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1. ADVERTISING. Advertising is one of the most common ways landlords find people to place in rental properties. When advertising, landlord clients should describe property attributes and/or amenities, not what they are or are not looking for in a resident. Landlords should not say "great for a young couple" as it may be considered discriminatory to families with children. Nor should landlords say "safe" or "exclusive" as this may imply they only rent to certain groups. At the end of the advertisement, landlords should use either the fair housing logo or a disclaimer such as "This community does not discriminate on the basis of race, color, religion, national origin, sex, disability or familial status." Photographs need to be carefully considered before use in advertising and only after speaking with an attorney.

2. STEERING. "Steering" occurs when a landlord attempts to direct a resident, for whatever reason, to a specific area of the property. To help avoid claims of "steering" by a prospective resident, landlords should show all available properties to prospects, let the prospect decide what to see and what to skip, and finally present only facts about the property and the community, not about other residents or neighbors. Landlords should never say "you would really like this particular apartment because it is nice and quiet with few children around", or "there are lots of other children in the same age group as your own" as both statements may be considered a violation of fair housing law. Failing to show a handicapped person the recreational areas (on the assumption the prospect would not use those facilities) may create potential liability. However, if a prospective resident expressly states they are not interested in seeing a specific area it is okay to skip that area. Even if asked, landlords should never comment on the "types" of persons who live in the community.

3. SCREENING/APPLICATIONS. Fair housing claims arise frequently as a result of the application and screening process. Landlords should have a written rental policy detailing the criteria necessary for approval to live in their property. The rental policy should include occupancy guidelines, availability policy, rental criteria (i.e. employment history/income, credit standards, etc.) with an explanation of what the criteria are, an outline of the application process and that your client adheres to all applicable fair housing laws. Questions included on the application should not ask about physical or mental disabilities, and landlords should limit questions about drug/alcohol use and lawsuits. Asking questions regarding prior evictions, prior money judgments, bankruptcy and why prospective residents are leaving their current landlord are acceptable and may provide important information. Once a written policy is created, the landlord should expect strict adherence and compliance with the written policy. Additionally, landlords need to keep good records of each applicant or inquiry. However, if an applicant requests a deviation from the written policy based on a disability, the landlord should consult you immediately before making a decision.

4. OCCUPANCY STANDARDS. In 1996 Congress enacted a law based upon a 1991 HUD memo stating that a 2-person-per-bedroom occupancy standard was acceptable in most situations. This is by no means a hard and fast rule with regard to the number of occupants for a particular residence. This figure can change depending on how the property is laid out. More occupants may be allowed if there are unusually large living spaces or bedrooms, and fewer occupants if the opposite holds true. Many fair housing experts believe that infants do not count when calculating occupancy standards.

5. APARTMENT RULES. It is absolutely acceptable for a landlord to have a set of "house rules" for all residents to live by. The house rules should be basic and non-discriminatory. Rules should be written so they are applicable to all residents and not just specific groups of residents. Rules stating "Children shall not roughhouse in the hallway" may be discriminatory. Using general terms such as "Residents or guests" should keep the rule unbiased, fair and applicable to all residents. Rules must be enforced uniformly against all residents and records regarding rule violations need to be kept. The records should include the time/date and manner of the violation, how the landlord became aware of the violation and what actions were taken to enforce the rule. As a special note, pool rules should be carefully scrutinized to insure they do not discriminate against children. A rule saying "no children under 4 in the pool area" is discriminatory, while a rule saying "children under 12 must be supervised by an adult over 18" is likely not discriminatory. As always, landlords should consult you for specific state or local laws on these issues as well.

6. REASONABLE ACCOMODATION. A reasonable accommodation is at the resident's request and when a client voluntarily makes exceptions to their standard rules/policies to accommodate the resident's disability. The requested accommodation must be reasonable and should not present an undue burden on the landlord. If the accommodation is not reasonable or if it would impose an undue hardship on the landlord, the request may be denied. If the request is denied a letter should be sent to the resident explaining the denial, the facts behind the denial, how those facts were discovered and offering to meet with the resident. Landlords should not offer to make an accommodation to a resident but should wait for a resident to request the accommodation. Offering an accommodation before it is requested may subject your client to a claim of discrimination.

7. REASONABLE MODIFICATION. This should not be confused with a reasonable accommodation. Landlords may require a resident to pay for modifications to the property and require that those modifications be removed when the resident vacates the property. If the modification were for something that federal law already requires a landlord to have in place then the landlord would be responsible for the cost of the modifications. Landlords should check with you to determine where financial responsibility for common-area modifications lay, and whether the resident would be responsible for both the installation and removal of the modifications. As with accommodations, the modifications must be reasonable.

8. RECORD KEEPING. Landlords need to keep records on all prospective residents, in addition to current/past residents. Landlords can create a system of guest cards or logs with relevant information (i.e. date/time of visit, properties shown, prospective move-in date, etc.) as well as a log of all calls made by prospective residents, even if the resident never comes to see the property. Records regarding available properties also need to be kept and updated every time there is a change in availability. Additionally, all applications should be retained, even if the applications were rejected or withdrawn. Landlords should contact you regarding how long the records should be saved in order to comply with changing requirements in federal and state law, as well as what types of records to maintain. Being able to produce consistent records showing nondiscriminatory application of written screening criteria in every case can usually successfully defend a Fair Housing claim.

9. EMPLOYEE TRAINING. Landlords need to ensure that there is a written policy to avoid claims for harassment, particularly sexual harassment. Every time a new employee joins the staff there should be a training meeting about fair housing laws and how to comply with them. The meeting should include copies of all memos regarding policies about how to comply with fair housing, what can happen to the landlord for a violation and what will happen to the employee who violates fair housing.

10. EVICTION. Landlords should not be afraid to evict a resident for legitimate reasons because of a fear of a fair housing violation claim. The rules set by the landlord apply to all residents equally. When contemplating an eviction for other than non-payment of rent advise your client to ask themselves the following two questions: (1) Has there been a serious violation of the lease agreement? (2) Do you and have you evicted other residents for the same type of problems or behavior? If the answer to these questions is yes, then an eviction would be warranted under the circumstances. Resident files should contain records of all complaints against the resident and what has been done in response to each of the complaints. HUD has historically looked for five types of documentation when dealing with fair housing claims. Landlords should document and include in resident files the following information: (1) warning letters/eviction notices, (2) written complaints by third parties, (3) written logs kept by management, (4) police records and (5) photographs. Resident file documentation needs to be consistent for all residents. This documentation may prove there was a legitimate reason, unrelated to any fair housing claims, for evicting the resident.

All information contained in this article is consistent with the Fair Housing Act (42 U.S.C.A. 3601 et seq.) Information was also obtained from the Federal Housing and Urban Development website ( http://www.hud.gov).

Kristi Bunge is a partner with the law firm of Springman, Braden, Wilson & Pontius, PC in Denver, Colorado, a firm that handles more than 500 evictions each month. Ms Bunge focuses on representing landlords in eviction and collection matters. Ms Bunge also represents property managers and Associations, advising them on Community Association issues.

Answer. ORS 90.630(1) provides as follows:

(1)Except as provided in subsection (4) of this section, the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days notice in writing before the date designated in the notice for termination if the tenant:

(a)Violates a law or ordinance related to the tenants conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant obligations);

The exception found at subsection (4) says:

The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in subsection (1) of this section. However, if substantially the same act or omission that constituted a prior violation of which notice was given recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days written notice specifying the violation and the date of termination of the tenancy.

The rules prohibit running a business inside the community. I suspect that the local zoning ordinances do as well. So if the resident intends to run the same type of business as in town, in her home, it would likely violate both the park rules and the local land use ordinances. I also suspect that by whatever name she describes it, she is in the business of selling marijuana from her home.

The fact that she may hold a medical marijuana card permitting this activity does not persuade me that it is a ticket to place her grow site operation in a location that violates the park rules or the local land use rules.

On the State of Oregon website describing the Medical Marijuana Dispensary Program, here, it provides that:

The law requires the Oregon Health Authority to develop and implement a process to register medical marijuana facilities, which must be located on property zoned for commercial, industrial, mixed use or agriculture uses only. The issue of whether a local government believes a certain type of business should operate within one of these zones is a local government decision.

On March 19, 2014, Senate Bill 1531 was signed into law. SB 1531 gives local governments the ability to impose certain regulations and restrictions on the operation of medical marijuana dispensaries, including the ability to impose a moratorium for a period of time up until May 1, 2015. The law also authorizes the Oregon Health Authority to issue refunds upon request to dispensary applicants whose facilities are located in an area that falls under a moratorium.

Update:

Read the list of cities and counties that have enacted a moratorium on medical marijuana dispensaries. The Medical Marijuana Dispensary Program was last notified by a city or county of changes to this list on 5/21/14. This list includes only cities and counties that have submitted documentation of a moratorium to the Medical Marijuana Dispensary Program, consistent with the rules implementing SB 1531. The Oregon Health Authority is only authorized to offer a full refund to applicants and licensees whose dispensaries are located in an area named on this list.

Before going into battle with this resident, I suggest that you ask that she describe for you, in writing, exactly what she proposes to do, so that you can better understand and evaluate it. Once you fully understand the business model, you will be in a much better position to know whether her plans will constitute a violation that you may enforce. But remember, your remedy under ORS 90.630(1) and (4) is to give her a 30-day notice and opportunity to cure.

Based upon the state requirement that the grow site operation be consistent with local zoning laws, I do not view this as a fair housing issue. And based upon my prior MHCO articles on this subject, I do not believe the Oregon Bureau of Labor and Industries (the state's fair housing enforcement arm) would pursue your denial of the resident's request for a reasonable accommodation (i.e. permitting you to "bend" the rules, and ignore the land use laws).

Background. Although the Shepard case arose under the non-MHP section of the Act (pre-90.505) the principle is the same for MHPs.

Tenant had been living in an apartment since 2008. In 2013 the landlord changed rent policies to add a monthly fee for utilities. In 2019 the tenant failed to make rent payments on time and the resulting eviction proceeding went to trial.

As a defense, the tenant claimed the landlord had violated certain provisions of ORS 90.315(4) which governs a landlord’s ability to pass-through utility charges to tenants. Specifically, that the landlord had failed to bill the tenant on time and failed to explain the way utility bills were both assessed to the tenant and divided among the complex’s other residents.

The trial court granted the tenant damages of $11,010 – one month’s rent for each of the 12-months of billing violations. The landlord appealed, arguing that the legislation did not contemplate that the penalty would be applied “per violation.” The court of appeals sided with the landlord awarding the tenant only $960 dollars, twice the wrongful $40 dollar utility charge for the preceding 12 months.

After evaluating the statute, the court determined that one-month’s rent was the minimum amount a landlord would have to pay for any number of violations of the statute. They reasoned the wording “twice the amount wrongfully charged” was meant to address a situation where repeated billings might incur damages greater than a single month’s rent. They said that the legislature intended to create a damages statute with “some, but not too many, teeth.” If the legislature had intended for damages to result from each incident they would have used language indicating that penalties accrued for each noncompliant billing cycle.

Why Does This Matter? Manufactured housing park landlords should be heartened by this new ruling. Note, however, it will be appealed to the Oregon Supreme Court, so we do not know final word.

Though ORS 90.315 applies to non-mobile home tenancies, it contains language very similar to statutes that apply to utility billing in manufactured housing parks, specifically ORS 90.582.

(3)   If a landlord fails to comply with a provision of ORS 90.560 to 90.584, the tenant may recover from the landlord the greater of:

(a)      One month’s rent; or

(b)      Twice the tenant’s actual damages, including any amount wrongfully charged to the tenant.

The language in 90.315 is relatively new, having been added to the ORLTA in 2015. Because of this, Shepard v. Ormandy is currently the only case which addresses the issue of how a court may calculate damages based on a violation of tenant utility billing statutes. Likewise, there are no cases addressing the similar manufactured housing statute for damages resulting from pass-through utility charges.[1]

Conclusion.  Shepard v. Ormandy was granted review by the Oregon Supreme Court in October 2022. It is unclear at this time how the high court will rule. Oral arguments are set for the spring of 2023. Until then, should a landlord find themselves facing a damage claim under ORS 90.582(3), it is important to argue that the penalty of one-month’s rent does not apply to each violation within the relevant period.

[1] Note that the tenant’s damages may be higher for a claim under manufactured housing statutes since they allow for twice a tenant’s actual damages plus any amount wrongfully charged. Thus, damages may be in excess of the wrongful charge.

WHY SHOULD YOU CARE SO MUCH ABOUT R&Rs: ASSET VALUE - Firstly, a SIGNIFICANT part of your community's real estate value is based on how well Residents adhere to the R&Rs which YOU as an Owner/Manager must enforce! CASH FLOW - Second, because rule violations, with the exception of non-payment of rent issues, are the number one reason Residents get evicted, we cannot emphasize enough, how important it is to keep your rules up to date, so that you prevail when spending money in the legal process... .got your attention???? Read on:

ORS 90.510 requires that the Rules and Regulations and a copy of your rental agreement be handed out as attachments to the Statement of Policy (SOP) to prospective and existing Tenants. When giving these documents to prospective Tenants, you should have them sign a receipt for Statement of Policy. All too often we have heard Tenants state in court that they never signed or received a copy of the Rules and are therefore not bound by them. By producing a copy of the signed receipt for Statement of Policy, the presumption is that they did receive the rules even if they never read them.

As mentioned above, it's extremely important to keep your rules updated. In MHCs that we've managed, we have discovered rules that are 2 pages and we've seen some that are 30 pages... .some Community Owners have not revised this IMPORTANT governing document since the 1970s! Many of these older and/or shorter sets of rules do not even mention many of the issues relevant today. So if you want to change or update your rules, know that there are two methods to accomplish this.

First is a general rule change that affects all of the Residents: ORS 90.610 sets out the requirements for the notice of proposed change in Rule or Regulations. The statutory time-line for the Residents to OBJECT to the change(s) is 30 days after receiving the written change(s.) If 51% of the eligible spaces object in writing to the proposed change, the new rule(s) do not go into effect. If less than 51% object in writing within the 30 day window, the new rule(s) go into effect for all Residents 60 days after the notice was mailed.

The second method to changing rules is through attrition. There is nothing in the statute that prevents an Owner/Manager from creating a second and more comprehensive set of rules and handing them out with the SOP to new prospective Residents. The new rules will only be enforceable on the new Residents; since all homes change ownership eventually, once you have enough new Residents on the new rules, you can always go for a general rule change effecting everyone. Many or most Residents would already be subject to the new rules, the mathematical probability of having 51% object to the rule is greatly diminished. Remember to keep a copy of whatever generation of R&Rs the Resident agreed to in their resident file. You do not want to try to enforce a new rule on an old Resident who is subject to a previous version of the rules.

Our next article will deal with R&R enforcement, so stay tuned!

1. "Pick Your Shot" Never pick a fight you don't think you can win. And if you decide to fight, make sure you get in your best shot. By this I mean the following: (a) Just because a tenant has violated one of the park rules, don't think the first thing you must do is file a 30-day notice to terminate. If you file the notice, you've got to stick with it. If the tenant fails to make the correction within the 30-day period, you may have no choice but to file for eviction. Most lawyers want to go to court in an eviction proceeding with a file showing that the landlord or manager has "walked the extra mile" in trying to work with the tenant. Judges and juries can be naturally sympathetic to tenants. It bodes better for landlords when the evidence suggests that the tenant was either ignoring the landlord, or intentionally trying to aggravate the situation by breaking the rules. Landlords and managers should strive to have at least two - if not more - polite reminder notices sent to the tenant. The reminder does not have to give the tenant 30 days to come into compliance. If a week is reasonable, give a week. If compliance doesn'toccur within that time, send a second reminder, giving another week. If compliance occurs, but the violation reoccurs, give another reminder. The more paper in the file, the better the landlord's chances of prevailing in court. (b) Once you decide to file for eviction, make it your best shot. For example, if the tenant has broken three of the rules, only select the most serious ones. And if the violation is something that can be verified by photographs, take some. Make sure that the photos accurately depict the conditions constituting the violation as of the date immediately preceding the date of the 30-day notice. When the 30 days has expired, immediately take another set of pictures that prove the violation was not cured. Never take the pictures on the 29th or 30th days. Take them on first day after expiration of the 30 days. Also, if the matter does go to court and the violation still exists, take pictures immediately before trial. (c) If the case is capable of being resolved prior to filing, or even prior to court, give it serious consideration. For example, say the tenant cured the violation on the 35th day after receiving a 30-day notice - and has pictures to prove it. It is doubtful that a judge will evict them, even if they were technically outside of the 30-day compliance period. Consider dismissing the case if the tenant will pay the filing fees.

2. Draft All Default Notices Carefully In the vernacular of lawyers, the notice is "jurisdictional" - that is, it is the basis upon which the court will or will not exercise jurisdiction by hearing the case. If a 30-day notice is defective, say because it gave the tenant 29 days to comply instead of 30, the court cannot hear the merits of the case. You could have the best case in the world, and would have won in court without question - but it will make no difference if the notice is defective. The court has no alternative but to dismiss the complaint. If the tenant was represented by an attorney who filed an answer or other legal document on behalf of the tenant, it is probable that you will have to pay his/her attorney fees. Accordingly, if in doubt, have your attorney review the notice before it goes out... especially if the tenant is one that will likely refuse to comply and force you into court.

3. don't be Afraid to Dismiss If the notice is obviously defective, there is a high likelihood that the other attorney will recognize it. If so, consider dismissing the case as soon as possible. It will serve no purpose - except to pad the other attorney's pocket book - by continuing the fight in court. Sometimes it is better to simply start over. Dismiss the case, send out a corrected notice, and if the tenant fails to comply, file another eviction. Although Oregon law does not require that landlords use an attorney to file evictions, it is always a good idea in those cases in which you know the tenant is already represented, or will seek legal representation before trial. In such cases, landlords should consider having their attorney at least review the background facts and notice before the eviction is filed.

4. Maintenance Violations These are one of the most prevalent and difficult of tenant violations. There are several reasons. Frequently, the violation, say continually storing "junk" on the space in plain view from the street, is really a matter of degree. For example, while a barbecue and picnic chairs, neatly covered, may not be a problem, if they are old wooden chairs, a dilapidated table, a broken down barbecue, and an old air conditioner, all covered with a torn canvass tarp held in place by firewood, it will pose a problem. Unfortunately, it is frequently such cases that gets into court - the tenant arguing that the problem is not as bad as the landlord maintains. Also, landlords must be careful about consistent treatment. It makes little sense to go to court against one tenant with a poorly maintained space, if there are a dozen others whose spaces are just as bad. In such cases, where the landlord (or perhaps the predecessor landlord) has been lax in enforcing maintenance violations, it is wise to first send out a park-wide notice to all tenants that the maintenance rules will be enforced. The notice should request that all tenants clean up their spaces, if necessary. Give everyone 30, 45, or 60 days to comply, during which time the manager should work with the worst offenders. Managers should take careful notes, documenting their efforts to secure compliance.

5. Select & Keep Good Managers Not only is this good for the landlord, but it is good for tenant relations, as well. There are exceptions. Some tenants will attempt to demonize even the best managers. Unfortunately, the reverse can be equally true. But generally, good managers will get along with their tenants. This will go a long way in keeping peace in the park. But being a good manager is not simply being liked by the tenants. Good managers will enforce the rules in an even-handed and fair manner. They will be cordial with tenants and always attempt to communicate a rules violation first with a visit or phone call. Such efforts should always be documented for the file. Evictions can be won or lost depending upon whether the managers are likeable. My experience has been that when a dispute gets into court, the tenant, along with his/her witnesses, will attempt to place blame on the conduct of the manager. For this reason, the history of any case that finds its way to court should be replete with documentation that the manager attempted to work with the tenant. The judge and/or jury should be convinced that the eviction was a last resort, and that the manager did everything humanly possible to secure the tenant's compliance before the case was ever filed.

Answer.   I’ll try.  First let’s start with some definitions:

Section 603 of the FCRA defines a “consumer report” as:

“…any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for (a) credit or insurance to be used primarily for personal, family, or household purposes***

Section 605 provides that “…no consumer reporting agency may make any consumer report containing any of the following items of information:

**** 

(3) Paid tax liens which, from date of payment, antedate the report by more than seven years.

(4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years

1. Any other adverse item of information, other than records of convictions of crimes[1] which antedates the report by more than seven years (Emphasis added.)

Based upon the preceding text in subsections (3) and (4), I read (5) to mean that 7+ year old criminal convictions are excluded from the list of 7+ year old adverse information that is prohibited to be a consumer report.

So, from a consumer reporting perspective, I do not believe there is any restriction for convictions over seven years old.

The position of HUD is an entirely different matter.  This has nothing to do with consumer reporting; rather it relates to HUD’s views on “disparate impact”.

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Fair Housing Act, if they have a disproportionately "adverse impact" on certain members of a protected class, i.e. those falling into the following groups: Race, color, religion, sex, disability, familial status or national origin.[2] 

Today, a landlord may be found to have discriminated against a prospective tenant, not because of an intentional discriminatory act, such as rejecting him or her based upon race or religion, but unintentionally, because the landlord relied upon a perfectly legal basis, except that it had a disproportionately adverse impact on members of a protected class. Proof of the “disproportional impact” is usually based upon some statistical correlation showing that a certain class of protected persons are negatively impacted more than others. In other words, unintentional discrimination can now be a violation of the Act.

On April 4, 2016, the U.S Department of Housing and Urban Development (“HUD”) issued its “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions” (hereinafter, the “Memo”). The full text of the 10-page Memo can be found here. Not surprisingly, it follows the June 25, 2015 ruling by the U. S. Supreme Court, in the Texas Dept. of Housing vs. Inclusive Communities case, which upheld the much-debated concept of “disparate impact” under the Fair Housing Act, as amended (the Act”). 

At footnote 43 of the Memo, the following appears:

***see Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven years without reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record). (Emphasis added.)

Does this mean that six or seven years is the maximum look-back that landlords can make when screening someone’s criminal background? I submit that in non-violent crimes, this is not an unreasonable review period. But in cases of crimes to the person, and most significantly, rape and child molestation, I agree a seven year period is not enough. However, the Memo is not to be read to say that any conviction over seven years may not be taken into consideration when screen potential tenants. Its purpose is to “…issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result.”

Here are some tenant screening tips based upon one of my earlier MHCO Q&As:

1.Beware of testers, calling over the phone and asking if you will rent to persons with a criminal background. Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address.

2.Ultimately, landlords should plan on making adjustments in their rules and application process.  

3.Do not have a rule or policy that treats an arrest, with no conviction, the same as a conviction. If you currently have such a rule, it should not be enforced.

4.Do not have a blanket guideline providing, for example, that conviction for any crime is an automatic denial.

5.Be sure that all rules or policies concerning criminal records are uniformly enforced – no exceptions.  However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violent crimes over the past five years.

6.If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these other criteria, then the rejection can be based on that, rather than a criminal background report, thus avoiding the disparate impact issue entirely.

7.In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before making a decision to reject a prospective tenant based upon criminal history. For example:

a.How long ago was the conviction? (A single conviction over 6-7 years old, in most cases should probably not be used as the basis for a denial (excluding registered sex offenders, or those convicted of violent crimes).

b.What has the person been doing since their release?

c.Has the person been convicted once, or on multiple occasions?

d.What was the nature and severity of the crime?

8.Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (not mere possession) of a federally defined controlled substance is permissible and not subject to a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent based upon a conviction for manufacture or distribution is not a violation of the Act, based upon disparate impact. Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegalmanufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

9.ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all of them. And where there is similarity, Oregon law does not go as far as the Memo on the issue of criminal records and disparate impact. Oregon’s statute provides:

(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168 (Oregon’s eviction statutes – PCQ) if the action:

      (a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application.

      (b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application.

(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application.

(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is:

     (a) A drug-related crime;

     (b) A person crime;

     (c) A sex offense;

     (d) A crime involving financial fraud, including identity theft and forgery; or

     (e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect:

            (A) Property of the landlord or a tenant; or

            (B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent. 

1. Landlords should not assume that compliance with ORS 90.303 means that a denial of tenancy automatically avoids a disparate impact claim.  Landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  Thus, compliance with state law, but non-compliance with federal law, can still result in a disparate impact claim under the Fair Housing Act, as amended.

Here are some considerations to keep in mind:

1. The Memo and ORS 90.303 both prohibit screening applicants for arrests, regardless of the conduct that led to the arrest;
2. ORS 90.303 says that an arrest which has not been dismissed, but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (i) When the matter will be resolved, e.g. a week, a month, or a year? (ii) What was the charge? (iii) If convicted, would the applicant automatically be denied? As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds. If so, there is no need to rely upon a landlord’s criminal background policy at all. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases.
3. ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo.
4. Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred, or require an evaluation of what the applicant had been doing since the conviction. (e. g. evidence of rehabilitation). The General Landlord-Tenant Coalition could not reach agreement on whether to use a five or seven year standard in the statute[3], nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this issue.

• .  Landlords could be forgiven for feeling they are caught on the horns of a dilemma. If they follow Oregon statutes, it may not be enough. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines” based upon anecdotal information.

Perhaps most unsettling is the fact that today, a landlord’s good faith effort to comply with the tenant application process is not enough. Instead, unintentional discrimination, now known under the more benign title, “disparate impact”, has become a basis for Fair Housing claims. Yet unlike statutes, which can provide distinct guidance, disparate impact is more of a concept than a law, since it ignores one’s intent, and looks instead to the perceived long term consequences of certain actions based upon empirical statistics, academic writings, analysis, surveys, demographics and footnotes. Is this something landlords can or should be expected to fully appreciate and understand when evaluating a person for tenancy? 

[1] It would have helped if a comma had been inserted after “convictions of crimes”.

[2] Note, many local jurisdictions have additional class, including sexual orientation.

[3] It is believed that most screening services do not report criminal information over seven years old.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) makes it illegal to discriminate on the basis of race, color, religion, sex, familial status, national origin, or disability. The vast majority of undocumented alien discrimination cases involve exclusion of people who aren’t legal citizens of the U.S. The question: Is this legal?

Damned If You Do: How the FHA Applies to Undocumented Aliens

Notice that citizenship and immigration status aren’t on the list of FHA “protected classes.” In January 2003, the U.S. Department of Housing and Urban Development issued a memo clarifying that the FHA “does not prohibit discrimination based solely on a person’s citizenship status.” Nor does the law bar discrimination based on “immigration status or resident alien” status, the HUD memo adds. In other words, people who are in this country illegally can’t sue for discrimination under the FHA if that’s the sole reason they experience discrimination.  

However, there’s more to the story. Undocumented aliens and non-U.S. citizens who get excluded may have valid grounds to sue for other forms of discrimination, including religion, race, and especially national origin. Rule: FHA protections extend to every person in the U.S., regardless of their immigration or citizenship status. Stated differently, a person doesn’t have to be a U.S. citizen to sue for discrimination.

Example: A Virginia townhouse community rejected a resident alien couple because they weren’t U.S. citizens. The couple sued, and the federal court ruled that they had a valid FHA claim for national origin discrimination. A citizenship requirement may be part of a wider scheme to exclude persons based on their national origin, the court reasoned [Espinoza v. Hillwood Square Mut. Ass'n, 522 F. Supp. 559 (E.D. Va. 1981)].

Of course, the same principles could apply to other protected classes. Thus, for example, a citizenship requirement may also constitute discrimination on the basis of race, color, religion, sex, familial status, national origin, or disability.

Refusing to rent to non-U.S. citizens may also violate other federal civil rights laws. For example, people who aren’t U.S. citizens may be permanent legal residents with “Green Cards” who enjoy nearly all the same rights as citizens to live and work in the country.

In addition to federal laws, landlords must comply with any stricter requirements under state and local fair housing laws. And immigration status is a protected class in some states and municipalities. For example, California makes it illegal to inquire into an applicant’s immigration status; New York City bans discrimination on the basis of “alienage or citizenship status.”

DEEP DIVE

Anti-Harboring Laws

Federal and some states’ immigration laws make it a crime to “harbor” undocumented aliens. However, most courts have ruled that the laws don’t penalize landlords for simply renting housing to people without regard to their immigration status.

Example: In February 2017, a Texas federal appeals court ruled against two landlords who were willing to rent to persons regardless of immigration status but feared they might be prosecuted for “harboring” illegal aliens under state law. The lower court agreed and issued a temporary ban on Texas’s enforcement of the law. But the appeals court lifted the ban and dismissed the case, saying there’s a distinction between “harboring” and simply renting to an undocumented alien [Cruz v. Abbott, February 2017].

Damned If You Don’t: The Liability Risks of Not Screening Applicants’ Immigration/Citizenship Status

Here’s where things get tricky. While screening on the basis of immigration or citizenship status is problematic for conventional housing, it’s actually required for some forms of federally assisted housing. Thus, for example, landlords participating in the Section 8 program are obligated to ask and confirm that applicants and tenants are permanent U.S. citizens or hold some other lawful immigration status.

There are also states and municipalities where landlords are required to verify applicants’ immigration status or face severe penalties, including stiff fines and loss of their business license to operate.

Bottom Line: It’s crucial to consult an attorney and be aware of the fair housing requirements of your particular jurisdiction in determining your policies and protocols for screening and leasing to immigrants.

7 RULES FOR AVOIDING DISCRIMINATION AGAINST IMMIGRANTS

Once you sort out the basic legal landscape, you need to establish clear policies on leasing to undocumented aliens and train your leasing and management staff to implement them consistently. Here are the seven rules to cover in your training.

Rule #1: Ensure Nondiscriminatory Justification for Citizenship Screening

Technically, unless you live in a state or municipality that prohibits it, screening applicants’ citizenship and/or immigration status isn’t illegal; it might even be required. However, there are risks you must avoid if you adopt such a policy.

First, you need a legitimate, nondiscriminatory and documented business justification for making citizenship or immigration status a qualifying criterion. Doing it because the law requires it is one example. But also keep in mind that the vast majority of undocumented aliens in the U.S. belong to a minority racial, religious, and/or nationality group. Accordingly, stereotypes about undocumented aliens being troublemakers or not paying rent open the door to discrimination on the basis of religion, race, and national origin. Thus, for example, refusing to rent to immigrants because they “can’t keep a steady job” may be deemed a pretext for excluding certain nationalities, particularly in properties located near the Mexican border or on the West Coast where there are large numbers of Asian immigrants.

Rule #2: Apply Screening Policy Consistently

Whatever screening approach you adopt, you must apply it consistently. Just having a principled and justified policy requiring rental applicants to verify their U.S. citizenship won’t protect you if you follow it in some cases but not others. The 2003 HUD memo uses the following example to illustrate the fair housing liability risks of an inconsistent citizenship or immigration status screening policy.  

Example: A person from the Middle East applies for an apartment. Because he’s from the Middle East, the landlord requires him to provide additional information and forms of identification and refuses to rent him the apartment. Later, somebody from Europe applies for an apartment at the same complex. Because the person is from Europe, the landlord rents him the apartment without making him complete additional paperwork or verify the information on the application and rents the apartment. This would be disparate treatment on the basis of national origin.  

Implementation Strategy: The only way to ensure the consistency necessary for compliance is to have clearly written policies that explain why you screen for citizenship and/or immigration status along with procedures and protocols for implementing them. What you must guard against, above all, is allowing leasing staff to ask questions or make decisions about whether to screen particular applicants based on their appearance, accent, apparel, etc.

Rule #3: Ask for the Right Kind of Proof

If you do decide to screen for citizenship and/or immigration status, you need specific procedures and protocols to do it properly. You don’t have to take applicants at their word and have the right to request information enabling you to verify their status. Again, consistency is the key. If you ask one applicant for documentation, you must ask all applicants for it. You must also be careful to request the right information. Acceptable proof depends on whether you’re seeking to verify an applicant’s status as a citizen, immigrant, or nonimmigrant:

• Citizenship: Acceptable proof of U.S. citizenship includes a valid current U.S. passport, birth certificate, or certificate of naturalization;
• Legal immigrant: Proof of legal immigrant status—that is, noncitizens who have the right to permanently remain in the U.S., include a Permanent Resident Card (a.k.a., “Green Card”) and an official Social Security number;
• Legal nonimmigrants: Legal nonimmigrants are persons who are allowed to be in the U.S. on a temporary basis for specific reasons. Such applicants should have a non-U.S. passport from their native country along with a Form I-94 (a.k.a., Arrival Departure Record, or Entry Permit listing when they entered the U.S. and how long they have a right to stay). They also need a visa, such as an F-1 visa for students, unless they’re from one of the countries that has signed a visa waiver agreement with the U.S.

Rule #4: Apply Your Normal Screening Standards to Immigrants

There’s no rule requiring landlords to make special concessions for applicants based on their citizenship or immigration status. In other words, you may require verification of identity (such as a driver’s license, passport, or other form of government ID), financial and rental history, and other legitimate qualifications that you use to screen any other applicant.

It’s standard practice to ask applicants for Social Security numbers (SSNs). This is okay, especially since many screening companies require an SSN to perform tenant screening, such as credit and criminal background checks. But don’t automatically reject applicants because they don’t have SSNs. Explanation: Not having an SSN doesn’t necessarily mean the applicant is in the country illegally. Noncitizens need to get SSNs only if they want to work in the U.S. And tenant screening companies may still be able to vet their qualifications even without an SSN using alternative information, such as the applicant’s name, date of birth, and last known address.

Also, note that unauthorized immigrants may obtain drivers’ licenses in at least 16 states and the District of Columbia (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Massachusetts, Nevada, New Jersey, New York, Oregon, Utah, Vermont, Virginia, and Washington).

Coach’s Tip: Contact an immigration attorney, the U.S. Bureau of Citizenship and Immigration Services (BCIS), or State Department if you’re unclear about documentation requirements or have questions about the documentation of legal immigration that an applicant presents to you.

Rule #5: Don’t Make Ability to Speak English a Rental Criterion

In September 2016, HUD issued guidance confirming what several courts had previously ruled—namely, that excluding applicants or tenants based on their limited English proficiency (LEP) violates the FHA. Explanation: Statistically, most LEP people come from a country other than the U.S. Thus, disqualifying people because they’re LEP has the effect of discriminating on the basis of national origin (and, in some cases, race and/or religion). Discriminatory practices to avoid include:

• Imposing an English-speaking language-related requirement on people of certain races or nationalities;
• Posting ads that contain blanket statements, such as “all tenants must speak English”; or
• Immediately turning away applicants because they’re not fluent in English.

Example: In 2013, HUD ordered a Virginia property management company to pay $82,500 to settle allegations of not letting a Hispanic woman apply for an apartment. According to the complaint, the company refused to give her a rental application because she didn’t speak fluent English even though she brought along a bilingual person to act as translator. HUD investigators also found that the company actually had a written policy requiring all prospects to be able to communicate with management in English without help from others [Travsiňa v. Virginia Realty Company of Tidewater, Inc., FHEO Case Numbers 03-11-0424-8].

Strategic Pointer: It’s imperative to ensure that leasing, management, and other staff remain calm, patient, poised, and professional at all times when dealing with LEP people. Giving in to frustration, even if it’s just a momentary and isolated lapse, may result in comments and actions that serve as Exhibit A in an intentional discrimination case against you.

Example: In 2017, the owner and manager of a California community had to shell out $20,000 to settle claims of national origin discrimination against Latino tenants. The turning point came when a local fair housing group joined the case bringing along evidence showing that the manager repeatedly made statements about not liking having Latino tenants at the community because they didn’t speak English.

For more guidance on this topic, see the Coach’s July 2021 issue, How to Avoid Discriminating Against People with Limited English Proficiency.

Rule #6: Don’t Use Tenant’s Immigration Status as a Bargaining Chip

Citizenship and immigration status liability issues can arise not only during the leasing process but also in the context of dealing with current tenants. One common example is seeking to use that status to extort a rental or other concession from the tenant. In 2012, HUD issued guidance (in the form of FAQs) clarifying that it’s “illegal to coerce, intimidate, threaten, or interfere with a person’s exercise or enjoyment of” FHA rights. “This includes threats to report a person to U.S. Immigration and Customs Enforcement (ICE)” to get them to move out or accept unfavorable treatment, or in retaliation for reporting housing discrimination to HUD.

Example: A married couple sued their landlord for threatening to report them to federal immigration authorities if they didn’t move out within a matter of days. They also claimed the landlord threatened to report their attorney to the California Bar for illegally advocating on behalf of tenants it perceived to be undocumented. In April 2020, the landlord agreed to pay $250,000 in damages and attorney’s fees to resolve the allegations of national origin discrimination [DFEH settlement announcement, April 22, 2020].

Rule #7: Protect Immigrant Tenants from Harassment

Immigrant tenants may become a target for harassment, intimidation, and abuse by property staff and neighboring tenants. Regrettably, the emergence of immigration as a divisive political issue in recent years has made such behavior a more widespread problem in the context of not only rental housing but many other aspects of social activity. And to the extent it’s typically based on a tenant’s national origin, race, or religion, landlords that engage in or allow others to engage in such harassment are at risk of liability for interfering with tenants’ use and enjoyment of the property they lease.

Strategic Pointer: Preventing harassment is the bare minimum. Achieving true compliance requires a shift in culture, one in which nationality, racial, and religious differences are not only tolerated but appreciated and respected, if not actively embraced. Staff training should strongly emphasize professionalism and the need to respect the diverse ethnic and cultural differences among prospects, applicants, and tenants.

To accomplish this requires cultural sensitivity and awareness of how well intentioned and seemingly innocent acts and statements may be considered offensive to persons of different national, ethnic, or religious backgrounds.

Example: Training of maintenance and other staffers who may enter into a tenant’s apartment should emphasize that removing one’s shoes before entering another person’s home is an essential protocol of respect in some cultures.

Also train staff to avoid asking people about their accents or where they come from. While such questions might be the product of genuine curiosity or desire to engage on a personal level, they may also be construed as a form of illegal inquiry, especially if they’re accompanied by clumsy or insensitive remarks.

Example: In an attempt to make casual conversation, a real estate broker married to a Brazilian woman asked the wife of a married couple where she was from. What the broker didn’t know was that the wife, who was from Venezuela, felt as if she had just been denied a rental at another property because of her national origin. “Here we go again,” she thought when the broker asked the question. She was convinced that they had just lost a rental opportunity because of her national origin and that it was happening again. The couple filed a discrimination complaint. Result: The broker was found liable for discrimination and ordered to pay $76,500. The Massachusetts appeals court upheld the ruling—although it did reduce the damages [Linder v. Boston Fair Housing Commission, February 2014].

Answer: There seems to be some confusion on what facts determine giving the 30-day notices and which are appropriate for three strikes. Here is a brief primer:

Three Strikes: Pursuant to ORS 90.630(8), a landlord may terminate a space rental agreement for a manufactured dwelling or floating home if:

• The tenant has not paid the monthly rent prior to the eighth day of the month assuming rent is due on the first day of each month, and,
• A 72-hour notice is issued[1] in at least three of the preceding 12 months; and
• The landlord warns the tenant of the risk of a 30-day notice for termination with no right to correct the cause, upon the occurrence of a third nonpayment of rent termination notice within a 12-month period. This warning must be contained in at least two 72-hour notices that precede the third notice within the 12-month period (or in separate written notices that are given concurrently with, or a reasonable time after, each of the two preceding 72-hour notices); and
• The 30-day notice of termination must state facts sufficient to notify the tenant of the cause for termination of the tenancy which is given to the tenant concurrent with, or after the third or a subsequent nonpayment of rent termination notice.[2]

Take-Aways.

• The MHCO 72-hour Notice (Form No. 42) already contains the warning about a non-curable 30-day notice for three strikes, i.e. issuance of three 72-hour notices within the preceding twelve months. No separate warning needs to be given. All management needs to do is complete the form and identify whether it is the first, second, or third such notice.
• Note: The purpose of the 3-strikes statute is to discourage serial late-paying. The violation is not "cured" by paying the rent late after issuance of a 72-hour notice - in other words, it still counts toward issuance of a three strikes notice.
• The 30-day Notice for a 3-Strikes Violation (Form No. 43A) should be given together with the third 72-hour notice; if it is mailed it can be in the same envelope or another one simultaneously sent. Always get a Certificate of Mailing when mailing the letter. Do not wait in sending out the 30-day notice!
• The 30-day 3-strikes notices is not "cured" by payment of the late rent.
• Since there could potentially be a waiver argument if the landlord attempted to terminate for issuance of more than three 72-hour notices, it is recommended that if the tenant was issued more than three such notices within twelve months, the landlord select just three.
• Caveat: Each 72-hour notice must have been properly prepared. If one of them has been defectively prepared (e.g. wrong date, time, etc.) or incorrectly served (e.g. improper posting and mailing, etc.) it will not count towards the three strikes. For this reason, it is suggested that legal counsel closely review each 72-hour notice that is intended to become the basis of a 3-strikes eviction.

Thirty-Day Notices: Pursuant to ORS 90.630(1) - (7), a landlord may terminate a space rental agreement for a manufactured dwelling or floating home if a tenant:

• Violates a law or ordinance related to the tenant's conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant Obligations);
• Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing;
• Is classified as a level three sex offender under ORS 163A.100 (3); Note that this violation is not curable, and the 30-day notice must so state; or
• Fails to pay a (i) Late charge pursuant to ORS 90.260; (ii) Fee pursuant to ORS 90.302; or (iii) Utility or service charge pursuant to ORS 90.534 or 90.536.
• Note that for violation regarding the physical condition of the home, a 30-day notice does not arise under ORS 90.630; rather ORS 90.632 applies. Do not get the two types of events confused. Use MHCO Form No. 55 is to be used for repair and deterioration issues under ORS 90.632, and Form No. 43 is to be used for all other curable 30 day notices arising under ORS 90.630.
• The 30-day notice must state facts sufficient to notify the tenant of the reasons for termination of the tenancy and state that the tenant may avoid termination by correcting the violation within the 30-day period.
• If substantially the same act or omission that constituted the prior violation recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days' written notice specifying the violation and the date of termination of the tenancy.
• Note that notwithstanding issuance of a 30-day notice, management may issue a notice for nonpayment of rent under ORS 90.394. Caution: If the last day of a 30-day notice of termination is on, say the 15th of the month, the landlord's 72-hour notice issued on the 8th day of that month should only demand rent up through the 15th. If the 72-hour notice demands rent covering the period after the 15th, it could invalidate the 30-day notice since it demands that the tenant pay rent for a period of time beyond the official end of the tenancy. There is also a risk of incorrectly calculating the number of days in the 72-hoour notice. For these reasons, I do not recommend issuance of a 72-hour notice while a 30-day notice is pending. And if the tenant voluntarily pays the rent while the notice is pending, I recommend immediately returning it, saying that the resident must first timely cure the default identified in the 30-day notice (assuming the default is curable).

[1] Or the fifth day of the rental period is a 144-day notice is used.

[2] I do not recommend waiting to issue the 30-day notice. It should be sent or delivered concurrently with the 3rd strike, i.e. the 3rd 72-hour notice.

10 Essential Rules for Avoiding Fair Housing Trouble

This month, we highlight 10 essential rules to help you to comply with fair housing law. Housing discrimination has been outlawed for more than 50 years, but all too often communities still find themselves on the wrong side of the law and are forced to pay out thousands—and in some cases millions—in settlements or court awards, civil penalties, and attorney’s fees to get themselves out of fair housing trouble.

In this article, we’ll provide an overview of fair housing requirements and offer 10 essential rules to help you ward off fair housing problems at your community. 

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status. In a nutshell, the FHA prohibits communities from excluding or otherwise discriminating against prospects, applicants, and residents—as well as anyone associated with them—based on any of these protected characteristics.

The FHA also bans discriminatory statements—including advertising—that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. And the law prohibits retaliation against anyone for exercising his or her rights under fair housing law or assisting others who exercise that right.

FOLLOW 10 ESSENTIAL RULES

TO AVOID FAIR HOUSING TROUBLE

Rule #1: Don’t Discriminate Based on Race or Color

The FHA bans discrimination based on both race and color, two separate but closely related characteristics. In general, race refers to a person’s physical appearance and color refers to a characteristic of a person’s race, so discrimination claims based on color are often coupled with claims based on race.

Be sure to give prospects the same information about availability and the terms and conditions of tenancy, such as screening criteria, rental terms, and any other relevant information. Under the FHA, it’s unlawful to deny housing based on an applicant’s race or color by providing different and false information about terms, conditions, and availability of rental properties.

Example: In September 2019, the owners and managers of two New York apartment buildings agreed to pay $272,000 to resolve allegations of racial discrimination against African American prospects in violation of federal, state, and local fair housing laws. The Fair Housing Justice Center filed the lawsuit based on the results of a two-year investigation involving white and African American testers posing as prospective renters. The complaint alleged that the white testers were repeatedly shown available units and encouraged to apply, while the African American testers were routinely told that no apartments were available for rent.

It’s also important to apply the community’s policies and procedures—including screening criteria—consistently without regard to race, color, national origin, or other protected characteristics. Whatever your policy on criminal background checks, for example, applying it only to applicants who are members of racial or ethnic minorities, but not to white applicants, is a sure way to trigger a fair housing complaint.

Example: In August 2019, the owners and managers of a Tennessee community agreed to pay $42,250 to resolve a race discrimination case alleging that they denied the rental application of an African-American applicant because of his criminal record, despite contemporaneously approving the rental applications of two white people with disqualifying felony convictions.

Tip: If your community has a policy to conduct criminal background checks, check to make sure it passes muster under HUD’s 2016 guidelines on the use of criminal records in conventional and assisted housing communities. The HUD guidance doesn’t prevent communities from screening applicants based on their criminal history, but you could trigger a fair housing complaint if the policy, without justification, has a disparate impact—or discriminatory effect—on minority applicants.

Rule #2: Don’t Discriminate Based on National Origin

The FHA prohibits discrimination based on national origin, which means the geographic area in which a person was born or from which his or her ancestors came. National origin discrimination means treating people differently because they or their family are from outside the United States, or because they have physical, cultural, or linguistic characteristics of persons from a foreign geographic area.

Example: In March 2019, the owners of a Minnesota rental home and a realty company agreed to pay $74,000 to resolve allegations that they refused to rent to a family of five adults and six minor children because they are Native American and Hispanic, and had minor children. HUD’s charge alleged that the housing providers discouraged the family from renting the six-bedroom home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.

“Denying a family housing because of their ethnicity or familial makeup not only robs them of a place to call home, it violates the law,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Tip: In September 2016, HUD issued new “Limited English Proficiency” (LEP) guidance on how fair housing law applies to claims of housing discrimination brought by people because they don’t speak, read, or write English proficiently. Although people with limited English proficiency are not a protected class under the FHA, the law bans discrimination based on national origin, which is closely linked to the ability to communicate proficiently in English.

Rule #3: Don’t Discriminate Based on Religion

The FHA prohibits discrimination based on religion, so it’s unlawful to refuse to rent to people, or to treat them differently, because of their religion. For example, it’s unlawful to show favoritism toward applicants who share your religious beliefs—or bias against—those of other religious faiths.

Example: In December 2019, a California homeowners association (HOA) and its management company agreed to pay $40,000 to resolve allegations that they refused to permit a condo owner to display a religious object, a mezuzah, on her front doorpost because it violated community rules. A mezuzah is a small object placed on the doorpost of many Jewish homes in fulfillment of religious obligations. Allegedly, someone forcibly removed the mezuzah from her doorpost.

“A rule prohibiting the display of a mezuzah effectively makes that housing unavailable for many observant Jews,” said Kevin Kish, director of California’s Department of Fair Employment & Housing. “For that reason, DFEH interprets California fair housing law to require landlords and HOAs to permit residents to display mezuzah outside of their homes.”

Tip: The FHA doesn’t define “religion,” but fair housing experts believe it’s broad enough to prohibit discrimination against individuals who aren’t affiliated with a particular religion or don’t ascribe to particular religious beliefs. Treating people differently simply because they do—or do not—attend religious services or identify with a religious faith could lead to fair housing trouble.

Rule #4: Don’t Discriminate Against Families with Children

Fair housing law prohibits discrimination because of familial status, which FHA defines to mean households with one or more children who are under 18 years of age, where the child is living with:

• A parent,
• A person who has legal custody (such as a guardian), or
• A person who has the written permission of the parent or legal custodian to care for the child.

That covers not only traditional families with children, but also same-sex couples, single mothers or fathers, grandparents, and others who have permission to have a child under 18 living with them. It also includes pregnant women and those in the process of securing legal custody of a minor child, such as a foster or adoptive parent.

There’s a limited exception to the familial status provisions that allows senior housing communities to lawfully exclude children, but it applies only if the community satisfies strict legal requirements to qualify as “housing for older persons.” Otherwise, it’s unlawful to refuse to rent to families with children under 18 by enforcing an “adults-only” policy or adopting rules, such as an age limit, that would prevent children from living there.

Overly restrictive occupancy standards can lead to discrimination claims based on familial status because they limit the housing choices of families with children under 18. In general, the law considers two people per bedroom—regardless of gender—to be a reasonable occupancy standard, but there are exceptions based on the size or configuration of the unit and other factors.

Example: In September 2019, the owners and managers of a single-family rental home in Idaho agreed to pay $15,000 to settle allegations that they discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they have seven minor children. HUD’s charge alleged that when the couple met with the property manager about renting the home, he told them that the owners had set a limit of four children for the home.

“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

The FHA’s familial status provisions also protect pregnant women from discrimination, so it’s unlawful to require residents to move out because of the birth of a child.

Example: In April 2019, the owners and operators of a student housing community in Arizona agreed to pay a $2,000 civil penalty to resolve allegations of discrimination based on sex and familial status. The Tucson Civil Rights Division brought a charge of housing discrimination against the community after viewing an example lease agreement on the apartment complex’s website. Allegedly, a portion of the lease agreement stated that if a female resident became pregnant, then she must vacate the apartment upon or prior to the birth of the child.

Rule #5: Don’t Discriminate Based on Sex

Under the FHA, it is unlawful to discriminate against applicants based on their sex. Making decisions about whether to accept or reject applicants based on their sex can lead to costly fair housing litigation, particularly when combined with allegations of discrimination based on familial status or other protected characteristics. 

Example: In June 2018, the owner of a three-unit rental community in South Dakota agreed to a $3,000 settlement to resolve allegations of discrimination based on sex and familial status. The complaint alleged that the owner refused to rent a unit to a woman and her 17-year-old daughter because she would be concerned about any woman being alone there and she had “always rented to bachelors” [U.S. v. Kelly, South Dakota, 2018].

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex, according to HUD, which explains the two main types of sexual harassment:

Quid pro quo harassment occurs when a housing provider requires a person to submit to an unwelcome request to engage in sexual conduct as a condition of obtaining or maintaining housing or housing-related services. HUD offers these examples:

• A landlord tells an applicant he won’t rent her an apartment unless she has sex with him.
• A property manager evicts a tenant after she refuses to perform sexual acts.
• A maintenance man refuses to make repairs unless a tenant gives him nude photos of herself.

Hostile environment harassment occurs when a housing provider subjects a person to severe or pervasive unwelcome sexual conduct that interferes with the sale, rental, availability, or terms, conditions, or privileges of housing or housing-related services. HUD offers these examples:

• A landlord subjects a tenant to severe or pervasive unwelcome touching, kissing, or groping.
• A property manager makes severe or pervasive unwelcome, lewd comments about a tenant’s body.
• A maintenance man sends a tenant severe or pervasive unwelcome, sexually suggestive texts and enters her apartment without invitation or permission.

Combatting sexual harassment remains a top priority for federal enforcement officials, who continue to come down hard on owners and managers accused of sexual harassment against prospects, applicants, or residents.

Example: In August 2019, the owner and manager of rental properties in New York agreed to pay $850,000 to resolve allegations that he sexually harassed numerous female applicants and residents for nearly three decades. In its complaint, the Justice Department alleged that the landlord subjected former residents and prospects to unwanted sexual intercourse, sexual advances and comments, groping or other touching of their bodies without consent, and offers to reduce or eliminate security deposits and rent in exchange for sexual contact. The complaint also accused him of taking or threatening to take adverse action against residents when they refused or objected to his advances.

“The sexual harassment of the vulnerable female applicants and tenants in this case by their landlord is an egregious and intolerable violation of federal civil rights law,” Assistant Attorney General Eric Dreiband said in a statement. “The Department of Justice will continue to pursue any depraved landlords and others who prey upon vulnerable women” [U.S. v. Waterbury, New York, August 2019].

Rule #6: Don’t Discriminate Based on Disability

The FHA prohibits discrimination based on disability. Under fair housing law, disability means a physical or mental impairment that substantially limits one or more major life activities. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

Under the FHA, it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability.

Example: In October 2019, the owner and manager of a California community agreed to pay $50,000 to resolve a fair housing claim by a resident who alleged that her lease was illegally terminated based on her disability. In her complaint, the resident claimed that the community terminated her lease because throughout her tenancy she experienced multiple medical emergencies that required the assistance of an ambulance to transport her to the hospital. Allegedly, the property manager received complaints from other residents about these emergencies.

“Housing providers cannot terminate or decline to renew a lease simply because they disfavor tenants with disabilities,” Kevin Kish, Director of the California Department of Fair Employment and Housing, said in a statement.

Tip: Although the disability rules protect those recovering from past drug addiction, it specifically excludes anyone who is currently using illegal drugs. The law also excludes individuals with disabilities whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. Nevertheless, federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of whether that particular applicant or resident poses such a threat based on reliable objective evidence of current conduct or a recent history of overt acts.

Rule #7: Carefully Consider Reasonable Accommodation and Modification Requests

In addition to the general rules banning disability discrimination, the FHA imposes affirmative duties on housing providers—with respect to reasonable accommodations, reasonable modifications, and accessibility design features—to ensure that individuals with disabilities have the same opportunity as everyone else to have full use of the community.

Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. In general, communities are required to make an exception to the rules, when requested, if it’s both reasonable and necessary to allow an individual with a disability to fully use and enjoy the community. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking spot in a community that doesn’t have assigned parking.

Example: In August 2019, a New Jersey HOA agreed to pay $30,000 to resolve allegations of discrimination against a resident with disabilities by denying her the right to have a dog as an assistance animal. According to the HUD charge, the community allegedly required the resident, who has hearing and sight disabilities, to cage her animal in common areas and use the service entrance when entering and exiting the building with the animal.

“No person with a disability should be denied the reasonable accommodation they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Example: In March 2019, the owners and managers of a San Diego apartment complex agreed to pay $17,000 to resolve allegations that they denied the request of a resident with disabilities for a designated parking space close to the building. The HUD complaint was filed by the resident, who uses a wheelchair, alleging that his request for an assigned parking space in the development’s garage had been denied. He said that the community later allowed him to park in non-assigned accessible spaces in the garage, but it wouldn’t give him the key necessary to enter the garage and to use the elevator. As a result, the resident said that whenever he wanted to enter the garage, he had to wait for another resident to open the gate, then follow that person in so he could use the elevator.

“To a person with mobility limitations, a designated parking space can mean the difference between merely living in a development and truly being able to call a place home,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Tip: The FHA also makes it unlawful to refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing. Reasonable modifications are structural changes to interiors and exteriors of units and to common and public use areas, such as lobbies, main entrances, and parking lots. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area.

Rule #8: Abide by Rules Banning Discriminatory Advertising

Under the FHA, it’s unlawful to advertise or make any statement that indicates a limitation or preference based on race, color, religion, national origin, sex, disability, or familial status. Liability for making discriminatory statements doesn’t require proof of discriminatory intent. Instead, the focus is on whether the statement would suggest a preference to an “ordinary reader or listener.” The rules apply not only to verbal and written statements, but also to all advertising media, including newspapers, magazines, television, radio, and the Internet.

Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children. A fair housing advocacy group filed the HUD complaint alleging that the community posted discriminatory advertisements indicating that children were not allowed and refused to negotiate with fair housing testers posing as families with children.

“It’s hard enough for families to find places to live that meet their needs without being denied suitable housing because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to working to ensure that housing providers comply with their Fair Housing Act obligation to treat all applicants the same, including families with children.”

Rule #9: Watch Out for Potential Retaliation Claims

Under the FHA, it’s unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised a fair housing right—or anyone who assisted others in exercising that right. Because discrimination and retaliation are separate violations under fair housing law, you could face liability for retaliation if you take adverse action against a resident solely because he filed a discrimination complaint against you—even if the discrimination claim is ultimately dismissed.

Watch out for potential retaliation claims when dealing with requests for reasonable accommodations or modifications by or on behalf of individuals with disabilities. The law protects people from retaliation for exercising their right to make disability-related requests.

Example: In March 2019, the owner and manager of a California rental community agreed to pay $6,000 to settle allegations that they refused to remediate mold at the property as a reasonable accommodation for a couple with disabilities and retaliated against them for asking that the mold be removed. In their HUD complaint, the couple alleged that the owners retaliated against them for making the reasonable accommodation request by increasing their rent and issuing a notice terminating their lease.

“Reasonable accommodation requests aren’t requests for special treatment. They are what many individuals with disabilities need to live in the place they call home,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Rule #10: Abide by Applicable State and Local Fair Housing Laws

To avoid fair housing trouble, it’s important to comply with not only the FHA, but also applicable state or local fair housing laws. Often, these state and local laws extend fair housing protections beyond federal requirements to ban discrimination based on:

Marital status: Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed.

Age: Many state and local laws ban discrimination based on age, though there are significant differences in how the laws apply because of the way they define age.

Sexual orientation and gender identity: Many state and local fair housing laws ban discrimination based on sexual orientation; of those, many, but not all, also cover gender identity or transgender status.

Source of income: Many state and local fair housing laws also cover lawful source of income to ban discrimination against people based on where they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance. Of those, many, but not all, also cover housing subsidies, most notably Section 8 housing vouchers.

Military status: Some state and local laws offer some form of fair housing protection for military status. The laws generally prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

Other protected classes: Some state and local laws ban discrimination based other factors, such as status as survivor of domestic violence, genetic information, HIV status, lawful occupation, political beliefs or affiliation, student status, alienage or citizenship, personal appearance, or arbitrary personal characteristics.

Answer. This is a great question, and one that doesn'tget asked enough. The applicable statute is ORS 90.630 (Termination by landlord; causes; notice; cure; repeated nonpayment of rent.) In summary, the statute provides that a landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy by giving to the resident not less than 30 days' notice in writing before the date designated in the notice for termination. There are several types of violations listed, but the one addressing your question is subsection (1)(a): '_a material noncompliance with ORS 90.740... ."

ORS 90.740 (3)(j) requires that the resident "behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors."

The text of ORS 90.630 that directly addresses your question is found at subsection (4):

"The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period ... ." (Emphasis added.)

So clearly, when it comes to conduct, if the bad behavior continues during the 30-day period, the 30-day notice is violated the moment it re-occurs "within the 30-day period". Thus, if after receiving the 30-day notice, the resident repeats what he was told not to do, you do not have to permit the bad behavior to continue for 29 more days - you may file immediately. To take a more serious example, suppose the tenant was speeding through the community, endangering the other residents. Certainly, if that continues during the 30-day period, it has not been "cured" and you may file the F.E.D.

However, out of an abundance of caution (at least when the violation does not endanger the health, safety and welfare of the other residents) you might consider allowing the repeat violations to re-occur a couple of times, just to make sure you've got clear evidence of an intentional disregard for the 30-day notice.

Also, note that ORS 90.630(3) requires that the 30-day notice state '_facts sufficient to notify the tenant of the reasons for termination of the tenancy and state that the tenant may avoid termination by correcting the violation... ." This requires that you be very clear, both in explaining in the notice the nature of the violation, and exactly what steps must occur to avoid termination.

I suspect the confusion about whether a landlord must wait the full thirty days before filing for eviction arises because when the violation does not involve conduct, but relates, say, to a static violation, such as a failure to maintain the space, the full thirty days must be observed. That is, the resident has the full 30-day period to cure, e.g. cleaning the yard, or removing dilapidated furniture from the street view.

To put it another way, when the conduct requires that the resident "stop" doing something, the affirmative act of doing it within the 30-day period is, per se' a violation of ORS 90.630(4); but when the 30-day notice requires that he "commence and complete" a certain activity, it must be done within the entire 30-day period. If it is not completed within the 30-days, only then may the eviction be filed.