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The Justice Department announced today that Thomas Mere, the owner and operator of Mere's Mobile Home and Recreational Vehicle Park in North Fort Myers, Florida, has agreed to pay $40,000 to resolve allegations that he discriminated against African Americans in violation of the Fair Housing Act.  The settlement, which is in the form of a consent order, must still be approved by the U.S. District Court for the Middle District of Florida.

The government's complaint, also filed today, alleges that the defendant falsely told African Americans that no mobile homes, recreational vehicles or recreational vehicle lots were immediately available for rent, but told similarly-situated white persons that they were, in fact, available for rent.  According to the complaint, the defendant encouraged prospective white renters to consider residing at Mere's Park and discouraged African Americans from residing there by, for example, referring African Americans to another mobile home and RV park, making discouraging comments about units that were available for rent and failing to provide African Americans complete and accurate information about available units and lots.  The lawsuit is based on the results of testing conducted by the department's Fair Housing Testing Program, in which individuals pose as renters to gather information about possible discriminatory practices. 

Owners of rental properties cannot pick and choose residents based on race or color

Answer. This sounds to me a problem that transcends the park rules. Based upon your description of these circumstances, you are certainly within your rights to issue a 30-day curable notice under ORS 90.630(1)(a) and (b) for violation of one or more of your park rules (I'd have to read them to say for certain), the rental agreement (same caveat), or ORS 90.740(4)(j) (Tenant Obligations)[1].

You have not mentioned whether the Temporary Occupants are staying there under a written Temporary Occupant Agreement. If so, it is far easier to terminate them, than terminating the tenancy of a tenant who is occupying the space under a signed Rental Agreement.[2]

But the larger problem, from a humanitarian point of view, is what happens after you have all of the offenders removed? The cycle will likely repeat itself somewhere else, and the situation could become even worse for the children. I suggest you have a discussion with the tenants and make it clear that (a) the extra occupants will have to leave, and that (b) some effort should be made to assist the mother and children transition into a stable living environment. Perhaps a little advance research is in order for you, since it sounds as if the children's best interests are not being properly addressed by anyone in the home. See, https://www.oregon.gov/DHS/Offices/Pages/Child-Welfare.aspx

[1] 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.

[2] You need "cause" to terminate both, but there is no 30-day cure period for the Temporary Occupant. See, ORS 90.275.

Answer: The short answer is "no," you cannot evict an existing RV tenant who has been there for more than one year for no reason.

Under newly enacted Senate Bill 608, landlords cannot evict RV tenants for no reason after the first year of occupancy. After the first year, the tenant cannot be evicted as long as the tenant (1) pays the rent, and (2) follows the park rules. Since your existing RV tenant has been in the park for more than one year, you cannot evict the tenant with a no-cause notice.

The new law forces landlords to primarily rely on for-cause notices after the first year of tenancy (i.e., rent nonpayment, violation of park rules, etc.). As such, I recommend that you carefully monitor RV tenants during the first yearof tenancy and evict tenants who seem likely to become "problem" tenants. During the first year, month-to-month RV tenants can be evicted with a 30-day, no-cause notice.

Please note that there are some exceptions that would allow a landlord to evict long-term tenants on 90 days' notice if the RV rental space is being converted to another use, or substantial repairs are planned. Even then, the tenant must be paid one month's rent if evicted with a 90-day notice. However, these exceptions would generally apply only if the park (or parts of it) are closed and converted to another use.

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.

In its Charge of Discrimination HUD alleges that the property manager and owner of a 10-unit apartment complex retaliated against the tenant after the tenant informed the property manager that his unwanted conduct toward her daughter was inappropriate given the property manager’s position as landlord. After the tenant confronted the property manager, the property manager took several retaliatory actions, including sending multiple threats of eviction, revoking tenancy privileges, and sending harassing text messages, culminating in seeking to evict the complainant. The tenant felt compelled to leave the unit and seek out alternative, less desirable housing because of the retaliation.

“The deplorable conduct alleged in this case constitutes retaliation that violates the Fair Housing Act,” said Damon Smith, HUD’s General Counsel. “HUD is steadfastly committed to protecting the rights of tenants to be free from such retaliation by landlords.”

A United States Administrative Law Judge will hear HUD’s charge unless any party elects to have the case heard in federal district court. If the Administrative Law Judge finds, after a hearing, that discrimination has occurred, the judge may award damages to the tenant. The judge may also order injunctive relief and other equitable relief to deter further discrimination, as well as payment of attorney fees. In addition, the judge may impose civil penalties to vindicate the public interest. If the federal court hears the case, the judge may also award punitive damages to the resident.

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.

Answer. This issue is not dissimilar to one asked recently where the hospitalized resident's sister came as a concerned family member and, bringing her small child, wanted to stay at the home which was located in a 55+ community.

My response then, s here, is that ORS Chapter 90, like most laws, is enacted to address essentially 80% of the most commonly observed landlord-tenant issues. That leaves the other 20% to be dealt with on an ad hoc basis, i.e. as they arise. This situation raises issues that do not have a direct answer under the law.

Here, the issue deals, perhaps more directly, with what authority management has to permit friends and family to reside in the home of the comatose resident? Without some assurance that any of these folks would be permitted to stay in the home, the answer is a bit easier than whether a visiting sister with a small child is in violation of the 55+ park rules (she was not).

The most conservative answer is, to me, the best one; unless there is some basis for granting consent, I would not permit anyone to occupy the home, other than the resident. You have no knowledge of the visitor's backgrounds, and permitting them to encamp in the resident's home could pose problems to other residents.

The Oregon landlord-tenant law contains nothing one could point to that would authorize management to turn over possession to friends and family. Even family alone, should not be permitted access. There are simply too many things that could go wrong, and families can do strange things when a member passes away.[1]

• Like taking items from the home that now belong to the estate;
• Like moving in and claiming the home was "inherited";
• Like selling the home and retaining the proceeds, etc.

And what if the resident recovers? Will there be issues when he/she wants to return home, and one or more persons are staying there? What if valuables are missing?

The take-away is this: Absent some fairly clear instructions from the resident, or the attorney-in- fact under a durable power of attorney, the downside in permitting occupancy far outweighs any upside. Your explanation should be simple and straight forward: Oregon law does not authorize you to turn over possession of a resident's home to any unauthorized third parties. Under no circumstances should you accept any rent payments from them.

Lastly, if the friends and family are already staying in the home, you have a different set of problems. These folks are squatters, in that they did not enter into possession under any legal claim of right. ORS 90.100(43) defines a "Squatter" as:

... a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit. "Squatter" does not include a tenant who holds over as described in ORS 90.427 (7).

Accordingly, you should first try to get them to vacate immediately and peaceably. If they refuse, your only alternative is to file for eviction against them. You do not need a written notice, since this case does not arise under the Oregon Residential Landlord-Tenant Act. You should contact an attorney familiar with eviction law, who can assist you in using the proper summons and complaint. (See, ORS 105.126) Once filed, the case will proceed in much the same fashion as all other evictions.

[1] Remember that the abandonment law has a specific protocol upon death of a resident living alone. Management is required to secure the home, issue a 45-day letter, and give the estate the same rights as a lienholder, with the obligation to pay storage fees and maintain the home until removal or resale. And no one may occupy the home. See, ORS 90.675(21).

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. This sounds to me a problem that transcends the park rules. Based upon your description of these circumstances, you are certainly within your rights to issue a 30-day curable notice under ORS 90.630(1)(a) and (b) for violation of one or more of your park rules (I'd have to read them to say for certain), the rental agreement (same caveat), or ORS 90.740(4)(j) (Tenant Obligations)[1].

You have not mentioned whether the Temporary Occupants are staying there under a written Temporary Occupant Agreement. If so, it is far easier to terminate them, than terminating the tenancy of a tenant who is occupying the space under a signed Rental Agreement.[2]

But the larger problem, from a humanitarian point of view, is what happens after you have all of the offenders removed? The cycle will likely repeat itself somewhere else, and the situation could become even worse for the children. I suggest you have a discussion with the tenants and make it clear that (a) the extra occupants will have to leave, and that (b) some effort should be made to assist the mother and children transition into a stable living environment. Perhaps a little advance research is in order for you, since it sounds as if the children's best interests are not being properly addressed by anyone in the home. See, https://www.oregon.gov/DHS/Offices/Pages/Child-Welfare.aspx

[1] 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.

[2] You need "cause" to terminate both, but there is no 30-day cure period for the Temporary Occupant. See, ORS 90.275.