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In this article, MHCO tackles a challenging problem: resident hoarding. In multifamily housing communities, extreme cases of hoarding can pose serious health and safety hazards—not only to anyone living in the affected unit, but also to neighbors who may share walls, ceilings, floors, hallways, and even HVAC systems. Potential problems include fire hazards, mold and other environmental dangers, pests and vermin, foul odors, and even structural damage. 

Unfortunately, it’s often difficult to detect because people with a hoarding problem rarely seek help on their own. Conditions inside the unit may not come to light until an emergency crops up—or conditions inside seep out into neighboring units or common areas. By the time it’s discovered, the problem may be so out of hand that your first impulse is to order the resident to clean up immediately or move out.

But that approach could land you in fair housing trouble. Hoarding disorder is a recognized mental health impairment, so the resident would probably qualify as an individual with a disability under fair housing law, triggering your responsibility to try to work out a reasonable accommodation to allow him to continue to live there. There are limits to your obligations toward the resident, but you’ll have to tread carefully—and document your efforts to work out a resolution—to prevent or defend a potential fair housing complaint.

In this lesson, we’ll explain how fair housing law may protect residents engaged in hoarding behavior, as well as the limits to those protections. Then, we’ll offer seven rules to help you comply with fair housing laws when dealing with a hoarding problem. 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans discrimination against individuals with disabilities. The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activities. The law applies to individuals who have a disability, as well as those who are “regarded as” or have a “record of” having a disability—even though they may not in fact have a qualifying disability under fair housing law.

Hoarding is more than simply having too much clutter. It’s a recognized mental health disorder, characterized by saving things that others may view as worthless, and persistent difficulty in getting rid of or parting with possessions, which leads to clutter that disrupts an individual’s ability to use their living space, according to the American Psychiatric Association (APA). At some point, it’s likely that you’ll be confronted with a hoarding problem, which may affect 2 to 6 percent of the U.S. adult population, according to the APA.

TIME OUT!

What Is Hoarding Disorder?

In 2013, the APA recognized hoarding disorder as an official psychiatric diagnosis in its Diagnostic Statistical Manual V (DSM-V). Specific symptoms for a hoarding diagnosis include:

• Lasting problems with throwing out or giving away possessions, regardless of their actual value.
• The problems are due to a perceived need to save the items and distress linked to parting with them.
• Items fill, block, and clutter active living spaces so they cannot be used, or use is hampered by the large number of items (if living spaces are clear it is due to help from others).

Hoarding causes major distress or problems in social, work, or other important areas of functioning (including maintaining a safe environment for self and others). Many people with hoarding disorder also experience other mental disorders, including depression, anxiety disorders, attention deficit/hyperactivity disorder, or alcohol use disorder.

Source: APA

The inclusion of hoarding as an official psychiatric disorder in the DSM-V confirms that hoarding is a mental disability, says fair housing attorney Lynn Dover. Federal and state fair housing laws protect people with mental disabilities from discrimination and require housing providers to make reasonable accommodations when necessary to afford a resident with a disability an equal opportunity to use and enjoy her housing, she says.

In hoarding cases, for example, the community may be asked to hold off on eviction proceedings to allow enough time for the resident to remedy the health and safety issues. Assuming it’s safe to do so, the community may have to grant the request—made by or on behalf of the resident—because there’s an identifiable relationship between the requested accommodation and the resident’s disability.

Nevertheless, there are limits to your obligations to grant reasonable accommodations even if a resident qualifies under the disability provisions. For one thing, the FHA doesn’t protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation.

Furthermore, the law doesn’t require you to grant an accommodation request if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. But tread carefully: Even if the resident’s request is unreasonable, communities are required to engage in an “interactive process” with the resident to try to work out an alternative accommodation that would meet his disability-related needs without posing an undue burden on the community or require a fundamental alteration of its operations.

7 RULES FOR RESPONDING TO A HOARDING PROBLEM

Rule #1: Watch for Signs of Hoarding

Train your staff to be vigilant for any signs of hoarding behavior by your residents. Residents engaged in hoarding behavior rarely come forward on their own, so you may not be aware of a hoarding problem until its effects seep outside the resident’s unit and into hallways or neighboring units.

The observations of staff members are crucial to detect hoarding problems. During their routine duties, your leasing, maintenance, housekeeping, or security staff may notice excess clutter or noxious odors in hallways and common areas that seem be emanating from a particular unit. Train staff to report such problems immediately, so that you’ll be able to address the issue at the earliest stage possible.

For the same reason, pay attention to similar complaints from neighbors, particularly when the source of the problem seems to be next door or on the floors above and below a particular unit. Hoarding isn’t limited to common possessions, such as clothing, newspapers, or plastic bags; some people hoard garbage and rotting food—even animals or human waste products. Any and all can lead to serious health and safety problems involving fire hazards, impaired air quality, mold growth, pest infestation, and structural damage, which can spread rapidly and lead to serious injury or disease without prompt attention. 

Rule #2: Investigate Potential Hoarding Problems

As soon as potential hoarding problems come to your attention, inspect common areas and inside the units of residents who have lodged complaints. Make an effort to determine whether complaints all seem to be pointing to a particular unit.

The next step is to contact the resident whose unit appears to be the source of the problem. Your right to enter and inspect a resident’s unit depends on a variety of factors, including the seriousness of the reported problem, state and local sanitary codes and landlord-tenant laws, the provisions of the lease, and other legal requirements.

In general, communities may enter the units of residents only with reasonable advance notice and during normal business hours, except in cases of emergency. Be sure to document that you have complied with applicable requirements, which will be particularly important if the resident in fact has a hoarding problem and denies you entry.

Once inside, document the conditions, particularly focusing on any violations of lease provisions and applicable health and safety codes. Make notes about the nature and cause of any noxious smells, pest infestations, and other problems that have spread outside the unit. Attempt to take photos since descriptions of hoarding conditions can go only so far to show the seriousness of a hoarding problem. However, if the resident is adamant about not having photos taken, it’s best not to push the issue since the goal is to gain the resident’s cooperation in remedying the unit’s condition.

Whatever you find inside the unit, be sure to treat the resident with dignity and respect. That may be challenging if confronted with the telltale signs of hoarding: an accumulation of large amounts of clothing, papers, bags, newspapers, blocked exits, rotting food, signs of rodent or pest infestation, large numbers of animals, or human or animal waste. Unless you maintain a neutral, nonjudgmental demeanor, you could inadvertently make matters worse by exacerbating the resident’s distrust and resistance to change.

Here’s what you shouldn’t do: Take matters into your own hands to clear away the resident’s possessions. You might believe that you’re helping the resident to conquer a problem that she’s been promising to rectify for years, but that approach can backfire unless the resident gives you the authority to do so, warns F. Willis Caruso, Esq., Clinical Professor Emeritus of the John Marshall Law School Fair Housing Legal Support Center and Clinic.

Rule #3: Listen for Reasonable Accommodation Requests

When resident hoarding comes to light, follow your standard policies and procedures for addressing safety and health problems. Comply with notice requirements dictated by the lease and applicable law if conditions inside the unit are bad enough to rise to the level of a direct threat that can’t be eliminated or sufficiently mitigated by a reasonable accommodation.

Before taking legal action against a resident with a hoarding problem, determine whether the resident qualifies as an individual with a disability under fair housing law. Obvious signs of unsafe and unsanitary hoarding are usually enough to suggest that the resident has hoarding disorder—a recognized mental impairment. As a result, fair housing law may require you to grant a reasonable accommodation that would give the resident time to clean out the unit to preserve her residency.

Dover says it’s rare for residents with hoarding issues to specifically ask the owner or management for an accommodation. Nevertheless, you should listen for reasonable accommodation requests, which may be framed as something the resident “needs” or “wants” because of a disability. In hoarding cases, it may be a request from the resident, a family member, or an advocate to delay legal action against the resident to give him more time to clean out the unit.

In most cases, that’s enough to qualify as a reasonable accommodation request since the FHA doesn’t require that the request be made in a particular manner or at a particular time. According to federal guidelines, a resident or applicant makes a reasonable accommodation request whenever he makes it clear to the housing provider that he’s requesting an exception, change, or adjustment to a rule, policy, practice, or rule because of a disability.

Caruso emphasizes the need to train staff on how to respond to reasonable accommodation requests. It’s a good idea to have a standard form for detailing requests for reasonable accommodations, but you could get into trouble if the staff isn’t trained on how to use it. Training should also cover what to do with the request, including when to go up the chain of command when dealing with hoarding and other challenging issues, he says.

Rule #4: Evaluate Reasonable Accommodations to Remedy Hoarding Problems

Follow your community’s policies and procedures if a resident or someone on his behalf requests a reasonable accommodation to address hoarding problems within a unit. Depending on the seriousness of the health and safety risks involved, you may not have to grant the request—but you do have to take it seriously by responding formally and promptly. Under HUD guidelines, an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation.

Fair housing advocates take the position that before trying to evict a resident whose mental disability is causing him to violate the terms of his lease or community rules, good faith efforts must be made to accommodate his disability even if he hasn’t specifically asked for an accommodation, according to Dover. This generally requires the resident be given opportunities to come into compliance so he can retain the residency.

Dover offers these examples of potential accommodations:

• Meeting with the resident to identify health and safety issues that need to be addressed in the unit;
• Establishing goals and timelines with the resident to address the health and safety issues;
• Setting periodic dates for follow-up visits to the unit to monitor compliance;
• Memorializing the goals, timelines, and re-inspections in a written agreement that the resident signs;
• Providing the resident with a list of community resources that can assist persons with hoarding issues;
• Working with a fair housing and/or mental health advocacy group or attorney assisting the resident to develop a plan to bring the unit into compliance;
• Extending time for compliance with a legal notice that has been served or entering into a stipulation in an eviction that gives the resident a final opportunity to address the health and safety issues and retain the tenancy.

When dealing with a hoarding situation, the focus should only be on solving legitimate health and safety issues rather than on trying to achieve ideal housekeeping habits, says Dover. Even if the resident meets minimum health and safety standards, you should recognize that the unit may not meet your expectations of an “optimal condition.” It’s also important to realize that residents with hoarding issues may not recognize they have the problem (or the severity of the problem) or be equipped to resolve the hoarding problem on their own, she says.

If health and safety issues are initially resolved, you should be aware that, even with treatment, hoarding disorder has a high rate of recidivism, says Dover. This means that a resident with hoarding issues may “slip” and re-hoard again in the future. Therefore, any written agreement made with the resident should include language that provides for periodic unit “check-ins” to monitor ongoing compliance after the health and safety issues have been remedied and a specified time period for correction of any future health and safety issues.

Rule #5: Engage in an Interactive Process to Resolve Hoarding Problems

Even when a resident qualifies as an individual with a disability, a request for an extended period to clean the unit may be unreasonable if conditions inside pose immediate or serious health and safety risks.

Fair housing law doesn’t require communities to grant accommodation requests that are unreasonable. Dover says that accommodation may not be required, and termination of the tenancy may be possible, if:

• The person is a clear, direct, and immediate threat to the health and safety of other residents or the property and there’s no accommodation that will eliminate or sufficiently mitigate the health and safety issues;
• There are serious health and safety issues that can’t be mitigated through accommodation;
• The resident has caused serious monetary damage to the unit and won’t reimburse the landlord for the cost to repair the unit; or
• The resident won’t engage in the accommodation process or cooperate to bring the unit back into compliance.

Nevertheless, tread carefully before rejecting a requested accommodation on the grounds that it’s unreasonable. HUD says you should discuss with the resident whether there’s an alternative accommodation that would effectively address his disability-related needs without posing an undue burden on the community.

For example, you may work out a plan with time frames for resolving lease violations, but you may have to be flexible if the resident fails to remove enough belongings to remedy valid safety and health concerns. It may take multiple attempts, extended deadlines, or outside help to alleviate problems inside the unit. And you may have to be satisfied with less than “broom clean” conditions; if the resident remedies health and safety problems, it may be unreasonable to impose overly stringent standards.

To keep things on track, the plan should allow for periodic unit visits during the accommodation process—as often as once a month, if warranted. Hoarding is notoriously difficult to treat, and recurrences are common, so periodic unit visits to monitor compliance may help ward off future problems. But it’s important to make sure that the frequency of these visits isn’t overly intrusive. In most situations, the visits after the resident has remedied the unit shouldn’t be more frequent than quarterly at most. The agreement should also spell out consequences for failing to maintain the unit as agreed—for example, by giving you the right to serve a new legal notice or reinstate eviction proceedings if the resident doesn’t live up to her agreement to maintain the premises.

Rule #6: Proceed with Eviction if Interactive Process Fails

If the resident ignores warnings about lease violations or otherwise fails to address hoarding problems, you may initiate proceedings to recover possession of the unit. Be sure to document your compliance with notice provisions and other legal requirements imposed by state and local law. It’s also important to have documentation of the condition of the premises, including photos, if available; descriptions; and witness testimony.

Even after legal proceedings have commenced, however, you should be prepared for an 11th-hour request to delay eviction proceedings to allow the resident more time to clean up the premises. Because people with hoarding disorder are resistant to parting with their possessions, it often takes official legal proceedings that threaten their continued residency to prompt them to do something to remedy the problem.

Nevertheless, there are limits on your obligation to accommodate residents whose hoarding behavior poses ongoing safety and health hazards to other residents. Fair housing law doesn’t protect anyone, with or without a disability, who poses a direct threat to the health and safety of others or whose behavior would result in substantial physical damage to the property of others, if the threat can’t be substantially reduced or eliminated with a reasonable accommodation.

To determine whether a resident with a hoarding problem poses a direct threat, the community must make an individualized assessment based on reliable, objective evidence, such as current conduct or recent history of overt acts. HUD says that the assessment must consider:

• The nature, duration, and severity of the risk of injury;
• The probability that injury will occur; and
• Whether there are reasonable accommodations that will eliminate the direct threat.

Because of these and other requirements, Dover says it’s a good idea to seek legal advice before taking any action to terminate a tenancy if hoarding issues may be involved. No two hoarding situations are alike, so each situation involving a resident with hoarding issues requires analysis based on the facts of the particular case. If not handled appropriately, it could result in a fair housing complaint being filed against you, the property, and the company, she warns.

Rule #7: Recognize that Residents May Get Multiple Chances to Remedy Hoarding Problems

Even when you’ve proven that the resident’s hoarding justifies eviction, you should be prepared for further delays under certain circumstances. No matter how patient you’ve been with efforts to address hoarding problems, the courts may be willing to put an eviction on hold to allow more time to remedy the situation.

Example: In November 2019, a court ruled that a New York cooperative community proved that hoarding conditions in a resident’s unit justified her eviction but put the matter on hold to give her guardian more time to clean it up or move her to another residence.

The resident was an elderly woman who had lived at the community for 10 years. In 2017, the landlord issued a termination notice and later initiated eviction proceedings because conditions in her unit amounted to a nuisance. The landlord claimed that the resident violated the lease by keeping her unit in poor condition by amassing clutter in the form of garbage, books, and newspapers, resulting in infestation, unreasonable odors, and an increased risk of fire.

Nearly a year later, a court appointed a guardian with authority to access her unit, arrange for a heavy-duty cleaning, and if necessary, remove the resident from the premises to complete the cleaning. The court later expanded the guardian’s authority to defend the resident in housing court proceedings and arrange for heavy-duty cleanings and home care services.

After multiple attempts to resolve the matter, the case went to trial in 2019. An employee of the management company testified that strong odors of urine and garbage continued to emanate from the resident’s unit as recently as the day before the hearing. Although a cleaning had occurred in 2018, the employee said that it alleviated the odors for only a few weeks.

A maintenance worker also testified that he was in the resident’s unit twice that year to inspect her air conditioning units. He said he observed piles of garbage, clothing, papers, and other debris that made navigating the unit difficult and that there were extreme odors of urine and feces. He produced photos, which showed garbage and clutter strewn throughout her unit.

The resident’s next-door neighbor also testified about pungent odors emanating from the resident’s unit and that he was concerned that the smell could cause health problems or diminish the value of his apartment.

The court ruled that the landlord proved that the resident breached the lease by maintaining a nuisance, which interfered with other residents’ use and enjoyment of their homes. It was clear that the resident’s failure to keep her unit free from clutter and in a sanitary condition over the course of at least two years represented a continuity and recurrence of objectionable conduct.

Although the landlord was entitled to final judgment of possession and warrant of eviction, the court had broad discretion to determine whether a resident with a disability should be given an opportunity to cure the condition or be allowed additional time to relocate. In this case, the court said that the resident, an elderly woman who had lived in the current unit for 10 years, would be likely to suffer extreme hardship if a stay weren’t granted. Furthermore, the guardian was making good faith efforts to secure a safe, affordable dwelling for the resident and that it was reasonable to afford the guardian more time to do so. In the meantime, the resident had allowed the landlord to have access to her unit and had cooperated with the guardian’s efforts to keep the unit clean and free of clutter.

The court granted a stay of execution for 90 days to allow the guardian time to sell her unit and relocate her to a suitable environment, or in the alternative, to allow the guardian an opportunity to cure the nuisance condition, without prejudice to seek a further stay upon the showing of good cause [140 W. End Ave. Owners Corp. v. Dinah L., New York, November 2019].

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

Note:  Sample Rent Ledger is attached above.

Question 1: Tenant's balance goes back to the beginning of April 2020. Do we have to follow the rent schedule that is laid out by rental assistance agency?  Example: Oregon Emergency Rental Assistance Program gives you a statement on how to apply the rent  and it usually is  the most recent delinquent rent.  They will only cover 12 months plus 3 future months.  

In my opinion, yes, the landlord should apply the funds in the way that the Assistance Program dictates. There is a Landlord Hotline 844-378-2931 (operative during regular business hours) to discuss issues and questions. While I agree that it does make sense to apply it to the oldest debt first, I'm not comfortable making a blanket statement that you can ignore the dictates of the Program. I don't know whether acceptance of the funds creates a contract. Landlords should check with the hotline or their attorney for further guidance. So, I'd say payment should be applied as follows: (a) as dictated by the Program, (b) if the Program does not address the application of funds, then in accordance with the terms the lease, and (c) finally, if the lease is also silent, then in accordance with ORS 90.220(9).

Presuming that you apply the back rent to the most recent delinquent rent, that should put all the outstanding back rent within the Emergency Period, therefore subject to the tolling of the Statute of Limitations under the Eviction Moratorium. Basically, applying it to the most recent back rent gives the landlord more time to pursue the deb because they (landlord) have until next February to do so.  See the attached ledger to explain what I mean.

Question 2: What if tenant can only pay partial rent from the past due emergency period? Do we take it or will it result in a waiver? Does it preclude the landlord from sending out further 10-day notices of nonpayment?

ORS 90.417(4) is clear that acceptance of partial rent may, under certain circumstances, constitute a waiver of the right to terminate for nonpayment of rent. 

There are two ways to avoid acceptance as a waiver: 

• If Landlord accepts partial payment pursuant to a written agreement with tenant before issuing a Notice of Termination for nonpayment and tenant fails to pay the balance by the agreed-upon date. If so, the landlord’s Notice of Termination is served no earlier than if no rent had been accepted, AND the Notice provides that the tenant can cure by paying the balance by a time set by statute or by agreement of the parties; or

• Landlord accepts partial payment after issuing a Notice of Termination but enters into a written agreement with the tenant that acceptance does not constitute waiver. The agreement may also provide that the landlord may terminate and evict without further notice if the tenant does not pay the balance by the agreed upon date.

As with everything else, Covid has plowed new ground. I would not advise a landlord to accept rent from a tenant without getting a legally drafted agreement containing a non-waiver. If the tenant fails to pay under the written agreement then there is a basis for termination. 

Question 3: Now that the Oregon Emergency Fund is closed can we start issuing 10-day Notices on the back balances?

If the tenant has not provided their landlord with proof of their application to a Rental Assistance Program then they are not protected by the “Safe Harbor” protection it affords.[1] A landlord may pursue normal remedies against them unless/until they are notified that an application is pending. If you begin proceedings against a tenant and they then provide proof of application the proceedings must stop.

If a tenant has already provided proof of application to a Rental Assistance Program and the landlord is not receiving payment while the Safe Harbor is in place, the Landlord may apply to the Landlord Guarantee Program. See,  https://www.oregonlgp.org.  The Program is designed to get funds to landlords who are not receiving funds during the Safe Harbor period. The earliest funds may be requested was July 1, 2021 and the latest will be June 30, 2022 - but there may be special provision if a tenant's application is still pending when the law sunsets on October 1, 2022. 

Question 4: What about the one-year statute of limitations for claims by a landlord based on the tenant’s nonpayment of rent. Are rents owed from the pre-April 2020 – June 30, 2021 period affected under the one-year statute of limitations for past due rents?

No, the eviction moratorium only suspended the statute of limitations for debts arising during the Emergency Period April 1, 2020 to June 30, 2021. Per SB 282 the Statute began to run again on March 1, 2022 which was the end of the grace period (i.e., the period to pay off unpaid rent debt from the emergency period). The clock is running on debts prior to April 1, 2020 and after July 1, 2021.

However, note there was a tolling of some statutes of limitations by other Covid bills (see, HB 4212). It is unclear when that ended, i.e. whether it was when the bill expired (Dec 31) or when the State of Emergency was lifted in April. Landlords should check with their own attorneys regarding any claims outside of the Emergency Period. It is unclear how the courts will deal with these frequently changing dates.

[1] I am using the term “Safe Harbor” to refer to the time a tenant is protected from eviction after notifying landlord that they have made application under the Rental Assistance Program.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination based on race, color, religion, sex, national origin, familial status, or disability—what’s known as “protected classes.”

Congress added familial status to the list of federally protected classes when it amended the FHA in 1988. In a nutshell, the familial status provisions make it unlawful to discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. Specifically, the FHA’s ban on discrimination based on familial status apply to one or more children under 18 living with:

• A parent;
• An individual with legal custody; or
• An individual who has the written permission of the parent or custodian.

The familial status provisions also apply to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.

Nevertheless, Congress recognized the need to preserve housing specifically designed to meet the needs of senior citizens. Consequently, the 1988 amendment created an exemption from the FHA’s familial status requirements for communities that qualified as “housing for older persons.” Congress later amended the law in the Housing for Older Persons Act of 1995 (HOPA), resulting in the current version of the federal exemption for senior housing.

The exemption allows senior housing communities that meet specific requirements to legally exclude families with children. The exemption applies to housing communities or facilities, which are governed by a common set of rules, regulations, or restrictions. A portion of a single building isn’t considered a housing facility or community, according to HUD. The senior housing exemption applies only to the FHA’s familial status provisions; communities must still abide by the law’s protections based on race, color, national origin, religion, sex, and disability.

The law describes three types of communities that are eligible for the senior housing exemption:

1. Publicly funded senior housing communities: Housing communities where HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a federal, state, or local government program;
2. 62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and
3. 55-and-older communities: Communities that house at least one person who is 55 or older in at least 80 percent of the occupied units and adheres to a policy that demonstrates intent to house persons who are 55 or older.

7 RULES TO FOLLOW TO AVOID FAIR HOUSING TROUBLE

IN SENIOR HOUSING COMMUNITIES

Rule #1: Comply with Technical Requirements for Senior Housing Exemption

Senior communities must adopt policies and procedures to ensure strict compliance with the technical requirements of the senior housing exemption. If you don’t comply with the law’s requirements, then you lose the exemption, which in essence makes your community automatically liable for excluding or discriminating against families with children. 

Complying with the law governing the 62-and-older exemption is relatively straightforward. To qualify, the community must be intended for and occupied solely by persons aged 62 and older. For example, HUD regulations explain that a 62-and-older community would have to refuse the application of a 62-year-old man whose wife is 59. In the same vein, a community would lose its exemption if it allowed continued residency by a current resident who married someone under the age of 62.

Complying with the law governing the 55-and-older exemption is more complicated. To qualify, the community must satisfy each of the following requirements:

• At least 80 percent of the occupied units must have at least one occupant who is 55 years of age or older;
• The community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and
• The community must comply with HUD’s regulatory requirements for age verification of residents.

1. 80 percent rule. To meet this requirement, a community must ensure that at least one person 55 or older lives in 80 percent of its occupied units. The law doesn’t restrict the ages of the other occupants in those units. Furthermore, there are no age limits for the occupants of the other 20 percent, so communities may accept families with children, although they don’t have to do so.

The 80 percent rule applies to the percentage of “occupied units,” which includes temporarily vacant units if the primary occupant has resided in the unit during the past year and intends to return on a periodic basis. That means that a unit would count toward the 80 percent requirement if its 55-year-old occupant resided in the unit for only part of each year.

To maintain eligibility for the exemption, it’s a good idea to ensure that more than 80 percent of your occupied units are occupied by at least one person aged 55 or older. If you skate too close to the line, your community could be forced into a difficult situation—for example, if a 60-year-old resident dies, leaving a 54-year-old surviving spouse.

To prevent just such a problem, HUD advises communities to plan with care when renting the 20 percent portion of the remaining units to incoming households under age 55. Such planning should address notice to incoming households under the age of 55 regarding how the community will proceed in the event that the 80 percent requirement is threatened.

2. Intent to operate as senior housing. A community must publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons 55 years of age or older. HUD offers some examples of the types of policies and procedures to satisfy this requirement, including:

• The written rules, regulations, lease provisions, or other restrictions;
• The actual practices of the community used to enforce the rules;
• The kind of advertising used to attract prospective residents to the community as well as the manner in which the community is described to prospective residents; and
• The community’s age-verification procedures and its ability to produce, in response to a familial status complaint, verification of required occupancy.

3. Verification of occupancy. To qualify under the 55-and-older exemption, communities must able to produce verification of compliance with the 80 percent rule through reliable surveys and affidavits.

HUD regulations require communities to develop procedures to routinely determine the occupancy of each unit, including the identification of whether at least one occupant is 55 or older. The procedures may be part of the normal leasing arrangement. And, every two years, communities must update, through surveys or other means, the initial information to verify that the unit is occupied by at least one resident age 55 or older.

In addition, communities must establish procedures to verify the age of the occupants in units occupied by persons 55 and older through reliable documentation, such as birth certificates, driver’s licenses, passports, immigration cards, military identification, and other official documents that show a birth date. HUD regulations also allow a certification signed by any member of the household aged 18 or older asserting that at least one person in the unit is 55 or older.

Rule #2: Market Your Community as Senior Housing

For 55+ communities, it’s essential to ensure that your advertising and marketing doesn’t undercut your ability to qualify for the senior housing exemption.

To qualify for the senior exemption, the law requires communities to demonstrate an intent to provide housing for older persons. The manner in which your community is described to potential residents is among the relevant factors listed in HUD regulations to determine whether a community has complied with the intent requirement. Using the wrong words to describe yourself not only may trigger a fair housing complaint, but also undercut your ability to demonstrate your intent to operate as “55 or older” housing.

As an example, fair housing expert Doug Chasick points to the increasing number of housing developments that market themselves as “Active Adult” or “Empty Nester” communities. Yet, he points out, using the term “Adult Only” housing was outlawed back in 1988, when President Reagan signed amendments to the FHA into law. He says that some state and local enforcement agencies claim that using these phrases are always illegal because they’re incompatible with the intent requirement.

HUD doesn’t take it that far. It’s true that HUD regulations state that “Phrases such as “adult living,” “adult community,” or similar statements in any written advertisement or prospectus are not consistent with the intent that the housing facility or community intends to operate as housing for persons 55 years of age or older. But HUD says that the use of these terms does not, by itself, destroy the community’s ability to meet the intent requirement, according to HUD. If a facility or community has clearly shown in other ways that it intends to operate as housing for older persons, meets the 80 percent requirement, and has in place age verification procedures, then HUD says that the intent requirement can be met even if the term “adult” is occasionally used to describe it.

That’s not to say that Chasick says it’s a good idea to use those terms in your advertising or marketing materials. In fact, he recommends against it unless you want to be caught up in an expensive investigation or enforcement action. Instead, Chasick recommends using words like “senior housing,” “senior living community,” “a 55 and older community,” or even a “55 and Better Community” when describing your community to demonstrate your intent to operate as housing for older persons.

Coach’s Tip: Chasick warns against using the phrase “active adult” in your advertising and marketing materials. Every senior should be welcome, whether they’re active or not, he says.

Rule #3: Don’t Discriminate Based on Race or Other Protected Characteristics

The FHA’s senior housing exemption is limited: It offers protection from federal fair housing claims based upon familial status as long as your community meets the FHA’s requirements to qualify as housing for older persons. It doesn’t exempt senior housing communities from any claims based on race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

That means that senior communities must take steps not only to qualify under the senior housing exemption, but also to ensure they don’t exclude or otherwise discriminate against applicants or residents based on race or other protected characteristic. For example, senior communities must adopt nondiscriminatory policies and procedures governing the application process and treatment of residents in addition to complying with the age-verification and other requirements to qualify for the senior housing exemption. And train your staff to apply those policies consistently to all applicants and residents, regardless of race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

Rule #4: Enforce Rules to Prevent Harassment by or Against Residents

Take steps to enforce rules to prevent harassment or other misconduct by or against residents. If a resident complains about being harassed by other residents based on her race, sex, or any other protected class, then you should take the complaints seriously.

You shouldn’t be expected to police the behavior of your residents, but you should make it clear that bullying or any other forms of harassment based on protected characteristics won’t be tolerated. Depending on the circumstances, you could face liability under fair housing law if you knew that a resident was subjected to severe and persistent abuse from other residents, but you did nothing to stop it.

Example: In August 2018, a federal court reinstated a fair housing case against an Illinois retirement community for harassment and retaliation. The complaint alleged that the resident endured months of physical and verbal abuse by other residents because of her sexual orientation, and that despite her complaints, the community did nothing to stop it and in fact, retaliated against her because of her complaints.

Fair housing law prohibits discriminatory harassment that creates a hostile housing environment. To prove the claim, the resident had to prove that: (1) she endured unwelcome harassment based on a protected characteristic; (2) the harassment was severe or pervasive enough to interfere with her tenancy; and (3) there was reason to hold the community responsible.

The resident’s complaint satisfied the first and second requirements. She alleged that she was subjected to unwelcome harassment based on her sex, and the community agreed that the court’s earlier ruling—that employment discrimination based on sexual orientation qualifies as discrimination based on sex—applied equally to housing discrimination claims. And the alleged harassment could be viewed as both severe and pervasive—for 15 months, she was bombarded with threats, slurs, derisive comments about her families, physical violence, and spit.

The complaint also satisfied the third requirement. When the case goes back for further proceedings, the focus will be on the management defendants to determine whether they had actual knowledge of the severe harassment that the resident was enduring and whether they were deliberately indifferent to it. If so, then they subjected the resident to conduct that the FHA forbids [Wetzel v. Glen St. Andrew Living Community, August 2018].

Editor’s Note: The appeals court’s ruling—that discrimination based on sexual orientation qualifies as sex discrimination—applies to all the states within the court’s jurisdiction, including Illinois, Indiana, and Wisconsin. But more recently, a court in Missouri came to the opposite conclusion—that discrimination claims based on sexual harassment don’t qualify as sex discrimination—and dismissed a complaint filed by a married lesbian couple who alleged that a senior living community turned them away because of their sexual orientation [Walsh v. Friendship Village of South County, January 2019].

Rule #5: Watch for Potential Disability Discrimination Claims

Senior housing communities must pay particular attention to fair housing protections for individuals with disabilities. The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy.

Example: In December 2018, the owners and operators of a California senior housing complex agreed to pay $2,500 to resolve claims that they violated state fair housing laws by denying housing to a prospective resident because she has a disability.

In her complaint, the prospect alleged that the property manager initially approved her tenancy application but rescinded the approval after meeting her and seeing that she uses a wheelchair. The prospect’s daughter had handled most aspects of the application process, including viewing the unit. When the prospect arrived in a wheelchair to sign the lease, the property manager allegedly refused to rent her the unit and accused her and her daughter of misrepresenting the prospect’s identity by bringing other individuals to view the unit.

“The Fair Employment and Housing Act promises that all tenants, regardless of disability, have equal access to housing,” Kevin Kish, Director of the California Department of Fair Employment and Housing, in a statement. “Housing providers have a legal obligation to eliminate unlawful bias from every stage of the housing application process.”

Fair housing law bans discrimination against applicants and residents because they—or someone they’re associated with—is a member of a protected class. HUD says that the FHA’s disability provisions were intended to prohibit not only discrimination against the named tenant, “but also to prohibit denial or housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants or other associates with disabilities.”

Example: In December 2018, HUD announced that a New Jersey condo association representing residents of a 55-and-older condominium development has settled a complaint alleging that it refused to sell a condo to a man with disabilities and his wife because the couple planned to have their adult disabled daughter live with them. The settlement requires the association to pay a $9,000 civil penalty to the United States, undergo fair housing training, and make changes to the associations’ bylaws as they relate to reasonable accommodations. The wife, now a widow, is pursuing claims against the association in state court. The association denies that it discriminated against the family.

“No family whose members have disabilities should be denied the reasonable accommodations they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully, today’s ruling will remind homeowner associations of their obligations under the Fair Housing Act and encourage them to follow the law” [Secretary, HUD v. Tamaron Association, December 2018].

Senior communities must be prepared to comply with the full array of disability protections. For example, the FHA requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. The law also requires owners to permit residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises.

Example: In December 2017, the owner and property manager of a California community agreed to pay $11,000 to resolve a HUD complaint alleging disability discrimination against a resident with a mobility impairment. According to her complaint, the resident requested to have a live-in aide and a key to a locked gate near her unit to make it easier for her to come and go. In both instances, she said that the owner and property manager asked her intrusive questions about her disability, challenged whether she really had a disability, asserted that the development was for individuals who could live independently, and ultimately denied her requests.

“Residents with disabilities have the right to reasonable accommodations that allow them to use and enjoy their home, without unnecessary and invasive questioning,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work with housing providers to ensure they meet their obligation to comply with national fair housing laws.”

Example: In December 2018, the Fair Housing Justice Center (FHJC) announced that a settlement has been reached with the remaining defendants in two federal lawsuits against the operators of dozens of nursing homes and assisted living facilities for allegedly refusing to make American Sign Language (ASL) interpreter services available to deaf and hard-of-hearing residents. Though denying the allegations, the defendants in the latest settlement agreed to pay $245,675 in damages and attorney’s fees to resolve the case.

The FHJC says that the settlements in these cases ensures that deaf and hard-of-hearing people will have access to ASL services and other auxiliary aids and services as a reasonable accommodation in 61 nursing homes and 35 assisted living facilities in the New York City region. The settlement agreements reached with the defendants in these two cases also yielded a total monetary recovery of nearly $1.2 million in damages and attorney’s fees.

Rule #6: Review ‘Independent Living’ Requirements

Depending on the circumstances, you could face a fair housing complaint for imposing independent living requirements on applicants or residents. Courts have found that a policy requiring applicants to demonstrate an ability to live independently violates fair housing laws protecting individuals with disabilities [Cason v. Rochester Housing Authority, August 1990].

Example: In September 2017, the owner and managers of a 41-unit community in California agreed to pay $18,500 to resolve allegations of discrimination against elderly residents with disabilities who relied on support from caregivers. A fair housing organization filed the complaint on behalf of an elderly resident facing eviction after returning from the hospital with support from a part-time caregiver. Allegedly, the owner and property manager said that they didn’t want the “liability” of her remaining in her home, threatened to call the county to have her “removed,” ordered her to move out, and asked invasive questions about the extent of her disabilities. According to the organization’s complaint, its investigation corroborated the resident’s allegations and revealed that testers calling for disabled relatives were told that the complex was for “independent living” and people who “can take care of themselves.”

Example: In Michigan, fair housing advocates recently sued an affordable senior housing apartment complex, alleging that the community applies “independent living” requirements to force residents with disabilities to move, even if those residents are meeting all the requirements of the lease. The complaint asks the court to recognize the community’s practices as discriminatory and prevent the complex from forcing tenants with disabilities to leave their homes when they remain capable of meeting all of their lease obligations.

“Civil rights laws ensure that people with disabilities can decide for themselves where and how to live in the community of their choosing,” says Susan Silverstein, Senior Attorney at AARP Foundation. “The law doesn’t allow landlords to refuse to accommodate tenants with disabilities,” adds a lawyer for the Michigan Clinical Law Program, “and it certainly doesn’t allow landlords to refuse to let tenants age in place just because they might need some outside help.”

Example: And in New York, fair housing advocates and two individuals sued the state and four adult care facilities, alleging that they maintained and enforced blanket policies barring wheelchair users, regardless of their individual needs or abilities, and steered applicants who use wheelchairs to nursing homes.

One of the individual plaintiffs, an elderly woman with disabilities, alleged that she was barred from returning to one of the communities once she began using a wheelchair. According to the woman, the community tried to evict her because of an internal policy barring admission of people who use wheelchairs and state health department regulations that supported such policies at these and other facilities.

The lawsuit also alleges that New York State promotes disability discrimination through its regulations and policies, including its policy permitting adult homes to ban wheelchair users from admission. Until recently, state health department regulations stated that adult homes and assisted living programs should not admit or retain people who are “chronically chairfast.”

The state has since amended the regulations to eliminate the phrase “chronically chairfast” and to add language that operators may not exclude individuals solely because they primarily use a wheelchair for mobility and must make reasonable accommodations as necessary to comply with the law. Last fall, the court issued an order directing the community to allow the elderly woman to return to her home. The case is still pending in federal court.

Rule #7: Comply with Applicable State and Local Laws

It’s critical to review applicable state and local fair housing laws because the laws affecting senior housing may vary substantially, depending on your location. For example, HUD points out that federal fair housing law doesn’t cover age discrimination, which is a protected characteristic under some state and local fair housing laws.

Moreover, HUD notes that some state and local governments with fair housing laws that have been determined to be substantially similar to the federal law may not include an exemption from the familial status discrimination for housing for older persons.

Alternatively, some state or local laws impose different standards for the senior housing exemption. In California, for example, the legislature adopted more stringent requirements on senior housing than is required under the FHA “in recognition of the acute shortage of housing for families with children” in that state. The law imposes specific requirements related to accessibility, common areas, and refuse collection.

Still other state and local laws apply an older version of the federal exemption. Under the original 1988 legislation, 55-and-older communities had to have “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the exemption.

Though Congress eliminated the “significant services and facilities” requirement from federal fair housing law, some states didn’t follow suit. In Georgia, for example, communities are still required to furnish “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the senior housing exemption.

Coach’s Tip: HUD urges communities to check all relevant state, local, and federal laws, as well as any requirements imposed as a term of governmental financial assistance before implementing policies and procedures that limit residents’ eligibility. Because of the complexity of the issues involved, you should get legal advice from an attorney well versed in the legal requirements for senior housing issues in your jurisdiction. 

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

Coach Source

Douglas D. Chasick, CPM, CAPS, CAS, ADV. RAM, CLP, SLE, CDEI: The Fair Housing Institute, Inc.; Norcross, GA;

Are your catch basins cleaned out and ready for the fall rains, and are your speed bumps painted so vehicles and pedestrians can see them through the long winter months... neither of these two tasks take a lot of time or money, and Residents appreciate some of the attention to this detail!

Have you sent a "Prepare For Winter Memo" to your Residents reminding them to clean gutters, check their heat tape/pipe insulation? Have you WALKED your property taking note of any limbs on tall trees that need pruning attention in the fall and winter wind storms? While on your daily walk-throughs, did you follow-up on your spring four sided inspection reminding Residents to remove items improperly stored outside or in view of the street? Tarps suddenly have a way of appearing once fall rains start, so you will want to include in the memo that these are not allowed. (Check your "Guidelines For Living" aka R&Rs for inclusion of this prohibition!)

How about your inventory of emergency ice melt and sand... do you have them available for common area walkways... mailbox, clubhouse, laundry room and office entry areas... ? What is your plan for the leaf litter that can be overwhelming in the fall? If you own your snowplow equipment, is it serviced and ready to go? Before the rest of the property owners beat you to the phone, you may want to advance negotiations with a local snow removal company... now is the time to make the call and ask for a contract!

There is still an enormous list of tasks ahead of us especially if you own communities with outdoor pools, irrigation, systems, RV storage areas, lawn equipment and the like. These are all the PHYSICAL and FACILITY maintenance items that require our attention before the long winter "sleep." BUT, equally important is sharpening your pencil and looking back at the past year's financials and preparing your budget for NEXT year! Have you contacted utility agencies to establish anticipated raises on their part? How about your insurance agent or County Assessor? Did you sit down with your manager to generate a list of areas that he/she believes need attention administratively???? Have either of you generated a comparable market analysis of rents in your area... exactly where do YOU stack up??

The BEST run MHCs are occupied with content Residents who receive VALUE for their rental dollars. Therefore a very large part of our jobs is not just anticipating and addressing the physical and administrative needs of our communities as partially illustrated above; most importantly, treating Residents with respect and attention to detail will yield a rent roster of Tenants who will exhibit the pride of ownership we all strive to have in our land lease communities.

Joel Erlitz

First Commercial Property Corp

4500 Kruse Way #345

Lake Oswego, OR 97035

Phone: 206-985-7275

Fax: 206-985-3876

Email: ross@fcpcmgt.com

Web: http://firstcommercialpropertycorp.com

Sally Harrington

First Commercial Property Corp

4500 Kruse Way #345

Lake Oswego, OR 97035

Phone: 206-985-7275

Fax: 206-985-3876

Email: ross@fcpcmgt.com

Web: http://firstcommercialpropertycorp.com

[Update: The Multnomah County Board of Commissioners has passed Ordinance 1296, which changed the 60-day window to 90-days for the Pause on Notices and Evictions, as described below. This Ordinance became effective on July 9, 2021 and only applies to tenants residing in Multnomah County. Timeframes are updated below.]

In mid-June, the Oregon Legislature passed another bill, SB 278 which accomplishes three things:

1) It provides a 60-day window in which a tenant seeking rental assistance may not be evicted for nonpayment of current (i.e., non-moratorium related) rents, charges and fees;

2) It provides a method for landlords impacted by the 60-day delay (discussed below) to recoup lost rents, charges and fees if the tenant does not qualify for rental assistance; and

3) It directs the Landlord Compensation Fund to pay the full 100% rent loss on applications to the program.

The Multnomah County Board of Commissioners recently passed Ordinance 1296. It made the following change to SB 278 for tenants residing in Multnomah County only: It extended the timeline following Landlord’s receipt of documentation of Tenant’s application for rent assistance from 60 to 90 days before which service of a 10-day Notice of Nonpayment of Rent or filing of an Eviction is permitted.

Notices and Evictions: 60-Day Pause (or 90 days if in Multnomah County)

Application. SB 278’s 60-day delay, and Ordinance 1296’s 90-day delay (for Multnomah County), for eviction proceedings only applies to notices of termination for nonpayment given on or after July 1, 2021.

My Definitions.

“Moratorium Debts” are any unpaid rents, charges, and fees that have accrued between April 1, 2020, and June 30, 2021. (This is my term; it is not in the bill. Many of the Legislature’s Bills refer to “nonpayment” but with different meanings.)

“Current Rent” includes any rents, charges and fees, described as a “Nonpayment” that come due on or after July 1, 2021. (This is also my term to avoid confusion. It is not in the bill.)

SB 278 Definitions.

“Nonpayment” refers to the nonpayment of sums due to the landlord, including payment of rent, late charges, utility or service charges or any other charge or fee described in the rental agreement, including the following statutory sums:

ORS 90.140 (Types of payments landlord may require or accept),
ORS 90.302 (Fees allowed for certain landlord expenses or tenant non-compliance), ORS 90.315 (utility or service payments),

PAGE - 1

ORS 90.392 (termination of tenancy for cause),
ORS 90.394 (termination of tenancy for failure to pay rent),
ORS 90.560 to 90.584 (provisions for various utilities and service charges); or ORS 90.630 (termination by landlord: manufactured dwelling or floating home).

“Documentation” includes electronic mail, a screenshot or other written or electronic Document- ation from a rent assistance provider.1 The definition of “documentation” above is straight from the Bill and relates to the procedure whereby the tenant applies for rental assistance and receives a receipt which is provided to the landlord.

60-Day Termination Pause (or 90 days if in Multnomah County). A tenant who is falling behind (or is in danger of falling behind) in paying their Current Rent may apply for rental assistance and provide the appropriate Documentation to their landlord. Tenant need only demonstrate that he/she applied for rental assistance in order to receive the 60-day pause (or 90 days if in Multnomah County). Upon receipt of the Documentation the landlord may not, for the next 60 days (or 90 days if in Multnomah County):

• Deliver a termination notice for nonpayment, or
• Initiate or continue an action for possession (i.e., an FED) based upon a termination

notice for nonpayment.

Eviction Protection Notice. This is a new statutory notice regarding eviction protection that is required to be delivered with:

• Any notice of termination for nonpayment of rent; and
• Any summons for a complaint seeking possession based on nonpayment of any sums

due to the landlord which are classified under the term “nonpayment” as defined above.

The court system will translate the notice into Spanish, Korean, Russian, Vietnamese and Chinese. The translated notices will be available on their main webpage www.courts.oregon.gov. The court clerk is also required to mail these notices with any summons and complaint mailed to a tenant from the Court.

Tenant Delivery of Documentation. The tenant may deliver the Documentation (including but not limited to, copies, photographs, screen shots, etc.) by email, text message, or any other “method reasonably calculated to achieve receipt by the landlord.”

Timing of Documentation.

• If the tenant provides the appropriate Documentation prior to the Landlord issuing a

  notice of termination for nonpayment, the landlord must wait 60 days (or 90 days if in Multnomah County) after receipt of the Documentation to issue any notice of termination for nonpayment.

• If the tenant provides the appropriate Documentation after the issuance of a notice of termination for nonpayment the landlord may not act upon that notice of termination or initiate an FED action based on the nonpayment. In order to terminate a tenancy after

  1 The Housing and Community Services Department is funneling federal, state, and local funds to many different “rent assistance providers,” including public bodies, local governments, and subgrantees (i.e., agencies and non-profits). They will provide a receipt to verify the submission of an application for rental assistance.

  PAGE - 2

expiration of the 60-day period (or 90 days if in Multnomah County), the landlord must issue a new notice of termination
o If 60 days (or 90 days if in Multnomah County) elapsed since the landlord received

Documentation, the landlord need not provide a new Eviction Protection Notice.

(TIP: If in doubt about whether the new Notice was included the first time, include

it after expiration of the 60 or 90-day pause; there is no risk in doing so.)2
• If the Tenant provides Documentation to the landlord or the Court after the eviction proceedings have already begun, the court will stay the proceeding, and reschedule a first appearance for a date following the 60-day period (or 90-day period if in

Multnomah County). Trial may occur promptly thereafter.

Dismissal of Eviction for Nonpayment. The court shall dismiss an FED action based upon a notice of termination for nonpayment if:

• The landlord failed to provide the new Eviction Protection Notice;
• The landlord “substantially caused” the tenant’s nonpayment by refusing to

“reasonably participate with a rental assistance program”;
o Note: Landlord is not required to apply for the Landlord Compensation Fund, so

the failure to do so cannot be used to claim the landlord “caused” the tenant’s

nonpayment.
• The landlord receives rental assistance covering the rent owed under the notice; or
• The tenant had provided the Documentation before the FED (or action for

possession)was filed.

Penalties for Landlord Violation. A violation of SB 278 will result in the tenant being able to pursue injunctive relief to recover possession or address any other landlord violations and will give the tenant a defense in an action for possession.

Tenant Not Entitled to Costs, Attorney Fees, or Prevailing Party Fees. Actions dismissed under these rules will not result in a tenant recovering costs and fees if:

• The landlord delivered all required notices (i.e., the new Eviction Protection Notice)
• The landlord did not know, or have reason to know at the time of commencing the

action, that the tenant had already provided the required Documentation; and
• The landlord promptly dismissed the action upon becoming aware of the

Documentation (Note: All three must occur.)

Dated Receipts of Application for Rental Assistance. SB 278 also directs that all programs providing rental assistance will promptly provide a dated receipt for the tenant’s application.

Repeal. These SB 278 and Ordinance 1296 rules will automatically be repealed on March 1, 2022.

2 Note: The Eviction Protection Notice is called “new” because the previous Bill, HB 4401, also required a Notice of Eviction Protection (along with the Declaration of Hardship). However, this is not the same form, although the caption of the form also says, “THIS IS AN IMPORTANT NOTICE ABOUT YOUR RIGHTS TO PROTECTION AGAINST EVICTION FOR NONPAYMENT.” Essentially, SB 278 created a similar, but completely new form, that I have called the Eviction Protection Notice to avoid confusion.

PAGE - 3

Landlord Compensation

Funding for the 60-Day Pause. SB 278 directs the Housing and Community Services Department to make funds available to a third-party provider (yet to be determined) to compensate landlords for their potential 60-day loss of revenue. To receive the compensation a landlord must demonstrate that:

• The tenant’s rental assistance application was denied; or
• Sixty (60) days have elapsed since the tenant provided their Documentation to the

landlord, and that the landlord has not received assistance.

[Note: Though Ordinance 1296 changes the 60-day window to a 90-day window for notices of termination and evictions for nonpayment in Multnomah County only, it does not make any changes to the portion of SB 278 that addresses landlord funding for the 60-day pause. It is unclear at this time how, or whether, the state will address Multnomah County’s rule in awarding funding for landlords whose tenants have not received assistance.]

Repeal of 60-Day Delay Compensation. Funding for landlords experiencing losses during 60-day pause will be automatically repealed on March 1, 2023.

Landlord Compensation Fund for Moratorium Debts. Originally HB 4401 provided that landlords could receive compensation for 80% of their tenant’s outstanding Moratorium Debts (rents, charges, and fees incurred between April 1, 2020, and the date of a landlord’s application to the fund – or June 30, 2021, at the latest). The last date to apply to the Landlord Compensation Fund (the “Fund”) was June 23, 2021.

To receive consideration for funding under HB 4401, the landlord had to agree to forgive 20% of the tenant’s debt. SB 278 now directs the Fund to pay 100% of the past-due rent due from qualified tenants that the landlord has not collected after April 1, 2020, and on or before the earlier of June 30, 2021, or the date of the application.

• Under SB 278 landlords are no longer required to agree to forgive 20% of their tenant’s Moratorium Debts.

• Landlords must still repay the Fund for any repayment of Moratorium Debts they receive from, or on behalf of, a qualifying tenant.

  Retroactive Application of 100% Coverage. The new rule requiring the Fund to pay 100% of past due Moratorium Debt applies to all applications approved on, before, or after the effective date of SB 278, which as an “emergency bill”, became effective on June 25, 2021, the date of the Governor’s signature.

  Furthermore, it directs the Fund to pay the remaining 20% of any applications for compensation already made under HB 4401 that were already approved prior to the passage of SB 278, without the need for an additional application.

PAGE - 4

[1] The Housing and Community Services Department is funneling federal, state, and local funds to many different “rent assistance providers,” including public bodies, local governments, and subgrantees (i.e., agencies and non-profits). They will provide a receipt to verify the submission of an application for rental assistance.

[2] Note: The Eviction Protection Notice is called “new” because the previous Bill, HB 4401, also required a Notice of Eviction Protection (along with the Declaration of Hardship). However, this is not the same form, although the caption of the form also says, “THIS IS AN IMPORTANT NOTICE ABOUT YOUR RIGHTS TO PROTECTION AGAINST EVICTION FOR NONPAYMENT.” Essentially, SB 278 created a similar, but completely new form, that I have called the Eviction Protection Notice to avoid confusion.

Answer.   ORS 90.100(38) defines the “Rental agreement” as: “…all agreements, written or oral, and valid rules and regulations adopted under ORS 90.262 or 90.510 (6) embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises. “Rental agreement” includes a lease. A rental agreement shall be either a week-to-week tenancy, month-to-month tenancy or fixed term tenancy. (Emphasis added.)

So technically, “rules” are really a part of the rental agreement. Of the many definitions of terms in ORS 90.100, there is no separate definition of “rules”.  However, they are given different treatment throughout the Oregon Residential Landlord Tenant Agreement.

For example, ORS 90.262 (Use and occupancy rules and regulations; adoption; enforceability; restrictions) explains the intent and purpose behind rules and regulations. It provides:

90.262 (1) A landlord, from time to time, may adopt a rule or regulation, however described, concerning the tenant’s use and occupancy of the premises. It is enforceable against the tenant only if:

      (a) Its purpose is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;

      (b) It is reasonably related to the purpose for which it is adopted;

      (c) It applies to all tenants in the premises in a fair manner;

      (d) It is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant must or must not do to comply;

      (e) It is not for the purpose of evading the obligations of the landlord; and

      (f) The tenant has written notice of it at the time the tenant enters into the rental agreement, or when it is adopted.

      (2) If a rule or regulation adopted after the tenant enters into the rental agreement works a substantial modification of the bargain, it is not valid unless the tenant consents to it in writing.

      (3) If adopted, an occupancy guideline for a dwelling unit shall not be more restrictive than two people per bedroom and shall be reasonable. Reasonableness shall be determined on a case-by-case basis. Factors to be considered in determining reasonableness include, but are not limited to:

      (a) The size of the bedrooms;

      (b) The overall size of the dwelling unit; and

      (c) Any discriminatory impact on those identified in ORS 659A.421.

      (4) As used in this section:

      (a) “Bedroom” means a habitable room that:

      (A) Is intended to be used primarily for sleeping purposes;

      (B) Contains at least 70 square feet; and

      (C) Is configured so as to take the need for a fire exit into account.

      (b) “Habitable room” means a space in a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas are not included. [Formerly 90.330]

The above element of lawful rules bear re-reading, since occasionally, I have seen landlord enforcement actions against tenants attacked for failure to comply with ORS 90.262, especially the portion of the statute that provides rules must be “…reasonably related to the purpose for which it is adopted.”

ORS 90.302(3)(a) (Fees allowed for certain landlord expenses; accounting not required; fees for noncompliance with written rules; tenant remedies) provides that

A landlord may charge a tenant a fee under this subsection for a second noncompliance or for a subsequent noncompliance with written rules or policies that describe the prohibited conduct and the fee for a second noncompliance, and for any third or subsequent noncompliance, that occurs within one year after a written warning notice described in subparagraph (A) of this paragraph. Except as provided in paragraph (b)(H) [unauthorized pet] of this subsection, the fee may not exceed $50 for the second noncompliance within one year after the warning notice for the same or a similar noncompliance or $50 plus five percent of the rent payment for the current rental period for a third or subsequent noncompliance within one year after the warning notice for the same or a similar noncompliance. 

ORS 90.510(2) (Statement of Policy) requires that both the rental agreement and the rules “…shall be attached as an exhibit to the statement of policy.”

Subsection (5) of ORS 90.510 (Statement of Policy) has similar, but not exactly the same language as quoted in ORS 90.262 above:

  (6) Every landlord who rents a space for a manufactured dwelling or floating home shall provide rules and regulations concerning the tenant’s use and occupancy of the premises. A violation of the rules and regulations may be cause for termination of a rental agreement. However, this subsection does not create a presumption that all rules and regulations are identical for all tenants at all times. A rule or regulation shall be enforceable against the tenant only if:

      (a) The rule or regulation:

      (A) Promotes the convenience, safety or welfare of the tenants;

      (B) Preserves the landlord’s property from abusive use; or

      (C) Makes a fair distribution of services and facilities held out for the general use of the tenants.

      (b) The rule or regulation:

      (A) Is reasonably related to the purpose for which it is adopted and is reasonably applied;

      (B) Is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant shall do or may not do to comply; and

      (C) Is not for the purpose of evading the obligations of the landlord.

      (7)(a) A landlord who rents a space for a manufactured dwelling or floating home may adopt a rule or regulation regarding occupancy guidelines. If adopted, an occupancy guideline in a facility must be based on reasonable factors and not be more restrictive than limiting occupancy to two people per bedroom.

      (b) As used in this subsection:

      (A) Reasonable factors may include but are not limited to:

      (i) The size of the dwelling.

      (ii) The size of the rented space.

      (iii) Any discriminatory impact for reasons identified in ORS 659A.421.

      (iv) Limitations placed on utility services governed by a permit for water or sewage disposal.

      (B) “Bedroom” means a room that is intended to be used primarily for sleeping purposes and does not include bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas.

ORS 90.610(3) (Informal dispute resolution; notice of proposed change in rule or regulation; objection to change by tenant) explains how rules are changed:

The landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlord’s bargain with a tenant, by giving written notice of the proposed rule or regulation change, and unless tenants of at least 51 percent of the eligible spaces in the facility object in writing within 30 days of the date the notice was served, the change shall become effective for all tenants of those spaces on a date not less than 60 days after the date that the notice was served by the landlord.

      (4) One tenant of record per eligible space may object to the rule or regulation change through either:

      (a) A signed and dated written communication to the landlord; or

      (b) A petition format that is signed and dated by tenants of eligible spaces and that includes a copy of the proposed rule or regulation and a copy of the notice.

      (5) If a tenant of an eligible space signs both a written communication to the landlord and a petition under subsection (4) of this section, or signs more than one written communication or petition, only the latest signature of the tenant may be counted.

      (6) Notwithstanding subsection (4) of this section, a proxy may be used only if a tenant has a disability that prevents the tenant from objecting to the rule or regulation change in writing.

      (7) The landlord’s notice of a proposed change in rules or regulations required by subsection (3) of this section must be given or served as provided in ORS 90.155 and must include:

      (a) Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change;

Subsection (7) of ORS 90.610 provides the statutory form to follow when changing rules.

In regards to rental agreements, ORS Chapter 90.510(4) mandates the minimal provisions that must appear in the rental agreement:

Every landlord who rents a space for a manufactured dwelling or floating home shall provide a written rental agreement, except as provided by ORS 90.710 (2)(d) [enforceability of oral rental agreements]. The agreement must be signed by the landlord and tenant and may not be unilaterally amended by one of the parties to the contract except by:

      (a) Mutual agreement of the parties;

      (b) Actions taken pursuant to ORS 90.530, 90.533, 90.537, 90.543 (3), 90.600, 90.725 (3)(f) and (7) or 90.727; or

      (c) Those provisions required by changes in statute or ordinance.

      (5) The agreement required by subsection (4) of this section must specify:

      (a) The location and approximate size of the rented space;

      (b) The federal fair-housing age classification;

      (c) The rent per month;

      (d) All personal property, services and facilities to be provided by the landlord;

      (e) All security deposits, fees and installation charges imposed by the landlord;

      (f) Any facility policy regarding the planting of trees on the rented space for a manufactured dwelling;

      (g) Improvements that the tenant may or must make to the rental space, including plant materials and landscaping;

      (h) Provisions for dealing with improvements to the rental space at the termination of the tenancy;

      (i) Any 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;

      (j) That the tenant may not sell the tenant’s manufactured dwelling or floating home to a person who intends to leave the manufactured dwelling or floating home on the rental space until the landlord has accepted the person as a tenant;

      (k) The term of the tenancy;

      (L) The process by which the rental agreement or rules and regulations may be changed, which shall identify that the rules and regulations may be changed with 60 days’ notice unless tenants of at least 51 percent of the eligible spaces file an objection within 30 days; and

      (m) The process by which the landlord or tenant shall give notices.

Conclusion.  So, in my opinion, the differences between rules vs. rental agreement, can be generally summarized as follows:

• The contents of what goes into rules, are not specifically described in the Oregon Residential Landlord Tenant Laws – the only general guidance is that they must be fairly applied, and reasonably related to the purpose for which they were enacted.
• The rental agreement must address certain issues, as set forth in ORS 90.510(4), above.
• A violation of either the rules or the rental agreement can result in a for cause notice of termination under ORS 90.630.
• While rental agreements cannot generally[1] be unilaterally changed by the landlord, there is a clear process under the law for amending the rules.
• So while “rules” are technically a part of the overall “rental agreement” between the landlord and tenant, they are the “mortar” that fills in the gaps the rental agreement doesn’t cover. So for example, while the rental agreement may require that tenants conduct themselves in such a manner as to preserve their neighbor’s quiet enjoyment of their spaces, the rules may address more specifics of this duty, such as lawn mowing, leaf blowing, loud parties, etc.
• I frequently see much unnecessary overlap in rules and rental agreements, e.g. covering the same things, or covering them inconsistently. This is unfortunate, since it can create confusion among tenants. My rule of thumb would be that in the event of an inconsistency, you should not try to enforce a specific prohibition in one of the documents, if the other is more lenient. Or to put it another way, in the event of two provisions addressing the same issue, landlords should enforce the more lenient of them.

[1] There are several exceptions relating to changes which, for example, permit landlords to take advantage of newer statutes that give rights not formerly described by the law or found in rental agreements, such as the right to submeter spaces, etc.

Answer: After sending or delivering the 45-day abandonment letter, a landlord is required to store the home on the rented space and shall exercise reasonable care for it; and is entitled to reasonable or actual storage charges and costs incidental to storage or disposal. The storage charge may be no greater than the monthly space rent last payable by the tenant.

If a lienholder makes a timely response to a notice of abandoned personal property and so requests, the landlord is required to enter into a written storage agreement with the lienholder providing that the home may not be sold or disposed of by the landlord for up to 12 months. The storage agreement entitles the lienholder to store the home on the previously rented space during the term of the storage agreement, but does not entitle anyone to occupy it.

Note that the lienholder's right to a storage agreement arises upon the failure of the tenant or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee to remove or sell the dwelling or home within the allotted time.

The lienholder must enter into the proposed storage agreement within 60 days after the landlord gives it a copy of the storage agreement. It is recommended that landlords include the storage agreement with the lienholder's copy of the 45-day letter, since the right to storage fees does not vest until the letter has been sent. The sooner the better.

The lienholder enters into a storage agreement by signing a copy of it and personally delivering or mailing the signed copy to the landlord within the 60-day period. The storage agreement may require, in addition to other provisions agreed to by the landlord and the lienholder, that:

• The lienholder make timely periodic payment of all storage charges accruing from the commencement of the 45-day period.
• A storage charge may include a utility or service charge, if limited to charges for electricity, water, sewer service and natural gas and if incidental to the storage of personal property.
• The storage charge may not be due more frequently than monthly;
• The lienholder pay a late charge or fee for failure to pay a storage charge by the date required in the agreement, if the amount of the late charge is no greater than for late charges imposed on other tenants in the community;
• The lienholder must thereafter maintain the home and space in a manner consistent with the rights and obligations described in the former tenant's rental agreement;
• The lienholder must repair any defects in the physical condition of the home that existed prior to into the storage agreement, if the defects and necessary repairs are reasonably described in the storage agreement and, for homes that were first placed on the space within the previous 24 months, the repairs are reasonably consistent with community standards in effect at the time of placement.
• The lienholder shall have 90 days after entering into the storage agreement to make the repairs. Failure to make the repairs within the allotted time constitutes a violation of the storage agreement and the landlord may terminate it by giving at least 14 days' written notice to the lienholder stating facts sufficient to notify it of the reason for termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.
• A landlord may increase the storage charge if the increase is part of a community-wide rent increase for all tenants, the notice is given in accordance with ORS 90.600 (1) (the rent increase statute).

Note that during the term of the storage agreement the lienholder has the right to remove or sell the home. Selling the home includes a sale to a purchaser who wishes to leave it on the space and becomes a tenant, so long as the prospective tenant is approved by the landlord pursuant to ORS 90.680 (the tenant sale and approval process). The landlord may condition approval for occupancy of any purchaser upon payment of all unpaid storage charges and maintenance costs.

If the lienholder violates the storage agreement (whether by failure to maintain the space or pay the storage fees), the landlord may terminate it by giving at least 90 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reasons for the termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the lienholder.

After a landlord gives a termination notice for failure of the lienholder to pay a storage charge and the lienholder corrects the violation, if the lienholder again violates the storage agreement by failing to pay a subsequent storage charge, the landlord may terminate the agreement by giving at least 30 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reason for termination. Unless the lienholder corrects the violation within the notice period, the agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.

A lienholder may terminate a storage agreement at any time upon at least 14 days' written notice to the landlord and may remove the property from the facility if the lienholder has paid all storage charges and other charges as provided in the agreement.

Upon the failure of a lienholder to enter into a storage agreement or upon termination of the agreement, unless the parties otherwise agree or the lienholder has sold or removed the property, the landlord may sell or dispose of the property without further notice to the lienholder.

The abandonment statute, ORS 90.675, does not directly address you question about what happens if a landlord has followed the above protocols and the lienholders rights have been legally terminated. It is my opinion that the language saying that the landlord may sell or dispose of the property without further notice to the lienholder should not be construed as if the remaining rules (regarding public or private sale, etc.) no longer apply to the lienholder. The landlord does not have to re-issue another 45-day letter, but should continue to follow the remaining sale/dispose protocols described in the statute, and should still recognize the rights of the lienholder to notification of the sale under ORS 90.725(10), and to any available proceeds pursuant to the distribution rules found at ORS 90.675(13).

Answer: After sending or delivering the 45-day abandonment letter, a landlord is required to store the home on the rented space and shall exercise reasonable care for it; and is entitled to reasonable or actual storage charges and costs incidental to storage or disposal. The storage charge may be no greater than the monthly space rent last payable by the tenant.

If a lienholder makes a timely response to a notice of abandoned personal property and so requests, the landlord is required to enter into a written storage agreement with the lienholder providing that the home may not be sold or disposed of by the landlord for up to 12 months. The storage agreement entitles the lienholder to store the home on the previously rented space during the term of the storage agreement, but does not entitle anyone to occupy it.

Note that the lienholder's right to a storage agreement arises upon the failure of the tenant or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee to remove or sell the dwelling or home within the allotted time.

The lienholder must enter into the proposed storage agreement within 60 days after the landlord gives it a copy of the storage agreement. It is recommended that landlords include the storage agreement with the lienholder's copy of the 45-day letter, since the right to storage fees does not vest until the letter has been sent. The sooner the better.

The lienholder enters into a storage agreement by signing a copy of it and personally delivering or mailing the signed copy to the landlord within the 60-day period. The storage agreement may require, in addition to other provisions agreed to by the landlord and the lienholder, that:

• The lienholder make timely periodic payment of all storage charges accruing from the commencement of the 45-day period.
• A storage charge may include a utility or service charge, if limited to charges for electricity, water, sewer service and natural gas and if incidental to the storage of personal property.
• The storage charge may not be due more frequently than monthly;
• The lienholder pay a late charge or fee for failure to pay a storage charge by the date required in the agreement, if the amount of the late charge is no greater than for late charges imposed on other tenants in the community;
• The lienholder must thereafter maintain the home and space in a manner consistent with the rights and obligations described in the former tenant's rental agreement;
• The lienholder must repair any defects in the physical condition of the home that existed prior to into the storage agreement, if the defects and necessary repairs are reasonably described in the storage agreement and, for homes that were first placed on the space within the previous 24 months, the repairs are reasonably consistent with community standards in effect at the time of placement.
• The lienholder shall have 90 days after entering into the storage agreement to make the repairs. Failure to make the repairs within the allotted time constitutes a violation of the storage agreement and the landlord may terminate it by giving at least 14 days' written notice to the lienholder stating facts sufficient to notify it of the reason for termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.
• A landlord may increase the storage charge if the increase is part of a community-wide rent increase for all tenants, the notice is given in accordance with ORS 90.600 (1) (the rent increase statute).

Note that during the term of the storage agreement the lienholder has the right to remove or sell the home. Selling the home includes a sale to a purchaser who wishes to leave it on the space and becomes a tenant, so long as the prospective tenant is approved by the landlord pursuant to ORS 90.680 (the tenant sale and approval process). The landlord may condition approval for occupancy of any purchaser upon payment of all unpaid storage charges and maintenance costs.

If the lienholder violates the storage agreement (whether by failure to maintain the space or pay the storage fees), the landlord may terminate it by giving at least 90 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reasons for the termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the lienholder.

After a landlord gives a termination notice for failure of the lienholder to pay a storage charge and the lienholder corrects the violation, if the lienholder again violates the storage agreement by failing to pay a subsequent storage charge, the landlord may terminate the agreement by giving at least 30 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reason for termination. Unless the lienholder corrects the violation within the notice period, the agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.

A lienholder may terminate a storage agreement at any time upon at least 14 days' written notice to the landlord and may remove the property from the facility if the lienholder has paid all storage charges and other charges as provided in the agreement.

Upon the failure of a lienholder to enter into a storage agreement or upon termination of the agreement, unless the parties otherwise agree or the lienholder has sold or removed the property, the landlord may sell or dispose of the property without further notice to the lienholder.

The abandonment statute, ORS 90.675, does not directly address you question about what happens if a landlord has followed the above protocols and the lienholders rights have been legally terminated. It is my opinion that the language saying that the landlord may sell or dispose of the property without further notice to the lienholder should not be construed as if the remaining rules (regarding public or private sale, etc.) no longer apply to the lienholder. The landlord does not have to re-issue another 45-day letter, but should continue to follow the remaining sale/dispose protocols described in the statute, and should still recognize the rights of the lienholder to notification of the sale under ORS 90.725(10), and to any available proceeds pursuant to the distribution rules found at ORS 90.675(13).

History

The Civil Rights Act of 1968 enacted The Fair Housing Act ("FHA") to prohibit housing discrimination based on race, color, religion, sex or national origin. The FHA was amended in 1988 to expand its coverage to prohibit discrimination based upon disability or family status, meaning the presence of a child under the age of 18 and pregnant women. Because the creation of families as a protected class clashed with the operation of retirement or adult communities, the 1988 amendments included exemptions for housing developments that qualified as housing for persons over the age of 55. Because there was an inherent conflict between protected family status and the exemption for older persons, Congress responded with The Housing for Older Persons Act of 1995 ("HOPA")* which fine tuned the exemptions and is now the definitive authority for owners of such housing. (You should also be aware that municipalities can have ordinances prohibiting discrimination for categories broader than the Civil Rights Act. Examples of common ordinances gaining popularity are discrimination in housing on the basis of HIV/AIDS status or sexual orientation. Such ordinances are not addressed in this article.)

Occupancy Requirement to Qualify for Exemption

HOPA maintained the requirement that at least 80% of exempt housing must have one occupant who is 55 years of age or older. It also still required that the exempt housing publish and follow policies and procedures that demonstrate an intent to be housing for persons 55 and older. Significant in terms of capital costs, HOPA eliminated the requirement that 55 and older housing had to maintain "significant facilities and services" designed for the elderly. (Communities that are occupied solely by persons who are 62 or older are also exempt from the prohibition against family discrimination under Section 100.303.)

The "Wiggle Room" Factor

At first blush, the 80% requirement appears to give a property owner some "wiggle room" to comply with the exemption. HOPA specifically allows a 55 and older community to be "exempt" from the preference for families if, after September 13, 1988, 80% of the units are occupied by at least one person age 55 years or older. Units occupied by employees of the housing facility or community who are under age 55 do not count against the 80% as long as the employee's perform substantial duties related to the management or maintenance of the community. Likewise, units occupied by persons who are disabled and require a reasonable accommodation, also do not count against the 80%.

However, the 80% requirement can also be a property owners' pitfall if it is achieved improperly. The 80% requirement does not mean that the property owner can manipulate the remaining 20% of units occupied by persons under the age of 55. The 80% occupancy requirement is coupled with an additional requirement that the facility or community adheres to policies and procedures that demonstrate the intent to be a 55 or older facility. A manager cannot merely choose to rent to "good" non-seniors or families just because the facility is over 80% senior.

One provision of HOPA which, on the surface, appears troublesome is Section 100.305(h) which provides that each housing facility may determine the age restriction for units that are not occupied by at least one person 55 years of age or older. On its face, this provision appears to allow a community to set any age requirement it wishes for the twenty percent (20%) of spaces which are not required to be occupied by a person 55 years of age or older, including requiring the occupants of the remaining twenty percent (20%) of spaces to be adults. However, this would appear to be contrary to the general intent of the FHA to prohibit discrimination on the basis of "family status." A more likely interpretation is that the housing provider need not apply any age restrictions on occupancy of the remaining twenty percent (20%) of rental units. This interpretation seems likely, not only in view of the general intent of the FHA, but in view of Section 100.306(d) which provides that a housing facility or community may allow occupancy by families with children as long as it meets the intent requirements of Sections 100.305 and 100.306 (a).

An argument could well be made that a community must allow up to twenty percent (20%) of the spaces to be occupied by persons who do not otherwise satisfy the community's minimum age requirements. The problem is that a park which "uses up" its twenty percent (20%) allotment may find itself below the 80% requirement if a space which was previously occupied by a person 55 years of age or older ceases to be so occupied. This could occur as a result of an older tenant dying or moving out of the community.

It has been our experience that HUD has, from time to time, interpreted the "twenty percent" allowance as a "fudge factor" in order to avoid hardship where, for example, an older tenant dies, leaving a widow who does not satisfy the community's minimum age requirements. This interpretation was bolstered by the requirement that the housing be intended for persons 55 years of age or older and that the properties have rules that limit residency to persons meeting the age requirements. Deliberately allowing persons under age 55 to move into the community seems contrary to this intention.

**Tip: In many states (including California) the law requires that mobilehome park owners uniformly enforce all published rules. To allow some households to avoid the requirement could run afoul of the such laws leaving the door open for a disgruntled tenant to sue on a claim that the management is not uniformly enforcing it own rules.

Published Procedures and Policies of Intent

In addition to requiring that at least 80% of the occupied units be occupied by at least one person who is 55 years of age or older, HOPA requires that the housing be "intended and operated" for persons 55 years of age or older, and that the housing facility "publish and adhere to policies and procedures that demonstrate its intent" to qualify for the 55 or older exemption. Section 100.306(a) sets forth a non-exclusive list of relevant factors in determining whether the park "demonstrates" this "intent":

(1) The manner in which the housing facility is described to prospective residents;(2) Any advertising designed to attract prospective residents;(3) Lease provisions;(4) Written rules and regulations;(5) The maintenance and consistent application of relevant procedures;(6) Actual practices; and(7) Public posting in common areas of statements describing the facility as housing for persons 55 years of age or older.

These requirements bolster the "common sense" approach to a community demonstrating its intent to be housing for older persons. Specifically, without limitation, the park's residency documents need to clearly state the age restrictions on residency, and the age restrictions need to be consistently enforced.

Unscrupulous attempts by property owners to manipulate the intent to remain senior housing have resulted in adverse judgments. In a 2003 federal case in California, Housing Rights Center et al. v. Galaxy Apartments, et al., the apartment complex and management company was sued for allegedly telling an expectant mother that it would not accept families with children because it was a "seniors only" complex. The Housing Rights Center sent "testers" to the building and learned that childless adult testers of all ages were accepted and only testers with children or who were expecting children were told that the complex was seniors only. Obviously, the apartment owner was not complying with the "intent" of the over 55 exemption and was ordered to pay the plaintiffs $51,000 and enter into a two year fair housing training program.

Some states require that housing intended and operated for occupancy by persons 55 years of age or older register with state agencies. You should consult your legal counsel for the applicable registration and renewal process in your state.

Age Verification

HOPA provides specific guidelines for "age verification". To protect your property, these procedures should be followed to the point that, at any given time in the past, you should be able to demonstrate, the percentage of units that were occupied by at least one person age 55 or older.

Section 100.307(d) provides that the following documents are considered "reliable" documentation of the age of the occupants:

(1) Driver's license;(2) Birth certificate;(3) Passport;(4) Immigration card;(5) Military identification;(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or;(7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

This last provision is useful in those cases where tenants who are believed to be over 55 years of age fail or refuse to provide proof of age to the park by allowing any other adult member of the household to sign a statement to the effect that the person in question is, in fact, at least 55 years of age.

**Tip: Make it a policy to obtain a written application for tenancy from every household and keep those applications for the length of the tenancy.

Section 100.307(g) further provides that: "If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older." This section goes on to provide that such evidence may include government records or documents, such as a census; prior forms or applications; or a statement from an individual who has personal knowledge of the age of the occupants. In the latter case, the individual's statement must set forth the basis for such knowledge. Compliance with this provision most probably would be met by a park employee statement as to their opinion of the age of a tenant, based upon the tenant's appearance and, if applicable, the apparent age of the tenant's adult children.

A typical pitfall for owners of such properties is the HOPA requirement that the age verification information must be updated at least every two years, pursuant to Section 100.307(c).

**Tip: In addition to keeping the tenant's application, the management should consider developing a form which it distributes to all spaces at least once every two years, asking residents to confirm the names and ages of all persons who are currently residing in the home. This is probably good policy in any case, since a record of what adults are actually occupying a home is useful in other situations (e.g., naming all adult occupants in an unlawful detainer complaint).

Conclusion

While there is no guaranteed insulation from lawsuits, a property owner or landlord is well advised to have their policies and procedures in writing and reviewed by competent legal counsel. All levels of a property owners' management should be instructed to adhere strictly to those written policies and procedures. With competent advice, you should be able to avoid needless and expensive litigation which only detracts from your eventual retirement.

*/The Housing for Older Persons Act of 1995 is codified in 24 CFR 100.300 et seq. The Code of Federal Regulations can be viewed on line. One such site is the National Archives and Records Administration found at www.gpoaccess.gov/cfr

Robert S. Coldren is a founding partner of the law firm of Hart, King & Coldren. For over 20 years he has represented various entities as they relate to the manufactured housing industry.

History

The Civil Rights Act of 1968 enacted The Fair Housing Act ("FHA") to prohibit housing discrimination based on race, color, religion, sex, or national origin. The FHA was amended in 1988 to expand its coverage to prohibit discrimination based on disability or family status, meaning the presence of a child under the age of 18 and pregnant women. Because the creation of families as a protected class clashed with the operation of retirement or adult communities, the 1988 amendments included exemptions for housing developments that qualified as housing for persons over the age of 55. Because there was an inherent conflict between protected family status and the exemption for older persons, Congress responded with The Housing For Older Persons Act of 1995 ("HOPA") which fine tuned the exemptions and is now the definitive authority for owners of such housing. (You should also be aware that municipalities can have ordinances prohibiting discrimination for categories broader than the Civil Rights Act. Examples of common ordinances gaining popularity are discrimination in housing on the basis of HIV/AIDS status, sexual orientation. Such ordinances are not addressed in this article.)

Occupancy Requirement to Qualify for Exemption

HOPA maintained the requirement that at least 80% of exempt housing must have one occupant who is 55 years of age or older. It also still required that the exempt hosing publish and follow policies and procedures that demonstrate an intent to be housing for persons 55 and older. Significant in terms of capital costs, HOPA eliminated the requirement that 55 and older hosing had to maintain "significant facilities and services" designed for the elderly. (Communities that are occupied solely by persons who are 62 and older are also exempt from the prohibition against family discrimination under Section 100.303.)

"Wiggle Room" Factor

At first blush, the 80% requirement appears to give a property owner some "wiggle room" to comply with the exemption. HOPA specifically allows a 55 and older community to be "exempt" from the preference for families if, after September 13, 1988, 80% of the units are occupied by at least one person age 55 years or older. Units occupied by employees of the housing facility or community who are under the age 55 do not count against the 80% as long as the employees perform substantial duties related to the management or maintenance of the community. Likewise, units occupied by persons who are disabled and require a reasonable accommodation, also do not count against the 80%.

However, the 80% requirement can also be a property owners' pitfall if it is achieved improperly. The 80% requirement does not mean that the property owner can manipulate the remaining 20% of units occupied by persons under the age of 55. The 80% occupancy requirement is coupled with an additional requirement that the facility or community adheres to policies and procedures that demonstrate the intent to be a 55 or older facility. A manager cannot merely choose to rent to "good" non-seniors or families just because the facility is over 80% senior.

One provision of HOPA which, on the surface, appears troublesome is Section 100.305(h) which provides that each housing facility may determine the age restriction for units that are not occupied by at least one person 55 years of age or older. On its face, this provision appears to allow a community to set any age requirement it wishes for the twenty percent (20%) of spaces which are not required to be occupied by a person 55 years of age or older, including requiring the occupants of the remaining twenty percent (20%) of spaces to be adults. However, this would appear to be contrary to the general intent of the FHA to prohibit discrimination on the basis of "family status". A more likely interpretation is that the housing provider need not apply any age restriction on occupancy of the remaining twenty percent (20%) of rental units. This interpretation seems likely, not only in view of the general intent of the FHA, but in view of Section 100.306(d) which provides that a housing facility or community may allow occupancy by families with children as long as it meets the intent requirements of Sections 100.305 and 100.306(a).

An argument could well be made that a community must allow up to twenty percent (20%) of the spaces to be occupied by persons who do not otherwise satisfy the community's minimum age requirements. The problem is that a park which "uses up" its twenty percent (20%) allotment may find itself below the 80% requirement if a space which was previously occupied by a person 55 years of age or older ceases to be so occupied. This could occur as a result of an older tenant dying or moving out of the community.

It has been our experience that HUD has, from time to time, interpreted the "twenty percent" allowance as a "fudge factor" in order to avoid hardship where, for example, an older tenant dies, leaving a widow who does not satisfy the community's minimum age requirements. This interpretation was bolstered by the requirement that the housing be intended for persons 55 years of age or older and that the properties have rules that limit residency to persons meeting the age requirements. Deliberately allowing persons under the age of 55 to move into the community seems contrary to this intention.

**Tip: In many states the law requires that mobile home parks owners uniformly enforce all published rules. To allow some households to avoid the requirement could run afoul of such laws leaving the door open for a disgruntled tenant to sue on a claim that the management is not uniformly enforcing its own rules.

Published Procedures & Policies of Intent

In addition to requiring that at least 80% of the occupied units be occupied by at least one person who is 55 years of age or older, HOPA requires that the housing be "intended and operated" for person 55 years of age or older, and that the housing facility "publish and adhere to policies and procedures that demonstrate its intent" to qualify for the 55 or older exemption. Section 100.306(a) sets forth a non-exclusive list or relevant factors in determining whether the park "demonstrates" this "intent":

(1) The manner in which the housing facility is described to prospective residents;
(2) And advertising designed to attract prospective residents;
(3) Lease provisions;
(4) Written rules and regulations;
(5) The maintenance and consistent application or relevant procedures;
(6) Actual practices; and
(7) Public posting in common areas of statements describing the facility as housing for persons 55 years of age or older;

These requirements bolster the "common sense" approach to a community demonstrating its intent to be housing for older persons. Specifically, without limitation, the parks' residency documents need to clearly state the age restrictions on residency, and the age restrictions need to be consistently enforced.

Unscrupulous attempts by property owners to manipulate the intent to remain senior housing have resulted in adverse judgments. In a 2003 federal case in California, Housing Rights Center et al. v. Galaxy Apartments, et al., the apartment complex and management company was sued for allegedly telling an expectant mother that it would not accept families with children because it was a "seniors only" complex. The Housing Rights Center sent "testers" to the building and learned that childless adult testers of all ages were accepted and only testers with children or who were expecting children were told that the complex was seniors only. Obviously, the apartment owner was not complying with the "intent" of the over 55 exemption and was ordered to pay the plaintiffs $51,000 and enter into a two year fair housing training program.

Some states require that housing intended and operated for occupancy by persons 55 years of age or older register with state agencies. You should consult your legal counsel for the applicable registration and renewal process in your state.

Age Verification

HOPA provides specific guidelines for "age verification". To protect your property, these procedures should be followed to the point that, at any given time in the past, you should be able to demonstrate, the percentage of units that were occupied by at least one person age 55 or older.

Section 100.307(d) provides that the following documents are considered "reliable" documentation of the age of the occupants:

(1) Driver's license;
(2) Birth Certificate;
(3) Passport;
(4) Immigration card;
(5) Military identification;
(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability, or
(7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

This last provision is useful in those cases where tenants who are believed to be over 55 years of age fail or refuse to provide proof of age to the park by allowing any other adult member of the household to sign a statement to the effect that the person in question is, in fact, at least 55 years of age.

**Tip: Make it a policy to obtain a written application for tenancy from every household and keep those applications for the length of the tenancy.

Section 100.307(g) further provides that: "If the occupants of a particular dwelling unit fail to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older." This section goes on to provide that such evidence may include government records or documents, such as a census; prior forms or applications; or a statement from an individual who has personal knowledge of the age of the occupants. In the latter case, the individual's statement must set forth the basis for such knowledge. Compliance with this provision most probably would be met by a park employee statement as to their opinion of the age of a tenant, based upon the tenant's appearance and, if applicable, the apparent age of the tenant's adult children.

A typical pitfall for owners of such properties is the HOPA requirement that the age verification information must be updated at least every two years, pursuant to Section 100.307(c).

**Tip: In addition to keeping the tenant's application, the management should consider developing a form which it distributes to all spaces at least once every two years, asking residents to confirm the names and ages of all persons who are currently residing in the home. This is probably good policy in any case, since a record of what adults are actually occupying a home is useful in other situations (e.g., naming all adults occupants in an unlawful detainer complaint.)

MHCO has a number of forms specifically designed for use in a "55 and Older Community". Form are available for MHCO members at MHCO.ORG

Reprinted from MHCO "Community Update" March/April 2005