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By:  Phillip C. Querin, MHCO Legal Counsel

The difference between a well-run manufactured housing community and one with problems frequently lies with the rules and regulations each facility has adopted.  Here are some tips for developing a set of rules and regulations that may be helpful in the successful operation of your community:

1. Avoid Ambiguity.  When writing a rule, make sure that it is understandable.  If a court or jury were called upon to enforce it, would they be able to understand it?  Is it fair?  Is the rule capable of different interpretations?  Is it too vague so as to give little or no guidance to the tenant?  Avoid using general terms which are so subjective that reasonable people could differ about what constitutes a violation.  If necessary, use an example.  If the rule must necessarily be open-ended (e.g. prohibiting loud and disturbing noise or offensive behavior), tie the violation to whether the conduct results in complaints from other tenants.  That way the issue does not become whether the manager is arbitrarily exercising his or her own discretion.
2. Updating the Rules.  Oregon landlord-tenant statutes can change every yerar when the Legislature meets.  Circumstances and needs can change more frequently than that.  At least once a year, take a look at your rules to see if they are legally sufficient and whether they meet the community's present needs.  It is much easier to make smaller changes to the rules one or two at a time rather than trying to get the tenants to agree to a wholesale change of all the rules at once.  If your tenants are on leases, you have the right to submit new park documents (i.e. rules and rental agreement) not less than 60 days prior to the expiration of the lease term.  A tenant shall accept or reject the landlord's proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.  If accepted, the rules and rental agreement will define your new rental relationship with the tenants.  It is one good way to update your rules, without having to go through a formal rules change.
3. Legally Adopting Your Rules.  If the tenants are on month-to-month tenancies, Oregon law requires that the landlord must give at least 30 days' advance written notice to make a change in the rules.  If 51% or more of the tenants affected by the rule change object within the 30 days of service of the notice, the change(s) will not go into effect.  However, if less than 51% object, the new rule(s) will become effective in 60 days from the date the notice was served on the tenants.  The law regarding the contents and timing of the notice of rule change must be strictly followed.  ORS 90.610 describes the process.  Read it carefully!  And use MHCO Form 60: "Sixty Day Notice of Rule Change".  Simply sending a letter to the tenants informing them of a change in the rules is insufficient.  If the rules are not properly adopted they will not be enforceable.  Frequently, the landlord or manager will first learn that their rules were improperly adopted when they try to enforce them.  If one or more of the rules you seek to adopt are opposed by a small but vocal minority who lobby the rest of the tenants against your change, consider meeting with them prior to giving notice of the proposed change, in an effort to mutually draft language that everyone would find acceptable.  If over 51% of the effected space still object, consider implementing the new rules for all new incoming tenants only.  That way, over time, the new rules will have wider and wider application as the older tenants

1. Keeping Track of Your Rules.  If there are more than one set of rules (i.e. old rules for existing tenants and new rules that are given to new tenants) make sure you keep track of which rules apply to which tenant.  Put copies of the applicable rules, together with the rental agreement and statement of policy, in each tenant's file.  Attempting to enforce the wrong rules against a tenant can result in disaster.  Show the date of the latest revision on the first page or, better yet, on the footer of each page.
2. Troublesome Issues.  There are some issues that seem to never go away.  Occupancy issues are one of those troublesome areas that frequently result in litigation.  If your community has rules limiting the time a visitor can stay, make sure it is clear and unambiguous.  Frequently tenants try to avoid these limits by calling their visitor a "house-sitter."  The best approach is to set a definite date, e.g. two weeks, and require that all persons who remain over that period of time must satisfy the same requirements as imposed on incoming tenants - e.g. background check, criminal check, references, etc.  Require that they sign the rental agreement.  If the existing tenant attempts to get around these occupancy rules by arguing that the person is there to provide necessary assistance because of certain physical or emotional disabilities, legal counsel should be immediately consulted due to Fair Housing implications.
3. Consistent Enforcement.  It is not uncommon for landlords and managers to grant exceptions and extensions of time for tenants to come into compliance with a particular violation.  However, landlords can get into trouble when they ignore some violators and enforce the rules against others.  Maintenance violations are a good example.  In order to enforce these rules you must be consistent.  Regular community inspections should be made.  Warnings should be given uniformly to all violators.  Thirty day notices should be given only as a last resort.  If the tenant requests an extension of time to comply, put the agreement in writing.  In those cases where legal action may need to be taken, make sure legal counsel reviews the case before filing the eviction.   Make sure your attorney is aware of your prior efforts to secure the tenant's compliance.  It is always best if the tenant's file shows a clear paper-trail of your efforts to secure voluntary compliance.

Rules and regulations are not foolproof.  Some tenants will always try to find reasons why they do not apply to them.  But clarity, consistency, and fair enforcement will go a long way in keeping peace and harmony in your manufactured housing community.

Answer: ORS 90.417 (Duty to Pay Rent) provides as follows:

• Effect of acceptance of partial rent:

1. A tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement;

1. A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.

1. A landlord may accept a partial payment of rent. The acceptance of a partial payment of rent does not constitute a waiver of the landlord's right to terminate the tenancy for failure to pay all rent due so long as the landlord and tenant by written agreement provide that monthly rent shall be paid in regular installments of less than a month pursuant to a schedule specified in the agreement. Installment rent payments paid in this manner are not considered partial payment of rent.

1. However, if there is no such written agreement, the acceptance of a partial payment of rent waives the right of the landlord to terminate the tenant's rental agreement for nonpayment of the balance rent unless:
   1. The landlord accepted the partial payment of rent before the landlord gave a nonpayment of rent termination notice based on the tenant's agreement to pay the balance by a time certain and the tenant does not pay the balance of the rent as agreed;

(b) The landlord's notice of termination is served no earlier than it would have been permitted under had no rent been accepted; and

(c) The 72-hour or 144-hour notice permits the tenant to avoid termination of the tenancy by paying the balance within 72 hours or 144 hours, as the case may be, or by any date to which the parties agreed, whichever is later; OR

(d)The landlord accepted a partial payment of rent after giving a 72-hour or 144-hour notice and entered into a written agreement with the tenant that the acceptance does not constitute waiver. This written agreement may provide that the landlord may terminate the rental agreement and take possession under the eviction statutes without serving a new notice of termination if the tenant fails to pay the balance of the rent by a time certain.

• Note: Notwithstanding any acceptance of a partial payment under the written agreement arrangement above, the tenant continues to owe the landlord the unpaid balance of the rent.

Applying the above rules to your question, my response is as follows:

• Although you had no legal duty to accept the partial rent, you did accept it;
• Since you apparently had no written agreement with the tenant at the time of the partial payment, you would have had to issue a 72-hour or 144-hour notice for the balance of April's rent;
• You did not issue that notice;
• May's rent is now due, together with the unpaid balance of April's rent;
• As noted above, ORS 90.417 provides that a tenant has a duty to tender to the landlord an the full amount of rent owed and acceptance of partial rent does not mean the tenant does not owe the landlord for the unpaid balance that remains;
• In this case the full amount would be the remainder of April's unpaid rent, plus May's rent.
• Caveat: Remember that if your rental or lease agreement provides that rent is due on the first day of the month, the earliest you can issue a 72-hour is the 8th day of the month. If you issue a 144-hour notice, the earliest you could issue it is the 5th day of the month. don't issue your May notice before the applicable time!

1. Avoid Ambiguity.  When writing a rule, make sure that it is understandable.  If a court or jury were called upon to enforce it, would they be able to understand it?  Is it fair?  Is the rule capable of different interpretations?  Is it too vague so as to give little or no guidance to the tenant?  Avoid using general terms which are so subjective that reasonable people could differ about what constitutes a violation.  If necessary, use an example.  If the rule must necessarily be open-ended (e.g. prohibiting loud and disturbing noise or offensive behavior), tie the violation to whether the conduct results in complaints from other tenants.  That way the issue does not become whether the manager is arbitrarily exercising his or her own discretion.
2. Updating the Rules.  Oregon landlord-tenant statutes can change every two years when the Legislature meets.  Circumstances and needs can change more frequently than that.  At least once a year, take a look at your rules to see if they are legally sufficient and whether they meet the community's present needs.  It is much easier to make smaller changes to the rules one or two at a time rather than trying to get the tenants to agree to a wholesale change of all the rules at once.  If your tenants are on leases, you have the right to submit new park documents (i.e. rules and rental agreement) not less than 60 days prior to the expiration of the lease term.  A tenant shall accept or reject the landlord's proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.  If accepted, the rules and rental agreement will define your new rental relationship with the tenants.  It is one good way to update your rules, without having to go through a formal rules change.
3. Legally Adopting Your Rules.  If the tenants are on month-to-month tenancies, Oregon law requires that the landlord must give at least 30 days' advance written notice to make a change in the rules.  If 51% or more of the tenants affected by the rule change object within the 30 days of service of the notice, the change(s) will not go into effect.  However, if less than 51% object, the new rule(s) will become effective in 60 days from the date the notice was served on the tenants.  The law regarding the contents and timing of the notice of rule change must be strictly followed.  ORS 90.610 describes the process.  Read it carefully!  Simply sending a letter to the tenants informing them of a change in the rules is insufficient.  If the rules are not properly adopted they will not be enforceable.  Frequently, the landlord or manager will first learn that their rules were improperly adopted when they try to enforce them.  If one or more of the rules you seek to adopt are opposed by a small but vocal minority who lobby the rest of the tenants against your change, consider meeting with them prior to giving notice of the proposed change, in an effort to mutually draft language that everyone would find acceptable.  If over 51% of the effected space still object, consider implementing the new rules for all newincoming tenants only.  That way, over time, the new rules will have wider and wider application as the older tenants

4. Keeping Track of Your Rules.  If there are more than one set of rules (i.e. old rules for existing tenants and new rules that are given to new tenants) make sure you keep track of which rules apply to which tenant.  Put copies of the applicable rules, together with the rental agreement and statement of policy, in each tenant's file.  Attempting to enforce the wrong rules against a tenant can result in disaster.  Show the date of the latest revision on the first page or, better yet, on the footer of each page.
5. Troublesome Issues.  There are some issues that seem to never go away.  Occupancy issues are one of those troublesome areas that frequently result in litigation.  If your community has rules limiting the time a visitor can stay, make sure it is clear and unambiguous.  Frequently tenants try to avoid these limits by calling their visitor a "house-sitter."  The best approach is to set a definite date, e.g. two weeks, and require that all persons who remain over that period of time must satisfy the same requirements as imposed on incoming tenants - e.g. background check, criminal check, references, etc.  Require that they sign the rental agreement.  If the existing tenant attempts to get around these occupancy rules by arguing that the person is there to provide necessary assistance because of certain physical or emotional disabilities, legal counsel should be immediately consulted due to Fair Housing implications.
6. Consistent Enforcement.  It is not uncommon for landlords and managers to grant exceptions and extensions of time for tenants to come into compliance with a particular violation.  However, landlords can get into trouble when they ignore some violators and enforce the rules against others.  Maintenance violations are a good example.  In order to enforce these rules you must be consistent.  Regular community inspections should be made.  Warnings should be given uniformly to all violators.  Thirty day notices should be given only as a last resort.  If the tenant requests an extension of time to comply, put the agreement in writing.  In those cases where legal action may need to be taken, make sure legal counsel reviews the case before filing the eviction.   Make sure your attorney is aware of your prior efforts to secure the tenant's compliance.  It is always best if the tenant's file shows a clear paper-trail of your efforts to secure voluntary compliance.

Rules and regulations are not foolproof.  Some tenants will always try to find reasons why they do not apply to them.  But clarity, consistency, and fair enforcement will go a long way in keeping peace and harmony in your manufactured housing community.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability.

In general, fair housing law targets housing practices that exclude or otherwise discriminate against anyone because of his or her race or other protected class. Owners, managers, and individual employees all may be held liable for discriminatory housing practices, including:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures;
• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms;
• 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 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. It’s also unlawful to advertise or make statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status.

FROM THE COURTS

HARASSMENT: Community Accused of Ignoring Tenant-on-Tenant Racial Harassment

In December 2019, a federal appeals court ruled that a New York community could be liable under the FHA for failure to do anything to stop an alleged campaign of racial harassment against an African-American resident by his neighbor. Last year, the Coach highlighted a previous ruling in this case, but the opinion was later withdrawn without explanation.

ALLEGATIONS: In his complaint, the resident alleged that his next-door neighbor began a relentless campaign of racial harassment, abuse, and threats directed toward him several months after he moved to the community.

After the first incident, the resident said he feared for his safety and contacted the police. In response, officers in the hate crimes unit visited the site, interviewed witnesses, and warned the neighbor to stop threatening the resident with racial epithets. According to the resident, he filed a police report, and a police officer told the management about the neighbor’s conduct. Allegedly, the management did nothing.

A few months later, the resident said he called the police and filed another police report. This time, the resident said he provided written notice to management about his neighbor’s racial harassment and provided contact information for the police officers responsible for investigating the neighbor. Allegedly, the management still took no action.

Nevertheless, the neighbor’s conduct allegedly persisted to the point that the police arrested him for aggravated harassment. The resident said he again notified management of the continued racial slurs directed to him and the fact that the neighbor had been arrested for harassment.

A month later, the resident said he contacted the police and sent the management group a third letter complaining about his neighbor’s continued harassment. After receiving the letter, according to the complaint, the management group advised the site manager “not to get involved,” and the management group declined to respond or follow up.

Allegedly, the neighbor was allowed to stay in his unit until his lease expired. A few months later, the neighbor pleaded guilty to harassment and a court entered an order of protection prohibiting him from contacting the resident.

The resident sued, accusing the owner and manager of violating fair housing law by failing to take action to address a racially hostile housing environment created by his neighbor. A district court ruled against the resident and dismissed the case.

DECISION: Reversed; case sent back for further proceedings.

REASONING: The resident was entitled to pursue his claims under the FHA against the community for intentionally discriminating against a resident by failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment.

At this stage of the proceedings, the court was required to read the complaint in the light most favorable to the resident. If everything he said were true, the resident’s complaint adequately alleged that the owners and managers engaged in intentional racial discrimination. Specifically, the complaint alleged that the owners and managers discriminated against the resident by tolerating and/or facilitating a hostile environment, even though they had authority to “counsel, discipline, or evict [the neighbor] due to his continued harassment of [the resident],” and also had “intervened against other tenants at [the site] regarding non-race-related violations of their leases or of the law.”

In other words, the court said, the resident adequately alleged that the owners and managers were actually aware of the neighbor’s criminal racial harassment of the resident—harassment so severe that it resulted in police warnings and the arrest and eventual conviction of the neighbor—“and that management intentionally refused to address the harassment because it was based on race even though they had addressed non-race-related issues in the past, including, it was reasonable to infer, tenant-on-tenant harassment” [emphasis in original]. Accepting these allegations as true, the defendants subjected the resident to conduct that the FHA forbids.

In further proceedings, the defendants may be able to show that they tried and failed to address the resident’s complaints. Or it may unfold that the management also declined to address other, similar complaints unrelated to race, or that they were powerless to address the neighbor’s conduct. But the resident was entitled to further proceedings to resolve these issues [Francis v. King Park Manor, Inc., December 2019].

TREND TAKEAWAY: Federal fair housing law bans not only sexual harassment, but also harassment based on race, national origin, or other protected characteristics. As a general rule, community owners may be liable for illegal harassment by managers or employees when they knew or should have known about it but failed to do enough to stop it.

You should take all necessary steps to prevent—and address—discrimination or harassment at the community. Aside from ensuring that your policies and procedures conform to fair housing law, you can reduce the likelihood of a complaint by properly training and supervising all employees—not only managers and leasing staff, but also maintenance workers and anyone else who interacts with the public. And be particularly careful when hiring and supervising outside contractors or anyone else who could be considered your agent.

You don’t have only your employees or other staff member to worry about—you could face liability for tenant-on-tenant harassment under certain circumstances. According to HUD regulations, communities may be liable under the FHA for failure to take prompt action to correct and end a discriminatory housing practice by a third party, where the community knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third party depends upon the extent of your control or any other legal responsibility you may have with respect to the third party’s conduct.

Example: In November 2019, HUD announced that it reached an $80,000 settlement to resolve allegations that the owners and management agent of an apartment complex in Savannah, Ga., subjected African-American residents to repeated instances of racial harassment by white residents, which included verbal attacks and physical assaults.

The case came to HUD’s attention when three African-American residents filed complaints claiming that the owners of the property refused to investigate and address their claims that white residents had subjected them to racial harassment and verbal and physical assaults, including attacks by dogs. The residents also alleged that the property’s management ignored their maintenance requests and delayed the maintenance requests of other African-American residents. The housing provider denied discriminating against the residents but agreed to settle their complaints.

Under the terms of the agreement, the owner and management company agreed to pay $20,000 to each of the three residents who filed complaints and create a $20,000 fund to compensate other residents who may have been subjected to racial harassment. The owners also agreed to provide annual fair housing training for the staff and on-site management at the community.

“No one should ever have to face threats or be subjected to physical violence in the place they call home because of their race,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “The agreement we’re announcing today is a reminder to housing providers everywhere that HUD is committed to ensuring that they meet their obligation to comply with the nation’s fair housing laws” [Conciliation/Voluntary Compliance Agreement with Oglethorpe Square Apartments, LP, of Savannah, GA, and Gene B. Glick Company, Inc., of Indianapolis, IN].

DISABILITY: Is Community Required to Grant Reasonable Accommodation Request for Exception to Minimum Income Standards?

In September 2019, a federal appeals court ruled that a Florida housing provider may be required to accept other forms of income as a reasonable accommodation to allow an applicant with a disability to qualify for housing.

ALLEGATIONS: In his complaint, the applicant alleged that shortly after graduating from high school, he was in a wrestling accident that left him completely paralyzed. His housing was inadequate to accommodate his quadriplegia because it wasn’t wheelchair accessible. After seeing an ad about Habitat for Humanity, a nonprofit that builds new homes for low-income individuals, he decided to apply.

When he met with a representative, he learned that Habitat imposed a minimum gross annual income requirement of $10,170, presumably to ensure that potential homeowners would be able to pay their mortgages. According to the applicant, his disability prevented him from working, so his main source of income was a Social Security Disability Insurance stipend of $778 per month, which equates to a gross annual income of $9,336. Given the fixed amount of his SSDI, he asked Habitat to consider one of two other sources of income toward its requirement—either the $194 per month in food stamps or the $100 per month he received from his father—either of which would be enough to get him over the minimal income threshold. After reviewing his application, Habitat allegedly said it couldn’t accept either of the two additional sources of income.

After efforts to negotiate a compromise were unsuccessful, the applicant sued Habitat for violating the FHA by denying his reasonable accommodation request to accept either his food stamps or familial support as income for purposes of qualifying for the housing.

After pretrial proceedings, both parties asked the court for judgment without a trial. Siding with Habitat, the court dismissed the case, ruling that the applicant’s accommodation request wasn’t necessary under the FHA because it was related solely to his financial condition, not his disability.

The applicant appealed.

DECISION: Reversed in part; sent back for further proceedings.

REASONING: The applicant was entitled to further proceedings on his claim that Habitat violated fair housing law by denying his reasonable accommodation request to consider supplemental forms of income for purposes of qualifying for housing.

To establish liability for failure to accommodate under the FHA, the applicant had to show that:

1.       He was disabled within the meaning of the FHA;

2.       He requested a reasonable accommodation;

3.       The requested accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling; and

4.       The housing provider refused to make the requested accommodation.

The first and fourth elements of the claim were undisputed—no one disputed that the applicant was disabled, or that Habitat refused to accommodate his request to consider his supplemental sources of income. At issue were the middle two: whether the accommodation he requested was “reasonable” and whether it was necessary to afford him an equal opportunity to use and enjoy a dwelling. In earlier proceedings, the lower court skipped the first question and decided the case solely on the basis of the second.

To determine whether his request was reasonable, the first step was to determine whether the applicant demonstrated that his requested accommodation was of a type likely to be reasonable in the run of cases. The court ruled that he did—he wasn’t asking Habitat to lower its minimum-income requirement or accept anything less than usual in terms of payment or interest. Instead, the applicant, who was unable to work, asked Habitat to accept proof that he brought in the same amount of money as any other Habitat homeowner, but in a different form.

That shifted the burden to Habitat to show that the applicant’s request was unreasonable by imposing an undue burden on Habitat or fundamentally altering Habitat’s program. Further proceedings were needed to resolve this issue.

The second question was whether the applicant’s requested accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling. Under fair housing law, a “necessary” accommodation is one that alleviates the effects of the disability. An accommodation addressing an inability to demonstrate wages earned could in some cases be necessary—that is, could alleviate the effects of a disability. Consequently, the lower court should have considered whether the applicant’s inability to demonstrate the minimum required income through W-2 wages was an effect of his disability.

A separate, but related issue was whether the requested accommodation was necessary to afford him an equal opportunity to enjoy the dwelling. He wasn’t entitled to an accommodation that would put him in a better position than a member of the general public. The applicant said he wasn’t asking Habitat to lower its income requirements or pay anything less than other applicants—his accommodation request involved only the form of payment, not the amount. In contrast, Habitat said that he was seeking an advantage that wasn’t available to other applicants. Further proceedings were needed to determine whether the requested accommodation would provide the applicant with an opportunity to enjoy a dwelling that would otherwise—due to his disability—elude him [Schaw v. Habitat for Humanity of Citrus County, Inc., Florida, September 2019].

TREND TAKEAWAY: Carefully consider requests by individuals with disabilities for reasonable accommodations to your financial screening requirements. In general, you don’t have to excuse individuals with disabilities from meeting minimum income standards or verifying their income, but you may have to be flexible when it comes to how they satisfy those requirements.

Example: In June 2019, a court ruled that an Arkansas community had to pay damages for denying a reasonable accommodation request by a disabled woman and her mother who couldn’t produce the documentation required under the community income-verification policies. In lieu of the necessary paperwork, the woman submitted documentation from the Social Security Administration showing the mother’s retirement benefits and her disability benefits, along with income received from a rental property, but the community wouldn’t accept the alternative documentation to verify their income. The court ruled that the community violated fair housing law by denying an accommodation that was both reasonable and necessary for an equal opportunity to use and enjoy a dwelling [Edwards v. Gene Salter Properties, Arkansas, June 2019].

SETTLEMENTS

CRIMINAL SCREENING POLICIES: Landmark $1.1M Settlement Reached in Fair Housing Case Challenging Alleged Criminal Record Ban

In November 2019, the owners and operators of a 900-unit apartment complex in Queens, N.Y., agreed to pay $1,187,500 to settle a lawsuit alleging that the community violated the FHA by refusing to rent to people with criminal records.

The lawsuit was filed by the Fortune Society, a New York not-for-profit organization that provided housing and other services to formerly incarcerated individuals. In its complaint filed in 2014, Fortune alleged that when it tried to rent apartments for its clients at the community in 2013 and 2014, the community refused because of its policy of prohibiting anyone with a criminal record from living there. Fortune alleged that the policy unlawfully discriminated because it disproportionately barred African Americans and Latinos from housing without considering each potential tenant’s individual history and circumstances.

The settlement follows a July 2019 court ruling denying the community’s request for judgment without a trial. The court rejected claims that Fortune itself wasn’t harmed by the policy and so didn’t have standing to pursue the case. The court ruled that further proceedings were needed to determine whether the community had a ban on applicants with criminal histories, and if so, what were the contours of that ban. Further proceedings were also needed to resolve conflicting expert testimony as to whether any criminal record ban, as applied at the community, had a discriminatory effect on any protected class, including people of color [Fortune Society v. Sandcastle Towers Housing Development Fund Corporation, New York, July 2019

The owners of the community at the time the lawsuit was filed have sold the building and don’t currently own or rent real estate.

According to a statement by Fortune’s attorneys, Relman, Dane & Colfax, the settlement sends a powerful message to other landlords that they must evaluate each applicant as an individual instead of automatically rejecting those with a criminal history. This is critical because obtaining affordable housing is central to successful reintegration for the hundreds of thousands of Americans–disproportionately people of color–released from confinement every year.

TREND TAKEAWAY: Familiarize yourself with the 2016 HUD guidelines on how federal fair housing law applies to the use of criminal records in both conventional and assisted housing communities. The guidelines spell out how HUD will evaluate fair housing complaints in cases where a community refuses to rent or renew a lease based on an individual’s criminal history. 

DISABILITY: Landlord Accused of Violating Resident’s Privacy by Telling Neighbors About Her Request for an Assistance Animal

In July 2019, the owner of a multifamily rental housing community in Santa Monica, Calif., agreed to pay $14,000 to resolve allegations that she violated fair housing law by disclosing confidential disability-related information about a resident’s request for an assistance animal to her neighbors.

In its complaint, the city claimed that a resident with a disability requested a reasonable accommodation to the community’s general policy against pets and included a letter from a medical professional with her request.

The landlord allegedly sent a group email to all the other residents in the building, in which she disclosed the resident’s request, indicated that a disability was involved, and claimed that the resident had a “psychological therapist” who had sent the landlord a letter. Allegedly, the landlord concluded by asking the other residents to report “anything annoying” about the assistance animal to her. The emails went to 10 people other than the disabled resident.

About six weeks later, the landlord emailed the resident to insist on coming into her home to inspect her bedrooms and meet the “comfort” animal. According to the complaint, none of the justifications for a landlord’s entry into a tenant’s home existed. Allegedly, the resident was in shock and distress over the landlord’s tactics.

After the resident filed a fair housing complaint with local authorities, the Public Rights Division of the Santa Monica City Attorney’s Office sued the landlord, alleging disability discrimination and harassment under federal, state, and local law. Specifically, the city claimed that the landlord violated the fair housing rights of a resident with a disability by violating her privacy, making a discriminatory statement, attempting to turn other residents against her, and entering her unit without justification.

Without admitting liability, the owner agreed to a settlement. Under the stipulated judgment with permanent injunction, the court ordered the landlord to pay $14,000 to the city to satisfy all penalties, fees, and costs of investigation and prosecution. The court order also required the landlord to obtain fair housing training and barred her from disclosing any information about a resident’s disability to a third party [City of Santa Monica v. Honda, California, July 2019].

TREND TAKEAWAY: When a resident makes a disability-related reasonable accommodation request, be careful about what you say about it to the neighbors. It doesn’t matter whether it’s for an assistance animal, a reserved parking spot, or something else—you could stir up fair housing trouble if you disclose disability-related information about the resident to her neighbors. According to federal guidelines, information gathered to evaluate reasonable accommodation requests must be kept confidential and must not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable accommodation request or unless disclosure is required by law (such as a court-issued subpoena requiring disclosure).

ENFORCEMENT NEWS

HUD Calls for Investigation into Websites Selling Assistance Animal Documentation

In November 2019, HUD Secretary Ben Carson called for an investigation into certain websites selling assistance animal documentation. In a letter to Chairman of the U.S. Federal Trade Commission (FTC) Joseph J. Simmons and Director of the Bureau of Consumer Protection Andrew Smith, Carson asked the FTC to investigate these websites for compliance with federal laws that protect consumers from unfair and deceptive acts or practices.

The letter stated: “Housing providers, fair housing groups, and disability rights groups have brought to HUD’s attention their concern that certain websites may be misleading consumers with disabilities into purchasing assistance animal documentation that is unreliable and unnecessary. According to these groups, the websites also may be selling assistance animal documentation to people who do not have disabilities substantially limiting a major life activity, enabling such people to claim that their pets are assistance animals in order to evade housing providers’ pet restrictions and pet fees. HUD shares these concerns” [emphasis in original].

The FHA requires housing providers to grant reasonable accommodations for individuals with disabilities that affect major life activities when it may be necessary for such individuals to have equal opportunity to enjoy and use a dwelling. One type of reasonable accommodation is an exception to a housing provider’s rules regarding animals to permit individuals with disabilities to keep assistance animals that do work, perform tasks, or assist individuals with disabilities. Documentation, such as a note from a healthcare professional, is helpful and appropriate when a disability is not obvious and not already known.

The FHA doesn’t require assistance animals to be “registered” or “certified,” nor, in HUD’s opinion, does certification or registration provide any benefit to the consumer with a disability who needs an assistance animal. “Certifications, registrations, and other documentation purchased over the internet through these websites are not necessary, may not contain reliable information, and, in HUD’s FHA enforcement process, are insufficient to establish an individual’s disability-related need for an assistance animal,” according to the letter.

In the letter, HUD offered to provide the FTC with examples of websites that sell the type of documentation described in the letter, “including at least one website that contains the seals of HUD and other federal agencies in an effort to imply that their products are endorsed by the federal government.”

“These certificates are not an acceptable substitute for authentic documentation provided by medical professionals when appropriate,” Carson said in a statement. “These websites that sell assistance animal certificates are often also misleading by implying that they are affiliated with the federal government. Nothing could be further from the truth. Their goal is to convince individuals with disabilities that they need to spend hundreds of dollars on worthless documentation to keep their assistance animal in their homes.”

HUD Assistant Secretary for Fair Housing and Equal Opportunity, Anna Maria Farías, explained, “Websites that sell verification for assistance animals take advantage of persons with disabilities who need a reasonable accommodation to keep their assistance animal in housing. This request for FTC action reflects HUD’s ongoing commitment to protecting the housing rights of persons with disabilities.”

“The Fair Housing Act provides for the use of assistance animals by individuals with disabilities. Under the law, a disability is a physical or mental impairment that substantially limits at least one major life activity or bodily function,” added HUD’s General Counsel Paul Compton. “These websites are using questionable business practices that exploit consumers, prejudice the legal rights of individuals with disabilities, dupe landlords, and generally interfere with good faith efforts to comply with the requirements of the Fair Housing Act.”

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

Answer: Before getting into specifics, here is a rule you and all community owners and managers should never forget:

In most disputes, the lapse of time without resolution favors the tenant.

In your situation, this issue could have and should have been nipped in the bud. Since that has not been the case, you now take the risk that he, or his attorney, could argue that you have waived your rights to require him to vacate.

Now to the point:

1. I disagree with the Oregon Fair Housing Counsel, if I correctly understand their initial response. Just like with all such issues, a resident is no more entitled to permit a mean, contentious, threatening care giver in the community than it would be in permitting a known dangerous assistance animal. A balance must always be reached between granting the resident their Fair Housing rights, and the peace, safety, and quiet enjoyment of the rest of the community.

1. While some may disagree with me here, I believe that the Temporary Occupancy statute, ORS 90.275 can be very helpful in this type of situation.[1] But the issue should have been resolved long ago. Once you have someone on a signed Temporary Occupancy Agreement containing a fixed term, you have a degree of control that you did not have before. I would suggest that he be placed on a Temporary Occupancy Agreement for, say, six months, with a commitment that you will renew it for another six months, so long as he does not cause further disturbances, etc. [The Fair Housing law would likely require this commitment, and I agree.]

1. Here are the statutory rules regarding temporary occupancy:

• The temporary occupant is not a tenant entitled to occupy the dwelling unit to the exclusion of others;
• He/she does not have the rights of a tenant;
• The temporary occupancy agreement may be terminated by the tenant [in this case the elderly mother] without cause at any time and the landlord only for cause that is a material violation of the temporary occupancy agreement.
• The temporary occupant does not have a right to cure a violation that causes a landlord to terminate the temporary occupancy agreement;
• Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record [The landlord may not screen the proposed temporary occupant for credit history or income level.]
• A temporary occupancy agreement:
  • May provide that the temporary occupant is required to comply with any applicable rules for the premises; and
  • May have a specific ending date;
• The landlord, tenant and temporary occupant may extend or renew a temporary occupancy agreement or may enter into a new temporary occupancy agreement;
• A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement;
• The temporary occupant must promptly vacate the dwelling unit if a landlord terminates a temporary occupancy agreement for material violation of the temporary occupancy agreement or if the temporary occupancy agreement ends by its terms;
• Subject to certain exceptions, the landlord may terminate the tenancy of the tenant if the temporary occupant fails to promptly vacate the dwelling unit or if the tenant materially violates the temporary occupancy agreement;
• A temporary occupant may be treated as a "squatter" if he/she continues to occupy the dwelling unit after a tenancy has ended or after the tenant revokes permission for the occupancy by terminating the temporary occupancy agreement; and
• A tenancy may not consist solely of a temporary occupancy. Each tenancy must have at least one tenant. [Emphasis added.]

1. As you can see with the last rule, the son may not occupy the dwelling in the absence of his mother being there as a resident. If the mother is in Southern California and he is living in the home during her absence, he is starting to look like a "tenant" and not a caregiver. At the risk of him morphing into a "tenant," you cannot permit this to situation to continue.

1. ORS 90.100(43) defines a "squatter" as a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit. Oregon landlord law does not apply to squatters, meaning that they do not have the protection of tenants. However, since you do not have the son under a Temporary Occupancy Agreement, his status is up in the air.

1. If the son remains in the home, while his mother resides in Southern California, he should not be permitted to stay there. Technically, he cannot do so as a caregiver or a temporary occupant. If you can meet the following requirements, your rights would appear to be governed by ORS 90.403(1) (Taking possession of premises from unauthorized possessor)

(1) If an unauthorized person is in possession of the premises, after at least 24 hours' written notice specifying the cause and the date and time by which the person must vacate, a landlord may take possession as provided in ORS 105.105 to 105.168 if:

(a) The tenant has vacated the premises;

(b) The rental agreement with the tenant prohibited subleasing or allowing another person to occupy the premises without the written permission of the landlord; and

(c) The landlord has not knowingly accepted rent from the person in possession of the premises.

1. If you do not meet the above statutory criteria, then your best bet is to get him on a Temporary Occupancy Agreement, making sure that he still understands that he cannot remain in the home while his mother is living - albeit temporarily - in Southern California.

[1] Some might say that just as you cannot required a "Pet Agreement" for an assistance animal, my response is that the Temporary Occupancy Agreement can, in my opinion, set forth "rules" for the caregiver, which, if not unreasonable, would be proper. In this case, for example, your "reasonable accommodation" to the resident's request that you permit her son to be her caregiver, is to say "Yes, but given his prior known history, these are the rules."

Answer:  The answers to some of your questions can and should be found in the rules and regulations. For example, addressing whether attachments and outbuildings stay or are removed.[1] It is problematic to me to permit a resident to make such additions at the outset, without addressing what happens when the home is put up for sale.  If additions have been made for which consent was never obtained, or which do not conform to the applicable building codes, management should move quickly, since acceptance of rent with knowledge of the noncompliance could lead to waiver.

Assuming that the attachments and outbuildings are in a state of disrepair, SB 277 provides a remedy to management at any time, including the time of sale. However, without knowing the exact nature of these “improvements” it is hard to know whether insisting upon complete removal is appropriate or legal. 

Also, much depends upon other factors. How much will this cost the resident? How long will it take? Are the “improvements” not really beneficial to the space, and detract from the appearance of the whole area? Are they code-compliant, or can they be made so? As discussed below, SB 277 continued parts of the earlier disrepair/deterioration law found in ORS 90.632, but tightened up portions of it, due to resident complaints about abuses.[2] And interestingly, it now includes reference to “aesthetic” and “cosmetic” improvements, which may be helpful in your situation.

MHCO has significantly changed its current form No. 55 to address the changes in the new law. The major issue going forward is for managers and landlords to be able to recognize when to use Form No. 55 to address disrepair and deterioration conditions, versus Form No. 43C, which is appropriate for violations relating to maintenance and appearance of the space.

If the disrepair or deterioration to the exterior of the home or related structures creates a risk of imminent and serious harm to dwellings, homes, or persons in the Community (e.g. dangerously unstable steps, decking or handrails), there is a 30-day period to repair.

For all other (i.e. non-dangerous) conditions, the minimum period to cure is now 60 days.  As before, the new Form 55 provides a place for landlords and managers to specifically describe the item(s) in need of repair.

Trap: If there is imminent risk of harm, and the landlord/manager intends to give the tenant 30 days rather than 60 days, SB 277A requires that they not only describe the item(s) in disrepair, but also describe the potential risk of harm.  There is little question but that the failure to do so would invalidate the notice. The new Form 55 prompts users to describe both the violation and the potential risk of harm.

Tip: The new Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. Remember, you cannot expect the tenant to be a mind reader – just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity. 

SB 277A now provides that at the time of giving a prospective purchaser the application and other park documents, the landlord/manager must also give them the following:

• Copies of any outstanding notices of repair or deterioration issued under ORS 90.632;
• A list of any disrepair or deterioration of the home;
• A list of any failures to maintain the Space or to comply with any other provisions of the Rental/Lease Agreement, including aesthetic or cosmetic improvements; and
• A statement that the landlord/manager may require a prospective purchaser to complete the repairs, maintenance and improvements described in the notices and lists provided.

Tip: Note that the new law combines not only the original ORS 90.632 notices relating to damage and deterioration of the home or structures, but also a list of failures to maintain the space and other defaults, including aesthetic or cosmetic improvements. This may or may not include 30-day curable notices under ORS 90.630 for failure to maintain the space. But in both cases (i.e. defaults relating to structures, and those relating to the space), the new tenant appears to get the six-month period to comply. It may be that if the “improvements” are aesthetically an eyesore, SB 277A may be of use in getting them either cleaned up or removed.

This represents and interesting shift in Oregon law, and possibly for the better. Many parks historically gave “resale compliance notices” to tenants who were placing their homes up for sale. However, until now, there was some question whether a landlord could “require” as a condition of resale, that the existing tenant make certain repairs – absent having first sent a 30-day notice.[3] Now, under the new version of ORS 90.632, it appears landlords may make that list, and let the tenant/seller know that unless the work is completed before sale, it will be given to the tenant’s purchaser upon application for tenancy.

So, if the landlord/manager accepts a prospective purchaser as a new tenant, and notwithstanding any prior landlord waivers of the same issue(s), the new tenant will be required to complete the repairs, maintenance and improvements described in the notices and lists.

Under Section (10) of SB 277A, if the new tenant fails to complete the repairs described in the notices within six months from commencement of the tenancy, the landlord “may terminate the tenancy by giving the new tenant the notice required under ORS 90.630 or ORS 90.632.”  This appears to say that a new tenant who fails to complete the items addressed in the notices and lists within the first six months, will thereafter be subject to issuance of a curable 30-day or 60-day notice to complete the required repairs. Accordingly, this is how the new MHCO Form 55 will read.

[1] Caution should be exercised in drafting, however.  If the rule says the “improvements stay” but they are an eyesore, management may be left with more than it bargained for. So whether it stays should be phrased as an option for management, if and when the time comes.

[2] Without commenting on the nature or cause of the complaints, suffice it to say that when the press gets ahold of a tenant/park dispute, the legislators are not far behind, and the end result is not usually helpful to landlords. The not-so-subliminal message here is that such disputes are better resolved quietly and quickly, lest they become a cause célèbre.

[3] This is because ORS 90.510(5)(i) provides that the rental or lease agreement for new tenants must disclose “(a)ny conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

Answer: The applicable statute is ORS 90.304. In summary, it provides as follows:

1. If you require an applicant to pay a screening charge and the application is denied (or if the applicant makes a written request following your denial of an application) you must promptly provide the applicant with a written statement of one or more reasons for the denial.

2. Your statement of reasons for denial may consist of a form with one or more reasons checked off. MHCO has such a form. The reasons for rejection under the statute include, but are not limited to, the following:

- Rental information, including:

o Negative or insufficient reports from references or other sources;
o An unacceptable or insufficient rental history, such as the lack of a reference from a prior landlord;
o A prior eviction action for possession under ORS 105.105 to ORS 105. 168 that resulted in a general judgment of restitution in the landlord's favor; and
o The inability to verify information regarding a rental history.

- Criminal records, including:

o An unacceptable criminal history;
o The inability to verify information regarding criminal history.

- Financial information, including:

o Insufficient income;
o Negative information provided by a consumer credit reporting agency; and
o Inability to verify information regarding credit history.

- Failure to meet other written screening or admission criteria in your lease or rental agreement. (See Footnote 1)

- The dwelling unit has already been rented.

3. If you fail to comply with these provisions, the applicant may recover from you $100.

Footnote 1: The MHCO Lease (MHCO Form 5B) and Rental (MHCO Form 5A) forms list the screening criteria which a landlord may impose when the resident is seeking to sell their home to an applicant who wants to become a resident in the community. They are the following: (a) unsatisfactory rental references; (b) the absence of any prior tenant history or credit history; (c) unsatisfactory credit history; (d) unsatisfactory character references; (e) any criminal history; (f) insufficient income to reasonably meet the monthly rental and other expense obligations under this Agreement; (g) presence of pets or the number, type or size of pets; (h) if the Community is an age 55+ or 62+ Community, reasonable evidence verifying that at least one occupant is age 55 or 62, or over, as the case may be; (i) evidence that the prospective tenant has provided LANDLORD with falsified or materially misleading information on any material items; (j) if the prospective tenant refuses to sign a new written rental or lease agreement; (k) the number of additional occupants; or, (1) adverse information contained in the public record.

Answer.  Under the current law,[1]a landlord may unilaterally amend a rental agreement to convert to submetering by giving the tenant not less than 180 days’ written notice.

1. If the utility or service was included in the rent before the conversion to submeters, the landlord must reduce the tenant’s rent on a pro rata basis upon the landlord’s first billing of the tenant using the submeter method. 
2. The rent reduction may not be less than an amount reasonably comparable to the amount of the rent previously allocated to the utility or service cost averaged over at least the preceding one year. 
3. A landlord may not convert billing to a submeter method less than one yearafter giving notice of a rent increase, unless the rent increase is an automatic increase provided for in a fixed term rental agreement entered into one year or more before the conversion. 
4. Before billing the tenant using the submeter method, the landlord must provide the tenant with written documentation from the utility or service provider showing the landlord’s cost for the utility or service provided to the facility during at least the preceding year.
5. A utility or service charge to be assessed to a tenant may consist of:
   1. The cost of the utility or service provided to the tenant’s space and under the tenant’s control, as measured by the submeter, at a rate no greater than the average rate billed to the landlord by the utility or service provider, not including any base or service charge;
   2. The cost of any sewer service for wastewater as a percentage of the tenant’s water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided;
   3. A pro rata portion of the cost of sewer service for storm water and wastewater if the utility or service provider does not charge the landlord for sewer service as a percentage of water provided;
   4. A pro rata portion of costs to provide a utility or service to a common area;
   5. A pro rata portion of any base or service charge billed to the landlord by the utility or service provider, including but not limited to any tax passed through by the provider; and
   6. A pro rata portion of the cost to read water meters and to bill tenants for water if:
      • A third-party service reads the meters and bills tenants for the landlord; and
      • The landlord allows the tenants to inspect the third party’s billing records as provided by ORS 90.538.
6. A landlord may not bill or collect more money from tenants for utilities or services than the utility or service provider charges the landlord. 
7. A utility or service charge to be assessed to a tenant under the submetering law may not include any additional charge, including any costs of the landlord, for the installation or maintenance of the utility or service system or any profit for the landlord.      
8. To assess a tenant for a utility or service charge for any billing period using submetering the landlord must  give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord and the due date for making the payment. 
   1. The due date may not be before the date of service of the notice. 
   2. If the rental agreement allows delivery of notice of a utility or service charge by electronic means, for purposes of this subsection, “written notice” includes a communication that is electronically transmitted.
   3. If the landlord includes in the notice a statement of the rent due, the landlord shall separately and clearly state the amount of the rent and the amount of the utility or service charge.

No. 2 Question. The tenants were given the 180-day notice of water submetering and space rents haven't been raised in a year.  Do I need to do anything else before I start billing them?

Answer. Note that the law provides the one-year period runs from the dateof the last rent increase notice. So that means that your last increase need be no sooner than nine months (i.e. 12 months minus 3 months, or 90 days under ORS 90.600 (Rent Increases)if tenants are on month-to-month tenancies). As for what else you need to do, see answers 4) and 8) to Question No. 1, above.

No. 3 Question. My understanding is that I have to now lower space rents (in addition to not raising lot rents for a year) equal to what they have individually paid on average.  How long before I can raise rents again?

Answer.  The only limitation is the prohibition on raising the rent is a landlord may not raise the rent for purpose purposes or recouping the capital cost within the first six months after installation of the submeters. If the rent increase was for other reasons, I see no limitations. However, I think the “optics” of increasing rents immediately after reducing them as a part of a submeter conversion would raise questions of bad faith under ORS 90.130(Obligation of Good Faith).

No. 4 Question.Can I add the billing fee to the water bill?

Answer. I am not sure what you mean by a “billing fee”.  ORS 90.536(2) (Charges for Utilities)provides the landlord may recover:

1. The cost of the utility or service provided to the tenant’s space as measured by the submeter, at a rate no greater than the average rate billed to the landlord by the utility or service provider, not including any base or service charge;
2. The cost of any sewer service for wastewater as a percentage of the tenant’s water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided;
3. A pro rata portion of the cost of sewer service for storm water and wastewater if the utility or service provider does not charge the landlord for sewer service as a percentage of water provided;
4. A pro rata portion of costs to provide a utility or service to a common area;
5. A pro rata portion of any base or service charge billed to the landlord by the utility or service provider, including but not limited to any tax passed through by the provider; and
6.  A pro rata portion of the cost to read water meters and to bill tenants for water if:
   1.  A third-party service reads the meters and bills tenants for the landlord; and
   2.  The landlord allows the tenants to inspect the third party’s billing records as provided by ORS 90.538 (Tenant Inspection of Utility Billing Records)

      (3) Except as provided in subsection (2) of this section, the landlord may not bill or collect more money from tenants for utilities or services than the utility or service provider charges the landlord. A utility or service charge to be assessed to a tenant under this section may not include any additional charge, including any costs of the landlord, for the installation or maintenance of the utility or service system or any profit for the landlord.

No. 5 Question.Can I add the cost of the water meters AND the installation labor to the water bill amortized over 5 years in monthly payments?  How exactly does this work?

Answer.  The landlord may recover the cost of installing the submeters, including costs to improve or repair existing utility or service system infrastructure necessitated by the installation of the submeters, only as follows:

1. By raising the rent (as with any capital expense), except the landlord may not raise the rent for this purpose within the first six months after installation of the submeters; or
2. By imposing a special assessment pursuant to a written special assessment plan adopted unilaterally by the landlord. 
   1. The plan may include only the landlord’s actual costs to be recovered on a pro rata basis from each tenant with payments due no more frequently than monthly over a period of at least 60 months. 
   2. Payments must be assessed as part of the utility or service charge. 
   3. The landlord must give each tenant a copy of the plan at least 90 days before the first payment is due. 
   4. Payments may not be due before the completion of the installation but must begin within six months after completion. 
   5. A new tenant of a space subject to the plan may be required to make payments under the plan. Payments must end when the plan ends. 
   6. The landlord is not required to provide an accounting of plan payments made during or after the end of the plan.

No. 6 Question. Do the tenants need to sign a lease addendum?

Answer.  Oregon law allows landlords to “unilaterally amend” the rental agreement to provide for conversion to submetering assuming the rental agreement does not already allow the landlord to do so. 

In those cases, tenants should each be given an amendment providing that the landlord may convert from pro-rata or in-rent water charges to submetering. There is no specific period after the unilateral amendment that the landlord must convert. The current MHCO rental and lease agreements already provide for this. However, due to the submetering legislative changes effective on January 1, 2020, they will need to be updated.

Answer: Even though some of your RV tenants are short-termers, I always recommend a complete tenant background check no matter how long the anticipated tenancy. As a businessperson, you have an obligation to yourself to ensure that every RV tenant checks out with a background screening for criminal, credit and eviction history. As a landlord, you have an obligation by law to ensure the peaceful enjoyment of the premises by not allowing "bad seeds" into the park.

Most problems can be avoided by doing your due diligence at the beginning of the tenancy with a proper background screening. The fact that these particular tenants are more transient than usual doesn'tmatter.

In some cases, it is even more important to check on transient tenants. By way of example, one mobile home park client allowed a woman with an RV into the park without any background check. The woman ended up being a "professional tenant" who worked the system and dragged out the eviction process for several months. She later popped up at another mobile home client's park and pulled the same scam.

As for the structure of the rental agreement for transient tenants, the first thing to do is use MHCO Form 80 (Recreational Vehicle Space Rental Agreement). I typically recommend a simple month to month agreement so that you can evict on 30 days' written notice if things don't work out with a particular RV tenant. Weekly tenancies are also allowable, although most RV tenants want assurances of a longer tenancy. Finally, a short fixed term tenancy (i.e., 3 months) is also acceptable so long as you're comfortable with the tenant and have done the required background checks.

Mark L. Busch, P.C.
Attorney at Law
Cornell West, Suite 200
1500 NW Bethany Blvd.
Beaverton, Oregon 97006

Ph: 503-597-1309
Fax: 503-430-7593
Web: www.marklbusch.com
Email: mark@marklbusch.com

A New York City co-op board sued a shareholder resident for violating her proprietary lease by keeping eight dogs and two cats in her apartment. This created noise and odors that other residents complained about. The co-op board didn't seek eviction but sought removal of five of the eight dogs.

The resident argued that she was disabled after suffering a stroke at a young age. She also suffered from major depressive disorder and generalized anxiety disorder. Her doctor said that she needed all the animals to prevent her from becoming suicidal. The resident asked the court to dismiss the case without a trial. She claimed that the co-op board had waived its right under the city’s pet waiver law to object to the dogs by not seeking removal within three months after she acquired each one. She also claimed that she needed all the animals as a reasonable accommodation for her disability.

The court ruled against the resident. A trial was needed to determine the facts. The co-op board and the resident were subject to the New York City pet waiver law, requiring the resident to show that she had openly and notoriously harbored a pet, that the co-op board knew about the pet, and that the board failed to sue the resident within 90 days to seek removal of a pet. There was a dispute as to whether the co-op’s staff knew the resident had more than three dogs as she walked them three-at-a-time, and also walked some of her neighbor's dogs. And each dog was subject to a separate determination of whether the co-op board had waived a right to object.

The resident also argued that the co-op board hadn't demonstrated that she created a nuisance. But the board didn't file a nuisance claim. It claimed that the resident violated provisions of her proprietary lease by letting her dogs create unreasonable noise and annoyance to other residents, and by failing to maintain hygiene in the apartment. The building's house rules also called for supervision of pets and required residents to seek permission to keep pets. The resident failed to show that she didn't violate the lease.

The co-op board didn't dispute that the resident was disabled, and her doctor claimed that she needed all eight dogs. But the resident hadn't demonstrated that permitting her to keep eight dogs was a reasonable accommodation for her disability. There were no court cases cited where a landlord had to permit a person with disabilities to keep multiple emotional support dogs as a reasonable accommodation [79 W. 12th St. Corp. v. Kornblum: Index No. 154129/2017, 2020 NY Slip Op 33884(U) (Sup. Ct. NY; 11/24/20)].