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You Make the Call: Did the tenant have a valid claim for refusing to make reasonable accommodations?

Answer: Yes

Ruling: The Pennsylvania federal court denied the landlord’s motion for summary judgment. To qualify for punitive damages, a plaintiff must show that a landlord’s denial of a reasonable accommodation “involves malicious intent or reckless or callous indifference” to the rights of others. The court concluded that the facts the tenant alleged were enough to allow a court to reach that conclusion and gave her the green light to try to prove those claims at trial [United States v. Dorchester Owners Ass’n, 2023 U.S. Dist. LEXIS 12432].

Takeaway: HUD Guidelines expressly state that you can’t make individuals with disabilities pay extra fees or deposits as a condition for receiving a requested accommodation. That includes charges for an assistance animal necessary to assist a person with a disability. In other words, if it’s reasonable for the applicant or tenant to have the animal, you must allow it without any additional charges. However, what you can do is hold the tenant responsible for any actual damage the animal does to the apartment after the lease ends. You can also hold the tenant accountable if the animal violates building rules, such as by creating a danger or nuisance to others in the building.

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]  

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.

One decision can make a significant difference in monthly payments: whether to finance the mobile home with a personal property loan or a mortgage.

Personal property loans, known as chattel loans, have much higher interest rates than mortgages. To some owners of manufactured homes, refinancing chattel loans into mortgages could reduce monthly housing expenses.

Get the latest refinance rates

Refinancing a mobile home

To qualify for refinancing as a mortgage:

• The home must be on a permanent foundation that meets standards set by the Department of Housing and Urban Development.
• The manufactured home must be titled as real estate rather than as personal property.
• The homeowner has to own the land that the manufactured home is on. An important exception to this rule is explained below.

Big difference in interest rates

In 2012, about 68 percent of all manufactured-housing purchase loans were considered higher-priced mortgage loans, and many of them were chattel loans, according to the Consumer Financial Protection Bureau.

Interest rates on chattel loans range from 7 percent to 12.75 percent, says Ken Rishel, founder of Rishel Consulting Group in Chicago. The loans are usually for 15 or 20 years.

In contrast, the average rate for a 30-year fixed-rate loan has been well below 5 percent for all of 2014.

Rishel, whose company makes chattel loans of at least $5,000, says the interest rates are risk-based, and chattel loans are often the only choice for borrowers with poor credit. Chattel loans are the main option for owners whose mobile homes are not permanent foundations.

Converting to a new title

Some states have eased the process of converting a personal property title into a real estate title, making refinancing possible, says Marc J. Lifset, an attorney with McGlinchey Stafford in Albany, New York.

Lifset helped financial institutions lobby for the approval of that legislation in Alaska, Illinois, Iowa, Louisiana, Maryland, Missouri, Nebraska, North Dakota, Tennessee and Virginia.

"The legislation provides a clear definition of when the home is real estate and when it is not," he says. "It makes the process more certain. In many states, the definition was murky."

Getting a real estate title

A real estate attorney or title company can help with a title conversion as a first step to refinance. Owners of manufactured homes need to provide:

• A certificate of title to the home or a copy of the manufactured certificate of origin.
• The deed to the land where the home with the permanent foundation is located.

Once the owner has the real estate title in hand, the next step is to find lenders that provide mortgages on manufactured homes. The rest of the process is similar to closing a mortgage on any residential property.

Borrowing on leased land

Under some circumstances, owners of manufactured homes leasing a lot at a mobile home community can get mortgages -- even if they don't own the land beneath their feet.

The Federal Housing Administration offers a program known as Title I, designed for owners whose mobile homes are on a permanent foundation but are within a manufactured housing community.

Among the requirements for a Title 1 mortgage:

• The mobile home must be the borrower's primary residence.
• The home has to be on a rental site in a manufactured home park that conforms to FHA guidelines.
• The lease agreement must meet FHA standards.

It's not easy to find mobile home communities that meet the FHA's strict guidelines, says Rishel, whose company makes chattel loans in land-lease communities. "Not many landlords participate on the Title I program."

Few lenders offer Title I mortgages. One is 21st Mortgage, which is owned by Clayton Homes, one of the nation's largest manufacturers of mobile homes.

Costs of switching title

When a mobile home is titled as personal property, the owner pays personal property taxes. When it's titled as real estate, the owner pays real estate taxes. In many states, property taxes tend to be higher.

"The consumer has to do the math on how much they are going to save by lower interest rates, compared to how much more taxes they may be paying and what the closing costs are going to be" in a refinancing, Lifset says.

Another potential downside: If the owner has to build a permanent foundation to refinance a chattel loan, that expense has to be taken into account. Building a new foundation could cost $10,000 to $15,000, Rishel says.

"Refinancing is a valuable thing but for a limited number of people who live in manufactured homes," he says.

MHCO would like to thank Ken Rishel for providing this article:

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.”

And don’t be thrown off by what the resident says or when he says it. Whenever a resident raises a disability-related reason for violating the lease or community rules, you should treat it as a reasonable accommodation request. Under the FHA, an applicant makes a request for a reasonable accommodation whenever he makes clear that he is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability. The law doesn’t require that requests for reasonable accommodations be made in a particular manner or at a particular time.

Don’t dismiss it as an excuse or ignore the resident’s request for an exception to the rules simply because he doesn’t appear to be disabled. The law covers a variety of physical and mental impairments, characterized by few, if any, obvious symptoms to suggest that a particular person qualifies under the FHA’s disability-related provisions. Federal guidelines permit you to request additional information necessary to evaluate the request if either the disability or the need for the requested accommodation isn’t readily apparent.

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.

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: 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.