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Answer:  This is a new one.  The Oregon landlord tenant law does not expressly address this specific issue. The closest it comes are the following laws:

1. ORS 90.755 Right to speak on political issues; limitations; placement of political signs:

(1) No provision in any bylaw, rental agreement, regulation or rule may infringe upon the right of a person who rents a space for a manufactured dwelling or floating home to invite public officers, candidates for public office or officers or representatives of a tenant organization to appear and speak upon matters of public interest in the common areas or recreational areas of the facilityat reasonable times and in a reasonable manner in an open public meeting. The landlord of a facility, however, may enforce reasonable rules and regulations relating to the time, place and scheduling of the speakers that will protect the interests of the majority of the homeowners.

            (2) The landlord shall allow the tenant to place political signson or in a manufactured dwelling or floating home owned by the tenant or the space rented by the tenant. The size of the signs and the length of time for which the signs may be displayed are subject to the reasonable rules of the landlord. (Emphasis added.) 

2. 90.750 Right to assemble or canvass in facility; limitations. No provision contained in any bylaw, rental agreement, regulation or rule pertaining to a facility shall:

            (1) Infringe upon the right of persons who rent spaces in a facility to peaceably assemble in an open public meeting for any lawful purpose, at reasonable times and in a reasonable manner, in the common areas or recreational areas of the facility. Reasonable times shall include daily the hours between 8 a.m. and 10 p.m.

            (2) Infringe upon the right of persons who rent spaces in a facility to communicate or assemble among themselves, at reasonable times and in a reasonable manner, for the purpose of discussing any matter,including but not limited to any matter relating to the facility or manufactured dwelling or floating home living. The discussions may be held in the common areas or recreational areas of the facility, including halls or centers, or any resident’s dwelling unit or floating home. The landlord of a facility, however, may enforce reasonable rules and regulations including but not limited to place, scheduling, occupancy densities and utilities.

            (3) Prohibit any person who rents a space for a manufactured dwelling or floating home from canvassing other persons in the same facility for purposes described in this section. As used in this subsection, “canvassing” includes door-to-door contact, an oral or written request, the distribution, the circulation, the posting or the publication of a notice or newsletter or a general announcement or any other matter relevant to the membership of a tenants’ association.

            (4) This section is not intended to require a landlord to permit any person to solicit money, except that a tenants’ association member, whether or not a tenant of the facility, may personally collect delinquent dues owed by an existing member of a tenants’ association.

            (5) This section is not intended to require a landlord to permit any person to disregard a tenant’s request not to be canvassed. (Emphasis added.)

3.  90.740 Tenant obligations. A tenant shall:

            (3) Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenant’s behavior as a tenant.

            (4) Except as provided by the rental agreement:

            (a) Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

            (i) Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors. (Emphasis added.)

So, you see, this simply isn’t addressed in the landlord-tenant law.  Nor should it be.  Clearly, the resident leaving the religious material in the clubhouse could, if he or she wanted, go door to door proselytizing, unless and until others complained.  If the materials are left anonymously, without more than a single resident being offended, I’m not sure what the landlord could or should do.   Remove and destroy the materials?  

If the landlord knows who is doing this, perhaps a personal discussion with them might be in order. But telling them to “stop” because a single person is offended seems unnecessary.  If there is a place in the clubhouse for storage of reading materials, perhaps removing the literature to that location would work.  Certainly, no rule change prohibiting placement of materials in the clubhouse (just because they are religious) is unnecessary.  Management cannot be responsible for controlling the placement of written materials in the clubhouse unless it is offensive, inappropriate for minors and guests.[i] This is what free speech is all about.  My view would be the same regardless of the denomination of the literature.  If I’m incorrect, I’m sure I will hear about it.

Question 2

The temporary occupancy agreement states that the temporary occupant must comply with the laws/Rules Regulations & Policies of the community.  Who is responsible to provide this information to the temporary occupant and when should it be given?  

Answer 2

I understand that the temporary occupant law does not specifically address this point.  But you have the most to lose if the rules are not given to them at the outset of the temporary occupant relationship.  That being the case, I would suggest you append the rules to the temporary occupant agreement, and have them sign both the agreement and the attached rules.  Then there is no question about whether they got them.

Question 3

The temporary occupant agreement and the law state that a temporary occupant can be terminated “for cause” if there is a material violation of the occupancy agreement and that the temporary occupant does nothave a right to cure the violation.  The other option is termination by automatic expiration of the agreement (if the box is checked that specifies this).  If the landlord needs to issue a for cause termination (instead of termination by automatic expiration) the termination must be done in accordance with the law outlined in ORS 90.392 (for non-MHP tenancies) or 90.630 (for MHP tenancies).  However after reading these statutes, they do not give an option for the landlord to issue a for cause notice with no right to cure. How is a landlord supposed to issue a for cause termination notice with no right to cure and have it held up in court?  If a landlord issues a for cause notice with no right to cure, what form should be used and what is the time frame for the termination.  

Answer 3

The temporary occupant law is addressed in ORS 90.275. You may terminate the temporary occupant for a material violation of the temporary occupancy agreement.  That agreement also terminates by its own terms when it expires (if you checked that box on the form). The law says that upon termination or expiration, the temporary occupant shall “promptly vacate.”  If they don’t, then the landlord can issue a for cause termination under 90.630(for MHP tenancies) to the tenant – notthe temporary occupant.  That means you would issue a termination notice under 90.630 for the tenant to vacate if the temporary occupant failed to do so as required.  The opportunity to cure is for the tenant to get the temporary occupant to vacate.    If they temporary occupant fails to vacate within the 30-day cure period given by law to the tenant, then the entire space tenancy is terminated.  In such case, the law says the temporary occupant – if they remain – is treated as a “squatter.”  ORS 90.403then permits you to give a 24-hour non-curable termination notice to the “squatter”  and evict, if necessary, through the normal FED process.

Does Section 8 apply to manufactured housing parks?

There have been questions recently from MHCO members as to whether Section 8 housing assistance programs apply to manufactured housing facilities. The short answer is "yes," parks are required to comply with Section 8 housing requirements.

Why have things changed?

In 2014, the laws in Oregon changed to prohibit landlords from refusing to rent to people based on their source of income. Before that, landlords could refuse to rent to tenant applicants if they received government rental assistance. Now that is unlawful. Landlords cannot refuse to rent to someone solely because they receive Section 8 rental assistance. (And there are other government rental assistance programs that are equally protected, although Section 8 is the most common.)

Why does the law apply to manufactured housing facilities?

The governing Oregon statute (ORS 659A.421) prohibits discrimination based on source of income in "real property transactions." This is defined to include the rental of "vacant land" used as the location for any building intended for occupancy as a residence (i.e., a manufactured home on a rental space).

How does Section 8 work?

The tenant negotiates directly with the landlord to apply for tenancy, and the landlord is entitled to screen tenants using the same rental criteria used for any other tenant applicant (i.e., criminal background, credit history, evictions, etc.). However, the tenant's income level must include the amount received from the Section 8 assistance program.

If approved, the tenant signs the park's regular rental agreement and other tenancy documents. But there are several important differences from a non-Section 8 tenancy:

1. The park will need to fill out and sign one or two short forms for the tenant to submit to the housing authority confirming that the tenant has been approved for tenancy.

1. The local housing authority will conduct an inspection to ensure that the "rental unit" is sufficiently habitable. In an apartment setting, this would mean that the landlord would be responsible for ensuring that the apartment is fit to live in. In a mobile home park, it means that the rental space (not the home itself - unless the park owns it) must simply be suitable for occupancy. In other words, it must have the usual park-provided utility hook-ups for water, sewer, electricity, etc., and must be designed to support the installation of a mobile home in the usual manner.

1. The housing authority will also make a determination as to whether the park's rent is a "fair market rent." If they determine it is not, the housing voucher payment will not be approved. While landlords cannot be forced to adjust their rents, they should obviously be very careful to not charge a higher rental amount to Section 8 applicants, which would quickly lead to a housing discrimination charge.

1. The park will be required to sign a "Housing Assistance Payments Contract" which will become an addendum to the park's regular rental agreement.

What terms are in the "Housing Assistance Payments Contract?"

There are a number of terms, but the most important ones relate to termination of the tenancy. For the most part, landlords can still terminate a tenancy for "good cause" like any other mobile home park tenant. This can include disturbing the peaceful enjoyment of neighbors, destruction of park property, failing to maintain the rental space, and the failure to pay rent.

However, there are several potential problem areas:

1. The contract requires landlords to provide a fixed-term lease of at least one year instead of a month to month rental agreement. Since ORS 90.550 requires at least a 2-year minimum lease term for mobile home park tenants, that would need to be the stated term of the lease.

1. The contract states that tenancy termination must involve a "serious or repeated violation of the lease." This could potentially lead to difficulties if the park needed to issue a 30-day notice for something that was a violation of the park rules, but yet does not rise to the level of a "serious or repeated" violation.

1. All termination notices must be additionally served on the housing authority. While not a significant issue, it does add another layer of administrative burden.

1. The contract form (which is provided by HUD) is not designed for mobile home park tenancies. It contains certain terms that would not and could apply to a mobile home park tenancy (i.e., "The lease must specify which appliances are to be provided by the landlord"). For this reason, it would be wise to consult with an attorney before signing the HUD contract form.

What if the park simply refuses to sign the "Housing Assistance Payments Contract?"

If the park refused to sign the contract without good reason, it would likely lead to a housing discrimination charge. However, in certain situations there might be legitimate legal arguments supporting this position. Consult with an attorney before making this kind of decision.

How is rent paid?

Voucher amounts for rent are paid directly to the landlord by the local housing authority, with the tenant responsible for the remainder of the rent based on a percentage of their income.

What if the tenant fails to pay their portion of the rent?

Since the failure to pay rent would be a serious violation of the lease, the park could issue a 72-hour notice just like it would with any other tenant. A copy of the notice would need to be served on the housing authority as well. (And consult with an attorney on whether the voucher payment should be returned to avoid taking a partial payment and perhaps raising a waiver issue.)

Do these rules apply only to new tenants, or are existing tenants covered too?

The statutes specifically state that a landlord cannot "expel" a tenant based on source of income, so the rules would cover both new and existing tenants. This means that if an existing tenant came to the park with a Section 8 voucher application packet, the park would most likely need to comply. Again, however, consult an attorney if there are specific circumstances that might lead to a legitimate legal argument to the contrary.

Where can I get more information?

Do an online search for the local housing authority in your county (i.e., __________ County Housing Authority). Each housing authority's website has information specific to the county where your mobile home park is located.

Mark L. Busch
Cornell West, Suite 200, 1500 NW Bethany Blvd
Beaverton, OR 97006
(503) 597 - 1309

mark@marklbusch.com

www.marklbusch.com

Answer 1:  Not in my opinion.  The temporary occupant agreement concept is that the person is not going to be a “co-renter”. They are being permitted to come onto the space as an accommodation by the landlord to the current resident who wants them there.  If they are to become a temporary occupant, but your background check inadvertently reveals derogatory references related to financial information, and that concerns you, then limit the amount of time they can remain there, and take things a month, or six months, at a time.  You might consider having tenants fill out a form in advance explaining exactly why they want the temporary occupant there.  If a tenant wants them there to share the rental obligation then you should know that before offering the temporary occupant status.  If that is the case, then have them apply as a tenant.  If they don’t pass the financial background check, then reject them on that basis.       

Question 2: The temporary occupancy agreement states that the temporary occupant must comply with the laws/Rules Regulations & Policies of the community.  Who is responsible to provide this information to the temporary occupant and when should it be given?  

Answer 2:  I understand that the temporary occupant law does not specifically address this point.  But you have the most to lose if the rules are not given to them at the outset of the temporary occupant relationship.  That being the case, I would suggest you append the rules to the temporary occupant agreement, and have them sign both the agreement and the attached rules.  Then there is no question about whether they got them.

Question 3:  The temporary occupant agreement and the law state that a temporary occupant can be terminated “for cause” if there is a material violation of the occupancy agreement and that the temporary occupant does not have a right to cure the violation.  The other option is termination by automatic expiration of the agreement (if the box is checked that specifies this).  If the landlord needs to issue a for cause termination (instead of termination by automatic expiration) the termination must be done in accordance with the law outlined in ORS 90.392 (for non-MHP tenancies) or 90.630 (for MHP tenancies).  However after reading these statutes, they do not give an option for the landlord to issue a for cause notice with no right to cure. How is a landlord supposed to issue a for cause termination notice with no right to cure and have it held up in court?  If a landlord issues a for cause notice with no right to cure, what form should be used and what is the time frame for the termination.  

Answer 3:  The temporary occupant law is addressed in ORS 90.275. You may terminate the temporary occupant for a material violation of the temporary occupancy agreement.  That agreement also terminates by its own terms when it expires (if you checked that box on the form). The law says that upon termination or expiration, the temporary occupant shall “promptly vacate.”  If they don’t, then the landlord can issue a for cause termination under 90.630 (for MHP tenancies) to the tenant – not the temporary occupant.  That means you would issue a termination notice under 90.630 for the tenant to vacate if the temporary occupant failed to do so as required.  The opportunity to cure is for the tenant to get the temporary occupant to vacate.    If they temporary occupant fails to vacate within the 30-day cure period given by law to the tenant, then the entire space tenancy is terminated.  In such case, the law says the temporary occupant – if they remain – is treated as a “squatter.”  ORS 90.403 then permits you to give a 24-hour non-curable termination notice to the “squatter”  and evict, if necessary, through the normal FED process.

The CDC has warned against stigmatizing people or groups because of COVID-19. Health officials noted that people in the United States may be worried or anxious about friends and relatives who are living in or visiting areas where COVID-19 is spreading. Some people are worried about getting the disease from these people. Fear and anxiety can lead to social stigma, for example, toward people who live in certain parts of the world, people who have traveled internationally, people who were in quarantine, or healthcare professionals.

Stigma is discrimination against an identifiable group of people, a place, or a nation, according to the CDC. Stigma is associated with a lack of knowledge about how COVID-19 spreads, a need to blame someone, fears about disease and death, and gossip that spreads rumors and myths.

But, as the CDC points out, stigma hurts everyone by creating more fear or anger toward ordinary people instead of focusing on the disease that’s causing the problem. And in multifamily housing communities, stigma against particular people or groups because of COVID-19 could also lead to fair housing trouble.

In this lesson, we’ll review the law and offer six rules to follow to help you avoid fair housing trouble at your community while dealing with COVID-19.

MHCO Tip: The news regarding COVID-19 has been rapidly evolving, so it’s important to stay up to date on the latest developments. For the health information related to virus, visit the CDC’s website at https://www.cdc.gov/coronavirus/2019-ncov/index.html. And check your state, county, or municipal government websites to find out what’s happening in your area.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability—also known as “protected classes.”

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

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

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

Deep Dive: Disability

General Rules: Technically, the FHA bans discrimination based on “handicap,” though the term “disability” now is more commonly used. Under the FHA, disability generally means a physical or mental impairment that substantially limits one or more major life activity. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

The law protects not only individuals who have a disability, but also individuals with a record of such disability (such as medical history of such an impairment), or those who are regarded as having such a disability (such as someone who is believed to have a mental illness, but in fact does not have such an impairment).

Despite the general rule banning discrimination against individuals with disabilities, the law recognizes an exception that allows communities to exclude an individual whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. But it’s a limited exception—federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of the particular applicant or resident based on reliable objective evidence of current conduct or a recent history of overt acts.

Special Rules: In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant requests for reasonable accommodations or modifications if necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.

6 RULES FOR COMPLYING WITH FAIR HOUSING LAW

WHILE DEALING WITH COVID-19

Rule #1: Remember Fair Housing Requirements While Responding to COVID-19

Fair housing law may not be the first thing you think of when it comes dealing with the coronavirus crisis, but it’s important to remember that the law bans discrimination on the basis of race and national origin, disability, and other protected characteristics, even if motivated by concerns about COVID-19. It’s certainly on the minds of federal and state fair housing enforcement agencies and advocates.

“As the global response to the COVID-19 pandemic continues, the Justice Department will remain vigilant in enforcing civil rights laws,” Assistant Attorney General for Civil Rights Eric S. Dreiband said in a statement. “We must ensure that fear and prejudice do not limit access to housing, schools, benefits, services, jobs, and information, among other things, on account of race, sex, religion, national origin, disability, or other protected classes.

“It is important that we all work together to address unlawful discrimination, including violent acts or threats based upon protected classes. As in all emergencies, the COVID-19 outbreak has affected people of many different races, religions, and ethnicities, as well as those with disabilities. Unlawful discrimination may also discourage people from coming forward to seek treatment or information. Laws prohibiting unlawful discriminatory behavior must and will be vigorously enforced,” he said.

HUD Secretary Ben Carson echoed those sentiments in HUD’s Statement on Fair Housing and COVID-19:

We all must be vigilant to take protective measures recommended by public health officials to prevent the spread of COVID-19, knowing that many individuals with COVID-19 show no symptoms and have no awareness of exposure to the virus. Regardless of specific laws, now is not the time to evict people from their homes. If a housing provider is concerned that a person has COVID-19 and may pose a threat to the health or safety of others, the housing provider should set aside fear and speculation, and rely on objective medical information and advice from public health officials to determine steps that could mitigate or prevent the risk of transmission.

Likewise, officials in New York State explain that state law bans discrimination against anyone because of a perceived connection between his race, national origin, or disability, and COVID-19. The law prohibits discrimination against anyone assumed to have been exposed to COVID-19 based on any of these traits.

Fast Fact About Face Masks: If an applicant or resident is wearing a face mask as a precaution, he’s still protected against discrimination, warn officials in New York State. The law prohibits discrimination based on a perceived connection between race, national origin, or disability and possible exposure to coronavirus—wearing a face mask doesn’t change this.

Rule #2: Comply with Laws Banning Discrimination and Harassment Against Racial and Ethnic Minorities

Fair housing law bans discrimination based on race and national origin, so it’s unlawful to exclude or otherwise discriminate against racial or ethnic minorities, even if motivated by concerns about COVID-19.

“As the CDC has said, viruses do not target specific racial or ethnic groups,” HUD Chief Ben Carson said in a statement. “Be aware that the Fair Housing Act and other federal laws prohibit the eviction, turning away or harassment of a person in housing because they are profiled, on the basis of race, national origin or other protected class, to be associated with COVID-19. The Fair Housing Act also prohibits retaliation and intimidation against persons who report acts of discrimination they have witnessed to law enforcement authorities, like HUD, or who aid someone who has been the victim of discrimination.”

Of particular concern during the COVID-19 outbreak are increasing reports of discrimination and harassment against Asian Americans. In the first four weeks following its official launch in mid-March, the STOP AAPI HATE reporting center said that it had received nearly 1,500 reports of coronavirus discrimination from Asian Americans across the country. More than half originated in California and New York—the states hardest hit by COVID-19 at the time. Civil rights violations involving workplace discrimination and being barred from businesses and transportation or refused service made up almost 10 percent of incident reports.

In New York City, officials announced the formation of a COVID-19 Response Team to handle reports of harassment and discrimination related to the outbreak. By mid-April, the New York City Commission on Human Rights recorded 248 reports of harassment and discrimination related to COVID-19, over 40 percent of which identify incidents of anti-Asian harassment or discrimination. By comparison, during this same time period in 2019, the commission received just five reports of anti-Asian discrimination.

The COVID-19 Response Team has taken action in 148 cases, including conducting early or emergency intervention, providing information on how to request a reasonable accommodation, referring the individual to another service or agency, or commencing an investigation. The 18 matters currently under active investigation span discrimination in housing, public accommodations, and employment on the basis of race, national origin, disability, and lawful source of income. Additionally, the Response Team has successfully resolved nine matters of COVID-19-related harassment and discrimination.

“In this time of unparalleled crisis, the NYC Commission on Human Rights is dedicated to responding to and investigating reports of bias, harassment and discrimination related to the COVID-19 outbreak in our city,” Chair and Commissioner of the NYC Commission on Human Rights, Carmelyn P. Malalis, said in a statement. Even in the midst of a pandemic, human rights cannot be violated, and we encourage anyone who has experienced COVID-19- related discrimination to report it to us.”

Fast Fact About Retaliation: Fair housing law also bans retaliating against anyone for complaining about discrimination or bias-based harassment, or otherwise exercising her rights under fair housing law. For example, a housing provider can’t evict someone for reporting housing discrimination to a state enforcement agency, explain New Jersey officials.

Rule #3: Don’t Let Fear of Virus to Lead to Disability Discrimination Claims

It’s important to keep fair housing disability rules in mind when dealing with COVID-19. The FHA bans discrimination based on disability, so it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability.

As noted by Secretary Carson, “There is much still to learn about COVID-19. We know, however, that persons with disabilities, including those who are older and have underlying medical conditions, are vulnerable and at high risk for a severe, life-threatening response to the virus. HUD recognizes that these persons may face unique fair housing and civil rights issues in their housing and related services. Housing providers are required to make reasonable accommodations that may be necessary to deliver housing and services to persons with disabilities affecting major life activities.”

There are no clear-cut answers about whether individuals who contract COVID-19 qualify for the disability protections under fair housing law. In part, that’s because the nature of the virus itself: For example, the symptoms of the condition vary so widely: Some people have no symptoms at all, while others suffer life-threatening, often fatal, consequences. For another thing, there’s still much that isn’t known about the virus—for example, whether people who have recovered from the virus are no longer contagious, and whether and for how long, they may be immune from the virus.

Under fair housing law, the disability provisions protect anyone who has a physical or mental impairment that substantially limits one or more major life activities. For example, the law would protect people with disabilities from discrimination, even if you believe that they have a higher risk of serious consequences from the coronavirus.

The law is also likely to cover anyone with serious symptoms of the virus, but it’s debatable whether it would cover someone with only mild or no symptoms of the virus. On one hand, even people with mild or no symptoms must self-quarantine to avoid any activities that could spread the virus to others, including work, a major life activity. On the other hand, the self-quarantine period is usually only a few weeks—and the disability provisions generally don’t cover temporary conditions.

Even in people with few, if any, symptoms of the virus, it’s important to remember that fair housing law protects not only individuals who have a disability, but also those who are regarded as having a disability—that is, anyone who is mistakenly believed to have a disability. Consequently, you could face a discrimination complaint if you take adverse action against someone because you believe they have the virus—whether or not they actually do.

Q&A

Q: Can or should I disclose the identity of residents who test positive for the virus to other residents?

A: In general, fair housing law requires that disability-related information be kept confidential, so you should exercise caution concerning what you tell your residents about anyone diagnosed with COVID-19.

The first step is to find out about recommendations of state and local authorities, if any, with respect to your obligation to disclose active COVID cases to the residents at your community. Absent applicable requirements, fair housing expert Doug Chasick says it’s fine to send a general notice to advise residents that there are active COVID cases at the community, but not to disclose the names or unit numbers of people with the virus. Disclosure may not only violate the resident’s privacy, but also trigger discrimination or harassment of the resident by others living at the community.

Rule #4: Carefully Consider Reasonable Accommodation Requests

In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant reasonable accommodations if necessary to allow individuals with disabilities to fully enjoy their dwellings.

Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. By definition, reasonable accommodations are exceptions to your general policies or practices. For example, fair housing attorney Terry Kitay says that if someone wants to break a lease early because she has COVID-19, and needs to be hospitalized for treatment, then a request for early lease termination would be an accommodation to a disability.  

Only individuals who qualify under the FHA’s definition of disability are entitled to reasonable accommodations. For example, someone who isn’t sick, but has lost employment because of stay-at-home policies, isn’t entitled to a payment plan as a reasonable accommodation under the Fair Housing Act, explains Kitay. Instead, this would be a customer service you’re providing for residents because of the pandemic.

In other cases, you could get a reasonable accommodation request for an exception to policies adopted to minimize residents’ exposure to the virus. For example, many communities closed amenities, such as fitness centers and pools, and other areas to slow the spread of the virus, but you could get a request by a resident with a disability, who usually uses the treadmill as part of his therapy, for an exception to the policy as a reasonable accommodation so he could use it.

Even though his request is related to a disability, fair housing law doesn’t require you to grant a request for a disability-related accommodation 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. In this case, Kitay says that his request to use the fitness center would probably be considered unreasonable—it would not only pose a direct threat of spreading the virus, but also impose an additional financial and administrative burden on the community to clean and sanitize the facility and the equipment after each use.

Rule #5: Comply with Laws Banning Discrimination, Harassment Based on Sex

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex. Though most sexual harassment claims are filed by women, the law is broad enough to protect both men and women from sexual harassment, regardless of whether the perpetrator is a man or a woman.

Since the COVID crisis began, there have been increasing reports of landlords pressuring women unable to pay rent due to lost income from the COVID crisis into “arrangements” and sexual conduct, according to Khara Jabola-Carolus, Executive Director of the Hawaii State Commission on the Status of Women. Though the law temporarily protects renters from evictions, there’s no official policy for rent forgiveness. About one-third of Americans were unable to pay their rent on April 1—and male landlords were taking advantage of the intensifying financial pressure, she said. 

In response to reports of sexual harassment during the pandemic, Attorney General William Barr directed federal prosecutors throughout the nation to deploy all available enforcement tools against anyone who tries to capitalize on the current crisis by sexually harassing people in need of housing.

“As the country adopted drastic measures to slow the spread of COVID-19, many Americans have lost their jobs and many more have seen their wages curtailed,” Barr said. “These losses have forced many to seek abatements or suspensions of their rent, with reports that nearly one-third of Americans were unable to pay their April rent at the beginning of the month.”

Though many landlords responded by trying to work with their tenants to weather the current crisis, Barr said that others have responded to requests to defer rent payment with demands for sexual favors and other acts of unwelcome sexual conduct. “Such behavior is despicable and it is illegal,” he said. “This behavior is not tolerated in normal times, and certainly won’t be tolerated now.”

In a statement, HUD Secretary Ben Carson praised the Attorney General for devoting all “necessary resource” to aid HUD investigations into reports of landlords demanding sexual favors in exchange for rent.

“The Fair Housing Act embodies the spirit of this great Nation where everyone is entitled to equal opportunity and respect,” Carson said. “No one should have to endure sexual harassment and degrading treatment, especially to keep a roof over their heads. I’m pleased Attorney General Barr has partnered with HUD to fully investigate and prevent sexual harassment in housing particularly during this difficult time in our country.”

Rule #6: Treat Applicants and Residents Consistently

Don’t treat people differently based on whether they have—or you believe they have—been exposed to COVID-19. Absent a positive COVID test, it can be difficult, if not impossible, to tell whether someone has the virus, because so many people have few, if any, symptoms of the virus.

It’s discriminatory to assume that someone has been exposed to the virus, simply based on where they—or their ancestors—were born. For example, enforcement officials in New Jersey explain that owners or managers can’t refuse to make necessary repairs to a unit because the resident is Asian and they’re afraid of contracting COVID-19. Nor can an owner or manager refuse to rent a property to someone based on these reasons. Fair housing law doesn’t prohibit a landlord from taking reasonable steps to protect himself or other residents from COVID-19, but such reasonable steps wouldn’t include actions premised on stereotypes based on race or national origin.

Consistency is key to fair housing compliance, says fair housing expert Doug Chasick. During the COVID crisis, for example, many communities have suspended regular maintenance operations, responding only to emergencies, to avoid the risk of exposure between residents and staff. When responding to emergency repair requests, it’s important for maintenance staff to respond to requests using the same safety practices to avoid potential discrimination claims.

Kitay agrees. When dealing applicants and residents, she says it’s a good idea to assume that everyone is positive, so you go into every situation with the same protocol.

Fair Housing Compliance Basics

• Suspend Judgment
• Think: Equal, Not Fair
• Be Consistent, which doesn’t mean “treat everyone the same”
• Manage Expectations
• Be Transparent – Communicate the “Why”
• Appreciate that Perception Is Reality

Answer: There are several issues that I see repeatedly. Here are a few: 1. Managers not adequately papering their file before taking legal action against a resident. Judges want to see that you’ve “walked the extra mile” with the resident, making every reasonable effort to bring them into compliance. This means starting with a personal conversation with them about the problem and then making notes of the date, time, and matters discussed and the resident’s responses. Next try a note or letter without using a formal termination notice. Only after it becomes apparent that you will have to go the formal route should you do so. 2. Failing to act promptly when a resident violate the rules. Although many things are not waivable, such as maintenance violations, some definitely are, such as unpermitted pets or occupants. When there is a belief that the resident has either an unapproved pet or occupant, the resident should be contacted immediately. With pets (assuming they are not in violation of the rules against breeds, or numbers), you want to promptly get them onto a Pet Agreement. With occupants you should use the Occupancy Agreement and run a background check. (Make sure you don’t require a financial background check, since that is not permitted on occupants – only tenants.) If the resident delays in complying, get a 30-day notice issued and do not accept rent until the matter is resolved. I have seen too many managers accept rent and work for months with the resident, not realizing that they are being lulled into believing the resident will ultimately cooperate – until it’s too late. 3. Failing to properly prepare a notice of termination. Oregon law is very strict when it comes to the preparation of notices. Even the slightest error can be fatal. Make sure you’re using the correct MHCO form [e.g. don’t use a 30-day notice for failure to maintain under ORS 90.630, when you should be using a 30-day notice for repair and deterioration under ORS 90.632.] When you draft the notice, have someone else read it for content and accuracy. Then do so again yourself. If you realize that you sent out an incorrectly prepared notice, send out a corrected one and state that it rescinds and replaces the incorrect one. 4. Accepting residents you have doubts about. Always do a “gut-check.” If you think the applicant would be problematic, look closely at their application and references. While you cannot and should not reject applicants arbitrarily, if they are on the cusp – i.e. you could legitimately accept or reject - give careful consideration to your decision and don’t let it be dictated by your desire to just fill a space. 5. Not understanding the range of solutions when dealing with a residents. By this I mean, don’t just fire out a notice as a knee jerk reaction to a violation. A good example is a resident who is intoxicated and gets into a verbal altercation with another resident. Say it gets out of control, and threats are made by the resident. If this is unusual for the resident and out of character for him, don’t simply send a 24-hour notice. The law is quite clear that you are not to use a 24-hour notice if another form of notice, e.g. a curable 30-day notice would work. Remember, a repeat violation with six months following the date of the 30-day notice gives you the right to terminate with a 20-day non-curable notice. Judges don’t like to terminate manufactured housing residents, given the drastic consequences. You want to show the judge that you were not being heavy-handed, but tried the most rationale and reasonable approach first.

Answer:  There are several issues that I see repeatedly.  Here are a few:

1. Managers not adequately papering their file before taking legal action against a resident.  Judges want to see that you’ve “walked the extra mile” with the resident, making every reasonable effort to bring them into compliance.  This means starting with a personal conversation with them about the problem and then making notes of the date, time, and matters discussed and the resident’s responses. Next try a note or letter without using a formal termination notice.  Only after it becomes apparent that you will have to go the formal route should you do so. 

2. Failing to act promptly when a resident violate the rules.  Although many things are not waivable, such as maintenance violations, some definitely are, such as unpermitted pets or occupants.  When there is a belief that the resident has either an unapproved pet or occupant, the resident should be contacted immediately.  With pets (assuming they are not in violation of the rules against breeds, or numbers), you want to promptly get them onto a Pet Agreement.  With occupants you should use the Occupancy Agreement and run a background check. (Make sure you don’t require a financial background check, since that is not permitted on occupants – only tenants.) If the resident delays in complying, get a 30-day notice issued and do not accept rent until the matter is resolved.  I have seen too many managers accept rent and work for months with the resident, not realizing that they are being lulled into believing the resident will ultimately cooperate – until it’s too late.

3. Failing to properly prepare a notice of termination.  Oregon law is very strict when it comes to the preparation of notices. Even the slightest error can be fatal. Make sure you’re using the correct MHCO form [e.g. don’t use a 30-day notice for failure to maintain under ORS 90.630, when you should be using a 30-day notice for repair and deterioration under ORS 90.632.]  When you draft the notice, have someone else read it for content and accuracy.  Then do so again yourself.  If you realize that you sent out an incorrectly prepared notice, send out a corrected one and state that it rescinds and replaces the incorrect one.  

4. Accepting residents you have doubts about.  Always do a “gut-check.”  If you think the applicant would be problematic, look closely at their application and references.  While you cannot and should not reject applicants arbitrarily, if they are on the cusp – i.e. you could legitimately accept or reject - give careful consideration to your decision and don’t let it be dictated by your desire to just fill a space. 

5. Not understanding the range of solutions when dealing with a resident.  By this I mean, don’t just fire out a notice as a knee jerk reaction to a violation.  A good example is a resident who is intoxicated and gets into a verbal altercation with another resident.  Say it gets out of control, and threats are made by the resident.   If this is unusual for the resident and out of character for him, don’t simply send a 24-hour notice.  The law is quite clear that you are notto use a 24-hour notice if another form of notice, e.g. a curable 30-day notice would work.  Remember, a repeat violation with six months following the date of the 30-day notice gives you the right to terminate with a 20-day non-curable notice.  Judges don’t like to terminate manufactured housing residents, given the drastic consequences.  You want to show the judge that you were not being heavy-handed, but tried the most rationale and reasonable approach first.

Answer: Since you said that the rent is paid every month, I assume that your resident is a month-to-month tenant (as opposed to weekly or fixed-term). If the tenant is within the first year of occupancy in the park, you can evict with a 30-day, no-cause eviction notice (MHCO Form 43 C).

(Caveat: Portland and Milwaukie both have ordinances requiring 90-day no-cause notices to allmonthly tenants, regardless of how long they have been tenants. In addition, Portland requires landlords to make "relocation assistance" payments to tenants evicted for no-cause, ranging from $2,900 to $4,500 - although the applicability of this requirement to RV tenants is legally questionable. Consult an attorney if you rent RV spaces in either of these cities.)

Unfortunately, due to recently enacted Senate Bill 608, you no longer have the right to evict a month-to-month tenant for no-cause afterthe first year of occupancy except in very limited circumstances that do not likely apply in your case (i.e., the RV park is being closed and converted to a nonresidential use). Instead, Senate Bill 608 now forces landlords to primarily rely on for-cause evictions after the first year of the tenancy.

In your particular case, you should issue a 72-hour rent nonpayment notice each and every month that the tenant is late with the rent (MHCO Form 82). If rent is due on the first day of the month, you can issue a 72-hour notice as soon as the eighth day of the month. At some point, you may catch the tenant missing the payment deadline in the 72-hour notice, after which you can file an eviction action in court.

If allowed by the tenant's rental agreement, you should also assess a late fee every month. If the tenant fails to pay the late fee as required by the rental agreement, you should issue a 30/14-day, for-cause notice to the tenant requiring payment of the late fee. Under ORS 90.392 (4), if the tenant does not pay the late fee within 14 days after delivery of the notice, the tenancy terminates 30 days after the notice was delivered.

You are correct that the "three strikes" law does not apply to an RV tenant. Only manufactured home tenants can be evicted with a 30-day notice after receiving three or more 72-hour notices within a 12-month period. As such, RV park landlords must rely on the strategies outlined above to evict month-to-month tenants on late rent payments.

One final strategy for the future is to consider using a fixed-term rental agreement. Senate Bill 608 does allow a landlord to evict a tenant at the end of the fixed term with a 90-day notice if the tenant has committed three or more violations of the rental agreement within the preceding 12 months. You must give a written warning for each violation that specifies the violation, states that three or more violations within a 12-month period may result in termination of the tenancy at the end of the fixed-term, and states that correcting the third or subsequent violation is not a defense to the termination. While this would not help in your current situation, it could be used with future tenants if you choose this strategy of using fixed-term leases.

As usual, you should always seek the advice of a knowledgeable attorney if you are unsure whether to issue an eviction notice to an RV tenant, have questions on what kind of eviction notice to issue, or need guidance to use fixed-term agreements for future residents.

Q: If I am thinking of selling my park, when do I have to send notice to my tenants?
 

A: ORS 90.842 requires an owner to give written notice of the owner's interest in selling the park before an owner markets a park for sale or when the owner receives an offer to purchase that the owner intends to consider, whichever occurs first. If possible, I advise my clients to send the notice before entering into a listing agreement and certainly before actively listing the property. 

This requirement has been in place since 2015 and HB 2364 did not modify it. In the last few years, my experience has been that the statute is triggered mostly when an owner receives an offer to purchase that it intends to consider.

Q: Does the notice need to be sent to each tenant individually versus all tenants (e.g. "Dear Mr. Johnson" vs. "Dear Tenant")?

A: The plain language of the law states "all tenants," but the 2014 Summary of Legislation states that the purpose of the bill is to require park owners to notify "individual park residents" if the owner is interested in selling the park. Because it appears that the original intent was to notify everyone, the safer course is to send the notice to each tenant individually.

If a tenants committee has been formed, and the purpose of the committee is (in part) to purchase the park, and you have met with the committee in the previous 12 months, you can send a notice to the tenants' committee in lieu of all tenants. Also note that you must send a copy of the notice to the Housing and Community Services Department. 

My practice, since 2015 has been to still send the notice to all tenants, even if an owner is aware of a tenants’ committee. This requirement was not changed with HB 2364. The statute did add that the requirement to send the notice to the Housing and Community Services Department must be done “in the manner prescribed by the department by rule.”  At the time of publication, I do not believe this rule has been promulgated; however, at this time, I would send a copy of the notice to the Manufactured Communities Resource Center.

Q: What does the notice have to include?

A: (1) The owner is selling the park; (2) The tenants, through a tenants committee, have an opportunity to purchase the park; (3) In order to compete to purchase the park, within 15 days after delivery of the notice, the tenants must form (or identify) a single tenants committee for the purpose of purchasing the park and notify the owner in writing of: (a) the tenants' interest in competing to purchase the park; and (b) the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase; (4) The representative of the tenants committee may request financial information described in section 2(2) of the statute within the 15 day period; and (5) information about purchasing a park is available from the Housing and Community Services Department.

HB 2364 increased the time from 10 days to 15 days to allow the tenants to respond.

Q: Does 15 days really mean 15 days?

A: The law discusses "delivery of the notice." I advise my clients that all notices should be sent by first class mail and 3 days should be allowed for mailing just as if you were sending a 30-day notice or a 72-hour notice. Certificates of Mailing (Not certified mail!!) for each notice are strongly encouraged. By way of example, if you send the notice on June 1, then the "15 days" would run on June 18.

Q: What do the tenants have to do after I send them the notice?

A: If the tenants are interested in competing to purchase the park, within the 15 days, the tenants must notify the owner in writing of their interest in competing to purchase the park, the formation or identification of a single tenants committee formed for the purpose of purchasing the park and the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

In practice, a non-profit entity, like CASA of Oregon, will notify you or your legal counsel of the tenants’ interest in competing to purchase your park. I have found CASA of Oregon to be professional and reasonable with both the manner of delivery of notices and information (electronic mail is preferred). In most cases, you (or your legal counsel) will not be dealing with the tenants’ committee but will be primarily communicating with CASA and their professional advisors.

Q: Do I have to give the tenants my tax returns, SSN and Mother’s Maiden Name?

A: No. But, during the 15 days of delivery of the notice, and in order to perform a due diligence evaluation of the opportunity to compete to purchase, your tenants (through CASA or another non-profit), may request specific financial information which may include: the asking price, if any (this provision contemplates that you may not yet know your asking price when you send your notice); the total income collected from the park and related profit centers, including storage and laundry, in the calendar year before delivery of the notice; the total operating expenses for the facility paid by the owner or landlord in the calendar year before delivery of the notice; the cost of all utilities for the park that were paid by the owner in calendar year before delivery of the notice; the annual cost of all insurance policies paid by the owner as shown by the most recent premium; the number of homes in the park owned by the owner; and the number of vacant spaces and homes in the park. Please note that I have seen requests that ask for additional information; providing information outside of what is outlined above is discretionary. The owner has 14 days to deliver the information to the tenants.

The changes above are three-fold: First, the owner has been given an additional 7 days to pull this information together. In practice, a well-organized owner should have this information all pulled together prior to sending the initial notice so there is no delay.  Second, the statute used to call for the information in the 12 months prior to sending the notice, now it is the calendar year. Figuring out this information across calendar years can be challenging. In practice, an owner may want to give information from the previous calendar year together with a year-to-date snapshot of the income and expenses. CASA may ask for 2-3 years’ worth of information; you are not required to give it, but there is nothing stopping you. Finally, “total operating expenses” were added. My practice has been to provide a P&L or pro forma that you would give to any other seller. Such information would likely exceed your obligations. 

Q:  Is the information protected from disclosure?

A: Yes. The statute allows an owner to designate all, or part of the financial information, as confidential. If the owner designates the financial information as confidential, the parties may establish a list of who can see the information and with whom the information can be shared. In practice, CASA has modified their confidentiality agreement to only allow members of CASA (and their legal and accounting professionals) to see the confidential information. If the confidentiality agreement is breached by the tenants, the owner may recover actual damages from the tenant or tenants.

What happens after I disclose the financial information?

A: Within 45 days after delivery of the financial information (or 45 days after the end of the 15 day period in the unlikely event the tenants do not request financial information), and if the tenants choose to compete to purchase the park, the tenants must: (1) form a corporate entity that is legally capable of purchasing property or associate with a nonprofit corporation or housing authority that is legally capable of purchasing real property or that is advising the tenants about purchasing the park in which the tenants reside; and (2) submit a written offer to purchase the park, in the form of a proposed purchase and sale agreement, and either a copy of the articles of incorporation of the newly formed entity .

The increase to 45 days is a substantial change to the statute. It used to be 15 days. While a bit more onerous, it is less than what was originally being proposed. 

Q: Do I have to accept the offer?

A: No. You may accept, reject, or submit a counteroffer. You should view the tenants (and negotiate with them) as you would any potential third-party purchaser. If the offer is far off or not commercially reasonable, you can reject the offer outright. While not required, I usually advise my clients to explain why it's not doable (e.g., unreasonable financing terms, not enough cash, long closing date, too much many contingencies). If the offer is close to the mark, you may want to counter with terms. In my opinion, the key is to deal with the tenants committee as you would any bona fide purchaser. don't treat them differently just because they are tenants.

Nothing in HB 2364 changed this, although a “good faith and fair dealing” requirement was added in the consideration and negotiation with the tenants group.  (See below).

Q: What if I just don’t want to sell to my tenants because they’re tenants?

A: In my opinion, this was the behavior that the Legislature was trying to address by adding in the “good faith and fair dealing” requirement. One of the problems with “good faith and fair dealing” is that it is not a specific action that can be measured, but an action that a future judge or jury will likely “know it when they see it.” There is no doubt that if an owner decided not to give a group of tenants an opportunity to compete to purchase or decided not to sell to the tenants when the terms were otherwise commercially reasonable (and better than other offers), just because they are tenants, that behavior would violate the statute. The penalty is severe. The owner could be facing a judgment equal to 10% of the purchase price of the facility plus attorney fees.

As you can imagine, as MHCO was attempting to understand what this would mean for owners, we wanted to understand what the intent of the language was. We were able to work with Chair Julie Fahey (now Majority Leader Fahey) to place some helpful language in the legislative record that would assist future owners (and their attorneys) in understanding what was (and was not) “good faith”. 

Chair Fahey’s comments, together with the examples of what is good faith will help any future owner navigate an offer from their tenants.
 

During consideration in the Committee, Chair Fahey was clear in stating that the purpose of the good faith language was not intended to give the tenants a “right of first refusal” nor to give tenants any special advantage over another third-party purchaser in negotiation; rather, the purpose is to strengthen the requirement that facility owners give a fair chance to their tenants to compete to purchase a facility. 

Furthermore, Chair Fahey stated that, “good faith on the part of the parties, both the tenants and any facility owner, is presumed.” A tenant or group of tenants would have to prove that that a facility owner was unwilling to consider an offer from tenants, to negotiate with tenants, or to sell to tenants solely because they are tenants (and no other commercially reasonable factors exists), would violate the statute, as amended.

Additionally, Chair Fahey shared some specific examples of what was acting or negotiating in good faith:

1. After giving the notice required by ORS 90.842, the facility owner enters into a non-binding letter of intent with a separate third-party potential purchaser. That non-binding letter of intent references the facility owner’s duty to consider, in good faith, any offer the tenants may make (this is a common practice, and one I advise my clients on as it allows an owner to move on two tracks). It is very important that the third-party purchaser be aware of and respect an owner’s obligation to consider the tenants’ offer;

2. After receiving an offer from the tenants, the landlord rejects the offer because the material terms of the offer are outside of what the facility owner would consider.  Material terms could include (but are not limited to): price; date of closing, amounts and timing of earnest money deposits; dates of due diligence and contingences and possible effect on date of closing; and whether earnest money is “hard”, or whether the earnest money will go hard; details of contingencies (including financing contingencies);

3. After receiving an offer from the tenants, the landlord rejects the offer because of other extenuating circumstances. Other extenuating circumstances could include (but are not limited to): the potential sale of a facility that would include other consideration besides cash (i.e. stock or property trades);
4. A landlord rejects an offer from the tenants and the landlord provides a rationale for the rejection that is true (please note that the rationale is not necessary, but providing a truthful rationale, is in of itself good faith); and

5. After receiving an offer from the tenants, the landlord makes a counteroffer that is commercially reasonable.

This is not an exhaustive list but provides good guidance on how an owner should consider any potential offer. Again, you should work with your legal professional as you navigate this issue.

Q: What happens if the tenants don't respond within the 15 days or don't respond within the 45 days of me providing financial information?

A: You have no further duties under the statute.

Q: What do I do if I think this process is only being invoked to harass me?

A: Call your lawyer. The parties (including the tenants) are required to act in a commercially reasonable manner. Depending on the conduct (and the ability to establish the conduct and motive) your attorney should be able to develop a strategy to combat poor behavior.

Q: I've entered into a purchase and sale agreement with a separate buyer, and I haven't followed the process. What should I do?

A: Call your lawyer – today.  It may be fixable but failing to follow this process allows affected tenants to obtain injunctive relief to prevent a sale to a third-party purchaser (which could cause you to be in breach with that third party purchaser) and to recover significant penalties. Bottom line is to be aware of your responsibilities and follow the statute.
 

Q: What do I do after I've completed the process?

A: You must file an affidavit certifying that you've complied with the process and that you have not entered a contract for the sale or transfer of the park to an entity formed by or associated with the tenants. The purpose of this affidavit is to preserve the marketability of title to parks. Additionally, there is a requirement that you notify the Housing and Community Services Department who the new owner is.

Q:  Are there exceptions to this statute?

A: Yes. The exceptions are listed in ORS 90.848. The most common exception is any sale or transfer in which the facility satisfies the purchaser’s requirement to make a like-kind exchange under section 1031 of the Internal Revenue Code. In other words, if you receive an unsolicited offer from a potential purchaser who is attempting to satisfy a 1031 exchange you are not required to give your tenants an opportunity to compete to purchase.

Bill Miner is currently Partner in Charge of the Portland office of Davis Wright Tremaine. DWT is a full-service law firm with 500 attorneys on both coasts and in Shanghai, China. The Portland office consists of approximately 80 attorneys and over 80 staff. He works with clients to resolve their legal problems through pre-litigation counseling, litigation, and mediation. He tries cases in state and federal courts and through private arbitration. His experience includes defending and prosecuting business torts; breach of contract claims; disputes between and among members of limited liability companies; residential and commercial real estate matters, including landlord-tenant, title, lien, and timber trespass disputes; and probate and trust cases. He is a frequent and popular speaker at MHCO seminars and conferences. You can reach Bill at: http://www.dwt.com/people/WilliamDMiner/

Answer:  I will address this in a series of suggestions which will hopefully provide some answers and/or approaches. First, remember that park property is private property. The landlord owns the spaces and common areas, and the residents own their home.  This gives Management the right to control who enters the community.

Second, this basic fact does not often get conveyed to the residents or their guests. Third, this communication gap can be addressed in written park policies and rules – which rarely happens. The result is that management frequently does not know how to deal with people inside the park but with questionable authority to be there. Accordingly, here are some suggestions:

1. Notify residents of management’s right to keep people off park property if they cannot account for why they are there.
2. This can be accomplished through communications with the residents, but best accomplished through adoption of a new rule providing that management reserves the right to require persons in the park (especially on foot) with no apparent reason, to identify themselves and their purpose. (The reasons could be work related, family/guest related, or possibly just strolling etc.). But absent those or similar reasons, management may be rightfully suspicious.
3. The Community should be properly posted that it is private property and unauthorized persons are not permitted without first contacting the management office. This would be management’s opportunity to vet the credentials of the people.
4. This posting could require that all people other than tenants must first register at the park office (at least the first time). It should say that unauthorized persons will be asked to leave.
5. Your question does not clarify why you contact the police. Was it because you saw someone suspicious, but never contacted them?  If you did make contact, did they refuse to tell you what they were doing there? Did they tell you but you either could not verify it or didn’t believe them? Going forward, I suggest that before you contact the police, you first do everything you can to determine for yourself what the person is doing there. If you don’t know and can’t tell the police, I understand their taking the path of least resistance by saying that unless they know the person has no business being there, its reasonable to assume they are a guest or a visitor of some tenant. But you can and should vet these issues first before asking the police to come remove the person.
6. Contact the local jurisdiction (county or city – whoever polices the area) and find out from them under what circumstances they will, at your request, trespass someone. Each jurisdiction can be different, so you want to know exactly what your police require.
7. My experience is that generally, the trespass issue doesn’t occur as much with vagrants who have no business there in the first place, but with guests and family members who are not tenants on the rental agreement - but using it as a crash-pad with the tenant’s permission. It is these people that can be biggest problem precisely because they are invitees of authorized tenants.
8. Your rules should address the amount of time these guests may remain before they either have to leave or apply for residency. (It’s often because they cannot be approved as a tenant that they just stay at a space without Management’s knowledge or consent. It is these folks who can cause the greatest problems, especially for the neighbors. Clearly, the first approach is to speak to the authorized tenant and try to secure their cooperation without issuing a for-cause rule violation.
9. My experience with obtaining police cooperation is generally to formally initiate the trespass issue first. This would include personally delivering the person a letter requiring them to leave the park and giving them a certain date and time after which they will be deemed to be a “trespasser. This leaves no question that if they are still on park property after the deadline, they are a “trespasser.” I would deliver the letter to the problem person and the tenant of the space.
10. Once you have the letter delivered (using a witness perhaps to verify service) I believe the police will remove the person. But you want to verify this protocol with them first.