the required advance 10 days' notice, the period provided for the landlord to accept or reject a complete and accurate written application is extended to 10 days.

[3] If a rejection is based upon a consumer report (as defined in 15 U.S.C. 1681a) for purposes of the federal Fair Credit Reporting Act, the landlord may not disclose the contents of the report to anyone other than the purchaser. In such cases, the landlord is to disclose to the seller in writing that the rejection is based upon information contained in a consumer report and that the landlord may not disclose the information contained in the report.

Answer: As to whether you or the resident is responsible for the condition of the ground upon which the home sits, it depends on whether the infestation existed at the time of commencement of the tenancy. If "yes," the it's your responsibility to abate; if "no" then it's the tenant's responsibility. Here is a summary of the applicable statute. I have highlighted that portion of the law which applies to your issue: ORS 90.730 [Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.] provides in relevant part: - A landlord who rents a space for a manufactured dwelling shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. - The landlord does not have a duty to maintain a dwelling or home. - A landlord's habitability duty includes only the following: _ A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord; _ If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order; _ A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord; _ An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord; _ At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin; _ Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement, and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal; and _ Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation. - A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727. - A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury. - A facility common area is considered unhabitable if it substantially lacks: _ Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin; _ Safety from the hazards of fire; _ Trees, shrubbery and grass maintained in a safe manner; and _ If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord. - Note that the landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if: _ The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord; _ The agreement does not diminish the obligations of the landlord to other tenants on the premises; and _ The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated. The term "vermin" is defined as: "Small insects and animals (such as fleas or mice) that are sometimes harmful to plants or other animals and that are difficult to get rid of." [http://www.merriam-webster.com/dictionary/vermin] That's a pretty broad definition, and I'm going to assume that "vermin" include ants. So the question is, was this condition one that existed at the commencement of the tenancy? If the resident had been at the space for years and never complained until now, I suspect they [or their exterminator] would have a tough time establishing when the problem first occurred. As you know, pests come and go; they could be seasonal, weather related, food related, hygiene related, etc. Chances are that if one resident has ants, others may as well. Had the resident come to you before hiring the exterminator, I would have suggested that you find out how widespread the problem was, and if it was prevalent throughout the community [or a specific area within the community] perhaps work out some cost-sharing arrangement along with a periodic maintenance schedule to eradicate the problem. That was not done here. However, good community relations suggests that you find out the breadth of the problem, and if it affects several residents, discuss a solution with all of them that works for your pocketbook, and the residents' budget. Whether you pay for the exterminator for one resident, might set a bad precedent, since it could encourage others to do the same. That's why you want to find out the scope of the problem.

For people with previous experience in the industry, this lesson offers a refresher—and a way for management to ensure that everyone is on the same page when it comes to your community’s commitment to treating everyone fairly, regardless of race, color, or any other characteristic protected under federal, state, or local fair housing law.

In this lesson, we’ll start with an overview of fair housing law: what it says and who it covers. Then, we’ll offer seven rules so that everyone understands how to recognize—and avoid—the pitfalls that can lead to fair housing trouble. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

7 RULES FOR COMPLYING WITH FAIR HOUSING LAW

Rule #1: Get to Know Fair Housing Law

The Fair Housing Act (FHA) is a federal law that bans housing discrimination nationwide based race, color, religion, national origin, sex, disability, and familial status. These seven factors are also known as “protected classes.” Most are self-explanatory, but the law defines some of these terms in ways that make it more complicated than what it seems.

Race and color: The FHA bans discrimination based on both race and color, two separate but closely related characteristics. In general, race refers to a person’s physical appearance, while color refers to a characteristic of a person’s race. It’s possible to bring a discrimination claim based on race, color, or both, but in practice, fair housing claims based on color alone are rare.

National origin: The FHA bans discrimination based on national origin, which generally refers to the country where people or their ancestors were born. This broad category protects people from discrimination because they or their ancestors came from another country, because they have a name or accent associated with an ethnic group, because they don’t speak English, or because they are married to or associated with people from a particular country. In some cases, discrimination claims based on national origin are closely tied to claims based on race or color. For example, a community that shows a preference for members of a certain ethnic group, such as Korean people, could be accused of discrimination based on race, color, and national origin.

Religion: The FHA prohibits discrimination based on religion, which generally means that communities may not discriminate against members of a particular faith or belief system. It’s unlawful to treat people differently because they are members of a religious group or because they do—or do not—attend religious services. Though it clearly applies to members of established religions, the law may be broad enough to protect people who are not affiliated with a particular religion or don’t ascribe to particular religious beliefs.

Sex: The FHA bans discrimination based on sex, which generally means that communities may not exclude or otherwise discriminate against anyone based on that person’s gender. Traditionally, the ban on sex discrimination didn’t apply to discrimination claims based on sexual orientation, though advocates have been pressing for that to change.

Sexual harassment is a form of discrimination based on sex, and involves two types of unwanted sexual conduct:

• “Quid pro quo” (which means “this for that”) discrimination occurs when a resident is pressured to succumb to unwelcome sexual advances in exchange for either positive or negative treatment (such as getting a discounted rent or avoiding eviction for late rent payments).
• Hostile housing environment discrimination occurs when a resident is subjected to severe and pervasive sexual harassment that unreasonably interferes with the use and enjoyment of the premises.

Familial status: The FHA bans discrimination based on familial status, including families with minor children, though the law is broader than that. Under the FHA, the ban on discrimination based on familial status applies to households with one or more children under 18 years of age, where the child is living with:

• A parent;
• A person who has legal custody (such as a guardian); or
• Someone who has the written permission of the parent or legal custodian to care for the child.

The familial status provisions also apply to pregnant women and anyone in the process of securing legal custody of a child under 18.

There is an exception, which allows certain types of senior housing communities to lawfully exclude children. But the exception applies only if the community meets strict technical standards to qualify as “housing for older persons.” Unless they do so, communities may not simply declare themselves as “adult communities” or exclude families with children under 18 from living there.

Disability: Technically, the FHA bans discrimination based on “handicap,” but the term “disability” is now more commonly used. Under the FHA, “disability” generally means a physical or mental impairment that substantially limits one or more major life activity.

That applies to a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In general, it’s unlawful to discriminate against anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

How does the law ban housing discrimination? The FHA bans housing discrimination by outlawing a broad range of discriminatory practices based on race, color, religion, national origin, sex, disability, or familial status. Discriminatory practices include:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification standards or rental approval procedures;
• Applying different terms or conditions, such rental charges or security deposits;
• Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
• Assigning residents to a particular section of a community or floor of a building;
• Providing different housing services or facilities, such as access to community facilities; and
• Failing to provide or delaying maintenance or repairs.

In addition, the FHA bans discriminatory statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. And the law also prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right.

Additional requirements related to disability. Compliance with fair housing law requires more than merely refraining from discrimination against individuals with disabilities. The law goes further to protect individuals with disabilities by making it unlawful to:

• Refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for the individual with a disability to fully use and enjoy the housing;
• Refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing; or
• Fail to meet the following accessibility requirements in the design and construction of rental housing with four or more units that were first occupied after March 13, 1991:

• Accessible entrance on an accessible route;
• Accessible common and public use areas;
• Doors sufficiently wide to accommodate wheelchairs;
• Accessible routes into and through each dwelling;
• Light switches, electrical outlets, and thermostats in accessible locations;
• Reinforcements in bathroom walls to accommodate grab bar installations; and
• Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.

Rule #2: Learn Applicable State and Local Fair Housing Laws

The FHA applies nationwide, but rental housing communities also must comply with applicable state or local fair housing laws. About half mirror federal requirements, but many go further to ban discrimination based on:

Marital status: Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed.

Age: Many state and local laws ban discrimination based on age, though there are significant differences in how the laws apply because of the way they define “age.”

Sexual orientation and gender identity: Many state and local fair housing laws ban discrimination based on sexual orientation; many, but not all, also cover gender identity or transgender status.

Source of income: Many state and local fair housing laws also cover lawful source of income to ban discrimination against people based on where they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance. Many, but not all, also cover housing subsidies, most notably Section 8 housing vouchers.

Military status: Some state and local laws offer some form of fair housing protection for military status. The laws generally prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

Other protected classes: Some state and local laws ban discrimination based other factors, such as status as a survivor of domestic violence, genetic information, HIV status, lawful occupation, political beliefs or affiliation, student status, alienage or citizenship, personal appearance, or arbitrary personal characteristics.

Coach’s Tip: For more information on state and local fair housing laws, see the April 2019 lesson, “Complying with State and Local Fair Housing Laws,” available on our website.

Rule #3: Watch What You Say

What you say could come back to haunt you. Under the FHA, it’s unlawful to make statements that suggest a preference for—or against—anyone based on race, color, religion, national origin, sex, disability, or familial status. The rules apply to any statements—spoken or written—so you must be careful about what you say on the phone, in person, and any other form of communication with prospects, applicants, or residents.

You have to be careful about what you say because the rules don’t require proof of discriminatory intent. Statements are taken at face value to determine whether they suggest a preference for—or against—anyone based on race or any other protected characteristic. Unless you’re careful, you could face a fair housing complaint based on what you say, or write, or post—even if you didn’t mean to express a discriminatory preference.

Avoid making any stray remarks or asking questions that could get you into fair housing trouble. You might simply be curious—or trying to be friendly—but people can be easily offended if they think you’ve crossed the line by saying or asking something that you shouldn’t. Steer clear of comments or questions about how prospects look, what they wear, what their name is, or how they speak, because they all—in one way or another—touch on protected characteristics.

When meeting people from foreign countries or different cultures, for example, Sadovsky warns that you shouldn’t ask questions about their accent or clothing, even if you’re genuinely interested in knowing more about where they come from. Even though your intentions are good, the prospect may suspect that you have discriminatory reasons for asking questions related to her national origin.

Example: In 2014, a Massachusetts real estate broker was found liable for violating fair housing law by casually asking a prospect about her national origin. It happened during a meeting with a married couple when the broker—whose wife was Brazilian—asked the wife where she was from. Even though his question had no discriminatory intent and didn’t result in discrimination against the couple, the question itself violated fair housing law [Linder v. Boston Fair Housing Commission, February 2014].

Don’t ask people about their disabilities—even if you’re just trying to be helpful. With only limited exceptions, it’s unlawful to ask prospects questions about whether they or anyone associated with them has a disability, or about the nature or severity of a disability. When you’re talking with someone in a wheelchair, for example, Sadovsky says that you shouldn’t make any comments—or ask if their disability is permanent or what happened to them.

The same goes for anyone using a service animal or other disability-related assistive device. The law allows disability-related inquiries when necessary to respond to a reasonable accommodation request, but you must wait to be asked—you shouldn’t offer an accommodation if the prospect hasn’t asked for one.

Coach’s Tip: Find out what you should say if a prospect initiates a conversation about the personal attributes about the community’s residents or those living in neighboring units. You don’t want to inadvertently fall into the trap of discussing the type of people who live in your community during what seems like a casual conversation.

Rule #4: Watch Your Tone

It’s not only what you say, but how you say it that’s important when interacting with prospects, applicants, residents, and the general public. Of course, you have to abide by fair housing law, but there’s more to it than that.

It may seem simple, but you’re expected to act courteously and professionally when dealing with people—no matter what your job. All too often, simple “people skills” are overlooked during employee training, says Sadovsky. That’s too bad, she says, because more people file complaints because of the way they’re spoken to or treated than they do as a result of actual discrimination.

Sadovsky says that a lot of fair housing complaints could be softened—or avoided altogether based on how you handle problems. “The words you use and the behavior you choose can either lessen the complaint or pour gas on an already burning fire,” she says. 

It starts with baseline civility, like standing up to greet someone when she comes into your office. All too often, people don’t look up with they’re on the phone or their computer. Sadovsky says it can be a big problem in a busy office, where you might be with customers, or on the phone, or doing paperwork. But no matter how busy you are, you should always acknowledge people when they walk through the door. At the very least, you can look up and smile, so they know you see them and know that they’re there.

Don’t let personal beliefs, opinions, and judgments affect the way you treat people, particularly in initial encounters with prospects since you don’t know much about each other at that point. Of course, we all have the right to own own personal beliefs and opinions, so there’s nothing unlawful about judging people based on outward appearances. Nevertheless, you’ve got to be careful—even if you don’t say anything, your facial expressions or body language may give you away, triggering the perception of discrimination. That’s why you should be prepared to put on your “game face” when you get to work, so that you greet all prospects, applicants, and residents with the same cordial professional attitude, no matter who they are or what they look like.

Rule #5: Get Up to Speed ASAP

It’ll take time to learn your community’s standard policies and procedures, but it’s important to get up to speed quickly. Understanding the rules—and applying them consistently—helps reduce the likelihood that the community will be accused of acting in a discriminatory or arbitrary manner while dealing with prospects, applicants, or residents.

Let’s say your job is to answer the phones. Usually, the calls are from prospects who are responding to an ad or gathering information about the community. But a call could be a fair housing “tester,” who’s like a secret shopper, checking to see how your community treats people based on their race, national origin, or other protected class.

Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children.

The case came to HUD’s attention when a private fair housing organization filed a complaint accusing the owner and rental agent of discrimination based on familial status by refusing to negotiate with fair housing testers posing as families with children, posting discriminatory advertisements indicating that children weren’t allowed, and making discriminatory statements to fair housing testers.

Federal fair housing law prohibits housing providers from denying or limiting housing to families with children under age 18, including refusing to negotiate, making discriminatory statements, and publishing discriminatory advertisements based on familial status.

“It’s hard enough for families to find places to live that meet their needs without being denied suitable housing because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to working to ensure that housing providers comply with their Fair Housing Act obligation to treat all applicants the same, including families with children.”

It’s important to answer calls in the same professional manner—and to provide the same information—because testers often check for differences in the quality and quality of information provided. Testers also look for differences in response times, but that doesn’t mean that every failed or delayed response is because of discrimination. It may be a simple oversight, but that’s not how it will look to a prospect—or a fair housing tester posing as a prospect.

Even without seeing a prospect, you could face a fair housing complaint if you treat people differently based on the way they speak. If you fail to return calls or give incorrect information about the availability of units because the caller sounds like he’s African American or has a foreign accent, you could trigger a discrimination complaint based on race or national origin.

Rule #6: Learn About Disability Rules

Applying standard rules and procedures is important, but there’s a catch: Fair housing law requires rental housing communities to make exceptions for individuals with disabilities under certain circumstances. Under the FHA, housing providers must consider requests for reasonable accommodations in policies, procedures, and services when necessary to enable an individual with a disability to fully use and enjoy the property.

For example, let’s say you’re answering the phone at a community that doesn’t allow pets. You must be careful how you answer if a caller asks about living there with an assistance animal. It would be a mistake to say no, the community doesn’t allow pets of any kind. Even if the community has a “no pets” policy, the community must consider a request for an exception to the policy as a reasonable accommodation when necessary to allow an individual with a disability to use and enjoy the home. 

Example: In 2017, a court upheld a ruling that the owner of an Oregon community had to pay a $9,000 civil penalty, along with nearly $170,000 in attorney’s fees and costs, for unlawfully denying reasonable accommodation requests for assistance animals.

The lawsuit was based on an investigation by a local advocacy group, which arranged for testers to call the community posing as prospective residents. The phone was answered by a friend of the community’s owner, who was covering the front desk in exchange for being allowed to live there. When the testers asked about living there with “therapy animals” or “assistance animals,” the friend initially said he’d have to check with the owner, but he later told them that the owner wouldn’t allow pets. After a series of proceedings, a court found the community liable for disability discrimination under federal and state fair housing law.

On appeal, the court affirmed, ruling that there was proof that the community denied the reasonable accommodation requests. The community, via the friend, heard that the callers wanted to keep assistance animals and immediately denied them a reasonable accommodation [Avakina v. Chandler Apartments LLC, July 2017].

Rule #7: When in Doubt, Ask for Help

It’ll take time to master all the policies and procedures that guide community operations, but in the meantime, don’t be afraid to ask questions if you’re unsure about how to deal with a given situation. Doing so just might save the community from a discrimination complaint.

Guessing what to do—or just winging it—because you don’t want to acknowledge that you don’t know what to do is a mistake. You should ask for guidance if you’re are unsure about how to handle a particular situation—and know who you can ask for help. For example, find out whether your community has a fair housing coordinator, a staff member who acts as the community’s in-house expert on fair housing matters. In most cases, the fair housing coordinator should be able to answer many questions—or know where to go to get the answers.

Coach’s Tip: You’ve got a lot on your plate getting up to speed, but be sure to follow the rules when it comes to the paperwork. In some ways, good recordkeeping is like a good insurance policy: It’s there to protect the community if, despite your best efforts to be careful and obey the rules, you run into a problem. Under the law, people have quite a long time to file to file a fair housing complaint. A complaint could come in months—or years—after the alleged discrimination occurred. Without the paperwork, how can you be expected to remember just what happened? Even if you do, it’s not as good as documentation created at the time of the events in question. Memories fade—stories change—so it gives the other side a leg up if the community can’t produce the records to back up your side of the story.

• Fair Housing Act: 42 USC §3601 et seq.
•  

COVID Questions 

(Corrected)

Question No. 1:.  If the resident hat has not been financially impacted by Covid-19 but is not paying rent what should we do?  Should we give a 72-hour notice, or should we wait?

Answer: First and foremost, remember that this situation is very fluid. Regulations can change overnight. This could affect the answers we give today. For example, CDC was previously saying face masks were not necessary, but recently reversed itself to recommend masks for use even where the person has no symptoms (“asymptomatic”) but “…is in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especiallyin areas of significant community-based transmissionsocial contact.” See, link, here. Likewise, various jurisdiction can implement regulations at almost any time.

Under the Governor’s Executive Order 20-13, issued April 1, 2020, there is a 90-day moratorium on virtually every part of an eviction, from issuance of the termination notice, to the filing of the eviction complaint, and execution of the FED judgment. 

Here is summary:

· Subject to the following, landlords of residential properties in Oregon shall not, for any reason, terminate a tenant's rental agreement. This includes filing, serving, delivering or acting on any notice, order or writ of termination or the equivalent.

· Nor may landlords “…otherwise interfere in any way with such tenant's right to possession of the tenant's dwelling unit.”

·  This relates to:

• • Nonpayment of rent, late charges, utility charges, or any other service charge or fees owed to the landlord; or 
  • Any termination without cause under ORS 90.427.

· The Executive Order does notrelieve a residential tenant's ultimate obligation to pay rent, utility charges, or any other service charges or fees; they still must be repaid.

· Late charges or other penalties due to the landlord arising from nonpayment are specifically waived during the Moratorium; i.e. repayment is notrequired after the Moratorium is over.

· The Executive Order also prohibits enforcing any existingnonpayment or no-cause eviction judgments.

· It does notapply to the termination of residential rental agreements for causes other thannonpayment of rent.

· It also prohibits law enforcement officers in Oregon from serving, delivering or acting on any notice, order or writ of termination of tenancy or the equivalent or any judicial action, arising under the Oregon eviction statutes that relate to residential evictions for nonpayment. 

• During the Moratorium, any residential tenant who is or will be unable to pay the full rent when due under a rental agreement or lease, shall notify the landlord as soon as reasonably possible; and shall make partial rent payments to the extent the tenant is financially able to do so.

See, Executive Order 20-13 here. 

The above discussion refers to statewide Executive Order 20-13, but with limited exceptions, likely applies equally to the City of Portland/Multnomah County which has its own set of rules.  I say “likely” because there is no final word on the issue, as it raises complicated state vs. local preemption issues. But the legal consensus is these prohibitions do apply to the City of Portland/Multnomah County. The only exception is (likely) that the 6-month repayment period still applies to deferred rent for the City of Portland/Multnomah County, but not the rest of the state.

Essentially, other than the power of persuasion, your options are limited in this case until the Moratorium is over.

Question No. 2: If the resident violates the rules, has unauthorized residents, disturbs the peaceful enjoyment of other residents - can we give an eviction notice, or should we wait?

Answer: Almost all hearings and trialshave been postponed indefinitely in Oregon  – not just FED hearings for nonpayment of rent. but for everything else, as well. 

I suggest you first speak with the resident and inform him/her that you can and will issue a 30-day termination notice, and file for eviction if the conduct does not cease. 

However, it may be that you will not be able to have a judge hear the matter. I suggest you check with your local county court to see if a hearing can be set, since this is a safety issue and one that needs to be addressed now. If not, at least if you should proceed with the 30-day notice and, if the conduct continues, file and serve the eviction complaint, so you will be at the front of the line when the courts do open.

Attached (above)  is a copy of a page from a March 27 Oregon Supreme Court Press Release on how the Oregon trial courts will be conducting business going forward.

Answer. ORS 90.630(1)(a) (Termination by landlord; causes; notice; cure; repeated nonpayment of rent) permits you to issue a 30-day termination notice for any of the following if the resident:

• Violates a law or ordinance related to the tenant's conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;
• Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing

I read these prohibitions as relating to events or conduct inside the community. However, as to the following two, the conduct is not required to have occurred inside the community:

• Is classified as a level three sex offender under ORS 163A.100 (3);
• Is an unclassified adult sex offender designated as predatory prior to January 1, 2014, or a person whom the State Board of Parole and Post-Prison Supervision, the Psychiatric Security Review Board or the Oregon Health Authority has classified as a level three sex offender under section 7 (2)(b), chapter 708, Oregon Laws 2013.

Both of the above two sex offender violations are non-curable, so that presumably the resident must vacate within the 30-day period. As I read ORS 90.630, with the exception of the sex offender violations, the others must relate to the tenant's conduct as a tenant, and by definition (to me at least) mean "while in the community"; for purposes of termination of a tenancy, a tenant is not a tenant when he or she is outside of the community.

90.396 (Acts or omissions justifying termination 24 hours after notice) provides that you may issue a 24-hour notice if:

• The tenant, someone in the tenant's control or the tenant's pet seriously threatens to inflict substantial personal injury, or inflicts any substantial personal injury, upon a person on the premises other than the tenant;
• The tenant or someone in the tenant's control recklessly endangers a person on the premises other than the tenant by creating a serious risk of substantial personal injury;
• The tenant, someone in the tenant's control or the tenant's pet inflicts any substantial personal injury upon a neighbor living in the immediate vicinity of the premises;
• The tenant or someone in the tenant's control intentionally inflicts any substantial damage to the premises or the tenant's pet inflicts substantial damage to the premises on more than one occasion;
• The tenant, someone in the tenant's control or the tenant's pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. Acts that are "outrageous in the extreme" include, but are not limited to, the following acts by a person: Prostitution, commercial sexual solicitation or promoting prostitution; Manufacture, delivery or possession of a controlled substance, but not including the medical use of marijuana in compliance with Oregon law; Possession of, or delivery for no consideration of, less than one avoirdupois ounce of marijuana; or possession of prescription drugs; intimidation, as described under Oregon criminal law; or burglary.

Under the definition section of the Oregon Residential Landlord Tenant Act, ORS 90.100 (34), the term "premises" means "a facility for manufactured dwellings or floating homes", i.e. the park itself. Thus, again, all of the prohibited conduct must have occurred inside the community.

Conclusion. However, you should remember that when a resident commits a crime outside the community, especially one that entails incarceration, the problems don't usually stop there, i.e. he or she frequently is unable to pay their rent, which can lead to eviction. Or your issuance of three 72-hour (or 144-hour) late notices, can result in issuance of a noncurable 30-day notice of termination. In cases in which the tenant has committed some particularly aggravated crime outside the park, which causes you concern for their coming back into the community, I suggest you consult your attorney to determine whether there might be some other basis for termination.

According to HUD, criminal background checks have a disproportionate impact on minority home seekers, largely due to disproportionate conviction and incarceration rates for minorities and others in protected classes. HUD's Guidance memo identifies methods of 'proof' that are used when analyzing a fair housing claim in the context of a housing provider who denies an applicant tenancy based in whole or in part on a criminal background check. .

In other words, even though tenancy is not denied based on direct discrimination against the applicant as a member of a protected class (race, religion, nation origin, etc.), background checks that reveal convictions could nevertheless, in HUD's view, have a disproportionately negative effect (disparate impact) on members of protected classes resulting in a discriminatory housing practice. HUD actually isn'toutlawing use of criminal background policies, but rather is aiming to prevent landlords, including Parks and Communities from using the background check information since use of these policies if that use ultimately has a discriminatory effect on people in a protected class.

HUD's New Guidance memorandum will certainly impact use of criminal background checks since many manufactured housing communities may learn that their own current policy on how to use applicant screening procedures may expose them to liability. This article will discuss two things: (1) how HUD evaluates denials based in whole or in part on use of a criminal background check; and (2) factors a community should keep in mind when formulating or employing a policy about criminal "history".

All communities are unique, and so too are the legitimate interests that a community must protect. A community's size, location, and its age all play a direct role in corresponding issues regarding safety, security, and/or criminal activity. A community's initial decision to even use a "criminal background check" policy in the first place rests largely on whether the policy will further that community's interests, be it safety, security, or crime prevention, and ultimately enhancing the living environment for all residents.

By and large, all communities share core interests. Among these are screening out financially unqualified applicants and minimizing risk to community residents by applicants convicted of recent violent crimes, drug related crimes, and/or crimes involving children,. Of course, the specific interest in maintaining a criminal background check policy varies depending upon the nature and characteristics of the community that justify the purpose.

If your community uses a "criminal background check,"here's how the typical scenario goes: Applicant seeks to lease a space, submits the required application with supporting documentation, and answers "yes" to having a prior felony conviction. Owner denies the application, on the conviction. Applicant, now angry, lodges a fair housing complaint alleging the community discriminated against him/her. Once that complaint is assigned, here's the 3-step analysis HUD will use to address the claim:

Step 1: The applicant must prove the background check policy has a discriminatory effect, meaning the policy results in a disparate impact on a group of persons in a protected class. Said applicant need only prove the policy "actually or predictably results" in a disparate impact. This will usually involve an extensive investigation of community residency applications reflecting a criminal conviction.

Step 2: If the applicant satisfies step 1, the community must then show the background check policy is justified, meaning the community must show: (a) that it has a substantial, legitimate, nondiscriminatory interest for screening an applicant's criminal background; and (b) running the criminal background checks achieves or furthers this interest.

Step 3: If the community establishes that the policy furthers a substantial interest, the burden shifts back to the applicant to prove the community interest could be served by another practice with a less discriminatory effect.

Simply put, it's a game of ping-pong with some vague standards of proof. So, what should communities do? Well, if you screen criminal backgrounds when deciding if an applicant qualifies, you should ensure that your policy stays within HUD's newly published requirements. Review your policies with your legal counsel to confirm this.

At a minimum, a community should keep the following important points in mind.

First, arrests are not sufficient. An actual conviction is required. There are also big differences between misdemeanor convictions v. felony conviction.

Second, blanket tenancy prohibitions for all convictions is not wise. Rather, a policy should focus on (1) what the conviction was for (i.e. nature and severity of the conviction); (2) when it happened (i.e. how much time has elapsed since the conviction, as recidivism risk decreases gradually); and (3) the applicant's post-conviction actions, particularly rehabilitation efforts. Keep a policy objective, with distinct standards.

Third, criminal background checks may be best when implemented as a final step in the application process, after a rental history overview, a credit check, and references. There may be applicants who do not meet a community's standards based on these other criteria, meaning a criminal background check may not be needed.

While HUD guidelines are national and set a base standard, some states may further regulate the application process by statute, meaning a community must comply with stricter standards. As always, it is important to work with your legal counsel to ensure you comply with specific standards applicable to your state.

No community wants to be on the receiving end of a discriminatory housing claim. To avoid the potential pitfalls of a "criminal background check" policy, communities should develop and employ policies in close consultation with legal counsel.

Ryan Egan is a litigation associate with the Southern California law firm, Hart King, and is a member of the firm's Manufactured Housing Industry Practice Group. You can reach Ryan directly at 714.432.8700 ext.332 or at regan@hartkinglaw.com. This article is for general information purposes and is not intended to be and should not be taken as legal advice for any reader.