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Failure to make reasonable accommodations for a rental applicant or tenant with a disability is, perennially, the most common type of fair housing complaint, accounting for nearly 60 percent of all cases, according to HUD. Many, if not most of these complaints, involve assistance animals. So, that’s where we’ll start our analysis.

Spot the Discrimination Mistake

A landlord threatens to evict a tenant with disabilities for keeping a stray cat in her apartment in violation of the community’s no-pets policy. The tenant says the cat helps her cope with mental anxieties and asks for an exemption. The landlord says no because the cat has no special training or certification in assisting the disabled.

Pitfall: HUD and the U.S. Department of Justice (DOJ) interpret the federal Fair Housing Act (FHA) duty to make reasonable accommodations as requiring exemptions to no-pet policies necessary to enable individuals with disabilities to keep “assistance animals” that directly assist with a disability-related need. “Assistance animals” include dogs or other common domestic household animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. Significantly, assistance animals need not have any specific certification or training. By contrast, under the Americans with

Disabilities Act (ADA) duty to accommodate applies onlyto “service animals” trained to do work or perform tasks for the benefit of an individual with a disability.

Thus, while the refusal of the landlord in our scenario to accommodate the stray cat might have been okay under the ADA, it violated the FHA.

Example: A Pennsylvania federal court ruled that the DOJ had a legally valid claim against a landlord that took the same position as the landlord in our scenario, and allowed the case to go to trial [United States v. Perry Homes, Inc., 2022 U.S. Dist. LEXIS 87064, 2022 WL 3021040].

Solution: Keep in mind that neither assistance animals nor service animals count as pets and that, unless the ADA applies, you must accommodate both to the point of undue hardship. You may, however, ask for information about the relationship or connection between the disability and need for the assistance animal to the extent the disability is non-observable and/or the animal provides therapeutic emotional support. In addition, you don’t have to accept an assistance or service animal that would create an unreasonable risk of harm, injury, or damage to property.

Fair housing law bans not only sexual harassment, but also harassment based on race or color, and other protected characteristics. As a general rule, community owners may be liable for illegal harassment by managers or employees, when they knew or should have known about it but failed to do enough to stop it. Moreover, the FHA makes it unlawful to intimidate, threaten, or interfere with anyone exercising his fair housing rights.

Take all necessary steps to prevent—and address—discrimination or harassment at the community. You don’t have only your employees or staff members to worry about—you could face liability for tenant-on-tenant harassment under certain circumstances. Under HUD regulations, communities may be liable under the FHA for failing to take prompt action to correct and end a discriminatory housing practice by a third party, where the community knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third party depends upon the extent of your control or any other legal responsibility you may have with respect to the third party’s conduct.

Example: In November 2019, HUD announced that it reached a $80,000 settlement to resolve allegations that the owners and manager of a Georgia community ignored complaints by African-American residents of repeated racial harassment by white neighbors.

Three African-American residents filed the HUD complaint, alleging that the community refused to investigate and address their claims that their white neighbors subjected them to racial harassment and verbal and physical assaults, including attacks by dogs. The community denied the allegations but agreed to the settlement requiring payment of $20,000 to each of the three residents and to create a $20,000 fund to compensate other residents who may have been subjected to racial harassment.

“No one should ever have to face threats or be subjected to physical violence in the place they call home because of their race,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “The agreement we’re announcing today is a reminder to housing providers everywhere that HUD is committed to ensuring that they meet their obligation to comply with the nation’s fair housing laws.”

UPDATE:

Tenant-on-Tenant Harassment

In the January 2020 lesson, Fair Housing Coach highlighted an appeals court ruling that a New York community could face liability under the FHA for failure to stop an alleged campaign of racial harassment against an African-American resident by his neighbor. In recent action, the appeals court agreed to a rehearing in the case; oral arguments are scheduled for September 2020.

In his complaint, the resident alleged that his next-door neighbor engaged in a months-long campaign of racial harassment, abuse, and threats against him. According to the resident, he contacted police and notified management about the neighbor’s abuse at least three times, but management failed to intervene. Ultimately, the neighbor was arrested and pleaded guilty to aggravated harassment.

The resident sued, accusing the community of violating fair housing law by failing to take action to address a racially hostile housing environment created by his neighbor. A district court ruled against the resident and dismissed the case.

After a series of proceedings, a panel of the appeals court reversed, ruling that the resident could pursue his claims against the community for intentional discrimination under the FHA by failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment [Francis v. Kings Park Manor, Inc., New York, December 2019].

Answer: Your question does not mention any activity by this visitor that could be considered disruptive to current residents (e.g. under the peaceful enjoyment statute, ORS 90.740(4)(j)), threatening, or a violation of any laws, rules, or ordinances. As you know, most park rules, as well as Oregon's landlord-tenant laws, make residents responsible for the conduct of their guests. Thus, if the guest is doing something disruptive, threatening, or illegal, your first step should be to notify the resident and ask that the visitor not engage in the bad behavior. If it continues, a 30-day notice under ORS 90.630(1)may be in order.

From time-to-time, I have seen situations where the person coming into the community has not been invited, and the resident tolerates their presence, but does not - or cannot - control their activities while there. Oftentimes, the visitor is a younger family member, and the resident is an elderly parent.

Under these circumstances (including those in which you simply do not want to issue the resident a 30-day notice), where the activities are disruptive, threatening, or illegal, a trespass notice may be in order. However, before doing so, you should contact your local law enforcement jurisdiction for directions. This is because they may have their own rules on how they will respond and under what circumstances. For example, they may say that the notice has to be served on the visitor, i.e. it isn'tenough to give it to the resident to give to the visitor. They may want the notice to contain specific language, and certainly be clear enough that the officer believes they have authority to remove the visitor.

The form of the notice must be clear and unequivocal. For example[1]:

"NO TRESPASSING NOTICE

TO: ___________________________

You are not a current resident at ______________________ (the "Community"). On ______, _____, and ______, you have visited _____________________, at Space __________. In each instance you became engaged in a verbal altercation with _______ and ___________, both of whom are residents. In each instance, police were called to quiet things down, and remove you from the Community.

Accordingly, this is to notify you that inasmuch as you are not an approved resident in the Community, and your presence has been consistently disruptive to other residents while here, you will no longer be permitted to enter any portion of the Community under any circumstances. This shall apply to you, your friends and family. This Notice is effective immediately. If you fail to observe this Notice, and you are discovered in the Park, Management will immediately contact the local police to request that you be removed as a trespasser.

If you have any questions, please contact your own attorney. You are not to make contact with Management or the undersigned. PLEASE GIVE THIS NOTICE YOUR IMMEDIATE ATTENTION."

Lastly, to clear, your reasons for issuing a Trespass Notice must include something more than just a general dislike of the visitor - even if he was a problem while he was a resident in the community. If he has not caused any disruption, etc., while there, I question the advisability of issuing a Trespass Notice.

The only exceptions I can think of is where the visitor poses a clear and present danger to others, e.g. a sexual predator (even if charged but not convicted); someone charged with a crime of violence, even if not convicted; a visitor who has engaged in prior disruptive, dangerous, or illegal conduct while visiting the Community.

Of course, you should contact your own attorney, as well.

[1]This is not intended to constitute legal advice as to the form of the Notice - it is just an example for illustrative purposes. Contact your own attorney first.

Answer.  Senate Bill 608 applies to this situation. You have not indicated whether the resident’s period of occupancy exceeded one year.[1]For purposes of the answer below, I will assume it is. I will also assume the resident owns their own home, in not in violation of the rules or rental agreement, and is current on rent, i.e. you are not seeking to terminate the tenancy based upon nonpayment, which, as you know, has been prohibited pursuant to HB 4213 which was passed in the Special Session and became immediately effective on June 26, 2020. 

Based upon the above assumptions, here are the rules for what is to happen at the end of a lease term:

The fixed term lease becomes a month-to-month tenancy upon the expiration,unless: 

(a) You and the tenant agreetoanewfixedtermtenancy;

(b) The tenant gives you notice of terminationin writing not less than 30 days prior to the ending date of the lease (or the date designated in the notice for the termination of the tenancy, whichever is later);or 

(c) You give written notice to the tenant under the Qualified Landlord rules.[2]

I suggest you try to find out what the tenant wants to do. Reach out and ask. It may be he or she is just being coy, knowing that the right of occupancy cannot terminate at the end of the lease term, i.e. under SB 608 it automatically becomes a month-to-month tenancy. 

Note that if the tenant remains in occupancy over one year, he or she automatically becomes a month-to-month tenant. If that is the case, you may not reject the tender of rent. However, with 90 days’ notice, you are entitled to increase the rent, so long as it is no greater than 7% plus the change in CPI.

If the tenant plans on withholding rent, that is another issue, since the Special Session rules have imposed limitations on a landlord’s ability to terminate a tenancy for non-payment of rent. This is why you need to contact your tenant to see what’s going on.  Oregon’s laws today do not give residential landlords many options - at least until some of these regulations disappear.[3]  

The Justice Department recently filed a lawsuit alleging that the owners and managers of residential rental housing in Honolulu, Hawaii, refused to rent to families with children, in violation of federal fair housing law. The lawsuit alleges that the three properties are operated as student housing for post-secondary students.

Specifically, the complaint claims that at least since 2015, the defendants discriminated against families with children by: (1) refusing to rent or to negotiate for the rental of the three properties on the basis of familial status; (2) steering prospective renters with children who inquired about housing away from the properties to a separate property management company; and (3) making discouraging and other discriminatory statements to potential renters with children who inquired about housing, including that the housing wasn’t “suitable” or the right “fit” for families with children.

The Legal Aid Society of Hawaii brought this matter to HUD’s attention after conducting testing that, as the complaint alleges, showed discrimination against families with children in connection with the defendants’ properties. The complaint contains allegations of unlawful conduct; the allegations must be proven in federal court.

“Owners and managers of rental housing must ensure their housing is open to families with children,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “The Fair Housing Act requires it, and the Justice Department will continue both to enforce the Act vigorously and to seek relief for families victimized by unlawful discrimination.”

Answer. ORS 90.630(1)(a) (Termination by landlord; causes; notice; cure; repeated nonpayment of rent) permits you to issue a 30-day termination notice for any of the following if the resident:

• Violates a law or ordinance related to the tenant's conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;
• Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing

I read these prohibitions as relating to events or conduct inside the community. However, as to the following two, the conduct is not required to have occurred inside the community:

• Is classified as a level three sex offender under ORS 163A.100 (3);
• Is an unclassified adult sex offender designated as predatory prior to January 1, 2014, or a person whom the State Board of Parole and Post-Prison Supervision, the Psychiatric Security Review Board or the Oregon Health Authority has classified as a level three sex offender under section 7 (2)(b), chapter 708, Oregon Laws 2013.

Both of the above two sex offender violations are non-curable, so that presumably the resident must vacate within the 30-day period. As I read ORS 90.630, with the exception of the sex offender violations, the others must relate to the tenant's conduct as a tenant, and by definition (to me at least) mean "while in the community"; for purposes of termination of a tenancy, a tenant is not a tenant when he or she is outside of the community.

90.396 (Acts or omissions justifying termination 24 hours after notice) provides that you may issue a 24-hour notice if:

• The tenant, someone in the tenant's control or the tenant's pet seriously threatens to inflict substantial personal injury, or inflicts any substantial personal injury, upon a person on the premises other than the tenant;
• The tenant or someone in the tenant's control recklessly endangers a person on the premises other than the tenant by creating a serious risk of substantial personal injury;
• The tenant, someone in the tenant's control or the tenant's pet inflicts any substantial personal injury upon a neighbor living in the immediate vicinity of the premises;
• The tenant or someone in the tenant's control intentionally inflicts any substantial damage to the premises or the tenant's pet inflicts substantial damage to the premises on more than one occasion;
• The tenant, someone in the tenant's control or the tenant's pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. Acts that are "outrageous in the extreme" include, but are not limited to, the following acts by a person: Prostitution, commercial sexual solicitation or promoting prostitution; Manufacture, delivery or possession of a controlled substance, but not including the medical use of marijuana in compliance with Oregon law; Possession of, or delivery for no consideration of, less than one avoirdupois ounce of marijuana; or possession of prescription drugs; intimidation, as described under Oregon criminal law; or burglary.

Under the definition section of the Oregon Residential Landlord Tenant Act, ORS 90.100 (34), the term "premises" means "a facility for manufactured dwellings or floating homes", i.e. the park itself. Thus, again, all of the prohibited conduct must have occurred inside the community.

Conclusion. However, you should remember that when a resident commits a crime outside the community, especially one that entails incarceration, the problems don't usually stop there, i.e. he or she frequently is unable to pay their rent, which can lead to eviction. Or your issuance of three 72-hour (or 144-hour) late notices, can result in issuance of a noncurable 30-day notice of termination. In cases in which the tenant has committed some particularly aggravated crime outside the park, which causes you concern for their coming back into the community, I suggest you consult your attorney to determine whether there might be some other basis for termination.

The Question: What Should You Do?

1. Nothing, it's obvious that her complaint is merely a ploy to get around your no-pets policy.

2. Send her a warning that she's in violation of your community rules and that she must remove the dog immediately or face eviction proceedings.

3. Contact your attorney to determine how you should respond to the complaint.

The Correct Answer: C

If you receive notice of a formal fair housing complaint filed against your community, it's best to contact a fair housing attorney to oversee your investigation, advise you on the proper response, and communicate with the HUD investigator on your behalf.

Wrong Answers Explained:

A. The case won't go away if you ignore the notice and ensuing HUD investigation.

B. The FHA considers retaliation to be a separate offense, which means that you could be found liable for damages or penalties for retaliation, even if the initial discrimination claim is ultimately found to be groundless.

Answer: ORS 90.680 permits tenants to resell their homes to qualified prospective tenants. The refusal to permit or process new applications would appear, on its face, to be a clear violation of the statute.[1] The landlord certainly has the right to screen the new applicants, but not to refuse them outright. Moreover, it is highly likely that some or all of the existing tenants' rental agreements also mirror ORS 90.680, which gives them the contractual right to resell their home, on site, to qualified prospective purchasers. Thus, on two counts, the Oregon Residential Landlord Tenant Law, and the rental agreement, it would appear that the landlord's conduct would expose him/her to potential legal action. It is also possible that even the potential purchasers may have a potential cause of action against the landlord.

[1] The question does not indicate why the landlord has adopted this policy. While there may conceivably be some rationale explanation, I know of no legal justification for the policy in the Oregon Residential Landlord Tenant Act.

The FHA bars unequal treatment in the application process, for example, by using different rental procedures or screening criteria—such as income standards, application requirements, application fees, credit analysis, rental approval procedures, or other requirements—because of race or other protected characteristic, according to HUD regulations.

Whatever your policy on criminal background screening, for example, be sure that you apply it consistently—without regard to race and color, or other protected characteristics. Applying it only to applicants who are members of racial or ethnic minorities, but not to white applicants, could lead to fair housing trouble.

Example: In August 2019, the owners and managers of a Tennessee community agreed to pay $42,500 to resolve allegations of race discrimination by denying the application of an African-American applicant because of his criminal record, despite contemporaneously approving the rental applications of two white people with disqualifying felony convictions. The community denied the allegations but agreed to settle the case [U.S. v. Dyersburg Apartments, LTD., Tennessee, August 2019].

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.