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Do You Need an Attorney?

Oregon, unlike our neighbor to the North, does not require landlords to obtain the use of an attorney to appear in FED court. The necessary summons and complaint can be obtained from the courthouse and they can be filed and served quickly. This has its advantages and disadvantages: It is good insofar as it keeps the cost of the process down, but it is bad if the owner or manager fails to strictly follow all of the legal procedures required by the statutes. Accordingly, for the inexperienced manager or new owner, it is strongly, recommended that guidance first be sought, either through MHCO, from an experienced attorney, or by consulting with a knowledgeable community management company.

Strict Compliance

Since the FED process is designed to be a "summary" or quick proceeding, the law imposes upon those seeking its assistance, i.e. owners and managers, the duty to strictly comply with all of the requirements set out in the statutes. This means, for instance, that the written notice that must precede the filing of the complaint (e.g the 72- hour nonpayment of rent notice or the 30-day notice of termination for cause) must be properly filled out to the letter. Since the notice is required to be attached to the FED complaint, and thereby becomes a part of it, if it is defective in any respect, the Court can unilaterally dismiss it - thus forcing the landlord or manager to start all over again. It is for this reason that before actually filing the summons and complaint which starts the FED court process, the plaintiff should closely review the notice to make sure it complies with the law.

The Prevailing Attorney Fees Trap

To underscore the importance of making sure the notice is correct before filing in Court, consider this scenario: Your tenant is late in paying the rent. You quickly fill out and mail a 72-hour notice, wait six days and then file in Court. At the first appearance (discussed below) you learn that the tenant is represented by legal counsel who has filed an answer alleging that the notice is defective. You are now faced with the prospect of having to go to an attorney to find out just exactly what is wrong with your notice. To your dismay, you learn that you sent the notice out on the 7th of the month, rather than the 8th.[1] You were one day too early. While this might seem to be a technical and unimportant mistake - the tenant still got five full days after the 7th of the month - it is not. In legal parlance, the defect is "jurisdictional," meaning that the Court has no alternative but to dismiss the case. To make matters worse, since the tenant's attorney filed an answer in Court, the tenant is the "prevailing party" and you must pay his or her legal fees.

Use of Current Legal Forms (MHCO has over 60 Forms Available to Members)

Too many times landlords and managers fall into the trap of using outdated legal forms - or worse - they hand-draft their own notices. This can be fatal in Court. As noted above, the Courts enforce strict compliance with the statutes. The use of a hand-drafted notice is fraught with pitfalls: The number of days to correct the default might be incorrect, the statement of the default might be insufficient, or the description of the landlord's remedies might be overstated.

Equally dangerous is the use of old forms that have become outdated due to changes in the law. Landlords and managers should always note the date appearing at the bottom of the form. If the date of the form precedes the most recent legislative year (e.g. 1997, 1999, 2001, etc.) you should check with the forms provider (e.g. MHCO) to make sure that there have not been any changes to the form.

For example, the 30-day termination for cause notice used to state that if there was a repeat violation within 6 months from the date of expiration of the 30 days, the landlord could issue a non-curable 20-day notice of termination. However, due to a change in the statute, the 6-month period is now measured from the date of issuance of the 30-day notice. In other words, the time within which the landlord may evict for a repeat violation is now measured from a different (and earlier) time period than before. Use of the old form today would incorrectly state the landlord's right to terminate, and arguably be defective.

The First Appearance

Experienced landlords and managers know full well that the first appearance is the time that many, if not most, FEDs are settled. If the default is nonpayment of rent, the landlord and tenant can simply enter into a stipulated payment arrangement providing that if it is not followed by the tenant, the landlord may come back to court and upon filing of the necessary papers, have the judge issue the judgement of eviction.

Pursuant to statute, the first appearance must occur within approximately one to two weeks following the filing of the FED complaint and payment of fees. It is imperative that the landlord or his representative appear at that time. The failure to do so will result in an automatic dismissal. Generally, the Court is more than willing to allow the parties to negotiate a resolution - such as a repayment of rent schedule - that will avoid setting the matter for trial.

Landlords and managers are encouraged to take the first appearance process seriously. If the case can be resolved at this juncture, all parties should strive to do so. If the landlord has a tenant that they fully intend to evict, i.e. no settlement can be structured because of the seriousness of the violation, the facts should be fully discussed with an attorney before the first appearance. Once the case has gone beyond that point and the tenant has secured an attorney, it may be too late. If there is a defect in the notice, for example, it is far better to settle the case early, or unilaterally dismiss it and start over, than to have the matter set for trial and take the risk that the tenant's attorney or the Court will spot the defective notice.

Pick Your Shots

As I have repeatedly emphasized, don't go into Court on a weak case. If the tenant has any sort of network within the community, it is a certainty that at least three things will occur: (1) The tenant will try to have all of his friends and neighbors testify against the landlord; (2) if you lose the case, you can fully expect that some of the tenants who have followed the dispute will try to "test" the landlord's resolve to go back into Court on related issues, and (3) if you ever have to bring another action against the same tenant, he will argue that your claim is "retaliatory,"- in other words, that you are selectively prosecuting him.

Always make sure that you have sufficiently "papered" your file. In most cases, it is helpful to precede a 30-day notice with one or more correction notices or letters requesting voluntary compliance. In this manner the Court will see that you have "walked the extra mile" with the tenant. You do not want to be accused of acting precipitously without having given the tenant fair warning of the consequences of non-compliance.

Conclusion

As noted, the FED process can be daunting to the uninitiated. Sometimes the best lesson is to lose in Court. But the cost of losing is frequently more than financial - it can threaten the landlord's ability to effectively run the community. If in doubt, the safest course of action is to first seek the assistance of those who have been there before you.

[1] You must wait seven full days from the date rent is due, before sending out the notice. If rent is due on the 1st, this means that the earliest you may send out the notice is on the 8th.

Answer. Accepting rent for the period beyond the Deadline means that the tenant is entitled to occupy the space even after the failure to cure within the 30-day cure period. Yet the failure to cure is the event after which the landlord may file for eviction; the tenant has no legal right to remain on the space. Accepting rent for that period creates a waiver of the right to treat the failure to cure as a default upon which the eviction may be filed.

There are perhaps three ways to prevent that from happening, so that a landlord may receive rent for the entirety of the second month, notwithstanding the fact that it covers a period beyond the Deadline.

1. The preferred way in my opinion, is to extend the cure period in the notice. When it is issued, extend the 30-day cure period so that it goes through the 30^thor 31^stday (as applicable) of the second month.

EXAMPLE:If a 30-day notice is mailed on March 19, normally, the time to cure would end 33 days hence, i.e. starting with March 20 being the first day, and ending at midnight April 21^stas the end of the cure period. In that case, the landlord can either take no rentfor April or take rent proratedthrough the 21 days of April. 

But if the cure period in the notice is extended through April, and ends  at midnight (end of day) on April 30^ththe L could accept rent for the entire month of April. If the tenant pays the rent for April andcures the violation by April 30, the problem has gone away.  

Of course, there still is a problem if the tenant does not cure and does not pay any rent, if the courts are still closed and no eviction (either for the failure to cure, or failure to pay after issuance of a 72-hour notice) can be filed.

2. Another alternative is to unilaterally extend (in writing) the cure period for another 30 or 31 days on condition rent was paid, to span the following month. Can a landlord do that? In my opinion yes – it does not reduce a tenant right, but expands it. Of course, a judge could see it differently.

3. Lastly, the landlord can try to enter into a written agreement with the tenant (after issuance of the 30-day notice) that acceptance of rent for the balance of the second month shall not be construed as a waiver. But what’s in it for the tenant?

The only time this seems feasible is where the tenant is cooperative about curing within the 30 days, and agrees in writing that if landlord accepts the full rent for the second month it will not constitute a waiver.

Readers of my article will note that my focus was primarily on the federal laws. This was because during my research, I was directed by the Oregon Health Authority (here) to the federal HUD website. However, as John points out, '_Oregon fair housing law is "substantially equivalent" to federal fair housing law." So, generally speaking, on the issue of medical marijuana, as goes the federal law, so goes Oregon law. John directed me to the 2010 Oregon case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, which addressed many unanswered questions on the use of medical marijuana in this state. The answers contained in that case represent the most current state of medical marijuana law in Oregon both from an employment and housing perspective. John, as a board member of Fair Housing Council of Oregon ("FHCO"), also directed me to the following FHCO article [authored after the Emerald Steel Fabricators case], which serves as a good resource on the issue of medical marijuana use in Oregon. The FHCO article can be found here. Keep in mind that the law is still developing, so you should consult your own legal counsel on these issues. These MHCO articles should not be relied upon as legal advice. So, to incorporate these resources into my prior answer, here are some "take-away" points for park owners and managers on the issue of usage and cultivation of medical marijuana in Oregon manufactured housing communities: - If the resident insists that you make a reasonable accommodation for them because their use is due to a disability, you may say "N0." Note, however, park residents still have the right to ask for a reasonable accommodation. - Owners and managers may not deny an applicant housing availability simply because they have, or intend to obtain, a medical marijuana card [any more than management may deny tenancy to a person who says he or she has a disability]. - To reiterate what I said in last week's article, it is my opinion that park management should institute a medical marijuana policy in the rules, dealing both with the use and cultivation of the substance inside the community. It is not a fair housing violation to prohibit it in the rules. However, if legal use or cultivation [i.e. according to Oregon state law] occurs in a community, and there are no express prohibitions against doing so, it may be difficult to bring an eviction action for the activity, unless it violates some other rule or provision in the rental agreement.

Example: In 2013, a Washington public housing community fought off a fair housing complaint filed by a resident who was threatened with eviction for feeding pigeons and allowing them to nest on his deck. The community’s rules prohibited the feeding of stray animals and wildlife, so he received several warnings that he’d be evicted if he didn’t stop. He eventually complied and no further action was taken against him, but the resident sued the community for discriminating against him because of his race. He failed to prove that he was being falsely accused since he admitted that he allowed the pigeons to nest on his deck. And the court rejected his claim that nonminority residents fed the pigeons and were not disciplined, noting that other residents viewed the pigeons as a nuisance and were trying to get rid of them in various ways, including poison [Bahati v. Seattle Housing Authority, September 2013].

To ward off fair housing trouble, it’s a good idea to have a written policy detailing your standards of conduct so all prospects, residents, and staff members understand what behaviors constitute lease violations. Putting it down on paper heads off claims that the resident didn’t know about the rules or understand the consequences of breaking them.

Make sure that your rules conform to state and local requirements by asking your attorney for help in drafting a policy that defines what conduct is considered a lease violation. Make the rules as specific as possible—for example, by quantifying how many times an act must be committed before it’s considered a lease violation, how much time you’ll give a resident to correct his behavior, and so on. Your policy should also detail the procedures for investigating, resolving, and documenting complaints against residents for violating the lease and community rules.

Answer:  To clarify, when you refer to the “Moratorium” you are referring to HB 4401 which was signed by the Governor on December 23, 2020. It did two things: 

• Directed the Oregon Housing and Community Services Department to implement a program for direct aid to landlords reimbursing a percentage of outstanding rents; and 
• Modified the Emergency Period and Grace Period created under HB 4213 for tenants who claim financial hardship. 

Your question about the Hardship Declaration refers to what happens if the tenant delivers it to the landlord:  Afteratenantdeliversacopyofthe Hardship Declarationto the Landlord,theEmergencyPeriod andendoftheGracePeriodcreated in earlier legislation areextendedto June 30,2021. The Hardship Declaration can be filed by the tenant as late as the first appearance date after you file for eviction. After the filing, the landlordmaynot takeorattempttotakeanyactiontointerferewithatenant’spossession, subject to the following exceptions:

• Evictions for violation of a rental agreement, other than non-payment may continue;
• Evictions for nonpayment occurring before April 1, 2020 may also continue (Emphasis added);
•  “Landlord-cause” evictions[1]are allowed after the first year of occupancy. Landlord-cause evictions include:

• Demolition or converting dwelling unit to non-residential use;
• Intent to make repairs/renovations to the dwelling unit within a reasonable time, and the building is unsafe/unfit or occupancy or will be unsafe/unfit for occupancy during the repair/renovation period; 
• Landlord intends for immediate family member to occupy dwelling unit as a primary residence and no comparable units at the same location are available; or 
• Landlord has accepted an offer to purchase the dwelling unit; purchaser will use unit as a primary residence.[2]

Since the rents due to you under the Stipulated Judgment arose before April 1, 2020, I interpret your question to asked whether you can pursue them by filing an Affidavit of Noncompliance under ORS 105.146.  

Normally, I might give you a cautious green light. But in this environment, I must recommend against it. First, the court could ignore the above exception under HB 4401. Secondly, and more importantly, the Center for Disease Control and Prevention (“CDC”) has issued a blanket moratorium on nonpayment of rent evictions which arguably supersedes the exception under HB 4401. It was updated today. See details, here.

Bottom line, I would not attempt to enforce what we all agree was a legitimate stipulated judgment at the time. HB 4401 is supposed to end June 30, 2021. But until the CDC moratorium ends, I would follow it, regardless of Oregon law. 

And even though I do not believe the original CDC moratorium was intended to apply to rents due before September 2020, my brief reading of the federal law, including the update, suggests that if the eviction has not been completed– and yours has not because of the stipulated judgment – the filing of the Affidavit of Noncompliance could be interpreted as an attempt to evict in violation of the current CDC moratorium. 

Answer.Under SB 608 rent increases are limited to 7% plus the September-to-September average change in the CPI, for All Urban Consumers, West Region (All Items), as published by the Bureau of Labor Statistics of the United States Department of Labor in September of the prior calendar year (“the CAP”)

To increase rent on a month-to-month tenancy, the Landlordmust:

• Give 90-days’ advance written notice (MHCO Form 49)

• Increases may not exceed theCAP.

• Note: For manufactured housing communities in the City of Portland,  Ordinance 30.01.085 provides for the payment of Relocation Assistance for tenants when the rent increase is 10% or more.

The writtennotice must state:

• Amount of rentincrease;
• Amount of the new rent (i.e. total of old rent plusincrease);
• Facts supporting the Exemption,[1]if the increase is above the CAP;  and
• The date on which the increase becomes effective.

No later than September 30th of each year, the Oregon Department of Administrative Services (“the Department”) is required to calculate the maximum annual rent increase percentage under theC AP for the following calendar year as seven percent (7.00%) plusthe September annual 12-month average change in the in the CPIas most recently published by the Bureau of Labor Statistics of the United States Department ofLabor. For the calendar year 2021 that figure is 9.2% (i.e. 7.00% + 2.20%).

To your question as to whether the effective date of the rent increase amount is based on when the notice was sentor when it became effective, I view this as largely academic, since the “annual 12-month average change” is based upon a calculation of the percent change relative to the previous July through August. Thus, the maximum rent CAP of 9.20% will apply to the calendar year 2021, beginning on January 1, and will be known 90 days before January 1, 2021. If the notice is hand-delivered, or nailed and mailed on October 1, 2020, it would be both legal when sent, and legal when it became effective.[2] 

If your rent increase was over the correct maximum figure of 9.20%, but failed to set forth the facts supporting your exemption, you would be in violation of the CAP, which could make you liable to the tenant for 3X the monthly rent, plus actual damages, costs and attorney fees. Also, being wrong would invalidate your increase notice.

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

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

I do have some questions:

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

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

At footnote 43 of the Memo, the following appears: 

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

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

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

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

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

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

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

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

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

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

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

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

·     What has the person been doing since their release? 

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

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

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

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

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

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

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

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

     (a) A drug-related crime; 

     (b) A person crime; 

     (c) A sex offense; 

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

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

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

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

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

Here are some considerations to keep in mind: 

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

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

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

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

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

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

So, to your two questions:

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

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

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

Answer:  Disclaimer: Certain folks, especially those of the regulatory bent, will likely disagree with my answer.  The reason stems, I believe, from one of four sources: (a) Rigid (some might say “stubborn” or “dogmatic”) adherence to a law or regulation, regardless of how illogical and silly it may be; (b) A belief that everyone is a victim, and deserves to pampered and coddled even in the face of obvious evidence they are gaming the system; (c) Political correctness run amok; or (d) A combination of some or all of the preceding causes.

I admit I am one of those folks who have watched in disbelief as some residents have taken the most outlandish positions in an effort to keep a pet they know full well violates the community rules.  I recently saw a situation where a new tenant, knowing that the community did not permit pets, moved in and promptly moved her large dog in to live with her, having paid to get the necessary sham certifications and paperwork online, no questions asked. 

 Here are some general rules:

• The Americans with Disabilities Act, or “ADA” does not apply to private residential housing – only public accommodations. 
• ORS 659A.143 governs the use of assistance animals in public accommodations.  The rules seem rational and reasonable, but technically do not directly apply to private housing.
• The Fair Housing Act applies to the use of assistance animals in housing.
• HUD has set out the issues to be vetted for a landlord to make a determination whether to grant a resident the right to have an assistance animal.
• Assistance, emotional support and service animals are not pets, and accordingly, pet rules do not strictly apply (such as requiring pet deposits).
• Service animals (or “assistance animals” under Oregon’s definitions) are required to be certified as such. Not so for emotional support animals. Nevertheless, all such animals are to serve the disability of the requesting resident. But getting a doctor’s letter, or that of another person in the medical profession is not that difficult.
• You do not have to accept just any animal as an assistance animal.  If it requires some additional cost to the landlord, it is not required. (See, HUD article here.)

Here is what HUD says in the above article (HUD footnotes omitted):

“For purposes of reasonable accommodation requests, neither the FHA nor Section 504[1] requires an assistance animal to be individually trained or certified.  While dogs are the most common type of assistance animal, other animals can also be assistance animals.

Housing providers are to evaluate a request for a reasonable accommodation to possess an assistance animal in a dwelling using the general principles applicable to all reasonable accommodation requests. After receiving such a request, the housing provider must consider the following:

1. Does the person seeking to use and live with the animal have a disability - i.e., a physical or mental impairment that substantially limits one or more major life activities?

1. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?

If the answer to question (l) or (2) is "no," then the FHA and Section 504 do not require a modification to a provider's "no pets" policy, and the reasonable accommodation request may be denied.

Where the answers to questions (1) and (2) are "yes," the FHA and Section 504 require the housing provider to modify or provide an exception to a "no pets" rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider's services. “(Emphasis added.)

The Fair Housing law basically requires that if one has a disability, they may request that their landlord grant them a “reasonable accommodation” – that is, an exception to the community rules, allowing the resident permission to do that which is otherwise prohibited. 

Thus, size limits don’t strictly apply. And occasionally, residents attempt to have a second pet, claiming that it isn’t a “pet,” but an assistance animal.  However, here is where the line blurs. How far does the landlord have to bend to accommodate residents, especially in those situations where the resident is gaming the system?

MHCO has forms for dealing with requests for reasonable accommodations, whether they be a non-compliant animal, or some other issue, such as an additional parking space, etc.  First and foremost, I suggest following the same protocols in all cases, from the legitimate to the illegitimate.

Secondly, I suggest following the 3-prong test (besides cost, which doesn’t really apply in most cases) as follows:  Would granting of the request endanger the Health, Safety, or Welfare of other residents or guest in the community.  If the resident, for example, asks to have a pit bull as an assistance animal, it is not altogether unreasonable, after vetting the dog’s demeanor, socialization, etc., to propose another less aggressive animal as a “reasonable accommodation.” 

Third, for such breeds with known vicious propensities, you should check with your liability insurance carrier to see if they have a short list of animals they will not insure if there is an attack.  If the carrier says that animal is on that short list, then you should propose another less aggressive animal. In discussing this with the Fair Housing Council of Oregon while drafting the reasonable accommodation request portions of MHCO’s form, they acknowledge the financial burden exception – however, suggested another step, i.e. finding an insurance carrier that would insure such aggressive animals if it was not overly expensive for the landlord to do so. I will leave extra step for discussion with your own attorney.

Then there are cases in which the request is clearly a ruse to get a pet approved as an assistance animal, when and it is clear to any reasonable person, it is a ruse.  You will have to decide on your own, or with the assistance of your attorney, how to proceed.  If, after giving the resident the MHCO form to complete, you are satisfied that it is a ruse, you are going to have to decide whether to call their bluff, or relent. If you relent, you will have done so only after requiring them to complete the necessary paperwork. However, be prepared for more copycats - pardon the pun.

1. If the tenant, in violation of the rental agreement, keeps on the premises a pet capable of causing damage to persons or property, the landlord may deliver a written notice specifying the violation and stating that the tenancy will terminate upon a date not less than 10 days after the delivery of the notice unless the tenant removes the pet from the premises prior to the termination date specified in the notice. If the pet is not removed by the date specified, the tenancy shall terminate and the landlord may take possession in the manner provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings).

1. For purposes of this section, a pet capable of causing damage to persons or property means an animal that, because of the nature, size or behavioral characteristics of that particular animal or of that breed or type of animal generally, a reasonable person might consider to be capable of causing personal injury or property damage, including but not limited to, water damage from medium or larger sized fish tanks or other personal injury or property damage arising from the environment in which the animal is kept.

1. If substantially the same act that constituted a prior noncompliance of which notice was given under subsection (1) of this section recurs within six months, the landlord may terminate the rental agreement upon at least 10 days written notice specifying the breach and the date of termination of the rental agreement.

1. This section shall not apply to any tenancy governed by ORS 90.505 (Definition for ORS 90.505 to 90.840) to 90.840 (Park purchase funds, loans). [Formerly 91.822; 1995 c.559 §28; 1999 c.603 §25]

While I suppose there is an argument that this statute doesn’t apply, since it pertains to “pets,” I believe that argument begs the question, since it is your position that these are pets disguised as “assistance animals.” If the resident believes you’re prepared to commence an eviction proceeding, perhaps they will relent.  If not, the judge can decide. Of course, be prepared for the resident to bring in some doctor, chiropractor, or therapist, to claim the resident needs the animal for some protected purpose. 

If the animal is dangerous, I strongly believe you are correct to take the issue to the mat, since doing nothing could result in injury to a resident or guest, and you can be sure you will then be accused of permitting the animal to remain when you should not have. Unfortunately, these issues can become expensive, and there is no assurance of victory in court.

It is possible for you and your attorney to develop some type of agreement which closes the loophole that is occurring at your community.  I can envisage language that with the proper recitals and provisions, would give you more protection than you now have.  However, as we know, until the matter is litigated, you’ll never know if the form is bullet-proof.  But having it in place is probably better than where you are now, and would likely make a resident think twice about trying to play the “support animal” card, if the agreement expressly says the animal is a pet and that was the sole reason for their wanting it.

The take-away here is that landlord must deal with reasonable accommodation requests on a case-by-case basis. Each set of facts are different. Not long ago I had a park client who refused a reasonable accommodation request, because it was too outlandish. A complaint was filed with BOLI, and we butted heads for a while. Eventually, BOLI relented, largely because the resident was too unreliable. Landlords must remember to pick their shots. Some principles are worth defending, and others not. In this case we believed that the issue was worth defending, to send a message to the tenant, and others who might be waiting to see the outcome, before they stepped up to test the landlord.

Lastly, there are indications that HUD may be tightening the definitions and loopholes so that landlords do not continue dealing with either gamesmanship, or accepting the risk of a dangerous breed, just to avoid a fight.

[1] Section 504 of the 1973 Rehabilitation Act was the first disability civil rights law to be enacted in the United States. It prohibits discrimination against people with disabilities in programs that receive federal financial assistance, and set the stage for enactment of the Americans with Disabilities Act. Section 504 works together with the ADA and IDEA to protect children and adults with disabilities from exclusion, and unequal treatment in schools, jobs and the community. [See link here.]

Situation: A Michigan landlord rejected an otherwise qualified African-American applicant after an online check revealed that he had been convicted of a felony in connection with a domestic disturbance four years earlier. While acknowledging the conviction, the applicant insisted that he was fully rehabilitated. But the landlord stubbornly refused to budge from the community’s policy of not accepting anyone with a criminal conviction while stressing that it doesn’t “consider cases individually.” The applicant and a local fair housing group sued for racial discrimination. The landlord moved for summary judgment, claiming that the statistics about arrest and incarceration rates of African Americans nationwide were too general to prove disparate impact in a particular community.   

You Make the Call: Did the applicant have a valid claim for racial discrimination under the FHA?

Answer: Yes

Ruling: The Michigan federal court rejected the motion and allowed the applicant to take his claims to trial. “Even countrywide statistics may be sufficient to plead a disparate impact claim where a challenged policy has a clearly disproportional effect on a protected class,” the court reasoned. Besides, the applicant also cited state and county statistics showing the same disproportionate rates of minority arrests and incarceration [Lyman v. Montclair at Partridge Creek, LLC, 2023 U.S. Dist. LEXIS 166464].

Takeaway: As a landlord, you have a responsibility to ensure your community is safe and secure. But while a blanket exclusion based on criminal history might look like a legitimate, nondiscriminatory safety policy, in the view of HUD and many courts, it has a discriminatory impact based on race. By the same token, HUD and DOJ guidelines also say that landlords can reject or evict a person that poses a “direct threat” to the health and safety of other tenants. Rule: Having a criminal record isn’t automatic proof that a person is a direct threat. You must do an individualized assessment of each case based on:

• How long ago the conviction occurred;
• The nature of the crime for which the person was convicted—arrests without a conviction don’t count;
• Evidence of rehabilitation; and
• Other evidence related to whether the person poses a threat to safety.

Answer: I doubt the park rules contain anything about privacy rights or the use of video cameras. As to laws being broken by the use of the camera, I don't believe there are any. Thus, I don't seen any management responsibility at this point. In other words, if the rental agreement, rules, or laws are not being broken, there would be no basis for management to treat the use of the camera as something for which the tenancy can be terminated, say, under a 30-day notice pursuant to ORS 90.630.

ORS 90.740 enumerates several duties of residents in manufactured housing communities. Subsection (4)(j) provides they must: "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." Video taping from a stationary location, does not, in my opinion, appear to violate this law. If one resident followed the other around with a camera throughout the park, that would be another issue.

Let's call the resident with the camera, "Resident A", and the one with the late-night visitors, "Resident B". Your question did not say whether Resident B was aware of the video camera or that it was trained at his front door. Nor did you indicate whether the video camera also had audio capability, such that it could pick up Resident B's outdoor conversations with his late night guests.

In Oregon, ORS 165.540(1)(c) forbids a person from obtaining or attempting to obtain "the whole or any part of a conversation by means of any device, contrivance, machine, or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained." Note that informing the participants is required, but consent from them is not. Subsection (3) of the statute provides that the above prohibitions do not apply to conversations that occur inside a homeowner's residence, - even though the guests and visitors are not informed.

Although audio recordings are addressed by the above Oregon statute, video recordings are not. Nonetheless, the general rule, at least from a civil law standpoint, is whether the (e.g. Resident B) has a reasonable expectation of privacy. Doing drug deals outside is most likely an activity Resident B and his guests have no reasonable basis to expect privacy.

Certainly, Resident A can use the cameras on his own property and the streets, sidewalks, and any other public and quasi-public areas. Can the camera be trained on the front door of Resident B, as he admits his late night visitors? I cannot render a legal opinion on this, but would speculate that since it is outdoors, albeit on Tenant A's own property, video recording should be OK (not audio recording, however). But even if it's not OK, is this a fight management wants to take up? This is not as if Resident A is screaming at Resident B's late night guests, or is otherwise causing any disruption in the park. If Resident B knows of the video surveillance, consent would seem to be a moot issue. It would be prudent for Resident A to let Resident B know he has installed a security system that includes video surveillance. The manager should encourage Resident A to do so, or authorize him (the manager) to do so. Once informed, the entire expectation of privacy analysis becomes moot.

Lastly, I'm curious is Resident B's activity is bothering anyone else? If so, it may be time to take action. I have always maintained that with residents whose late night activities smack of drug dealing, with all the typical indicators such as multiple visitors, noise, and short-term visits, etc., a 30-day curable notice under ORS 90.630 is a much easier tool to use as the basis of an eviction, than to try to "prove" a violation of ORS 90.396 (1)(f)(B), which allows the issuance of a non-curable 24-hour notice for the manufacture, delivery, or possession of a controlled substance as defined by various Oregon statutes.