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Fair housing law expressly prohibits housing discrimination on the basis of familial status, including setting restrictive terms and conditions on residents with children under 18.

HUD's charge claims that the community owners enacted a policy that required children under the age of 18 to be supervised by an adult family member while on the property, including the pool area, with violations of the policy resulting in a $250 fine. In one instance, a couple was threatened with a fine because their two children were playing in the community area while being supervised by adults who were not blood relatives, according to HUD’s charge.

"Families shouldn't be penalized for letting their kids be kids," Anna María Farías, HUD's Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. "Imposing different rules and restrictions on families because they have children is a violation of the Fair Housing Act and HUD is committed to ensuring that housing providers meet their obligations under the law."

The case will be heard in federal court. If it is determined that illegal discrimination occurred, a judge may award actual and punitive damages, issue a court order to deter further discrimination, and order that defendants pay the couple's attorney fees.

Answer: The tenant application process is one of the least understood by landlords and managers. This lack of familiarity can result in significant liability to park owners. Here is a short primer:

Screening Criteria. The manufactured housing section of Oregon's landlord-tenant law provides that any conditions the landlord applies in approving a purchaser who will live in the community should be disclosed in the existing resident's rental or lease agreement.[1] Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what criteria may be placed in the rental or lease agreement.

If you are changing your screening criteria for existing residents, you may be in violation of Oregon law, since those criteria are supposed to already be in the rental agreement, which, as you know, cannot be unilaterally amended by a landlord - subject only to specific exceptions.

MHCO's rental and lease agreement forms contain a number of criteria that landlords may impose, such as: (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.

Note that in 2013, the Oregon Legislature changed the law as it relates to "criminal history." Now, landlords and managers may not summarily reject a prospective tenant for "any" criminal history. Today, it is limited to:

• Pending criminal charges, or
• Prior criminal convictions, if they resulted from crimes that are:
  • Drug-related;
  • Against persons;
  • Sexual in nature;
  • Fraudulent in nature; or
  • That could adversely affect the property, health, safety, or peaceful enjoyment of the landlord, landlord's agents, or tenants.

To remind landlords and managers, MHCO will be adding these clarifications to its rental and lease agreement forms. In the meantime, landlords and managers should adhere to the new limitations described above.

Although there may be other criteria that landlords and managers may wish to use when deciding whether to accept an applicant, the above list in the MHCO form is very comprehensive, and should be sufficient in imposing adequate guidelines when a resident wishes to sell their home on site. If you want to make a change by adding additional screening criteria, you may only do so for new residents coming into the community - not retroactively for existing residents.

Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check providing necessary verification. Although Oregon law imposes a 7-day or 10-day period[2] within which landlords have to respond to a submitted application, it does not prohibit landlords from imposing a longer period so long as the applicant agrees. Additionally, Oregon law expressly states that the 7-day or 10-day period does not commence if the application is incomplete or inaccurate. Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete - and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned. Accepting an incomplete application or continuing with the process after discovering that the applicant has provided incorrect information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.

Conclusion. Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes. Unfortunately, the desire to have the rental flow commence quickly can result in the process becoming rushed. Landlords and managers should never allow the applicant to rush them. Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed. Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws when one applicant claims they were treated differently than another.

[1] Although the law provides that the screening criteria must be in the rental or lease agreement, they may also be found in the rules and regulations. While there is no problem with this, other than redundancy, landlords should be careful to make sure that the criteria are the same. Similarly, the criteria may also be put in the Statement of Policy, but similar caution should be exercised to make them consistent. My approach is however, to avoid the risk of inconsistency by not repeating the same requirements in multiple documents. If one document gets changed and the others don't there will be an inconsistency.

[2] The longer period exists if the tenant failed to give the landlord at least 10-days advance notice of intent to sell his/her home.

Answer: ORS Chapter 90, the Oregon Residential Landlord Tenant Act, is replete with references to tenant associations. Residents clearly have many rights when it comes to the formation of an association, including the right of assembly and the right to canvass other residents. However, nowhere does the law say that park owners and managers have a legal duty to provide individual contact information to other residents, regardless of the purpose for which it is sought. Here is what ORS 90.750 [“Right to assemble or canvass in facility; limitations”] says on the matter: • No park bylaw, rental agreement, regulation or rule shall infringe upon resident rights to: o 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; reasonable times are the hours of 8 a.m. to 10 p.m. daily. o 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 park, or manufactured dwelling living. • The discussions may be held in the common areas or recreational areas of the facility, including halls or centers, or any resident’s home. • However, the landlord may enforce reasonable rules and regulations including but not limited to place, scheduling, occupancy densities and utilities. • A landlord may not prohibit any resident from canvassing other persons in the same facility for certain prescribed purposes. The term “canvassing” includes door-to-door contact, an oral or written request, the distribution, circulation, posting or publication of a notice or newsletter, a general announcement or any other matter relevant to the membership of a tenants’ association. • However, a landlord is not required 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. • Lastly, the statute clarifies that it is not intended to require a landlord to permit any person to disregard a tenant’s request not to be canvassed. To me, this last provision suggests an answer to your question, as it acknowledges that some residents may not want to be “canvassed.” In other words, they have certain rights not to be disturbed, and may request management’s assistance in preventing it from occurring. Accordingly, my view is that before contact information is shared by management with other residents, advance consent should be received from each affected person. Without such consent, I would be very hesitant to give out the information. Certainly, the resident seeking the contact information can try to obtain it by going door-to-door and asking for it. If community management already maintains a published directory of residents that contains names and addresses, I suppose consent is implied by the lapse of time, assuming that everyone knows of the directory. But I would not recommend this practice, and certainly would not share the information with other residents. My conclusions are based not so much on some legal duty of “confidentiality” or legally protectable “right of privacy.” With the Internet, it’s hard to say much of our private information is legally protectable any more. My feeling is a practical one: If there is no affirmative legal duty to provide the information, and there is some risk, however remote, that sharing it without advance consent could anger some residents, it is far better to decline your resident’s request. It does not hamper the association formation process in any way, and respects every resident’s privacy, however limited it is today.

Situation: A fair housing organization sues an assisted housing facility that offers elderly residents limited housekeeping and communal dining but no medical services and denying two accommodations to a deaf rental prospect:

• Providing him with an American Sign Language (ASL) interpreter; and
• Installing a strobe doorbell outside his unit.  

You Make the Call: Which, if either refusal, violates the facility’s duty to make reasonable accommodations?

Answer: Only the refusal to provide the doorbell violates the facility’s duty to make reasonable accommodations.

Ruling: The Arizona federal court renders a split decision. It grants the facility summary judgment on the ASL interpreter claim but okays trial on the doorbell claim [Southwest Fair Housing Council v. WG Chandler Villas SH LLC, 2021 U.S. Dist. LEXIS 53677, 2021 WL 1087200].

Takeaway: Accommodations aren’t reasonable if they require landlords to provide fundamental changes to their services or assume undue financial burdens. The request for an interpreter is unreasonable because it requires the facility to establish a new service it didn’t offer any of its tenants. But the doorbell was relatively cheap to install and required no changes to the facility’s service offerings.

In response to the COVID 19 epidemic, Governor Kate Brown joined nearly a dozen other governors on Monday issuing a sweeping order (Executive Order 20-12) that essentially requires people to stay home except for essential travel, such as to the grocery store or for medical needs. Violation of the Order is a Class C misdemeanor, which carries a maximum penalty of 30 days in jail and/or a fine of $1,250.

As of 12:01 a.m. on March 24, a long list of businesses (from amusement parks to youth clubs) were ordered shuttered. Most likely, the list of businesses ordered to close does not affect a manufactured home park, RV park or floating home community; however, community owners should review the list of businesses to ensure compliance.

Although “campgrounds” were ordered closed, RV parks are exempted.

Pools, sports courts and playgrounds must be closed. 

The Governor's order does not change her previous order (Executive Order 20-07) with respect to restaurants, bars, and other establishments that serve food and drink, which Order prohibits on-premises consumption of food or drink but allows take-out or delivery services.

Outdoor Activities

Governor Brown's order specifically allows people to be outside for walking or hiking but any outdoor activity that cannot be done while maintaining social distancing (i.e. basketball) is prohibited. State and community parks may remain open if social distancing can be maintained and signage about social distancing must be prominently displayed.

Employees

Effective March 25, all businesses in Oregon shall facilitate telework and work at home by employees, to the maximum extent possible. Work in offices is prohibited whenever telework and work at home options are available, in light of position duties, availability of teleworking equipment, and network adequacy. In other words, your employees do not have to work from home if their duties require them to be on site (maintenance workers) or if they are not set up to work from home (they don’t have the ability or capability from working from home).

Social Distancing Policy

When telework is unavailable, businesses must designate an employee to establish, implement and enforce social distancing policies, consistent with the guidance from the Oregon Health Authority. Such policies must address how the business or non-profit will maintain social distancing protocols for business-critical visitors.

Bill Miner | Davis Wright TremaineLLP

1300 SW Fifth Avenue, Suite 2300 | Portland, OR 97201

Tel: (503) 778-5477 | Fax: (503) 778-5299 

Email: billminer@dwt.com| Website: www.dwt.com

If you do not yet have a policy in place, you should contact your legal or human resource advisor to assist you with the drafting of a social distancing policy. Please note that DWT is offering a draft policy at a fixed price for MHCO members.

Answer: ORS 90.532 (3) provides as follows: Except as allowed by subsection (2) of this section for rental agreements entered into on or after January 1, 2010, a landlord and tenant may not amend a rental agreement to convert water or sewer utility and service billing from a method described in subsection (1)(b)(C)(i) [i.e. where the charge is included in the base rent] *** to a method described in subsection (1)(b)(C)(ii) [i.e. where the charge is billed separately from base rent and apportioned among the tenants on a pro rata basis as measured by a master meter]. The exception covered in subsection ORS 90.532(2) provides as follows: A landlord may not use a separately charged pro rata apportionment billing method: (a) For water service, if the rental agreement for the dwelling unit was entered into on or after January 1, 2010, unless the landlord was using a separately charged pro rata apportionment billing method for all tenants in the facility immediately before January 1, 2010. (b) For sewer service, if it is measured by consumption of water and the rental agreement was entered into on or after January 1, 2010, unless the landlord was using a separately charged pro rata apportionment billing method for all tenants in the facility immediately before January 1, 2010. Translating this to plain English, here is my take: - For rental agreements entered into on or after January 1, 2010 you may not convert water or sewer charges from an in-rent method to a pro rata billing method except as follows: _ Water service: If the rental agreement was entered into on or after January 1, 2010, unless you were using a separately charged pro rata apportionment billing method for all 180 spaces immediately before January 1, 2010. _ Sewer Service: If sewer service is measured by consumption of water and the rental agreement was entered into on or after January 1, 2010, you may not convert from an in-rent method to a pro rata method, unless you were already using a separately charged pro rata apportionment billing method for all 180 spaces immediately before January 1, 2010. - Garbage service: You may not convert from an in-rent method to a pro rata billing method unless the pro rata apportionment is based upon the number and size of the garbage receptacles used by the tenant. There does not appear to be any time frame limitation on this rule Pursuant to ORS 90.534 [Allocated charges for utility or service provided directly to space or common area], if a written rental agreement so provides, you may use a pro rata billing method with a master meter and require tenants to pay you a utility or service charges (e.g. electrical and natural gas) that has been billed to you or provided directly to the tenant's space or to a common area. However, you may not unilaterally amend an existing rental agreement to convert utility and service billing from an in-rent billing method to a pro rata billing method. It appears you could use the pro rata billing method (other than sewer and water) per above rules, only on a going forward basis with new residents. Conclusion. This is the best I can tell you. It is not legal advice, and based only upon my interpretation of the statutes which are quite complex. It appears that yours is a difficult situation in which water/sewer submetering will not actually help. With the exception of garbage service, there is no easy answer. However, upon closer evaluation by your attorney, perhaps you may be able to figure out a work-around solution. Good luck!

Editor's Note:  By far - the largest number of phone calls to the MHCO office - year after year - is assistance animals.  Probably one of the most abused laws in landlord-tenant law.  Finally, HUD is offering some further - and much needed guidance.  The actual statement from HUD is attached above ("HUD Guidance on Assistance Animals 01-28-2020").  We have forward this to our legal team to review the appropriate forms and to provide an additional article - with greater clarity - on how to proceed on this thorny issue.  Stay tuned ....

***

HUD recently announced new guidance to clarify how housing providers can comply with the Fair Housing Act when assessing a person’s request to have an animal in housing to provide assistance because of a disability.

Federal fair housing law prohibits housing discrimination against individuals with disabilities. Among other things, the law requires housing providers to permit a change or exception to a rule, policy, practice, or service that may be necessary to provide people with disabilities an equal opportunity to use and enjoy their home. In most circumstances, a refusal to make such a change or exception, known as a reasonable accommodation, is unlawful.

A common reasonable accommodation is an exception to a no-pet policy. A person with a disability may require the assistance of an animal that does work, performs tasks, or provides therapeutic emotional support because of the disability. Housing providers may confirm, if it isn’t apparent, whether the requested accommodation is needed because of a disability that affects a major life activity and is a reasonable request.

HUD says its new assistance animal guidance will help housing providers in this process by offering a step-by-step set of best practices for complying with the law when assessing accommodation requests involving animals and the information that a person may need to provide about his or her disability-related need for the requested accommodation, including supporting information from a health care professional.

The new guidance also provides information on the types of animals that typically may be appropriate and best practices for when the requested animal is one that isn’t traditionally kept in the home. It also provides information for both housing providers and persons with disabilities regarding the reliability of documentation of a disability or disability-related need for an animal that’s obtained from third parties, including Internet-based services offering animal certifications or registrations for purchase.

“Countless Americans rely on assistance animals to fill a void, providing individuals with disabilities with the means to have a home that supports their quality of life,” Secretary Ben Carson said in a statement. “In my many discussions with housing providers and residents impacted by the need for assistance, I recognized the necessity for further clarity regarding support animals to provide peace of mind to individuals with disabilities while also taking in account the concerns of housing providers. Today’s announcement responds to the ambiguity surrounding proper documentation for assistance animals with clarity and compassion to provide an equal opportunity for a person living with a disability to use and enjoy their home.”

Because they apply to more types of facilities than housing, the laws applicable to public accommodations and government-funded facilities, including Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, while sometimes overlapping with the Fair Housing Act, have different, and sometimes narrower, requirements. Similarly, public transportation and common carriers, such as airlines, are also subject to different rules. The Assistance Animal Notice doesn’t address those circumstances.

Answer: Yes, you can close the restroom and the laundry facility, but you will need to jump through a few legal hoops to do it.

Under Oregon law, a landlord cannot unilaterally make a change if it "works a substantial modification of the bargain" unless the RV tenant consents in writing. (Note: This differs from the rule change notice and voting procedure for mobile home tenants. That procedure does not apply to RV tenants.)

While you could try getting the written consent of all of your RV tenants, I doubt very much that they would agree to it. Most tenants are not willing to voluntarily give up services provided as part of their rent.

My recommendation has always been to issue either 30-day or 60-day no-cause tenancy termination notices to all RV tenants, coupled with an offer to sign a new rental agreement. The new rental agreement would include a provision specifying that the park will no longer provide a public restroom or laundry. If tenants choose to stay, they would need to sign the new agreement agreeing to the change. If not, they would need to vacate the park or face an eviction action.
Assuming your RV tenants are on a month-to-month rental agreement, a 30-day notice could be issued to any RV tenant who has been a tenant for less than a year. If the tenant has been in the park for a year or longer, it would require a 60-day notice. (Although I would recommend the same 60-day timeline for all RV tenants to avoid any claims of unfairness.)

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

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

Form 1099 and Protecting Your Investment 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. ### 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.