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Answer. If the test of a good or bad form is whether it works, I would say there was nothing wrong with the old form. To my knowledge, we heard of no complaints or claims arising due to problems with the form. However, over time, we hear of more and more issues concerning the use - and abuse - of the service animal designation. In an effort to better assist members, we thought it would be a good idea to review this form, the current rules and regulations, and make changes where appropriate.

As I explained in last week's article, there are several designations that first need to be clarified. A "service animal" under the federal Americans with Disabilities Act ("ADA") is limited solely to dogs that have been individually trained to work or perform tasks for a person with a disability, e.g. guiding people who are blind, alerting people who are deaf, or protecting a person who is having a seizure. The ADA does require that landlords make reasonable accommodations for residents with disabilities requesting to have a service animal. Note that the term "disability" under the ADA is very, very, broad.[1]

Although service animals must be on leash or harness, they may also be controlled through voice commands or hand signals. Service animals are not "pets." This means, among other things, that certain park rules for pets, such as requiring residents sign a Pet Agreement, cannot be required if it is a service animal. Dogs whose only purpose is to provide comfort or emotional support to a resident do not qualify under the ADA.

Under the Fair Housing Act, as amended, housing providers, including manufactured housing communities, must make also "reasonable accommodations" for persons with disabilities requesting to have an assistance animal for emotional support, or to provide other forms of help.

Similar to service animals, assistance animals are not regarded as "pets," and residents cannot be required to sign a Pet Agreement for them. However, assistance animals are not limited to dogs that have been specially trained. They can include any animal that assists and performs tasks for the benefit of a person with a disability, including emotional support that alleviates one or more identified symptoms or effects of a person's disability.

Lastly, the label "companion animal" is more of a generic term, and the role it serves is what determines which laws will apply.

What follows is a summary of the main issues addressed in MHCO's new Assistance Animal Agreement. Without implying that the Fair Housing Council of Oregon has "endorsed" or "approved" the form, I did consult with them, and their suggestions were very helpful and insightful in developing what you see today.[2]

1. We note in the form that the landlord reserves the right to refuse to permit an animal becoming an assistance animal if:
   1. It has previously caused verifiable and significant damage or injury to persons or property in the Community;
   2. The landlord's insurance carrier would cancel, substantially increase premiums, or adversely change policy terms because of the presence of a certain breed of dog or a certain animal and it would impose an undue financial and administrative burden for Landlord to secure a substitute carrier which would provide coverage for the Animal.[3]
   3. Note, however, that prior to such refusal, a Landlord should secure written verification substantiating the undue financial and administrative burden.

1. The resident with the assistance animal is responsible to see that it conforms to all of the community's rules and regulations, such as being on leash; responsibility for removal of all feces, droppings, etc.; being left unattended outside the home or space.
   1. Consistent with the conduct of all animals and pets in the Community, the assistance animal may not cause any substantial damage (to persons or property), engage in threating behavior, or cause any disturbance to other residents, their guests, or any other third parties in the community.
   2. We confirm in the form that by signing below, the resident confirms that he/she has reviewed the community rules and regulations as they apply to all other animals and pets in the Community. If the resident believes that one or more of the community rules and regulations should not be applied to their assistance animal, the resident is instructed to immediately notify the landlord.

1. Consistent with the community's policy regarding all animals and pets, the resident shall be liable for any losses, damages, claims, and expenses, including attorney fees, directly or indirectly caused by their assistance animal while in the community.

1. In the event of breach of the assistance animal agreement, the landlord reserves the right to terminate it and demand removal within ten days of written notice. A "breach" is defined in the form to mean the occurrence of any event that would constitute a material violation of the agreement or ORS 90.396, as it pertains to their assistance animal. The resident's failure to remove the animal upon demand entitles Landlord to issue a curable Notice of Termination to Resident under ORS 90.630.

1. Given the fact that one never knows for sure if some court might, in the future strike down a provision in our form, we have inserted what is known as a "savings clause." It reads:

"If any portion of this Agreement shall be deemed to be in violation of Federal and/or State Fair Housing Laws, it shall be deemed null and void, and the balance thereof shall remain in full force and effect."

1. The form advises residents that if they believe they have a disability that requires their use of an assistance animal, they may request that an accommodation be made. This is MHCO's Reasonable Accommodation Request Form No. 15. A landlord is entitled to obtain reasonable information in order to assist in determining whether the requested accommodation is reasonably necessary because of the disability. However, if a person's disability is obvious, or otherwise known to the landlord, and if the need for the requested accommodation is readily apparent or known, then the landlord may not seek any additional information about that disability or the disability-related need for the accommodation.

1. Lastly, the form reminds the parties that the Assistance Animal Agreement must be signed before the animal will be permitted to occupy the Home/Space as an assistance animal.

[1] An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.

See, http://www.ada.gov/cguide.htm

[2] This is to say that their suggestions pointed out to me where the mines in the minefield were located.

[3] Note that this "burden" must be both "financial" and "administrative." These are legal terms of art, and before getting into a battle you can't win, I suggest you consult with your attorney to understand the application of these two terms as they relate to your particular situation.

As a community manager, you will normally be charged with accepting or rejecting prospective residents. This is one of the most important functions that you will perform as a manager of a manufactured home community. Done properly and effectively, the rental application and screening process will minimize potential problems in landlord - resident relations. If the process is done incorrectly the seeds of future problems will be sown. Every prospective resident should be given sufficient information to make an informed decision about living in a manufactured home community.

When an individual stops by the manufactured home community office inquiring on the possibility of becoming a resident, always give them an application packet. Anyone who is interested in applying should be given the application packet - inconsistency in giving out application packets could lead to cause of action by the resident selling the home in the community or a fair housing violation.

The application packet is your opportunity to sell the prospective resident on your community. Include in the application packet an application and "Minimum Criteria Standards", optional information may include what homes are available in the community, a community newsletter, information on the history of the community, the advantages of living in a manufactured home community etc. You may also want to include at this time a copy of the rental/lease agreement, rules and regulations, rent history, and statement of policy. Remember, you want to sell the prospective resident on your community, but you also want them to make a well informed decision.

Providing a prospective resident's with extensive information regarding your manufactured home community allows the applicant to evaluate for themselves if they qualify. Including what your expectations are in order to qualify and expectations and requirements to maintain residency in the community allows the prospective resident to self qualify.

The overall rental application process should include:

1. Review application to make sure it has been completely filled out.
2. Check to make sure that the applicant has included social security number, driver license information etc.
3. Provide the applicant with a copy of the Statement of Policy (keep a signed copy or receipt for your file), the rent history of the space, Rental Agreement/Lease, Park Rules & Regulations, RV Storage Agreement and Pet Agreement (if applicable), and a Flood Plain Notice. None of these documents should be signed by the community owner or manager until the application process is complete and the prospective resident is accepted.
4. Collect application fee.
5. Provide prospective resident with application fee receipt.
6. Conduct credit, rental and criminal check.
7. Attach copies of credit, rental and criminal check to application
8. If credit, rental and criminal checks are acceptable contact prospective resident.
9. If they are denied and they are purchasing an existing home in the park, send them an application denial form. Also, send a copy to the resident selling the home and one for the tenant's file.

Under current Oregon law you will have not more than 7 days to accept or reject a prospective resident. The 7 days begins on the day of receipt of a complete and accurate written application. The landlord and the prospective resident may agree to a longer time period for the landlord to evaluate the prospective resident's application to address any failure to meet the landlord's screening or admission criteria.

If the existing resident fails to give the required 10 day notice in writing prior to the sale of the home, the landlord may extend the written application process by 10 days. (ORS 90.680)

An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation required pursuant to ORS 90.510 including any financial data and references. 

Answer. There is no such form. Perhaps there should be. But first, let's address some threshold issues, such as:

• Who owns the structure?
• Who has the duty to maintain it?
• What happens to it when the tenant vacates the space?
• Who would likely be held liable for injuries to persons/property using the structure?

If the structure was there when the resident first rented or leased the space, there isn'tmuch question but that the landlord "owns" it, if it remains there when the space is re-rented or re-leased. Although most rental/lease agreements and rules require the resident to "maintain" the space, in most instances, the text of these provision generally apply to landscaping-type activities. If the structure is expressly identified in the park documents, and allocates maintenance responsibility to the resident, then the issue is clearer. But it is my opinion that if the documents are silent about park-owned structures on the space, the duty to maintain, paint, etc., lies with the landlord. Why? Because the landlord drafted or selected the documents for the resident to sign, and accordingly, could have delegated the responsibility in whatever manner he/she saw fit. Having failed to do so, means that the agreement or rule will most likely be construed most strictly "against the drafter" - i.e. to the landlord.

Clearly, if the structure was on the space at the inception of the tenancy (therefor presumptively belonging to the landlord), when the resident departs, it would remain there. Similarly, if some liability occurred, it would fall on the landlord, unless it was from an event caused by the resident.

For example, say there is a storage shed located on the space at the start of the tenancy, and nothing is said in the park documents about maintenance responsibility. The resident uses the shed to store family items, including old photos and collectibles. Unbeknownst to the resident, the shed is not completely water resistant, and over the course of the winter, they are destroyed. Unless there is some evidence the resident knew about the leakage and did nothing to protect their belongings, this is likely a landlord liability.

Is this an instance in which the landlord could protect themselves by having a release of liability agreement saying that the resident assumes all responsibility for destruction or loss of any valuables stored in the shed? Possibly, but not absolutely. In other words, the more specific the agreement was, the better the chances are it would be enforced to the benefit of the landlord. But a simple statement saying that the resident assumes all responsibility for the contents stored in the shed, might not go far enough. Remember, absent the resident's duty to maintain the shed, if the landlord has the maintenance responsibility, management is arguably somewhat responsible for making sure that the shed is watertight - at least that's the argument the resident's attorney would make. So how can the landlord, who has the duty to maintain the shed, abdicate responsibility for not maintaining it in a secure manner?

Accordingly, to have a more enforceable release agreement, I submit that landlords should also have an agreement providing that: (a) landlord does not have a duty to maintain, inspect, or secure it; (b) landlord does not warrant or guarantee that the shed is waterproof, or free from mold and mildew; (c) before use, the resident should assure himself/herself that it is suitable for storage of the specific contents intended to be stored there; and (d) that the resident covenants and agrees to maintain the exterior and interior of the shed for the duration of the tenancy. Only then can you expect a full release and hold harmless clause to be effective, since by signing, the resident is now making an informed decision about the scope of responsibilities under the agreement going forward.

So the take-away here is that if you have not addressed these issues for park-owned structures in the lease, rental agreement and/or rules, you should do so upon turnover of the space. Until then, it would likely be difficult to shift responsibility onto a resident, when it was not expressly bargained for at the inception of the tenancy.

Similarly, even though a resident builds the structure, you may want to address these issues in a separate written agreement before the structure is built. In addition, you want to make sure that the construction of a tenant-built structure conforms to all applicable building codes and ordinances, including, where applicable, the taking out of one or more building permits. And if the resident hires a contractor, you will want to use MHCO Form No. 52.

And importantly, you will want to address whether the resident has a duty to remove it upon sale of the home. Alternatively, you can provide that the landlord reserves the right to make that decision if/when the resident who built it gives notice of intent to sell or remove the home. And if it stays, you'll want to have an agreement with the new resident, addressing the issues described above.

Lastly, if the structure is something built for children to play on, e.g. swing sets, ladders, slides, etc., I strongly recommend that you require the resident who built it, take it with them. Under no circumstances do you want to lease or rent space to another resident with this apparatus there. It creates too much liability for management, and even if it remained after a resident left, I would remove it before permitting possession by new residents with small children.

Answer. This is a tough one, because there is really nothing in Oregon's landlord-tenant law addressing the situation, and if you don't have anything in your rules (and presumably rental/lease agreement) there is very little leverage you have to force the resident to remove the trampoline. It's on their space legally, and they are not in violation of any laws, rules, or the rental agreement. Some communities do have rules prohibiting trampolines because of their inherently dangerous nature.

This may be cautionary tale for including such a provision in your rules saying something about having recreational or playground equipment that can be inherently dangerous. Here is a sample provision:

Resident shall not construct or place devices, equipment, including playground or recreational equipment or structures on Resident's space that could cause or result in an increase in Landlord's liability insurance or a termination of Landlord's insurance coverage.

Example of such items include but are not limited to above-ground pools, trampolines; climbing structures or facilities higher than ____ feet from the ground, lawn darts, etc. In the event that Resident intends to construct, place, or use any such items on Resident's space, regardless of whether they are visible from the street, Resident shall first contact Landlord, and provide a description of the item. Before issuing approval:

(a) Landlord shall first secure confirmation from its insurance carrier that the item will not cause any increase in Landlord's insurance premiums;

(b) Resident shall sign a written release of liability to Landlord, and agree to indemnify and defend Landlord should any claims arise as a result of an injury to persons caused by the item; and

(c) Resident shall provide Landlord with proof of a current policy of liability insurance for not less than $______________________, naming Landlord as a co-insured (or otherwise agreeing to defend Landlord in the event of claims under such policy).

In the event of any claims, losses, liabilities, or threats thereof, or should Landlord's insurance carrier thereafter determine that use of the item could cause an increase in Landlord's insurance premiums, or a loss of Landlord's insurance coverage, Resident shall, within three days written notice from Landlord, remove said item from the Community.

Answer: Under the Fair Housing Act ("the Act") housing providers including landlords, are required to make reasonable accommodations to the rented facilities and common areas, if requested by a handicapped tenant or their legal occupant ('the requestor").

Landlords are entitled to obtain reasonable information from the requestor in order to assist in determining whether the requested accommodation is reasonably necessary because of the disability. If a person(s) disability is obvious, or otherwise known to the landlord, and if the need for the requested accommodation is readily apparent or known, then the landlord may not seek any additional information about the requestor's disability or the disability-related need for the accommodation. This law also applies to the use of assistance animals.

A "reasonable accommodation" is a reasonable change, exception or adjustment to a rule, policy practice or service that will enable a handicapped person to have an equal opportunity to use and enjoy the rented facilities and common areas. There must be an identifiable relationship between the requested accommodation and the person's disability. Landlords are not required to make requested accommodations if doing so would impose an undue financial or administrative burden upon them or fundamentally alter the nature of the landlord's operations. With respect to a person, a "handicap" means: (a) one with a physical or mental impairment which substantially limits one or more major life activities; (b) one with a record of such impairment; or (c) one who is regarded as having such an impairment. [Juvenile offenders, sex offenders, persons who illegally use controlled substances and those with a disability whose tenancy would constitute a direct threat to others, or result in substantial physical damage to the property of others, are generally not protected under the Act.]

If a landlord refuses a requested accommodation, the requestor is encouraged to have a discussion with the landlord concerning an alternative accommodation. This is a summary only and not intended to constitute legal advice. For more information, landlords, tenants and legal occupants of tenants are encouraged to consult with their attorney or a Fair Housing expert if they have any questions regarding their rights and responsibilities.

My first reaction is that what the resident is requesting is not appropriate for several reasons [and not simply because other residents do not have computers and cannot access Facebook]. Here is a sampling:

• He is asking for information that goes to business/management issues that may not be appropriate for sharing with residents, either because it is not available, it is subject to change, it may not be known, etc. Even if it is appropriate for discussion at the general meetings, I can see this forum moving in the direction of demanding more and more information than management is willing to share. The test for content is, I suppose, whether it would be a topic of discussion at open meetings.
• There should be one time and place for these meetings, and if you are not going to give up open meetings at scheduled times, then the Facebook approach is not only duplicative, but risks creating two lines of communication, one at the public meetings and the other over the Internet. You should limit the meetings to the open forum.
• Anonymity is a dangerous format for questions, since he could simply begin making up his own questions, turning the Facebook forum into an opportunity for his own private inquisition.
• I don't think I would like to see my residents' questions spread across the Internet, for business reasons. Resident meetings are not open to the public, as far as I know. Why would you do so with an Internet forum?
• Clearly, what he wants is not what the other residents want - his request for the accommodation ignores their wishes and your needs as a manager. In other words, it is administratively impossible.
• I'm sure with time I could come up with a host of other objections.

You should, of course, take this request seriously. While you want to briefly explain why you are unwilling to participate in this process, you don't want this to get into a lengthy dialogue on the matter. For example, what if you gave three reasons for declining his request? Then he files a Fair Housing claim, and you then give five reasons? It appears that you just made up two new ones. Accordingly, anything you say should be couched in "Here are some - but not necessarily all - of the reasons I cannot grant your request. The shorter the better. No need to get into a lengthy letter writing campaign.

You should definitely make a counter-proposal for the kind of accommodation you can grant - e.g. have someone take minutes of the open meetings (not recordings). He and everyone else can have the minutes for review. If anyone wants to raise a question or comment about the minutes, they may do so at the following meeting. He can select a proxy - i.e. another resident - to relay his questions and concerns at the meetings he does not want to attend.

Lastly, it appears that the rest of the residents want you present - his demand seems to want to subordinate everyone's needs to his. That is not the concept behind a "reasonable accommodation." It comes from the landlord to the requestor - not from the residents. Granting him what he wants/needs by taking minutes and allowing the proxy, reaches a far better balance for everyone involved. The residents have open meetings and he has access through the minutes and his proxy.

Situation: A condo association with a no-pets policy lets a tenant keep two service dogs to accommodate his disability. After several years of good behavior, the dogs turn into incessant barkers who disturb their neighbors. The association orders the tenant to get rid of them or face eviction.  

You Make the Call: Did the association violate its FHA duty to accommodate the tenant?

Answer: No

Ruling: The Florida state court refuses to grant the tenant an injunction to block the association from enforcing the rule, and the federal court upholds the ruling on procedural grounds [Mercier v. Turnberry Isle S. Condo. Ass’n, 2021 U.S. Dist. LEXIS 243301].

Takeaway: Even service animals that are reasonably necessary to enable disabled prospects and tenants an equal opportunity to use and enjoy a dwelling and public and common use areas must behave and not create an unreasonable nuisance for other tenants. The broader point is that the FHA duty to accommodate reasonable requests for service animals doesn’t preclude you from enforcing rules necessary to ensure your other residents a quiet, clean, and healthy community.

So before I give you another accounting rule we are enforcing, let me say the goal is to protect your investment! We live in a very litigious society and need to be aware of potential risks and ways to protect our assets. Commonwealth employees are insured through workers' compensation policies and also provided regular training regarding workplace safety. Another area we are striving to improve risk management and compliance is in the area of hiring contractors. When a contractor is hired, the onsite manager must obtain verification that the contractor is licensed, bonded, and insured. In addition, a Form W-9 must be provided for purposes of reporting non-employee compensation on a Form 1099-Misc at the end of the year.

The downturn in the economy resulted in many contractors allowing their insurance and licensing to lapse. We are currently working on two projects to confirm all contractors are still in compliance. The first will be a "preferred vendor" list by location. Commonwealth is compiling lists by geographic areas of approved vendors so in an emergency situation your onsite manager or regional manager knows what vendors have up-to-date information on file. Secondly, we will be combining this vendor list with our accounting program to alert us when we need to update the insurance information. The reason to remind our customers of this policy is that some may have "tried and true" contractors that would not be eligible to work at the communities unless they can provide the necessary information requested OR become an employee to complete the task you wish to hire them for. I mention the latter as it is a legal remedy to tackling some of the small jobs that may be better served by hiring specialized temporary employees through agencies. Another option is hiring an individual on a task by task basis for their special skill. Commonwealth wants to be sure we are doing our best to protect your investment by limiting your risk exposure, both legal and financial, associated with contractors working at your communities.

Another reminder is that we do send 1099-Misc forms to all contractors annually. The form 1099-Misc reports all non-employee compensation. Amounts paid for employee compensation are reported on a Form W-2. Employees cannot receive a 1099-Misc and Form W-2 from the same employer for similar work. In order to keep away from any proof of control issues, our company policy is to send a W-2 to all employees and make sure all compensation for that individual runs through payroll. All independent contractor payments are reported on a 1099-Misc.

Article provided by Kathleen Landau, Accounting Manager for Commonwealth Real Estate Services since 2009. Kathleen brings over 20 years of accounting experience and knowledge to the Commonwealth team, and as a multi-site property owner herself, understands the unique needs facing property investors and small business owners.

As a community manager, you will normally be charged with accepting or rejecting prospective residents. This is one of the most important functions that you will perform as a manager of a manufactured home community. Done properly and effectively, the rental application and screening process will minimize potential problems in landlord - resident relations. If the process is done incorrectly the seeds of future problems will be sown. Every prospective resident should be given sufficient information to make an informed decision about living in a manufactured home community.

When an individual stops by the manufactured home community office inquiring on the possibility of becoming a resident, always give them an application packet. Anyone who is interested in applying should be given the application packet - inconsistency in giving out application packets could lead to cause of action by the resident selling the home in the community or a fair housing violation.

The application packet is your opportunity to sell the prospective resident on your community. Include in the application packet an application and "Minimum Criteria Standards", optional information may include what homes are available in the community, a community newsletter, information on the history of the community, the advantages of living in a manufactured home community etc. You may also want to include at this time a copy of the rental/lease agreement, rules and regulations, rent history, and statement of policy. Remember, you want to sell the prospective resident on your community, but you also want them to make a well informed decision.

Providing a prospective resident's with extensive information regarding your manufactured home community allows the applicant to evaluate for themselves if they qualify. Including what your expectations are in order to qualify and expectations and requirements to maintain residency in the community allows the prospective resident to self qualify.

Rental Application Process

The overall rental application process should include:

1. Review application to make sure it has been completely filled out.
2. Check to make sure that the applicant has included social security number, driver license information etc.
3. Provide the applicant with a copy of the Statement of Policy (keep a signed copy or receipt for your file), the rent history of the space, Rental Agreement/Lease, Park Rules & Regulations, RV Storage Agreement and Pet Agreement (if applicable), and a Flood Plain Notice. None of these documents should be signed by the community owner or manager until the application process is complete and the prospective resident is accepted.
4. Collect application fee.
5. Provide prospective resident with application fee receipt.
6. Conduct credit, rental and criminal check.
7. Attach copies of credit, rental and criminal check to application
8. If credit, rental and criminal checks are acceptable contact prospective resident.
9. If they are denied and they are purchasing an existing home in the park, send them an application denial form. Also, send a copy to the resident selling the home and one for the tenant's file.

Under current Oregon law you will have not more than 7 days to accept or reject a prospective resident. The 7 days begins on the day of receipt of a complete and accurate written application. The landlord and the prospective resident may agree to a longer time period for the landlord to evaluate the prospective resident's application to address any failure to meet the landlord's screening or admission criteria.

If the existing resident fails to give the required 10 day notice in writing prior to the sale of the home, the landlord may extend the written application process by 10 days. (ORS 90.680)

An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation required pursuant to ORS 90.510 including any financial data and references. 

Answer. Subject to the caveat that I am not a First Amendment lawyer, here are my thoughts:

The First Amendment to the U.S. Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Section 8 of the Oregon Constitution provides:

No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.  (Emphasis added.)

How these two laws have been legally interpreted, and the scope of each one vis–à–vis the other, is beyond my skill-set.

First, there is only one statute in Oregon’s landlord-tenant law that addresses this issue, and it is broadly crafted to permit expression:

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 facility at 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 signs on 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. [Formerly 91.925; 1991 c.844 §18; 1995 c.559 §40; 2009 c.816 §17] (Emphasis added.)

So as to political signs, it appears that pro- and anti-Trump signs are clearly protected. What about pro-life signs, which could be viewed as a political statement? Same question for gay rights. Confederate flags might be regarded as political, but I believe in this day and age of hypersensitivity, it has become viewed less as emblematic of southern heritage, and more as having racial undertones. In short, community management might have an easier chance of prohibiting the flag than a sign.

What is interesting in Oregon’s law is that the rights of expression, speech, and press, are modified by the clause “but every person shall be responsible for the abuse of this right.”  Again, I do not know how this law has been judicially interpreted, but clearly, it suggests that the freedom is balanced against an abuse of the right.

In this vein, ORS 90.740(4)(j) provides that one of a resident’s legal duties in a community is to:

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.

So, my take, is the following:

• Each situation must be viewed on a case-by-case basis, depending not only upon the signage, but the demographics of the community itself. In other words, certain signs in certain communities may not be viewed as provocative or inflammatory, and therefore be permissible. 
• However, here’s the rub: All it takes is one person with a provocative sign that offends an entire community, to enlist the aid of the ACLU, and you may quickly confront the reality of the legal cost for protecting the “peaceful enjoyment” of the rest of the community.[1]

So in the final analysis, my belief is that the “peaceful enjoyment” language of ORS 90.740(4)(j), protecting the community’s residents as a whole, coupled with Oregon’s constitutional protection against abuse of the right of free speech, together provide a legitimate basis for prohibiting non-political signage that could be deemed offensive to the rest of the community. However, such proscriptions should only be broadly spelled out in management’s rules, rather than expressly deeming certain topics permissible, and others impermissible. For example:

“Residents shall not post on their spaces or homes, signs, emblems, flags, slogans, or similar expressions, which, by their nature, could be viewed as offensive or inflammatory to other residents, and thereby interfering with their peaceful enjoyment of the Community.”

However, if the signage relates to political candidates, campaigns, politicians, and legislation, etc., ORS 90.755 appears to give residents broad rights, subject only to the size of the signage and length of time it may appear.  Lastly, I would believe that the use of profane or vulgar images or text in political signs may be reasonably prohibited by management.

[1] This is why community management should carry sizeable liability insurance.