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Answer. The Multnomah County Moratorium does not declare a “rent-holiday” or anything close. Rent is still due and payable. The only exception is that if there is a timely request for partial payments, and the tenant has an objectively verifiable proof of loss of cash-flow related to COVID, you and the tenant are encouraged to enter into an agreement for partial payments for a period of time. Keep in mind that the state courts are not hearing FED evictions for nonpayment of rent, so your options are limited. Reaching a repayment program ahead of time is better that not getting any rent money and not being able to do anything about it.

MHCO has issued a recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon).

Question.Regarding Form 13-A (Mult. Co.), what if the resident decides they cannot pay anything?  Is that acceptable? Is that what I put in the agreement?

Answer.  The Multnomah Count Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID-19. 

In order to qualify, the resident needs to demonstrate a “substantial loss of income”, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic. Note, this includes loss of income related to County, State, and Federal restrictions imposed to mitigate the spread of COVID-19.

So what is your resident providing to establish the substantial loss of income? Presumably, if the resident is no longer employed, he/she can no longer pay the rent. If so, documentation or other information must be provided to establish this. If that is not the case, i.e. if there is no job loss, or it’s not related to COVID, or there is not a substantial loss of income, etc. they don’t qualify.

Keep in mind that if both residents are working and one loses their job for COVID-related reasons, this, of itself, does not automatically qualify them for partial rent payments. If the remaining resident is still working and generating income, you will want to explore how much rent can still be paid. Paying nothing should not be an option where the household is still generating some income, and the resident can pay a portion of the rent, but chooses not to.

Remember, whatever is deferred will have to be repaid within 6 months after the Governor’s Declaration of Emergency expires, so if the tenant is just trying to get out of paying anyrent, there is no real advantage to entering into the agreement today if it results in six months of rent abate, only to have to file an eviction the. The bottom line is that before you enter into the partial rent agreement, you should thoroughly vet the resident’s COVID-related issues and ability to pay at least something. However, as noted above, no Oregon courts are hearing nonpayment of rent evictions, so you alternatives are limited. 

Question.  Regarding having to demonstrate they have substantial loss of income due to the virus, can we:

• Ask to see their final pay stub and current bank statement so we can help figure out what they can pay us?  
•  Can we ask for a letter from their employer stating that they were laid off?  How are they supposed to prove they can't pay in full?

Answer.  Good questions. the Declaration of Emergency is not specific, except only to say that the proof has to be “through documentation or other objectively verifiable means.”

Here are the elements of proof as I see them:

• Is it COVID-related?
• Is there a substantialloss of income? 
• Does it prevent the resident from paying some or all of the space rent?

What you decide to accept as “evidence” is between you and the resident. But other than requiring that he/she provide sensitive, confidential, personally identifiable information (e.g. social security number) I submit that pay stubs, account information is OK, so long as the protected information is redacted, i.e. blacked out. An employer statement is probably unnecessary in most cases, as there would likely be some form of written or emailed announcement.

Question. The  Multnomah County Order says near the bottom that for landlords of communities within Multnomah County they should inform their tenants about the Moratorium. How should I do that?

Answer.I believe reliable information is your best approach so residents trust you as a source. MHCO has distributed material on the Multnomah County Moratorium, and developed two forms which are self-explanatory and follow the law. 

You want residents to know what the law is ahead of time. It is important to convey that the law does not “forgive” any deferred rent; there is no “rent holiday”; and any rent abatement must be supported by verifiable documentation or information showing a substantial loss of cash flow. Without such information, a tenant does not technically qualify for partial payments. 

Unless a tenant has lost their entire source of income, e.g. job loss and is unable to qualify for unemployment, most situations would seem to result in a possible wage reduction, rather than a total loss of income.

Question.Does the Moratorium apply to utilities?

Answer. As for utilities, here is the rule: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 

Question.  If residents do not get hold of me by the 1^stof the month, are we still under the obligation to enter into these agreements? 

Answer.  Only the Multnomah County form, 13-A requires the request to be made before the first of the month, since that is what the ordinance says. We developed Form 13-B (for areas outside of Multnomah County/City of Portland) and followed generally, Form 13-A. We did so because we believed it was a good approach. However, the Oregon Legislature has not developed a comparable law for areas outside Multnomah County/City of Portland – although we expect one shortly.

Accordingly, there are some differences between the two forms, one of which is that Form 13-B does not expressly require that the request must be made before the first of the month.

Nevertheless, assuming your community is inside the Portland/Multnomah County area, and rent has not yet been paid, say for April, and the resident requests to make partial payments, I suggest that a certain amount of latitude is important during these tough times. In other words, if the resident is a legitimate candidate for partial payments, you should consider having them sign Form 13-A. 

Question. Do we fill out either Form 13A or 13B each month?

Answer.  No. Form 13-A (Portland/Multnomah County) lasts for the duration of the Moratorium because that is what the law says; Form 13B last for the duration of the “Concession Period” which is the amount of time both landlord and resident agree rent shall be abated. 

However, directly above the resident’s signature in both forms, the following provisoappears in bold print:

By signing below, Resident certifies that the documentation or other objectively verifiable information supporting a substantial wage loss is true and correct to the best of his/her knowledge. In the event that through other income or employment, Resident’s wage loss is reduced or eliminated, Landlord will be promptly notified, and this Agreement shall either be terminated or modified accordingly.

Question. I've had my first call regarding nonpayment of rent.  The daughter called me to say her mother had been laid off.  She said the Governor said they have six months to pay rent.  I cautioned her that we needed some proof of wage loss, and if so, the parents would need to enter into an agreement for partial payments.  She said we can't evict them. I said not now, but eventually if rent isn't paid an eviction would occur.  
 

I don't think this conversation went very well.  A script of what we should be asking for or saying would help - even just bullet points so I know I am doing it correctly?

Answer. We cannot develop a script for many reasons, the first of which all circumstances can vary. However, I believe the following information distills exactly what landlords and residents can and cannot do: - but you should not treat tenant requests with a one-size-fits-all approach.
 

• The Multnomah County Moratorium does not declare a “rent-holiday”;
• Rent is still due and payable. 
• Deferred rent is not forgiven;
• The only exception to payment of full rent is a timely request for partial payments, in which case the tenant must establish with reasonable evidence:
  • An objectively verifiable proof of substantial loss of cash-flow;
  • It must be related to COVID;
  • MHCO has recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon);
  • Deferred rent must be repaid with 6-months after the Moratorium ceases in Form No. 13A (Multnomah County)  and an agreed-upon period of time in No. 13B (Rest of Oregon);
• Oregon courts are not hearing FED evictions for nonpayment of rent for the time being – we don’t know how long that will last;
  • If the resident engages in some activity that endangers the health, safety and welfare of the residents, management, or visitors/guests, you should check with your county court to see if a proceeding would be timely heard if you filed for eviction.
• For utilities: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 
• The above rules are fluid, and we do not yet know what the Oregon Legislature might do. Once that occurs, we anticipate having to make adjustments in the current rules upon which the above information is based.

According to the American Psychological Association, “Don't let your fear of meddling in someone else's business stop you from reporting your suspicions. You could be saving someone's life. . . ”

You can help. You do not need to evict. You can help your abused resident oust the abusive caregiver immediately.  You can report, help with “move-out” orders, “stay-away” orders, and other relief for your abused residents in your parks. 

■ California Mobilehome Residency Law’s 

Absence of Protection for Seniors Can be 

Supplemented with Management Help (E.g., 

Elder Abuse and Dependent Adult Civil Protection

Act (EADACPA), Domestic Violence Prevention Act (DVPA)

     The common wisdom is that evicting an abusive co-occupant, even a criminal, is fraught with difficulty and uncertainty. But the elder subject to an abusive caregiver, or other abusive household members, can seek an order to oust them by court order and without notice. The California Mobilehome Residency Law (Civil Code §§798, et seq.) (“MRL”) is no help here. The MRL is a prime enabler of elder abuse by its “hands off” policy to any occupants, and its unintended consequences welcome every predatory opportunist who cajoles his or her way into a senior’s coach. This while management is handcuffed from interceding with prevention, remedies, or even effective detection. But if we choose, we can do plenty to help the resident once we know.

     Evictions take forever.  Management must always wait for a 60 day notice to expire (once prepared and served) to even file suit to evict the abuser. That 60 day period enables the abuser to intimidate, terrify and coerce witnesses not to testify. Horrified, residents take shelter, lock themselves in and become prisoners in their homes. When WMA introduced legislation to evict such violent criminals, the State Senate Judiciary Committee killed the bill: not enoughreason to give management this remedy. So, the park owner’s hands remain tied for 60 days after notice of termination of possession based on outrageous abuse or even dangerous felonies (all on a “substantial annoyance” grounds) if anyone will testify as to the annoyance. But an at-risk elderly frail resident can go to court nowand obtain a “move-out” order without notice. We, as management, can educate and help.

     Move-Out Order Issue NOW- Without Notice.  In summary, management can assistthe abused or harassed senior and help get to court and get the abusive caregiver out NOW. Many residents cannot afford a lawyer, and often, it is the family that is responsible for the abuse. Management can do more than report. Maybe senior protective services will respond, maybe not. But court forms are designed for non-lawyers. We can help with these preprinted forms–and attend court with the resident, offer to be a witness, and also report to the police, County agencies and other family. As for courts, there are no filing fees or service costs.

     As the numbers of elder victims climbs, understanding management options will become a customary “best” management practice: a sign of good quality management, and a reflection of care and concern for frail and vulnerable residents. Actively enhancing lifestyle and atmosphere has always been a hallmark of the manufactured housing industry. 

     We can help end pain and misery to elder abuse victims of caregivers, family and deceitful predators. There are ways to bring immediate relief to desperate, life-threatening situations which usually are never detected, and which the Mobilehome Residency Law does not allow a park owner to initially prevent.

■ The Scope of the Mushrooming Epidemic:

For Every Reported Elder Abuse Case, 24 More are Unreported.

     The New York State Elder Abuse Prevalence Study found that for every case known to programs and agencies, 24 were unreported. Another reports that 1 in 10 older adults report emotional, physical, or sexual mistreatment, or neglect. Often, physical, emotional or psychological abuse accompanies financial abuse. Neglect and abandonment, for example, when the kids get a power of attorney and ability to withdraw money. 

     For about 40 years now, from 55+ to “all-age” parks, owners and management bring me problems that they observe or their residents bring to them. This is because of genuine concern, not out of sense of legal duty or obligation.  Because they care.       

■ Warning Signs and Indicators of Caregiver Elder Abuse.

     Watch for the following from your residents. There are signs that elder abuse may be occurring at the hands of the caregivers residing on the space. Bear in mind that the homeowner may not be capable of telling us of the abuse. The elder may also be ashamed, fearful of retaliation or punishment, or somehow assuming some of the blame for his or her own condition. 

     Who are The Exploitive and Abusers?  They May be Closer Than They Appear.

■        Family members, abusive children, nieces, nephews, past or present paramours, homeless 

■        Caretaker/caregiver/care custodian - any person who has the care, custody, or control of or who stands in  position of trust with, an elder or a dependent adult.

■        Banks, mortgage brokers, lenders

■        Insurance companies and their agents

■        Financial advisors and life agents

■        Trust mills

■        Real estate agents, title and escrow companies

■        Attorneys (and others holding themselves out as having legal expertise–tax preparers, paralegals, assistants, J.D. graduates)

■        Scams – lotteries, sweepstakes

■        Home repair, unsolicited work

■        Sweetheart scams

SUMMARY OF SIGNS OF ELDER ABUSE

Physical Abuse

■ Unexplained signs of injury such as bruises, welts, scars, broken bones or sprains

■ Report of drug overdose or apparent failure to take medication regularly

■  Signs of being restrained, such as rope marks on wrists

■  Caregiver's refusal to allow you to see the person alone

■ Physical or chemical restraints for caregiver's convenience 

■ Repeated unexplained injuries

Emotional Abuse

■ Threatening, belittling, or controlling caregiver behavior that you witness

■ Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling

■ Uncommunicative and unresponsive

■ Unreasonably fearful or suspicious 

■ Lack of interest in social contacts

■ Evasive or isolated 

■ Unexplained or uncharacteristic changes in behavior

■ Unexplained venereal disease or genital infections

■ Torn, stained, underclothing

Financial Exploitation

■ Significant or unauthorized withdrawals from the elder's accounts

■ Sudden changes in the elder's financial condition

■  Items or cash missing from the household

■ Suspicious changes in mobilehome title, legal owner, wills, power of attorney, titles, and policies

■ Addition of names to the elder's signature card

■ Unpaid bills or lack of medical care, although the elder has enough money to pay for them

■ Financial activity the elder couldn't have done, such as an ATM withdrawal by a bedridden account holder

■ Unnecessary services, goods, or subscriptions

■ New caregiver cars in the driveway; new high frequency of deliveries

■  Evidence of inadequate care when bills are paid in full

Elders May Contribute to Abuse, Secreting of Abuse, Fail to Recognize or Report

■  May lack cognitive ability to recognize abuse and/or their rights to safety and protection 

■ May be in denial; distorted view of treatment

■ May not have functioning neuro-pathways; not feeling normal pain, discomfort

■ May be incapacitated– unable to message out

■ Are often reluctant to report or prosecute

■ “Report me and I will put you in a home”

■ Afraid of removal from home

■ Fear of retribution

■ Dependence on others to assist with activities of daily living and personal care;

■  Communication or physical impairments which may limit ability to verbally or physically defend against a perpetrator and disclose abuse

■ FIVE (5) IMMEDIATE ACTIONS TO CONSIDER NOW:

★  CONTACT FIRST RESPONDERS: USUALLY, ADULT PROTECTIVE SERVICES.

                        ■             Adult Protective Services (“APS”) can provide investigations, needs assessments, remedial and preventative social work activities, food, transportation, emergency shelter.

■          Cross report to police for criminal restraining orders.

■          State mandates that each County establish a 24/7 emergency response adult protective services program to take and investigate reports of abuse of an elder or a dependent adult. Cal. W&I Code §15763)

■          “Protective services” include investigations, needs assessments, remedial and preventive social work activities; the necessary tangible resources such as food, transportation, emergency shelter, and in-home protective care; the use of multi-disciplinary teams; and a system in which reporting of abuse can occur on a 24- hour basis. (Cal. W&I Code §15760).

Keep Adult Protective Services Honest–Insist They Do Their Jobs: Mandatory Effort to Investigate

■          When an allegation of abuse of an elder or dependent adult is reported; and,

■              The agency social worker has reason to believe an elder or dependent adult has suffered or is at substantial risk of abuse pursuant to  Cal. W&I Code §15630; 

■          The social worker is required to attempt to obtain consent to:

–          enter and meet privately with the elder or dependent adult in the residence or dwelling in which the elder or dependent adult resides, 

–          without the presence of the person's caretaker, attendant, or family or household member, unless the person requests the presence of the attendant, care giver, or family member, or refuses to meet with the social worker. (Cal. W&I Code §15762)

■          APS action requires victim consent unless a Penal Code violation has been alleged. Cal.  W&I Code § 15636)

■          If the victim is incapacitated and cannot legally give or deny consent to protective services, APS may initiate a petition for temporary conservatorship.

★  HELP RESIDENT GET ORDER TO IMMEDIATELY OUST THE ABUSER. 

The courts make the applications, declarations and orders available as consumer friendly forms. No lawyers needed. Lawyers may be helpful in many circumstances. But do not let the absence of a lawyer stop a valid  application to the court from being made. 

Help the resident obtain a Move-Out Order (“Elder Abuse Restraining Order”) under the Elder Abuse and Dependent Adult Civil Protection Act. Originally, the Elder Abuse Act was designed to encourage the reporting of abuse and neglect of elders and dependent adults and continues to be a major component of the Elder Abuse Act as it stands in its current form today.

            The Elder Abuse Act now permits and even requires certain heightened remedies subject to statutory criteria and limitations, including attorney's fees, punitive damages, pain and suffering damages even after the abused elder's death, and fees for a conservator who successfully brings an elder abuse claim.

■          EADACPA allows a court to issue an order protecting an elder or dependent adult from further abuse by an individual including ordering a move-out from the property.  Cal. W&I Code §15657.03(c) provides that an order may be issued with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, proof of a past act or acts of abuse of the petitioning elder or dependent adult. 

The evidence of past abuse is sufficient even without a particularized showing of evidence or risk that  wrongful acts will continue or be repeated.

■          Does Your Resident Qualify? In order to obtain an Elder Abuse Restraining Order, or EARO, the person requesting the order:

■          Must be an elder or dependent adult;

■          Must have suffered abuse.

■               An “Elder” is one who is 65 years of age or older.

■          For a Move Out Order, Must be a Legal or equitable Owner, and Defendant cannot be sole owner. 

■          Also included is the “Dependent Adult”, defined as a person between the ages of 18 and 64 who has physical or mental limitations that restrict the person's ability to carry out normal activities or to protect his or her rights.

■          If the Resident hires counsel, there is an entitlement to attorney’s fees. No reason park owner cannot supply counsel with reimbursement agreement. There is a right to recovery of attorney’s fees.

■          Does Your Resident Qualify for a Move Out Order?  The court may issue a restraining order excluding the abusive caregiver (including family members) from the resident’s home on a showing of the following:

■          Proof that the resident has a right of possession.

■          Proof that the abusive caregiver assaulted or threatens to assault the resident or other named family or household member including a conservator.

■          Proof that physical or emotional harm would otherwise result to the person to be protected.

■           After the restraining order is issued (without notice), the court may issue, after notice and hearing, an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner.

■          An order excluding the abusive caregiver from the dwelling is permitted, except not if legal or equitable title to, or lease of, the residence is in the sole name of the abuser, or is in the name of the party to be excluded and any other party besides the petitioner. Cal. W&I Code §15657.03 (b) (3) (B).

The courts provide pre-printed forms. This makes it easier to go to court and get the orders. The courts are familiar with the forms and often provide relief with the right language. Of course, management can assist in the preparation of the papers, if the resident is unable to do so in a winning fashion. 

The law states that (Cal. W&I Code §15657.03(d)) on filing a petition for protective order, “the petitioner may obtain a temporary restraining order.” The law says that an injunction is available without notice if:

■          It appears that great or irreparable injury will result before the matter can be heard on notice. 

■          The resident or his or her attorney certifies one of the following: 

–          That within a reasonable time prior to the application the applicant informed the opposing party or the opposing party's attorney at what time and where the application would be made. 

–          That the applicant in good faith attempted but was unable to inform the opposing party and the opposing party's attorney, specifying the efforts made to contact them. 

–          That for reasons specified the applicant should not be required to so inform the opposing party or the opposing party's attorney.

Note, that the court may grant a an elder abuse restraining order on a preponderance of the evidence.

★         HELPKICK-OUT THE ABUSER!!

(DOMESTIC VIOLENCE PREVENTION ACT– DVPA). 

Your resident may seek a DVPA “move-out” order to immediately oust the abusive, dangerous or harassing caregiver. The “kick out” order forces an ouster of an abusive caregiver.  An order can be issued to restrain contact either directly or indirectly:

■         By mail or otherwise, 

■         Coming within a specified distance of, or

■         Disturbing the peace of the other party.  Cal.Family Code §6320, 6211.

            The law provides that a court may issue an order, without notice, to exclude a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence. “Domestic violence” is abuse perpetrated against spouses, co-habitants, children and blood relatives within the second degree.  But the order may issues regardless of the owner of the property. 

            Types of “domestic violence protective orders” includes an order enjoining specific acts of abuse (Cal.Family Code §6320), excluding a person from a dwelling (Cal.Family Code §6321) and enjoining other specified behavior. (Cal.Family Code §6322).

■         For an order excluding a party from a dwelling, the following proof is required:

--         The resident has a right to possess the mobilehome; 

--         The resident’s spouse or significant other has assaulted or threatened to assault the abused resident,  child, or any person that is under the resident’s care, custody, and control;

--         If the exclusion order were not granted, physical OR emotional harm would otherwise result. 

While title ownership is not required, still, the relationship to the victim is a requirement must be established.  The resident must reasonably show that if the order were not granted, that physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party. (Cal.Family Code §6321)

■   What is  “Abuse”within the meaning of the DVPA? (Cal.Family Code §§6203 (a), (b), (c), (d).)

--         Intentionally or recklessly causing or attempting to cause bodily injury; or

--          Sexual assault; or

--         “Reasonable apprehension” of imminent serious bodily injury to person or

 another; or

--         Engaging in any behavior that has been or could be enjoined

 (Cal. Family Code  §6320).

Thus, the requisite “abuse” need not be actual infliction of physical injury or assault.

★         HELPGET A HARASSMENT INJUNCTION!! 

CAL. CODE OF CIVIL PROCEDURE §527.6

Civil injunctive scheme has a separate procedure to prevent civil harassment to prevent unlawful violence, threats of violence and suffering of emotional distress. (Cal. Code of Civil Procedure §527.6).

■   Court forms are available: ttp://www.courts.ca.gov/documents/ch100.pdf

■   Civil injunction requires demonstrating imminent irreparable harm, probability of success on the merits and a balancing of equities. An elder who has suffered financial abuse may seek a protective order, including a TRO:

            --         Enjoining someone from abusing, intimidating, molesting, attacking, stalking, threatening, sexually assaulting, battering, or harassing the petitioning elder,

            --         Preventing the destruction of the elder’s personal property, and

            --         Excluding someone from the elder’s home.

            ■   Family members residing in the home with the elder and caregivers can be added as protected parties to receive the full protection of the temporary restraining order.

★         HELPARREST A “SHORT TERM” ABUSER, GET JUDGMENT FOR POSSESSION FOR LONGER TERM ABUSER (CAL. CIVIL CODE §1946.5)

■              If there is a single lodger in the home:  Your resident can seek to oust the abusive occupant, boarder, lodger or caregiver.  Cal. Civil Code §1946.5 applies, only, if requirements are satisfied.

            --         The mobilehome must also be occupied by the resident; 

            --         The resident retains a right of access to all areas of the mobilehome and have overall control; 

            --         The abusive person is the sole, other, occupant, and 

            --         The abusive person must have contracted either for room, or room and board.

            ■         If all of the above conditions apply, the law prescribes an expedited procedure to bring about the removal of the lodger.The resident may terminate tenancy by serving written Notice of termination. The length of time must be equal to the tenancy period (e.g., 30 days for a month-to-month).  Note the occupant has no tenancy rights and is not subject to the MRL. 

            ■         At the expiration of the required Notice period, the resident must file an action for unlawful detainer. For short term occupants, the occupant can also be arrested if required conditions are met. A private person's arrest is authorized, on condition, for violation of Penal Code §602.3 (an infraction). 

            ■         In summary, if the situation involves a single occupant, the resident can make a private person arrest for Cal. Penal Code §602.3 in lieu of proceeding through the eviction process.  Penal Code§602.3 states:

  (a) A lodger who is subject to Section 1946.5 of the Civil Code and who remains on the premises of an owner-occupied dwelling unit after receipt of a Notice terminating the hiring, and expiration of the Notice period, provided in Section 1946.5 of the Civil Code is guilty of an infraction and may, pursuant to Section 837, be arrested for the offense by the owner, or in the event the owner is represented by a court-appointed conservator, executor, or administrator, by the owner's representative. Notwithstanding Section 853.5, the requirement of that section for release upon written promise to appear Shall not preclude an assisting peace officer from removing the Person from the owner-occupied dwelling unit.

(b) The removal of a lodger from a dwelling unit by the owner pursuant to subdivision (a) is not a forcible entry under the provisions of Section 1159 of the Code of Civil Procedure and Shall not be a basis for civil liability under that section.

            * * * 

            (f) This section applies only to owner-occupied dwellings where a single lodger resides. Nothing in this section shall be construed to determine or affect in any way the rights of persons residing as lodgers in an owner-occupied dwelling where more than one lodger resides.

■              No “Good Samaritan” standing:  Management is not entitled to be a party to assist the resident. But we may be of assistance and help save a life. 

There is no “Good Samaritan” standing to help an abused senior escape elder abuse. A park owner cannot assert claims directly for residents. Management can report claims and keep up the pressure to insist on positive and prompt action. As revealed by various cases of recent elder abuse, not even the agencies touting their dedication to ending elder abuse take any action in very clear cases. 

There are limits as to who may have standing to bring an elder abuse action on behalf of an alleged victim during the elder’s lifetime.

            The EADACPA supports third-party standing for certain representativesto bring an elder abuse claim on behalf of an abused elder while he or she is still alive. Such as conservators. But not many others, including concerned family members. There is also no “Good Samaritan” standing, which would allow concerned persons to intercede and seek relief.

★         YOUR RESIDENT HAS THE RIGHT TO DEMAND RETURN OF PROPERTY

WRONGFULLY TAKEN–ITSELF AN ACT OF ELDER ABUSE¹

■         The elder or a “representative of the elder” may demand the return of real or personal property from a person or entity who took, secreted, appropriated, obtained, or retained, or assisted in those acts when the elder or dependent adult lacked capacity or was of unsound mind.

■        The failure to return the property on demand gives rise to a separate claim for financial elder abuse, even if the original taking was not financial elder abuse within the meaning of EADACPA.

★        DEFINITIONS, LAWS, REGULATIONS, FURTHER INFORMATION 

              ■  What is Elder Abuse??  

Cal. W&I Code§15600 et seq.defines elder abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment resulting in physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. This definition applies to elders and dependent adults. Cal.W&I Code§15610.63:  

As defined by Penal Code, “physical abuse” includes: 

■  Assault, battery, sexual assault, battery or rape, 

■  Prolonged or continual deprivation of food or water,

■  Use of physical or chemical restraints for punishment,

    convenience, or without or beyond the scope of the doctor's order.

■  What Is “Neglect” And “Self-Neglect”?

“Neglect”means either of the following:

■ The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

■  The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

■  Neglect includes, but is not limited to, all of the following:

■  Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

■  Failure to provide medical care for physical and mental health needs.

■  Failure to protect from health and safety hazards.

■  Failure to prevent malnutrition or dehydration.

■ Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4) for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

         ■  What is “Isolation” ? 

“Isolation”means any of the following:

■ Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.

■  Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.

■ False imprisonment, as defined in Section 236 of the Penal Code.

■ Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.

         ■  What is “Financial Elder Abuse”?

“Financial abuse”of an elder or dependent adult occurs when a person or entity does any of the following:

■  Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

■ Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

■ Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence.

■ A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.

■ A person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.

■  Watch for “Powers of Attorney”  as Another Form of Elder Abuse

Powers of attorney are a frequent tool of abuse. These are low cost, easy to execute, can grant very broad powers and available on the internet without the need for legal counsel. The “POA” often grants the agent the same broad general powers of a Trustee but, unlike revocable trusts, generally lack provisions defining duties owed by the agent to the principal.  Because general POAs are not tied to particular assets, there may be multiple conflicting instruments empowering multiple agents.

■  Care-Giver Cannot Take from Estate of Deceased Resident 

California  law prohibits bequests to caregivers–they are barred from receiving anything from a homeowner.   A caregiver cannot move in with the hope of convincing residents to give them property after death. Cal. Probate Code §§21360 -21392. A caregiver, or "care custodian,"  means any ". . . person providing health services or social services. . . " Cal. W&I Code §15610.17(y). Fraud or undue influence is presumed if a bequest is made. Cal. Probate Code §21380(a)(3). The bequest is invalid.

Caregivers Can Steal Our Residents Blind (and do). Do they try to be signed on title for a "quick flip" of the mobilehome? Nothing stops that. And management must approve the buyer and not interfere with a sale. 

■ Conclusion: Make A Difference 

The expansive rights of “care-givers” and “companions” is a product of a pro-mobilehome-resident legislature that actively prevents park owners from ejecting even serious criminals. Moreover, the potential for resident abuse is drowned out by claims that owners will abuse such a remedy. So, the needy continue to suffer for sake of appeasement of tenants, who oppose anythinga park owner proposes. Usually, we do not evict without resident support. 

Plainly, the probability of resident abuse increases as the numbers of retirees grows in leaps and bounds. These people live in your parks. The additional occupant has an open invitation for interloping, domineering, and controlling the frail resident.  All these visitors–usually abusive family--are empowered to quash the free will of your frail resident, take the check book and lock them away. And the MRL provides no management rights to approve, affect or detect elder abuse. Management has no ability to intervene even if requested by a resident.

Watch for signs of elder abuse. Report it. You could be saving someone's life. Remember: The resident has five (5) options which can be pursued as soon as discovered.

Management’s powers of observation are therefore needed to report and persistently complain if needed. When objective evidence tells your instincts that something is “just not right,” report it and ask questions. Legally, is there a duty to do so? Absolutely not. But that is not us. We are in business to serve.

Answer. The hazard tree legislation is relatively new; it was passed by the Oregon Legislature in 2013. Here is a summary:

1. Definitions.

• "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

• "Hazard tree" means a tree that:
  • Is located on a rented space in a manufactured dwelling park;
  • Measures at least eight inches DBH; and
  • Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.

1. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act.

1. Resident Duties re Trees Located on Space. A resident shall maintain and water trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees.

• "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.
• "Removing a tree" includes:
  • Felling and removing the tree; and
  • Grinding or removing the stump of the tree.

4. Landlord Duties re Hazard Trees.

• Landlord shall maintain a hazard tree that was not planted by the current resident if the landlord knows or should know that the tree is a hazard tree;
• Landlord may maintain a tree on the rented space to prevent the tree from becoming a hazard tree;
  • Landlord must provide residents with reasonable written notice and reasonable opportunity to maintain the tree themselves.
• Landlord has discretion to decide whether the appropriate maintenance of a hazard tree is removal or trimming.
• Landlord is not responsible for:
  • Maintaining a tree that is not a hazard tree; or
  • Maintaining any tree for aesthetic purposes.
• A landlord must comply with the access provisions of ORS 90.725 before entering a resident's space to inspect or maintain a tree. [Generally, 24-hour notice. - PCQ]
• Subject to the preceding, a resident is responsible for maintaining the non-hazard trees on the resident's space at the resident's expense.
  • The resident may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the resident's space at the resident's expense;
  • If the arborist determines that the tree is a hazard, the resident may:
    • Require the landlord to maintain the tree as a hazard tree; or
    • Maintain the tree at the resident's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report.

1. Tree Obstructing Removal of Home From Space. If a manufactured home cannot be removed from a space without first removing or trimming a tree on the space, the owner of the home may remove or trim the tree at the owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the home.

1. Use of Landscape Professional. The landlord or resident that is responsible for maintaining a tree must engage a landscape construction professional with a valid landscape license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more.

1. Access to Resident's Space [ORS 90.725].

• An "emergency" includes but is not limited to:
  • A repair problem that, unless remedied immediately, is likely to cause serious physical harm or damage to individuals or property;
  • The presence of a hazard tree on a rented space in a manufactured dwelling park.
• An "unreasonable time" refers to a time of day, day of the week or particular time that conflicts with the resident's reasonable and specific plans to use the space.
• "Yard maintenance, equipment servicing or grounds keeping" includes, but is not limited to, servicing individual septic tank systems or water pumps, weeding, mowing grass and pruning trees and shrubs.
• A landlord or a landlord's agent may enter onto a rented space to:
  • Inspect or maintain trees;
  • A landlord or the landlord's agent may enter a rented space solely to inspect a tree despite a denial of consent by the resident if the landlord or the landlord's agent has given at least 24 hours' actual notice of the intent to enter to inspect the tree and the entry occurs at a reasonable time.
  • If a landlord has a report from an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture that a tree on the rented space is a hazard tree that must be maintained by the landlord under this Act, the landlord is not liable for any damage or injury as a result of the hazard tree if the landlord is unable to gain entry after making a good faith effort to do so.
• If the resident refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement pursuant to ORS 90.630 (1) and take possession in accordance with the Oregon eviction statutes. In addition, the landlord may recover actual damages.

8.Statement of Policy. It shall include the facility policy regarding the planting of trees on the resident's rented space. [See ORS 90.510]

Discussion. As you can see from the above, the definition of a hazard tree relates to whether it poses an unreasonable risk of serious physical harm or damage to individuals or property in the near future. The size of the tree alone, i.e. exceeding eight inches or more DBH, does not, in itself, make it a hazard tree; there must be potential for injury or damage in the near future.

Secondly, you will note that the hazard tree statutes make no distinction as to what part of the tree causes damage or injury. Although I had some involvement, along with John Van Landingham and others, in the creation of the legislation, speaking for myself, I was focused on the tree or branches falling on a home or resident. I was not thinking about damage from root systems.

Third, a landlord's removal obligation for hazard trees speaks to felling and removing them, and removing or grinding the stumps. Again, speaking only for myself, I was not thinking about tree roots that might remain after the stump is removed. (As a layperson, I think of the stump as the unremoved portion of the downed tree, and that portion below ground necessary to return the ground to its original level, sans the tree. But I certainly didn't focus on requiring that landlords remove root systems.

All of this is to say that my reading of the hazard tree statutes seems to make no distinction between damage above or below ground. Moreover, I suspect we would agree that damage to the foundation of a resident's home, could fall within the definition of what constitutes a hazard tree.

Remember that pursuant to ORS 90.730(4), the failure to maintain a hazard tree can constitute a habitability violation for which a tenant could bring a claim against their landlord.

Conclusion. Unfortunately, it appears to me that absent some language in the hazard tree statutes indicating an intent to exclude that portion of a tree below ground, i.e. its root system, a case could be made that remediating the damage caused by a hazard tree to a resident's home, or the cost to relevel it, is on your shoulders.

This does not mean, however, that the root systems of all felled hazard trees need to be removed. Once the tree is downed, and the trunk removed, the root system will not (as I understand it[1]) continue to grow. That being the case, if the roots are not posing a danger to a resident's space or the common area, there should be little reason to remove it.

The take-away here, is that landlords should be proactive in assessing hazard tree issues. This may include inspection of resident spaces. And when evaluating risk, landlords should look down, as well as up.

One interesting question, which I will not opine on here, is what a landlord should do about an otherwise healthy tree that is least eight inches DBH, if its root system poses, or could pose, a risk of damage to a resident's home. Must the tree be removed now?

[1] I suspect the major exception is bamboo trees, whose root systems seem to have a zombie-like life of their own.

Answer: In a guest blog dated March 13, 2015, Jo Becker, Educational/Outreach Specialist for the Fair Housing Council of Oregon ("FHCO") posted an article for the Willamette Valley MLS titled: "Screening without Social Security Numbers: There are Options!" The post is set out in full at this link.

What I've set forth below is a summary of Ms. Becker's points, with some editorial comment of my own. First and foremost, this is not to be used as legal advice, as everyone's factual situation is different.

Mr. Obama's controversial (my word, not hers) amnesty program will result in approximately 4 million U.S. residents who are undocumented, coming into the United States. Although they will have an opportunity to apply for work permits and social security numbers, many may still not have SSNs when seeking housing.

In pointing out that '_the Fair Housing Act and Oregon law apply to everyone present in the US, regardless of immigration status" Ms. Becker suggests that there are alternatives to screening other than requiring proof of a SSN. Though she recognizes the "importance of thorough tenant screening," she states that:

'_criminal history information can be acquired without an SSN and, of course, current and past landlords can provide rental history and references. Applicants may be able to provide other information such as proof of "x" number of recent months' paid utility bills, rent, or other regular monthly bills that can show a pattern of timely payment."

However, regardless of a landlord or manager's willingness to rent or lease space to all who qualify, the litmus test in tenant screening is really what the screening company requires. Ms. Becker suggests that rather than issuing a "flat no," landlords and managers say to the applicant "show me what you can." She states that:

'_your screening company should be able to give you an informed estimate about how much time and money an evaluation could cost. Costs may vary so shop your screening company. Once you have a cost estimate, inform the consumer and, if you wish and do so consistently, you may then pass this cost on to them if they want to continue with the application."

This suggestion makes the following assumptions: (a) That the applicant actually has some reliable identifying information sufficient to permit the a company to complete the screening process; (b) The screening company is capable of completing the screening process - even for an increased fee - if it does not rely upon a SSN; and (c) That the screening report will provide equally reliable information as if the applicant had tendered a SSN.

Ms. Becker notes that an alternative to a SSN is an ITIN (Individual Taxpayer Identification Number). Here is what the IRS says about ITINs:

• ITINs are for federal tax reporting only, and are not intended to serve any other purpose. IRS issues ITINs to help individuals comply with the U.S. tax laws, and to provide a means to efficiently process and account for tax returns and payments for those not eligible for Social Security Numbers (SSNs).
• If you do not have a SSN and are not eligible to obtain a SSN, but you have a requirement to furnish a federal tax identification number or file a federal income tax return, you must apply for an ITIN.
• By law, an alien individual cannot have both an ITIN and a SSN.
• For more information, go to link here.

Based upon the above, this leads me to believe - or at least suspect - that the use of an ITIN is really only appropriate if the individual has a federal income tax reporting obligation and is unable to obtain a SSN. So the question landlords and managers should ask their screening company is whether it can even use the ITIN for purposes of tenant screening. If the company can do so, and the background check can be accomplished with a comparable level of accuracy as with a SSN, then the following rules should apply:

• If applicants do not have a SSN, but do have an ITIN, their application should be processed.
• Make sure that the use of the ITIN in lieu of the SSN is applied evenly and consistently to ALL applicants.

If your screening company does not use the ITIN for tenant screening, are you legally required to find one that does? I will leave that question to your own attorney. As for me, if I could pass on the added cost, if any, to the applicant [as Ms. Becker's article suggests], and the company can provide equally reliable and prompt service, I would personally consider doing so.

However, Ms. Becker notes in her article that:

"After having consulted with screening companies and the credit bureaus, it does not appear that this will allow a credit report to be pulled in the same way that an SSN does." [Underscore mine.]

That statement does not sound like a ringing endorsement by Ms. Backer of her own suggestion that landlords use an ITIN in lieu of the SSN. In any event, it's worth a try.

Setting the ITIN issue aside, the FHCO's position is that:

'_a refusal to review alternative documentation when a SSN is not available will have a negative and disparate impact on individuals whose national origin is not the US, thereby having a disparate impact on that protected class. Therefore, a policy or practice of not accepting applicants because they do not have a SSN is not appropriate. That said, we feel that passing on actual additional costs of screening in a situation like this as a legitimate business expense that could be passed on to the applicant. [Underscore mine.]

Here is where Ms. Becker and I part company. What she is saying is that: (a) Since members of the protected class [i.e. Mr. Obama's four million invitees - who will be given an opportunity to apply for SSNs] will be adversely affected; (b) By insisting exclusively on the SSN as the sole screening tool, it indirectly singles them out, and that's discriminatory. That is what she means when she says it creates a "disparate impact." So even if a manager or landlord has no intent to discriminate - i.e. they are applying the SSN requirement to ALL applicants, it is the FHCO's position that such a screening practice is a violation of the Federal and State Fair Housing Laws.

"Disparate impact" is a controversial theory, and only recently was addressed by U.S. Supreme Court. On June 25, 2015, the United States Supreme Court, in Texas Dept. of Housing vs. Inclusive Communities, ruled that under certain circumstances, disparate impact theory can provide the basis for liability in matters pertaining to the sale and rental of housing. While the holding was disappointing, Anthony M. Kennedy, who wrote for the Majority, did state that claims based solely upon mere statistical outcomes are insufficient. He wrote:

"In a similar vein, a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity. A robust causality requirement ensures that "[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate impact" and thus protects defendants from being held liable for racial disparities they did not create.

***

Courts must therefore examine with care whether a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases is important. A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact.

***

It must be noted further that, even when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that "arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e]." Ibid. If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means."

Conclusion. Thus, in recognition of the Inclusive Communities holding, I believe it could be risky to blindly adhere to an application policy that requires proof of a social security card, if a suitably reliable substitute can be found at a reasonable cost. Here are some take-aways:

• The FHCO believes that landlords and managers should review "alternative documentation" protocols, rather than just saying "No" whenever an applicant seeks to rent or lease a space without a SSN. I have no problem with that, and suggest park owners develop such protocols.
• However, the protocols must produce a reasonably equivalent [i.e. timely and reliable], result as when using a SSN.
• If there are companies out there that can produce such results without SSNs - even if more costly - they should be seriously vetted. According to Ms. Becker, the cost, as of today, can be passed on to the applicant, should he or she choose to proceed.
• Note that Ms. Becker is not saying that park owners and managers must use alternative procedures, even if they are bad or unreliable. She is only saying that, if available, alternatives should be considered. I repeat: Landlords and managers should not initially "screen" [i.e. reject] all tenant applicants based solely on whether or not they have a SSN.
• If (a) valid alternative screening tools exist, and (b) they are equally applied, there should be no legal basis for a claim of discrimination if the tenant applicant does not pass the screening protocol.

In the meantime, landlords and managers may want to investigate various screening companies today, to learn whether there are other suitable substitutes to using the SSN as a screening tool. If there are, and they prove reliable, these alternatives should be included on a written list and provided to tenant applicants preferably upon the first face-to-face contact. Remember to be consistent and apply this approach across the board to ALL tenant applicants. To be absolutely safe, I would even go so far as to say that the list - if one can be developed - should be given to all applicants with the rest of the park's paperwork. In other words, don't ask the applicant if they have a SSN, and if they do not, then refuse to give them an application. If there are comparable alternatives that a screening company will accept, then you may use one of them.

As to the question whether not requiring SSNs as part of the application process could open a community up to liability from the other residents, I'm not sure that is an issue. Criminal background checks can be conducted without a SSN. You always want a criminal background check, and the absence of a SSN should not prevent your doing so.

For more information go to the following links:

• https://www.landlordology.com/do-landlords-need-social-security-numbers/
• http://www.american-apartment-owners-association.org/property-managemen…
• https://www.biggerpockets.com/forums/52/topics/183099-background-checks…
• http://www.nolo.com/legal-encyclopedia/how-screen-select-tenants-faq-29…

Answer: In a guest blog dated March 13, 2015, Jo Becker, Educational/Outreach Specialist for the Fair Housing Council of Oregon (“FHCO”) posted an article for the Willamette Valley MLS titled: “Screening without Social Security Numbers: There are Options!”  The post is set out in full at this link.

What I’ve set forth below is a summary of Ms. Becker’s points, with some editorial comment of my own.  First and foremost, this is not to be used as legal advice, as everyone’s factual situation is different.

Mr. Obama’s controversial (my word, not hers) amnesty program will result in approximately 4 million U.S. residents who are undocumented, coming into the United States.  Although they will have an opportunity to apply for work permits and social security numbers, many may still not have SSNs when seeking housing.

In pointing  out that “…the Fair Housing Act and Oregon law apply to everyone present in the US, regardless of immigration status” Ms. Becker suggests that there are alternatives to screening other than requiring proof of a SSN.  Though she recognizes the “importance of thorough tenant screening,” she states that:

 “…criminal history information can be acquired without an SSN and, of course, current and past landlords can provide rental history and references. Applicants may be able to provide other information such as proof of “x” number of recent months’ paid utility bills, rent, or other regular monthly bills that can show a pattern of timely payment.”

However, regardless of a landlord or manager’s willingness to rent or lease space to all who qualify, the litmus in screening is really what the screening company requires.  Ms. Becker suggests that rather than issuing a “flat no,” landlords and managers say to the applicant “show me what you can.”[1]   She states that:

“…your screening company should be able to give you an informed estimate about how much time and money an evaluation could cost.  Costs may vary so shop your screening company.  Once you have a cost estimate, inform the consumer and, if you wish and do so consistently, you may then pass this cost on to them if they want to continue with the application.”

This suggestion makes the following assumptions: (a) That the applicant actually has some reliable identifying information sufficient to permit the a company to complete the screening process; (b) The company is capable of completing the screening process – even for an increased fee – that does not rely upon a SSN; and (c) That the screening report will provide equally reliable information as if the applicant had tendered a SSN. 

Ms. Becker notes that an alternative to a SSN is an ITIN (Individual Taxpayer Identification Number). Here is what the IRS says about ITINs:

• ITINs are for federal tax reporting only, and are not intended to serve any other purpose. IRS issues ITINs to help individuals comply with the U.S. tax laws, and to provide a means to efficiently process and account for tax returns and payments for those not eligible for Social Security Numbers (SSNs). 
• If you do not have a SSN and are not eligible to obtain a SSN, but you have a requirement to furnish a federal tax identification number or file a federal income tax return, you must apply for an ITIN.
• By law, an alien individual cannot have both an ITIN and a SSN.
• For more information, go to link here.

Based upon the above, this leads me to believe – or at least suspect – that the use of an ITIN is really only appropriate if the individual has a federal income tax reporting obligation and is unable to obtain a SSN.  So the question landlords and managers should ask their screening company is whether it can even use the ITIN for purposes of tenant screening.  If the company can do so, and the background check can be accomplished with a comparable level of accuracy as with a SSN, then the following rules should apply:

1. If applicants do not have a SSN, but do have an ITIN, their application should be processed.
2. Make sure that the use of the ITIN in lieu of the SSN is applied evenly and consistently to ALL applicants.

If your screening company does not use the ITIN for tenant screening, are you legally required to find one that does?  I will leave that question to your own attorney.  As for me, if I could pass on the added cost, if any, to the applicant [as Ms. Becker’s article suggests], and the company can provide equally reliable and prompt service, I would personally consider doing so.  

However, Ms. Becker notes in her article that:

“After having consulted with screening companies and the credit bureaus, it does not appear that this will allow a credit report to be pulled in the same way that an SSN does.”  [Underscore mine.]

That statement does not sound like a ringing endorsement by Ms. Backer of her own suggestion that landlords use an ITIN in lieu of the SSN.  In any event, it’s worth a try.

So setting the ITIN issue aside, the FHCO’s position is that:

“…a refusal to review alternative documentation when a SSN is not available will have a negative and disparate impact on individuals whose national origin is not the US, thereby having a disparate impact on that protected class.  Therefore, a policy or practice of not accepting applicants because they do not have a SSN is not appropriate.  That said, we feel that passing on actual additional costs of screening in a situation like this as a legitimate business expense that could be passed on to the applicant. [Underscore mine.]

Here is where Ms. Becker and I part company.  What she is saying is that: (a) Since members ostensibly of a protected class [e.g. Mr. Obama’s four million invitees - who will be given an opportunity to apply for SSNs] will be adversely affected; (b) By insisting exclusively on the SSN as the sole screening tool, it indirectly singles them out, and that’s discriminatory.  That is what she means when she says it creates a “disparate impact.”  So even if a manager or landlord has no intent to discriminate – i.e. they are applying the SSN requirement to ALL applicants, it is the FHCO’s position that such a screening practice is a violation of the Federal and State Fair Housing Laws.

There is one problem with the above quote: Disparate impact theory has never been validated by the U.S. Supreme Court.  There are many legal scholars who maintain that the Fair Housing Act (“FHA”) was only intend to be applied to prevent intentional discrimination. 

After several false starts, on January 21 of this year, the case of Texas Dept. of Housing vs. The Inclusive Communities Project, was heard by the Supreme Court. In a Forbes article (“Disparate-Impact Theory Finally Gets Its Test At Supreme Court“) published the following oral argument on the day of the hearing, writer Daniel Fisher, stated that the case:

“…represents a long-awaited test of disparate impact, which critics say allows the federal government — or allied non-profit groups like Inclusive Communities — to sue businesses and housing authorities for committing racial discrimination not because an identified person discriminated but because the racial outcome was skewed one way or another.”

In other words, the issue finally before the Court is whether the FHA can be used to produce racial outcomes when there is no proof of intent to discriminate. [2]   

Conclusion. Although I disagree that landlords and managers are today engaging in illegal discrimination via disparate impact, when they rely exclusively upon SSNs as a screening tool, there are some take-aways from the Becker article I do endorse:

• The FHCO believes that landlords and managers should review “alternative documentation” protocols, rather than just saying “No” whenever an applicant seeks to rent or lease a space without a SSN.  I have no problem with that, and suggest park owners develop such protocols. 
• However, the protocols must produce a reasonably equivalent [i.e. timely and reliable], result as when using a SSN. 
• If there are companies out there that can produce such results without SSNs– even if more costly – they should be seriously vetted. According to Ms. Becker, the cost, as of today, can be passed on to the applicant, should he or she choose to proceed. 
• Note that Ms. Becker is not saying that park owners and managers must use alternative procedures, even if they are bad or unreliable.  She is only saying that, if available, alternatives should be considered. I repeat: Landlords and managers should not initially “screen” [i.e. reject] all tenant applicants based solely on the fact they do not have a SSN.[3] You want to see if there is an alternative screening protocol.
• If (a) valid alternative screening tools exist, and (b) they are equally applied, there should be no legal basis for a claim of discrimination if the tenant applicant does not pass that screening protocol.
• Whether screening out all tenant applicants based upon their not having a SSN would result in a “disparate impact” against members of a protected class and therefor violate the FHA, will have to wait until the U. S. Supreme Court issues its decision.

In the meantime, landlords and managers may want to investigate various screening companies today, to learn whether there are other suitable substitutes to using the SSN as a screening tool.  If there are, and they prove reliable, these alternatives should be included on a written list and provided to tenant applicants preferably upon first face-to-face contact.[4]  Remember to be consistent and apply this approach across the board to ALL tenant applicants. To be absolutely safe, I would even go so far as to say that the list – if one can be developed – should be given to all applicants with the rest of the park’s paperwork. In other words, don’t ask the applicant if they have a SSN, and if they do not, then refuse to give them an application. If there are comparable alternatives that a screening company will accept, then you may use one of them.    

[1] I respectfully submit that “show me what you can” is an insufficient and slightly misleading approach to the issue, as it is too open-ended.  It implies that the applicant need only produce what they can.  I suggest that the proper approach is to ask:  “Show me the best documentation you have of your identity.” If the applicant produces a valid birth certificate or a valid driver’s license, it may suffice for the screening company. If he or she produces a library card as the “best evidence,” there may be some difficulty in its suitability for use by the screening company.

[2] I wrote a blog post explaining disparate impact late last year, before the case was argued. It can be found here.

[3] There is a slightly comparable analogy with medical marijuana. As long as it is a federally “controlled substance” landlords may – in my opinion – have a policy against its on-site use, cultivation, manufacture, or sale; they do not have to allow its on-site use as a “reasonable accommodation.”  But having a no-medical marijuana policy does not mean landlords may “screen” tenant applicants, based upon whether they simply have a medical marijuana card.  

[4] I say “face-to-face contact”, as I don’t recommend engaging in a discussion of screening issues with applicants over the phone. There is too much chance there is a tester on the other end of the line. You want to be consistent in giving all applicants the same paperwork when they arrive.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability.

In general, fair housing law targets housing practices that exclude or otherwise discriminate against anyone because of his or her race or other protected class. Owners, managers, and individual employees all may be held liable for discriminatory housing practices, including:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures;
• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms;
• Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
• Assigning residents to a particular section of a community or floor of a building;
• Providing different housing services or facilities, such as access to community facilities; and
• Failing to provide or delaying maintenance or repairs.

In addition, the FHA prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right. It’s also unlawful to advertise or make statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status.

FROM THE COURTS

HARASSMENT: Community Accused of Ignoring Tenant-on-Tenant Racial Harassment

In December 2019, a federal appeals court ruled that a New York community could be liable under the FHA for failure to do anything to stop an alleged campaign of racial harassment against an African-American resident by his neighbor. Last year, the Coach highlighted a previous ruling in this case, but the opinion was later withdrawn without explanation.

ALLEGATIONS: In his complaint, the resident alleged that his next-door neighbor began a relentless campaign of racial harassment, abuse, and threats directed toward him several months after he moved to the community.

After the first incident, the resident said he feared for his safety and contacted the police. In response, officers in the hate crimes unit visited the site, interviewed witnesses, and warned the neighbor to stop threatening the resident with racial epithets. According to the resident, he filed a police report, and a police officer told the management about the neighbor’s conduct. Allegedly, the management did nothing.

A few months later, the resident said he called the police and filed another police report. This time, the resident said he provided written notice to management about his neighbor’s racial harassment and provided contact information for the police officers responsible for investigating the neighbor. Allegedly, the management still took no action.

Nevertheless, the neighbor’s conduct allegedly persisted to the point that the police arrested him for aggravated harassment. The resident said he again notified management of the continued racial slurs directed to him and the fact that the neighbor had been arrested for harassment.

A month later, the resident said he contacted the police and sent the management group a third letter complaining about his neighbor’s continued harassment. After receiving the letter, according to the complaint, the management group advised the site manager “not to get involved,” and the management group declined to respond or follow up.

Allegedly, the neighbor was allowed to stay in his unit until his lease expired. A few months later, the neighbor pleaded guilty to harassment and a court entered an order of protection prohibiting him from contacting the resident.

The resident sued, accusing the owner and manager 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.

DECISION: Reversed; case sent back for further proceedings.

REASONING: The resident was entitled to pursue his claims under the FHA against the community for intentionally discriminating against a resident by failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment.

At this stage of the proceedings, the court was required to read the complaint in the light most favorable to the resident. If everything he said were true, the resident’s complaint adequately alleged that the owners and managers engaged in intentional racial discrimination. Specifically, the complaint alleged that the owners and managers discriminated against the resident by tolerating and/or facilitating a hostile environment, even though they had authority to “counsel, discipline, or evict [the neighbor] due to his continued harassment of [the resident],” and also had “intervened against other tenants at [the site] regarding non-race-related violations of their leases or of the law.”

In other words, the court said, the resident adequately alleged that the owners and managers were actually aware of the neighbor’s criminal racial harassment of the resident—harassment so severe that it resulted in police warnings and the arrest and eventual conviction of the neighbor—“and that management intentionally refused to address the harassment because it was based on race even though they had addressed non-race-related issues in the past, including, it was reasonable to infer, tenant-on-tenant harassment” [emphasis in original]. Accepting these allegations as true, the defendants subjected the resident to conduct that the FHA forbids.

In further proceedings, the defendants may be able to show that they tried and failed to address the resident’s complaints. Or it may unfold that the management also declined to address other, similar complaints unrelated to race, or that they were powerless to address the neighbor’s conduct. But the resident was entitled to further proceedings to resolve these issues [Francis v. King Park Manor, Inc., December 2019].

TREND TAKEAWAY: Federal fair housing law bans not only sexual harassment, but also harassment based on race, national origin, or 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.

You should take all necessary steps to prevent—and address—discrimination or harassment at the community. Aside from ensuring that your policies and procedures conform to fair housing law, you can reduce the likelihood of a complaint by properly training and supervising all employees—not only managers and leasing staff, but also maintenance workers and anyone else who interacts with the public. And be particularly careful when hiring and supervising outside contractors or anyone else who could be considered your agent.

You don’t have only your employees or other staff member to worry about—you could face liability for tenant-on-tenant harassment under certain circumstances. According to HUD regulations, communities may be liable under the FHA for failure 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 an $80,000 settlement to resolve allegations that the owners and management agent of an apartment complex in Savannah, Ga., subjected African-American residents to repeated instances of racial harassment by white residents, which included verbal attacks and physical assaults.

The case came to HUD’s attention when three African-American residents filed complaints claiming that the owners of the property refused to investigate and address their claims that white residents had subjected them to racial harassment and verbal and physical assaults, including attacks by dogs. The residents also alleged that the property’s management ignored their maintenance requests and delayed the maintenance requests of other African-American residents. The housing provider denied discriminating against the residents but agreed to settle their complaints.

Under the terms of the agreement, the owner and management company agreed to pay $20,000 to each of the three residents who filed complaints and create a $20,000 fund to compensate other residents who may have been subjected to racial harassment. The owners also agreed to provide annual fair housing training for the staff and on-site management at the community.

“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” [Conciliation/Voluntary Compliance Agreement with Oglethorpe Square Apartments, LP, of Savannah, GA, and Gene B. Glick Company, Inc., of Indianapolis, IN].

DISABILITY: Is Community Required to Grant Reasonable Accommodation Request for Exception to Minimum Income Standards?

In September 2019, a federal appeals court ruled that a Florida housing provider may be required to accept other forms of income as a reasonable accommodation to allow an applicant with a disability to qualify for housing.

ALLEGATIONS: In his complaint, the applicant alleged that shortly after graduating from high school, he was in a wrestling accident that left him completely paralyzed. His housing was inadequate to accommodate his quadriplegia because it wasn’t wheelchair accessible. After seeing an ad about Habitat for Humanity, a nonprofit that builds new homes for low-income individuals, he decided to apply.

When he met with a representative, he learned that Habitat imposed a minimum gross annual income requirement of $10,170, presumably to ensure that potential homeowners would be able to pay their mortgages. According to the applicant, his disability prevented him from working, so his main source of income was a Social Security Disability Insurance stipend of $778 per month, which equates to a gross annual income of $9,336. Given the fixed amount of his SSDI, he asked Habitat to consider one of two other sources of income toward its requirement—either the $194 per month in food stamps or the $100 per month he received from his father—either of which would be enough to get him over the minimal income threshold. After reviewing his application, Habitat allegedly said it couldn’t accept either of the two additional sources of income.

After efforts to negotiate a compromise were unsuccessful, the applicant sued Habitat for violating the FHA by denying his reasonable accommodation request to accept either his food stamps or familial support as income for purposes of qualifying for the housing.

After pretrial proceedings, both parties asked the court for judgment without a trial. Siding with Habitat, the court dismissed the case, ruling that the applicant’s accommodation request wasn’t necessary under the FHA because it was related solely to his financial condition, not his disability.

The applicant appealed.

DECISION: Reversed in part; sent back for further proceedings.

REASONING: The applicant was entitled to further proceedings on his claim that Habitat violated fair housing law by denying his reasonable accommodation request to consider supplemental forms of income for purposes of qualifying for housing.

To establish liability for failure to accommodate under the FHA, the applicant had to show that:

1.       He was disabled within the meaning of the FHA;

2.       He requested a reasonable accommodation;

3.       The requested accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling; and

4.       The housing provider refused to make the requested accommodation.

The first and fourth elements of the claim were undisputed—no one disputed that the applicant was disabled, or that Habitat refused to accommodate his request to consider his supplemental sources of income. At issue were the middle two: whether the accommodation he requested was “reasonable” and whether it was necessary to afford him an equal opportunity to use and enjoy a dwelling. In earlier proceedings, the lower court skipped the first question and decided the case solely on the basis of the second.

To determine whether his request was reasonable, the first step was to determine whether the applicant demonstrated that his requested accommodation was of a type likely to be reasonable in the run of cases. The court ruled that he did—he wasn’t asking Habitat to lower its minimum-income requirement or accept anything less than usual in terms of payment or interest. Instead, the applicant, who was unable to work, asked Habitat to accept proof that he brought in the same amount of money as any other Habitat homeowner, but in a different form.

That shifted the burden to Habitat to show that the applicant’s request was unreasonable by imposing an undue burden on Habitat or fundamentally altering Habitat’s program. Further proceedings were needed to resolve this issue.

The second question was whether the applicant’s requested accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling. Under fair housing law, a “necessary” accommodation is one that alleviates the effects of the disability. An accommodation addressing an inability to demonstrate wages earned could in some cases be necessary—that is, could alleviate the effects of a disability. Consequently, the lower court should have considered whether the applicant’s inability to demonstrate the minimum required income through W-2 wages was an effect of his disability.

A separate, but related issue was whether the requested accommodation was necessary to afford him an equal opportunity to enjoy the dwelling. He wasn’t entitled to an accommodation that would put him in a better position than a member of the general public. The applicant said he wasn’t asking Habitat to lower its income requirements or pay anything less than other applicants—his accommodation request involved only the form of payment, not the amount. In contrast, Habitat said that he was seeking an advantage that wasn’t available to other applicants. Further proceedings were needed to determine whether the requested accommodation would provide the applicant with an opportunity to enjoy a dwelling that would otherwise—due to his disability—elude him [Schaw v. Habitat for Humanity of Citrus County, Inc., Florida, September 2019].

TREND TAKEAWAY: Carefully consider requests by individuals with disabilities for reasonable accommodations to your financial screening requirements. In general, you don’t have to excuse individuals with disabilities from meeting minimum income standards or verifying their income, but you may have to be flexible when it comes to how they satisfy those requirements.

Example: In June 2019, a court ruled that an Arkansas community had to pay damages for denying a reasonable accommodation request by a disabled woman and her mother who couldn’t produce the documentation required under the community income-verification policies. In lieu of the necessary paperwork, the woman submitted documentation from the Social Security Administration showing the mother’s retirement benefits and her disability benefits, along with income received from a rental property, but the community wouldn’t accept the alternative documentation to verify their income. The court ruled that the community violated fair housing law by denying an accommodation that was both reasonable and necessary for an equal opportunity to use and enjoy a dwelling [Edwards v. Gene Salter Properties, Arkansas, June 2019].

SETTLEMENTS

CRIMINAL SCREENING POLICIES: Landmark $1.1M Settlement Reached in Fair Housing Case Challenging Alleged Criminal Record Ban

In November 2019, the owners and operators of a 900-unit apartment complex in Queens, N.Y., agreed to pay $1,187,500 to settle a lawsuit alleging that the community violated the FHA by refusing to rent to people with criminal records.

The lawsuit was filed by the Fortune Society, a New York not-for-profit organization that provided housing and other services to formerly incarcerated individuals. In its complaint filed in 2014, Fortune alleged that when it tried to rent apartments for its clients at the community in 2013 and 2014, the community refused because of its policy of prohibiting anyone with a criminal record from living there. Fortune alleged that the policy unlawfully discriminated because it disproportionately barred African Americans and Latinos from housing without considering each potential tenant’s individual history and circumstances.

The settlement follows a July 2019 court ruling denying the community’s request for judgment without a trial. The court rejected claims that Fortune itself wasn’t harmed by the policy and so didn’t have standing to pursue the case. The court ruled that further proceedings were needed to determine whether the community had a ban on applicants with criminal histories, and if so, what were the contours of that ban. Further proceedings were also needed to resolve conflicting expert testimony as to whether any criminal record ban, as applied at the community, had a discriminatory effect on any protected class, including people of color [Fortune Society v. Sandcastle Towers Housing Development Fund Corporation, New York, July 2019

The owners of the community at the time the lawsuit was filed have sold the building and don’t currently own or rent real estate.

According to a statement by Fortune’s attorneys, Relman, Dane & Colfax, the settlement sends a powerful message to other landlords that they must evaluate each applicant as an individual instead of automatically rejecting those with a criminal history. This is critical because obtaining affordable housing is central to successful reintegration for the hundreds of thousands of Americans–disproportionately people of color–released from confinement every year.

TREND TAKEAWAY: Familiarize yourself with the 2016 HUD guidelines on how federal fair housing law applies to the use of criminal records in both conventional and assisted housing communities. The guidelines spell out how HUD will evaluate fair housing complaints in cases where a community refuses to rent or renew a lease based on an individual’s criminal history. 

DISABILITY: Landlord Accused of Violating Resident’s Privacy by Telling Neighbors About Her Request for an Assistance Animal

In July 2019, the owner of a multifamily rental housing community in Santa Monica, Calif., agreed to pay $14,000 to resolve allegations that she violated fair housing law by disclosing confidential disability-related information about a resident’s request for an assistance animal to her neighbors.

In its complaint, the city claimed that a resident with a disability requested a reasonable accommodation to the community’s general policy against pets and included a letter from a medical professional with her request.

The landlord allegedly sent a group email to all the other residents in the building, in which she disclosed the resident’s request, indicated that a disability was involved, and claimed that the resident had a “psychological therapist” who had sent the landlord a letter. Allegedly, the landlord concluded by asking the other residents to report “anything annoying” about the assistance animal to her. The emails went to 10 people other than the disabled resident.

About six weeks later, the landlord emailed the resident to insist on coming into her home to inspect her bedrooms and meet the “comfort” animal. According to the complaint, none of the justifications for a landlord’s entry into a tenant’s home existed. Allegedly, the resident was in shock and distress over the landlord’s tactics.

After the resident filed a fair housing complaint with local authorities, the Public Rights Division of the Santa Monica City Attorney’s Office sued the landlord, alleging disability discrimination and harassment under federal, state, and local law. Specifically, the city claimed that the landlord violated the fair housing rights of a resident with a disability by violating her privacy, making a discriminatory statement, attempting to turn other residents against her, and entering her unit without justification.

Without admitting liability, the owner agreed to a settlement. Under the stipulated judgment with permanent injunction, the court ordered the landlord to pay $14,000 to the city to satisfy all penalties, fees, and costs of investigation and prosecution. The court order also required the landlord to obtain fair housing training and barred her from disclosing any information about a resident’s disability to a third party [City of Santa Monica v. Honda, California, July 2019].

TREND TAKEAWAY: When a resident makes a disability-related reasonable accommodation request, be careful about what you say about it to the neighbors. It doesn’t matter whether it’s for an assistance animal, a reserved parking spot, or something else—you could stir up fair housing trouble if you disclose disability-related information about the resident to her neighbors. According to federal guidelines, information gathered to evaluate reasonable accommodation requests must be kept confidential and must not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable accommodation request or unless disclosure is required by law (such as a court-issued subpoena requiring disclosure).

ENFORCEMENT NEWS

HUD Calls for Investigation into Websites Selling Assistance Animal Documentation

In November 2019, HUD Secretary Ben Carson called for an investigation into certain websites selling assistance animal documentation. In a letter to Chairman of the U.S. Federal Trade Commission (FTC) Joseph J. Simmons and Director of the Bureau of Consumer Protection Andrew Smith, Carson asked the FTC to investigate these websites for compliance with federal laws that protect consumers from unfair and deceptive acts or practices.

The letter stated: “Housing providers, fair housing groups, and disability rights groups have brought to HUD’s attention their concern that certain websites may be misleading consumers with disabilities into purchasing assistance animal documentation that is unreliable and unnecessary. According to these groups, the websites also may be selling assistance animal documentation to people who do not have disabilities substantially limiting a major life activity, enabling such people to claim that their pets are assistance animals in order to evade housing providers’ pet restrictions and pet fees. HUD shares these concerns” [emphasis in original].

The FHA requires housing providers to grant reasonable accommodations for individuals with disabilities that affect major life activities when it may be necessary for such individuals to have equal opportunity to enjoy and use a dwelling. One type of reasonable accommodation is an exception to a housing provider’s rules regarding animals to permit individuals with disabilities to keep assistance animals that do work, perform tasks, or assist individuals with disabilities. Documentation, such as a note from a healthcare professional, is helpful and appropriate when a disability is not obvious and not already known.

The FHA doesn’t require assistance animals to be “registered” or “certified,” nor, in HUD’s opinion, does certification or registration provide any benefit to the consumer with a disability who needs an assistance animal. “Certifications, registrations, and other documentation purchased over the internet through these websites are not necessary, may not contain reliable information, and, in HUD’s FHA enforcement process, are insufficient to establish an individual’s disability-related need for an assistance animal,” according to the letter.

In the letter, HUD offered to provide the FTC with examples of websites that sell the type of documentation described in the letter, “including at least one website that contains the seals of HUD and other federal agencies in an effort to imply that their products are endorsed by the federal government.”

“These certificates are not an acceptable substitute for authentic documentation provided by medical professionals when appropriate,” Carson said in a statement. “These websites that sell assistance animal certificates are often also misleading by implying that they are affiliated with the federal government. Nothing could be further from the truth. Their goal is to convince individuals with disabilities that they need to spend hundreds of dollars on worthless documentation to keep their assistance animal in their homes.”

HUD Assistant Secretary for Fair Housing and Equal Opportunity, Anna Maria Farías, explained, “Websites that sell verification for assistance animals take advantage of persons with disabilities who need a reasonable accommodation to keep their assistance animal in housing. This request for FTC action reflects HUD’s ongoing commitment to protecting the housing rights of persons with disabilities.”

“The Fair Housing Act provides for the use of assistance animals by individuals with disabilities. Under the law, a disability is a physical or mental impairment that substantially limits at least one major life activity or bodily function,” added HUD’s General Counsel Paul Compton. “These websites are using questionable business practices that exploit consumers, prejudice the legal rights of individuals with disabilities, dupe landlords, and generally interfere with good faith efforts to comply with the requirements of the Fair Housing Act.”

• Fair Housing Act: 42 USC §3601 et seq.