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Measure 91 – High Times for Oregonians.  According to OregonLive.com, here, there are 23 states that currently have medical marijuana laws on the books. Oregon was one of them. On November 4, 2014, Oregon joined a smaller group of pot-friendly states (Washington, Colorado, Alaska, and the District of Columbia), to permit the recreational use of cannabis.[1]  I will leave it to the wordsmiths to explain how the term “recreational use” found its way into our lexicon when discussing the use of marijuana.  “Recreation” is the last thing one thinks about when taking a toke – or so I’m told….  

State and Federal Laws. The Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., says that marijuana is illegal to grow, process, distribute, and possess, even when state law authorizes its use. Furthermore, federal law supersedes state law where there is a direct conflict between them.  That would seem to suggest that federal law, being more restrictive, would trump Oregon law.  However, this is not the case.

HUD and the Oregon Bureau of Labor and Industries, both of whom enforce fair housing violations, including discrimination based upon disabilities, have taken a laissez faire, or “hands off” approach, i.e. they are not enforcing the laws at the current time.  Accordingly, it is my belief that on both a state and federal level, landlords may properly prohibit growing, processing, distribution and possession of marijuana, even though the user holds a valid medical marijuana card. This opinion was extensively covered in my two articles, here and here.

How Are Landlords Affected by Measure 91?  Now that Oregon has legalized recreational use of pot, how does this change the equation for community owners?  The short answer is that it does not change the issues.  If anything, dealing with the use of recreational pot is the easy part.  The substance can be controlled, should an owner so desire, by a rule change, prohibiting the cultivation, processing, sale or use of marijuana within the community. 

The issues surrounding the legal use of medical marijuana, i.e. by card-carrying tenants, remains the same, i.e. can a park owner prohibit it?  I believe the answer is “Yes.”  But before explaining how, let’s look at the new law that everyone is toking talking about.

Oregon’s New Marijuana Law. An interesting article gleaned from a website called “The Daily Chronic” contains and interesting, though not exactly unbiased, analysis of Measure 91, here.  What follows is a short summary taken from the longer article:

·      It passed by 57% to 43%;

·      Public consumption of pot is prohibited;

·      The Measure does not go into effect until July 1, 2015;

·      Until that time, possession of less than one ounce of marijuana remains a misdemeanor and is subject to a fine of up to $650;

·      You must be 21 or older to possess marijuana;

·      Homemade cannabis extracts (when made with solvents)[2] are prohibited, i.e. one may not produce, process, keep, or store them;

·      Up to 1 ounce of cannabis extracts are permitted, but only if they are obtained through a licensed retailer;

·      Cultivation of up to four plants per household is permitted,[3] but they may not be visible from a public space;[4]

·      The Oregon Liquor Control Commission (“OLCC”) is in charge of regulating commercial cannabis cultivation, processing and retail sales;

·      Of course, there is a tax levied on sales. It is paid by the producers;

·      There are four types of businesses Measure 91 will license:

o   Producers, who will cultivate the pot;

o   Processors, who purchase it from the producers and convert it into assorted products with names, colors, flavors, and scents, reminiscent of the UC Berkley campus circa 1968;

o   Wholesalers, who purchase the pot and pot products for sale to retailers; and

o   Retailers, who will sell directly to consumers.

Sample Policy.  As mentioned above, I believe that community owners may both prohibit the cultivation, processing, retailing, selling and use of pot, inside the community, regardless of whether the user has a lawfully issued marijuana card.  This can be done prospectively, by including the prohibition in the Statement of Policy, the rules, and/or the rental agreement.  It can also be done by a rule change that affects the residents already in the community.  However, I do not believe it may or should be done retroactively to those legal card holders already in the community. Here is a sample policy:

Sample Cannabis Policy For A Rules Change

[To be enacted pursuant to ORS 90.610(3)]

Background. Under the Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., it is illegal to manufacture, distribute, and possess marijuana, even when state law authorizes its use. In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342.  Federal law supersedes state law where there is a direct conflict of laws.  The Federal Fair Housing Amendments Act provides that a disability does not allow the illegal use of a controlled substance under the Controlled Substances Act.

Our Policy. All Residents, their guests, invitees, contractors, employees, and others coming to the resident’s home, space, or common areas in the Community, are subject to the following rules regarding the manufacture, processing, distribution, sale or use of cannabis, or  for any purpose, including medical purposes.

Prohibition.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.

Reasonable Accommodation.  This Community will not agree to make a reasonable accommodation for this prohibition, including medical purposes, to any residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Laws.

Violation. Violation of this policy shall constitute a breach of the terms of Resident’s right of occupancy, and entitle Management to issue Resident a thirty (30) day curable notice of violation under ORS 90.630(1).  A repeat violation will result in a twenty (20) day non-curable notice of violation under ORS 90.630(4).  Resident is responsible for informing their guests, invitees, contactors, employees or others coming to Resident’s home, space or common area guests of this Policy and for ensuring compliance.  Notwithstanding the preceding, Management reserves the right, upon its sole discretion, to issue Resident a non-curable 24-hour notice of violation under ORS 90.396 if Resident’s violation of this policy could reasonably result in danger to the health, safety or welfare of others in the Community. 

Effective Date.  This Policy shall apply from and after _______________________ (“Effective Date”), until modified or amended.  It shall not be applied retroactively to any current Resident whose legal use of cannabis, or cannabis products or extracts for medical purposes, preceded the Effective Date.

The above sample policy can be added as an Addendum to Rental or Lease Agreements and given to prospective tenants, as well. It is sufficient to insert into the Statement of Policy, the following:

Marijuana.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.  This Community will not agree to make a reasonable accommodation for this prohibition, including for medical purposes, to any Residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Act.

[1] The World Health Organization defines cannabis here, as follows: Cannabis is a generic term used to denote the several psychoactive preparations of the plant Cannabis sativa. The major psychoactive constituent in cannabis is ∆-9 tetrahydrocannabinol (THC). Compounds which are structurally similar to THC are referred to as cannabinoids. In addition, a number of recently identified compounds that differ structurally from cannabinoids nevertheless share many of their pharmacological properties. The Mexican term 'marijuana' is frequently used in referring to cannabis leaves or other crude plant material in many countries. The unpollinated female plants are called hashish. Cannabis oil (hashish oil) is a concentrate of cannabinoids obtained by solvent extraction of the crude plant material or of the resin.

[2] For those truly interested in the extraction process using solvents, go to the following link, here.

[3] In other words, a four member household (all 21 or over) would not qualify for 16 plants.  The same rule applies to the right to possess up to one ounce of extracts. There is no multiplier effect.

[4]  I suspect that in community where the backyards are fenced, growing would be permitted so long as they were obscured from the streets and sidewalks.

HUD also found that the problem exists in both the home buying and rental markets. Specifically, the report found that, as compared to white renters who contact a rental agent:

• African Americans are told about 11 percent fewer units and shown 4 percent fewer units;
• Latinos/Hispanics are told about 12 percent fewer units and shown 7 percent fewer units; and
• Asian Americans are told about 10 percent fewer units and shown 7 percent fewer units.

Surprised? How can this continue to happen in a country where housing discrimination and segregation have been illegal since 1968, you may wonder.

Part of the answer is that while overt discrimination has become relatively rare, more subtle forms of discrimination continue to thrive. And as they continue over time, they perpetuate institutional segregation. Of course, these subtle forms of discrimination are every bit as illegal as the overt kind. The problem is that they’re also much harder to detect and root out. And because these forms of discrimination are so subtle, it’s easy for property owners, managers, and leasing agents who are otherwise committed to equal housing principles to engage in them unintentionally and inadvertently.  

This month’s lesson deals with one of the most widespread and pernicious forms of subtle discrimination: steering. First, we’ll explain what steering is and how it occurs. And then we’ll set out seven rules to ensure that your leasing agents don’t engage in conduct that constitutes steering. We’ll finish up the lesson with the Coach’s Quiz so you can see how well you learned the material.   

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans discrimination on the basis of race, color, religion, sex, handicap (disability), familial status, or national origin. (To avoid having to list these traits over and over again, we’ll refer to them collectively as “protected characteristics”). Also keep in mind that federal FHA requirements are minimum standards and that many states have adopted their own fair housing laws that extend protections to other protected characteristics, which may include:

• Sexual orientation;
• Gender identity;
• Source of income;
• Criminal record;
• Political belief;
• Creed; and/or
• Military status.

Forms of unlawful discrimination include, among other things:

• Refusing to sell, rent, or negotiate for the sale or rental of, or otherwise make available, or deny housing to a person on the basis of protected characteristics [FHA, Section 3604(a)];  
• Offering different and less favorable terms, conditions, or privileges of the sale or rental of housing due to a person’s protected characteristics [FHA, Section 3604(b)];
• Making notices and statements or engaging in advertising for the sale or rental of housing that indicate a preference on the basis of protected characteristics [FHA, Section 3604(c)]; and
• Making discriminatory misrepresentations about the availability of housing [FHA, Section 3604(d)].

Steering may run afoul of any one or combination of Sections 3604(a), (b), (c), and/or (d), depending on the situation. It occurs when a landlord tries to influence rental prospects’ choice in housing based on their protected characteristics. Steering is illegal because it limits prospects’ choices and denies them the opportunity to buy or rent the housing they choose. Practiced on a wider basis, steering also maintains or creates segregation across apartment communities, neighborhoods, towns, cities, and wider communities.

Part of what makes steering so widespread is how easy it is to conceal. And those very same qualities make it easy to commit accidentally. Nobody would object to the principle that housing providers refrain from trying to influence a person’s housing choices on the basis of protected characteristics. But applying this no-influence principle to real-life situations is very tricky. After all, aren’t leasing agents supposed to provide prospects with information about the apartment so they can decide whether it’s suitable for them?

Steering is all about balancing these competing dynamics. Nobody is suggesting that leasing agents be banned from providing information and answering questions about a property so that prospects can decide whether renting it is right for them. The key to avoiding steering is ensuring that leasing agents don’t carry out these information-sharing responsibilities in a way that influences the prospect’s decision on the basis of his or her particular race, color, etc. And that’s easier said than done. The seven lessons below will enable you to help your leasing agents steer clear of steering.   

7 RULES FOR HELPING LEASING AGENTS AVOID STEERING

Rule #1: Don’t Tell Prospects Where to Rent Based on Protected Characteristics

Steering isn’t always subtle. Sometimes it’s as obvious as a punch in the face. The two most common forms of overt steering:

• Making verbal remarks like “we don’t lease to Black people” or “we don’t have anything suitable for kids or people with disabilities”; and
• Displaying apartments on the basis of protected characteristics such as not showing any units on “adults-only” floors to prospects with young kids.

While these things are enough to make any fair-minded landlord cringe, regrettably, they still happen. And rest assured that if any of your leasing agents were to engage in that kind of conduct, fair housing testers will eventually catch them. At that point, you’ll be looking at not just liability but also potential punitive damages running into six- or even seven figures.

Example: An Atlanta real estate firm and its leading agent had to pay $160,000 to settle steering charges for showing white testers homes in predominately white neighborhoods and Black testers homes in Black neighborhoods. The smoking gun: The agent allegedly told one tester, “I wasn’t sure where to take you because I couldn’t tell over the phone whether you were white or Black.”

Rule #2: Don’t Try to Influence Prospects’ Choices Based on Protected Characteristics

A more common form of steering is to say things to discourage prospects from renting from you (or where in the building to rent from you) or encouraging them to rent from somebody else on the basis of their protected characteristics. Examples of things leasing agents should never say (all of which come from actual HUD cases where landlords were found guilty of steering):

• “I think there are other apartment communities in town that cater more to kids”;
• “We have a few apartments in the back of the building for people with wheelchairs”; and
• “I wouldn’t be comfortable renting in this neighborhood if I were a young single woman.”

Rule #3: Don’t Tell Prospects Where They’d Be “Comfortable”

Notice the word “comfortable” in the last bulleted example above. One of the most common forms of steering is seeking to influence prospects’ choices based on where they’d be most comfortable. The problem is what the word “comfortable” implies.

The critical assumption that’s dangerous to make and even more poisonous to act upon is that people are more “comfortable” and “compatible” with people of their own race, color, etc. Accordingly, telling prospects that they’d be uncomfortable in your community or more comfortable somewhere else suggests that you’re trying to influence them on the basis of their protected characteristics. This conduct constitutes illegal steering even when leasing agents genuinely believe they’re acting in the prospects’ best interests.

Another variation on the theme is seeking to protect residents from discriminatory neighbors, for example, by deliberately not telling a Jewish family about an otherwise suitable vacancy to protect them from the virulently antisemitic neighbor next door. Giving bigots, racists, anti-Semites, and the like veto power over who can lease from you makes you a co-conspirator in discrimination.  

Rule #4: Don’t Answer Discriminatory Questions or Heed Discriminatory Demands

In some cases, the impetus for steering comes not from the leasing agent but the prospect considering the property. One form of this is when a prospect asks questions about, say, the race or color of residents in the community—for example, where a white prospect asks, “Are there any Black people living here?” A more subtle way to pose the question is for prospects to ask a leasing agent, “Do you think I’d be comfortable (there’s that word again) in this community?”

Prospects who ask these kinds of questions are probably either: (1) testers sent to monitor your community’s compliance with the FHA; or (2) genuine racists or bigots. In either case, make sure that leasing agents don’t take the bait. Specifically, make sure they understand that discussing the protected characteristics of other residents with a prospect is a form of illegal steering, even when the prospect brings up the topic.

Note that the same principles apply when a prospect makes discriminatory demands, such as insisting on being shown only units on floors where none of the residents are of a particular race, color, etc.

The best practice for these situations is to have the leasing agent politely decline to answer the discriminatory question or heed the discriminatory demand and tell the prospect of your community’s commitment to fair housing and refraining from discrimination. It’s also a best practice to script the leasing agent’s “we-don’t-discriminate” reply. Language to consider:

“I’m sorry but I’m afraid I can’t answer that question. Please understand that ABC Community is an equal housing opportunity provider committed to complying with all federal, state, and local fair housing laws. ABC does not discriminate against any person because of race, color, religion, national origin, sex, familial status, disability, or [other personal characteristics protected by state or local fair housing law].”

In some cases, the leasing agent may even be able to explain why the prospect’s question or demand is discriminatory and persuade him or her to rephrase or retract it.   

If instead of a direct question about a protected class, prospects ask whether they’d be comfortable renting from you, instruct leasing agents to turn the question around and ask the prospect what he or she means by “comfortable.” If the prospect’s response is nondiscriminatory and not based on the characteristics of the people in the community or neighborhood, the leasing agent can proceed to answer the question. But if the prospect’s response suggests any discriminatory biases, such as, “I’m comfortable with young people” or “I’m uncomfortable around kids,” they should refuse to answer and recite the above statement.  

Rule #5: Don’t Limit Prospects’ Choices Based on Their Kids’ Safety

Leasing agents must understand that it’s not their responsibility to try to talk prospects out of making unsound decisions about where to rent. This instinct of leasing agents to want to protect prospects against themselves is most likely to manifest itself when prospects want to rent apartments that would be unsafe for their young children—for example, units located on an upper floor or right next to a pool with no lifeguard.

A 1992 in-house legal memorandum from HUD’s Fair Housing Division clearly states that denying or trying to discourage families with children housing on the basis of safety is illegal steering. According to the memo, the FHA requires “housing providers to make all units, including units on upper floors and units with balconies, available to families with children.” It also bans the practice of making families with children sign waivers of liability not required of other residents.

Example: In 2017, the U.S. Department of Justice (DOJ) accused the owner and operator of a New Hampshire community of using the safety argument to steer the mother of an infant child away. According to the complaint, the community had a safety policy of placing families with children under the age of 10 in first-floor units only. And since no first-floor units were available, they turned the mother away rather than showing units that were available on the upper floors. Rather than risk a trial, the owner and operator agreed to shell out $25,000 to settle the case.

While ruling out the practice of not showing apartments to families with children on the basis of safety, the HUD memo goes on to say that it’s okay for housing providers to make “factual statements about perceived hazards of their property,” as long as:

• Those statements are “truthful and not misleading”;
• The statements don’t indicate a “preference, limitation, or discrimination” based on familial status; and
• An “ordinary listener” wouldn’t interpret the statements as discouraging families with children from deciding to live in the apartment community or building.

Coach’s Tip: The 1992 HUD memo also clarifies that the FHA doesn’t ban housing providers from imposing “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” such as requiring adult supervision of young children using a swimming pool without a lifeguard.

DEEP DIVE

Steering & Schools

While it might seem like the most natural and innocent thing in the world, discussing neighborhood schools with rental prospects can be a steering liability minefield. That’s because phrases such as “a school with low test scores” or “communities with declining schools” have become code words for racial and other differences to the extent there’s a correlation between the quality of the schools and the racial or ethnic composition of the neighborhood. Similarly, praising the schools in one neighborhood while discretely saying nothing about the schools in another may have the same steering effect.

With this in mind, the National Association of Realtors (NAR) has devised best practices for avoiding steering when discussing schools. And while the recommendations are targeted to real estate brokers, many of them also work for leasing agents on how to avoid steering when talking to prospects about the quality of schools in the neighborhood, including:

• Offer facts, not opinions or personal judgments;
• Keep a list of websites and other sources of objective information about the schools in your area to which you can refer prospects so they can make their own judgments; and
• Ask prospects to clarify their criteria; for example, if they ask whether the schools are “good,” have them describe the standards they believe makes a school good so you can point them to appropriate sources of information.

Rule #6: Don’t Exaggerate a Property’s Drawbacks

Another common way to exert improper influence is to draw attention to or exaggerate the drawbacks or flaws of your property. Such behavior, which runs contrary to the leasing agent’s mission to make your community look good, is powerful evidence of a motive not to rent to the prospect. And when that prospect has one or more protected characteristics, it strongly suggests that discrimination is the driving force behind that motive.

Example: The owner of an Arizona community is determined to maintain a peaceful and quiet “adult” community to attract retirees. Recognizing that categorically refusing to rent to prospects with children is illegal, the owner comes up with a plan to discourage them from doing so by creating a list of all the things that make the property unsuitable for young children. It then instructs leasing agents to go through the list with all prospects that have young kids. Result: The owner—and leasing agents who actually implement the plan—have committed illegal steering.  

Rule #7: Don’t Direct Prospects to Particular Buildings or Areas Based on Protected Characteristics

One particularly egregious, institutional, and still common form of steering is to assign prospects or residents to a particular section of a community or floor of a building because of a protected characteristic. Examples can range from limiting all residents with wheelchairs and/or families with children under a particular age to the ground floor to actual segregation and maintaining separate buildings for Black and white residents. If you don’t believe these things actually happen nowadays, we can cite literally dozens of cases to persuade you otherwise. Here are just a couple of recent examples:

Example: In May 2020, the DOJ filed a lawsuit against a Georgia management company for allegedly steering elderly and disabled African-American rental prospects away from Cedarwood Village, a predominantly white housing complex for elderly persons and persons with disabilities, and to Cedartown Commons, a predominantly Black general occupancy complex.

Example: In January 2021, the DOJ charged a Massachusetts housing authority of steering African-American prospects away from three overwhelmingly white properties that it manages and steering white applicants from two of its disproportionately Black properties in an effort to keep all of these communities racially segregated [United States v. J & R Associates (D. Mass.)].

TIME OUT!

Give Your Marketing Materials an FHA Audit

You may be engaging in steering without realizing it by including language or images in your marketing materials that indicate preferences on the basis of protected characteristics. Statements like “No Children” or “Singles Only” are obvious examples. However, indications of discriminatory preference may be far more subtle, such as characterizing a property located in a predominately white area as being “traditional” or even noting that it’s located next to a particular church. Here’s a list of marketing Do’s and Don’ts that comes straight out of HUD guidelines:

Steer Clear of Discriminatory Marketing

WHAT DOES THE LAW SAY?

Section 3604(f)(1)(B) of the federal Fair Housing Act (FHA) bans discrimination against rental applicants, tenants, or the people associated with them, such as a tenant’s child, because of their disability. It’s also illegal (under Section 3604(f)(3)(B)) to refuse “to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”

According to the U.S. Department of Housing and Urban Development (HUD), “a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations” (if they’re in federally assisted housing). Examples:

• A community that doesn’t assign parking spaces makes an exception so that a mobility-impaired tenant will always be able to park near the building entrance;
• A community that requires tenants to pay their rent in person each month makes an exception for a tenant with a mental disability that makes her afraid to leave her apartment; and
• A community with a no-pets policy makes an exception allowing a sightless tenant to keep a seeing-eye dog in his apartment.

DEEP DIVE:

Reasonable Accommodations vs. Reasonable Modifications

Section 3604(f)(3)(A) of the FHA also bans refusing to allow “reasonable modifications of existing premises.” Like reasonable accommodations, reasonable modifications are reasonable changes necessary to afford a disabled applicant or tenant “full enjoyment” of the premises, but with two key differences:  

• A reasonable modification is a structural change made to the property, while a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service; and
• More significantly, tenants are responsible for the costs of modifications while landlords must pay for accommodations. 

You may also have to comply with more stringent accommodations requirements under other laws, including:

• If you open all or part of your community to the public, you must make “reasonable modifications” and ensure it’s designed, constructed, and maintained to be fully accessible to the disabled under federal Americans with Disabilities Act (ADA) requirements;  
• Section 504 of the of the federal Rehabilitation Act of 1973, which imposes stricter discrimination rules on landlords that participate in HUD housing and other federal assistance programs; and
• State and local fair housing laws, which are often much stricter than the FHA.

10 STEPS FOR PROPERLY HANDLING

REASONABLE ACCOMMODATION REQUESTS

Complying with your FHA duty to provide reasonable accommodations is one part substance and one part process. The first and most obvious challenge is to determine whether a requested accommodation is reasonable; the part that often gets overlooked relates not so much to the actual decisions you make but how you make them. Accordingly, the game plan below incorporates both challenges.

Step 1: Ensure Requestor Is (or Is Acting on Behalf of) a Disabled Person

Remember that while the FHA bans housing discrimination based on race, color, national origin, religion, sex, familial status, and disability, entitlement to reasonable accommodation applies to just one group: persons with disabilities. In other words, protection from fair housing discrimination doesn’t necessarily equate to the right to accommodation.

DEEP DIVE:

Are Other Protected Classes Entitled to Accommodations?

Although the FHA doesn’t expressly provide it except in the context of disabled persons, the argument has been made that reasonable accommodations are also required when necessary to allow a person protected by the law equal opportunity to “use and enjoy” housing. A notable case testing these principles involved a Chicago condo community whose tenants included the Blochs, a family of strong Jewish faith that posted a religious symbol called a Mezuzah on their door post. For over three decades, nobody said a word about the Mezuzah. But after a repainting, the condo board adopted a new rule banning tenants from posting any mats, signs, or other displays on their door posts. The Blochs requested a religious exemption allowing them to keep their Mezuzah, but the board said no.

The result was years of litigation, culminating in a U.S. Court of Appeals Seventh Circuit ruling denying the board’s motion to dismiss and allowing the Blochs to take their religious accommodations lawsuit to trial [Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009)].

What “disability” means: The FHA defines “disability” broadly as a physical or mental impairment that substantially limits one or more “major life activities.” Protection against discrimination and entitlement to accommodation extends to a person who:

• Actually has such a disability;
• Is perceived as having such a disability, even if that perception is wrong, such as where a landlord rejects an applicant that it wrongly believes has HIV; and
• Has a record of such an impairment, such as a recovered drug addict.

What “major life activities” are: “Major life activities” are those of central importance to daily life, such as walking, seeing, hearing, breathing, performing manual tasks, caring for one’s self, learning, and speaking. Conditions that substantially limit mobility are deemed disabilities, regardless of whether they’re plain to see or due to physical or mental conditions that aren’t readily apparent, such as heart disease, muscle weakness, or breathing ailments.

Step 2: Don’t Reject an Accommodation Because of How or When It’s Requested

You don’t have to make accommodations unless they’re specifically requested. On the other hand, you can’t make a big deal over the timing and formalities of a request. There’s no rule saying that requests must be in writing. Nor do requestors have to use the words “reasonable accommodation,” “fair housing,” “disability,” or any other magic language. All they need to do is make it clear that they’re requesting an accommodation. Note also that an accommodation request can come from either the rental applicant/tenant or a person acting on his or her behalf. According to HUD/U.S. Department of Justice (DOJ) Guidelines (which we’ll refer to as the “Guidelines”), a landlord is on notice “that a reasonable accommodation request has been made if a person, her family member, or someone acting on her behalf requests a change, exception, or adjustment to a rule, policy, practice, or service because of a disability.”

Other key things to keep in mind:

• Accommodation requests can be made by rental applicants as well as tenants at the start or at any time during their tenancy;
• You can ask requestors to put their requests in writing, but you can’t require them to do so; and
• While a family member, guardian, or other third party may request a reasonable accommodation on a disabled person’s behalf, a third party can’t demand an accommodation solely for his or her own benefit, such as an assigned parking space.

Tip: HUD recommends that landlords create forms and procedures that people can use to submit written requests for accommodations. This can facilitate and speed up the processing of requests and “prevent misunderstandings regarding what’s being requested, or whether the request was made.” However, the Guidelines add, landlords “must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the [landlord’s] preferred forms or procedures for making such requests.”

Step 3: Promptly Respond to Accommodation Requests

Don’t ignore an accommodation request, no matter how baseless and frivolous you think it is. While there’s no specific deadline, the Guidelines make it clear that landlords and other housing providers must provide a “prompt response” to a reasonable accommodation request. “An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation,” according to HUD/DOJ.

Step 4: Engage Your Accommodation Process

Engage in an interactive process with the requestor to gather the necessary information about the request and disability (which we’ll discuss under Step 5) and discuss ways to accommodate it. Recognize that failure to reach agreement on an accommodation request is tantamount to a denial. Result: The requestor can file a disability discrimination complaint with HUD or the equivalent state or local fair housing agency, which will then perform an investigation to determine whether there’s “reasonable cause” to believe you violated your accommodation duties. If so, you’ll end up having to defend yourself in a federal court or HUD Administrative Law Judge proceeding.  

Example: A Missouri landlord had to shell out $44,000 for denying a tenant’s request to transfer to a unit with fewer stairs to accommodate her mobility-impaired daughter. The landlord flatly refused the request, saying it had no apartments available. In dishing out the fine, the federal court cited the landlord’s failure to even engage the tenant, evaluate the daughter’s medical needs, and explore ways to accommodate them [United States v. Dunnwood, (E.D. Mo.) July 16, 2020].  

Strategy: Although the FHA doesn’t expressly require it, HUD recommends that landlords implement formal rules and procedures for handling accommodation requests. Advantages of having a formal accommodations process include:

• Ensuring that all accommodations requests get a prompt response and that no requests fall through the cracks;
• Enhancing the likelihood of agreement and preventing misunderstandings and miscommunications that can lead to complaints and investigations; and
• Generating a paper trail documenting the proper consideration you gave to the request, setting up your legal defense in case complaints and investigations do occur.

Caveat: The Guidelines warn that you can’t refuse to consider a reasonable accommodation request just because the requestor won’t follow your formal procedures or use your preferred forms.

Step 5: Properly Verify the Requestor’s Disability and Need for Accommodation

Let’s turn to how to actually make decisions on particular accommodation requests. The first step is to verify the need for the requested disability accommodation. Normally, you’re not allowed to ask applicants or tenants if they’re disabled or about the nature and extent of their disability. However, the Guidelines give landlords some leeway to gather information about a person’s disability in response to a reasonable accommodation request to the extent the information is necessary to determine three things:

1. The person meets the FHA definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities;
2. Exactly what accommodation is being requested; and
3. Whether there’s a “nexus,” or relationship, between the disability and the need for the requested accommodation.  

Example: A tenant requested an assigned parking space as an accommodation for his Alzheimer’s Disease. The landlord said no. The California federal court dismissed the tenant’s failure-to-accommodate complaint because of the lack of evidence showing the link between Alzheimer’s and parking and how having an assigned parking spot was an accommodation necessary to “ameliorate” the disease’s effects [Elliott v. QF Circa, Case No. 16-cv-0288-BAS-AGS, June 18, 2018].  

Beware: There are limits on what information you can and can’t ask for, depending on what you already know or can easily surmise.

Rule 1: If the person’s disability and need for the accommodation is obvious, or otherwise known to you, you can’t request any additional information about the disability or disability-related need for the accommodation.

Rule 2: If the disability is known or readily apparent to you, but the need for the accommodation is not, you may request only information that’s necessary to evaluate the disability-related need for the accommodation.

• OK to request verification: A rental applicant in a building without elevator service wants a ground-floor apartment, claiming she can’t climb steps due to asthma or some other respiratory ailment. Since the claimed disability isn’t readily apparent, the landlord would be justified in asking for verification of the ailment and why she needs a first-floor apartment to accommodate it.
• Not OK to request verification: Same scenario but instead of a respiratory ailment, the applicant uses a wheelchair. Since the physical disability (that is, a mobility impairment) and disability-related need for the requested accommodation are both readily apparent, the landlord can’t require the applicant to provide any additional information about the disability or need for a ground-floor apartment.

Strategy: You may be able to get the information you need to verify that the person meets the FHA definition of disability directly from the requestors themselves, such as in the form of credible statements from the individuals, or the fact they have government-issued disability license plates or placards on their vehicle or receive Supplemental Security Income or Social Security Disability Insurance benefits despite being under age 65.

If necessary, the Guidelines say landlords may also seek verification from a doctor or other medical professional, peer support group, non-medical service agency, or reliable third party in a position to know about the individual’s disability. However, they must limit the request to only the information needed to verify the disability and need for the accommodation. 

Step 6: Determine If Requested Accommodation Is Reasonable

You need only grant requested accommodations that are reasonable. According to HUD, a request for an accommodation is reasonable if it:

• Doesn’t cause landlords to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available;
• Won’t cause harm or damage to others; and
• Is technologically possible.

These criteria are critical, so let’s look at them more closely.

Financial and administrative burden. You can’t deem a requested accommodation unreasonable simply because it costs time and money to provide. The burden must be “undue,” based on the accommodation’s costs, the landlord’s financial resources, the benefits to the requestor, and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. Examples of accommodations for disabilities that would impose undue financial or administrative burden would include making structural changes to common areas or completely paving over and reconstructing the entire parking lot for the sake of one tenant.  

Fundamental alteration. Accommodations require “fundamental alterations” when they alter the essential nature of a landlord’s operations.

Example: A tenant with a severe mobility impairment asks his landlord to transport him to the grocery store and help him with his grocery shopping. The request wouldn’t be a reasonable accommodation to the extent that the landlord doesn’t provide any transportation or shopping services for any of its tenants, according to the Guidelines.

Harm or damage to others. You don’t have to make accommodations that would endanger the health and safety of others or pose the risk of unreasonable damage to property, such as by making an exception to a no-pets policy to allow a tenant to keep a full-grown elephant or camel in her apartment as a “therapy animal.”   

Detrimental to other disabled persons. Accommodations aren’t reasonable if they require you to deprive other disabled applicants or tenants an equal opportunity to use and enjoy their own apartments. For example, you don’t have to force one mobility-impaired tenant to vacate a ground-floor apartment or give up a reserved accessible parking space in favor of another tenant who’s “more disabled.” If resources are limited, create a waiting list for granting requests as things open up in the order you receive them based on which disabled tenant has been waiting the longest.

Technologically impossible. Accommodations aren’t reasonable if they’re technologically impossible. Thus, for example, the owner of a three-story prewar urban brownstone building wouldn’t have to—and probably wouldn’t be able to—install an elevator just so a mobility-impaired tenant could continue living on the third floor.   

Strategy: It’s a good idea to consult an attorney for advice before notifying the requestor of your decision if, for whatever reason, you determine that a requested accommodation is unreasonable.

Step 7: Consider Alternative Accommodations If Request Is Unreasonable

The accommodations process shouldn’t end simply because you conclude that a requested accommodation is unreasonable. Before you reject the request, dig deeper and ask yourself this question: Is there some other change you can make or action you can take that would enable the requestor to more fully use and enjoy his or her home?

Example: Let’s go back to the example above where a disabled tenant’s request that a landlord drive him to the grocery store would be deemed an unreasonable accommodation to the extent such services aren’t offered to any tenants. Even though the landlord can deny the request, it should consider alternatives that would meet the tenant’s needs without forcing a fundamental alteration of operations. For example, maybe it can alter its parking policy to allow a local volunteer to park her car close to the tenant’s apartment so she can drive him to the store and help him shop for groceries.

You can also offer easier or cheaper alternatives to those who make reasonable requests. However, if an accommodation is reasonable, the requestor isn’t obligated to accept any of your suggested alternatives.

Step 8: Don’t Charge Accommodation Request Fees or Deposits

The Guidelines state that you can’t make individuals with disabilities pay extra fees or deposits as a condition for receiving a requested accommodation. That includes charging an administrative fee for processing an accommodation request. If an accommodation is reasonable, you must pay the associated costs out of your own pocket and not charge the requestor a fee or deposit to defray the associated expenses.  

Example: A Pennsylvania seniors housing provider had to shell out $80,000 to settle discrimination claims brought by mobility-impaired tenants and fair housing agencies, including for allegedly charging disabled tenants as much as $350 for designated parking spaces necessary to make their apartments accessible [Clover Group, May 2020].

Similarly, if an accommodation is reasonable, you must provide it without imposing financial or other conditions, such as by requiring tenants to pay “pet deposits” or carry extra insurance coverage for their service animals.

Example: A Minnesota apartment community paid $35,000 to settle claims of placing undue conditions on a tenant’s request for a service animal by requiring her to:

• Buy an insurance policy covering the dog and listing the landlord as a co-insured;
• Make the dog wear a special emotional support animal vest at all times outside the apartment; and
• Sign an “indemnification and hold harmless waiver” covering the landlord against any harm the dog caused [United States v. Brooklyn Park 73rd Leased Housing Assoc., LLC, (D. Minn., Jan. 22, 2016)].

Step 9: Don’t Retaliate Against Persons for Requesting Accommodations

You can’t evict, reject, or take any other adverse action against any person for requesting a reasonable accommodation. You can be liable even if retaliation is just one motive for a decision—for example, evicting a tenant for not paying rent and for requesting an accommodation.

Example: A Tennessee landlord evicted a disabled tenant after he requested reasonable modifications (removal of a concrete parking bumper) and accommodations (two assigned parking spaces). The tenant filed a complaint with HUD, claiming the eviction was retaliatory. Rather than risk a trial, the landlord paid $52,500 to settle the claims [United States v. Fairfax Manor Group, LLC, (W.D. Tenn., March 19, 2018)].

Step 10: Keep Requestor’s Personal Information Confidential

The personal information you collect to process an applicant or tenant’s request for a disability accommodation is protected by privacy laws. Result: You must keep the information confidential and secure, use it only for purposes of processing the accommodation request, and not disclose it to others except when you’re legally required to do so, such as when  a court issues a subpoena requiring you to disclose the information. These privacy obligations apply regardless of whether you ultimately grant or deny the accommodation request.

Answer:  In a word “Yes”. Today, the rule of thumb should be that subject to certain exceptions (listed below), you should not summarily reject applicants solely because of prior convictions.  I have written and spoken on this issue during 2016. 

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”). 

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the 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.[1]  The simplest explanation of how disparate impact works is by the following example from the Memo:

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.

The purpose of the Memo was 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, or may not, trigger a disparate impact result.

Although, ironically, the Memo on deals with cases of disparate impact affecting members of “protect classes”.[2]  However, for purposes of this discussion, it is well to apply these guidelines across the board, regardless of protected class. Otherwise, there is the possibility, perhaps remote, that a landlord could be accused of reverse discrimination, for applying one set of criteria to members of protected class, and another set to members outside the class. Crazy huh?

Summary of Thoughts and Suggestions.  Here are some tips based upon information from the Memo:

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.

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

1. 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.

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

1. Be sure that all rules and 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.

1. 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.

1. 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:

1. 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).

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

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

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

1. 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, since it is not a violation of the Act, based upon disparate impact.[3]

So this is one of those exceptions in which you may automatically decline an applicant. Others are, in my opinion, those convicted of sex crimes and pedophilia, regardless of how far in the past. Also, crimes of violence, e.g. murder, rape, aggravated assault, etc. The analysis is fairly straightforward: If the applicant’s prior conviction is one that, if he or she became a resident, it could foreseeably result in danger to the health, safety and well-being of other park residents, or their guests and invitees, a rejection, without the above analysis is in order. Some Fair Housing advocates may disagree, but my opinion is based upon a choice of evils, i.e. choosing between a threatened Fair Housing violation, balanced against the risk of a resident or their guests or invitees being injured or killed, because  you ignored their violent criminal history, and permitted them entry to the park 

Conclusion. So, based upon the facts you described above, this applicant had a conviction of two non-violent crimes (presumably occurring at the same time, resulting in companion charges).  They were eight years ago. Accordingly, it is important to find out what the applicant had been doing since being released from jail.

Lastly, as pointed out above, I suggest that you reserve the criminal background analysis for applicants who have already passed all of the park’s other screening criteria.  In other words, if you don’t have to use criminal background as a basis for rejection – i.e. there are other valid criteria for rejection – you do not have to rely upon the applicant’s criminal background for a rejection.

Please review MHCO Form 1A. It includes the criminal background analysis discussed above.

[1] Note, the State of Oregon and some of its local jurisdictions have additional classes, including sexual orientation. See, http://www.fhco.org/discrimination-in-oregon/protected-classes .

[2] The seven protected classes under the Federal Fair Housing Act are: Race; Color; Religion; Sex; National Origin; Disability (added in 1988); Familial Status (having children under 18 in a household, including pregnant women) (added in 1988). There may be additional protected classes added by state and local laws.

[3] 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 illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

Answer:  You must have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.  Generally, communities strive to be over 80%, since falling below 80% occupancy[even upon death of a qualifying 55+ resident]means immediatedisqualification.  Does this mean that your 15% safety margin must be reserved for families with children? The answer is “No.”  In fact, a 55+ community should strive for 100% occupancy by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age? Again, the answer is “No.”  If desired, a 55+ community may impose a minimum age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   

However, it is also important for you to publish and adhere to policies and procedures that demonstrate an intent to operate as a 55+ community. This requirement is fairly self-explanatory; i.e. you should make sure that in all advertising, rules, rental agreements, and  policies, you alwayshold the community out as a 55+ facility.  

Lastly, you must comply with HUD’s age verification of occupancy procedures to substantiate compliance with the requirement that at least 80% of the community is intended to be occupied by at least one person age 55 or over.The law provides that the followingdocuments are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.  

Answer: You must have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical. Generally, communities strive to be over 80%, since falling below 80% occupancy [even upon death of a qualifying 55+ resident] means immediate disqualification. Does this mean that your 15% safety margin must be reserved for families with children? The answer is “No.” In fact, a 55+ community should strive for 100% occupancy by persons age 55 or over. Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age? Again, the answer is “No.” If desired, a 55+ community may impose a minimum age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years. However, it is also important for you to publish and adhere to policies and procedures that demonstrate an intent to operate as a 55+ community. This requirement is fairly self-explanatory; i.e. you should make sure that in all advertising, rules, rental agreements, and policies, you always hold the community out as a 55+ facility. Lastly, you must comply with HUD’s age verification of occupancy procedures to substantiate compliance with the requirement that at least 80% of the community is intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

Answer: One issue is accepting rent from a possessor after the legal tenant has gone. This can occur, for example, where someone is residing at the space under a Temporary Occupancy Agreement, but the approved tenant, no longer resides there. Alternatively, the person could be a lawful visitor, who has overstayed their permitted time, and the legal resident has left. ORS 90.403 deals with this:

90.403 Taking possession of premises from unauthorized possessor. (1) If an unauthorized person is in possession of the premises, after at least 24 hours' written notice specifying the cause and the date and time by which the person must vacate, a landlord may take possession as provided in ORS 105.105 to 105.168 if:

(a) The tenant has vacated the premises;

(b) The rental agreement with the tenant prohibited subleasing or allowing another person to occupy the premises without the written permission of the landlord; and

(c) The landlord has not knowingly accepted rent from the person in possession of the premises.

(2) Service of notice under this section does not create a right of tenancy for the person in possession of the premises. [2005 c.391 _12] (Emphasis added.)

In this case, it can be fatal to a landlord's effort to remove that person if rent is accepted. If rent is in the form of a check, cash or money order, I can think of no reason to accept it. Period. Since the person is an unlawful occupant, I'm not concerned that there is no rule on it, since the statute clearly gives you the legal entitlement to evict.

The other issue arises when a lawful resident resides in the space, but they have an occupant who has not been approved as a co-tenant or a temporary occupant. If you are going to accept them as a temporary occupancy, get them on a Temporary Occupancy Agreement. You can do a criminal background check, but not a financial one, since they are there not to subsidize the tenant's rent, as in co-tenancy. Accordingly, do not accept rent in any form from temporary occupant, unless it is drawn on the tenant's sole account and the check bears that out.

As to unlawful occupants who are staying at the space, but have not been approved as a tenant, the issue of the form of payment misses the larger point - which is waiver. If the person is unauthorized, and you know of their occupancy, insist that they apply for tenancy, and make sure they do not stay beyond the time allowed for visitors under the park rules. The issue of waiver is not just a question of accepting a check from the unapproved person. Acceptance of rent from the lawful tenant when you know he or she is housing an unapproved person, can also result in waiver.

ORS 90.412 provides in part:

(2) Except as otherwise provided in this section, a landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord:

(a)During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or

(b)Accepts performance by a tenant that varies from the terms of the rental agreement.

(3)A landlord has not accepted rent for purposes of subsection (2) of this section if:

(a)Within 10 days after receipt of the rent payment, the landlord refunds the rent; or

(b)The rent payment is made in the form of a check that is dishonored. (Emphasis added)

So the take-away here is that you do not want to accept rent from anyone, even the tenant, when you know they are violating the rules, such as keeping an unapproved occupant at the space. If you accept rent from the lawful tenant under these circumstances, return it within ten days after receipt - if the check has been cashed, write a new check back to the tenant with an explanation, and demand that the unpermitted person apply for tenancy. Under the statute, waiver will not occur for the first two events of accepting the rent without returning is within ten days. The third or subsequent time can constitute a waiver. Waiver does not occur if the rent is properly returned within the ten day period, no matter the number of times it's tendered.

As for taking a rent check from the unapproved person, I don't recommend doing so unless the check is drawn on the tenant's own account. If it's a joint account with the unapproved person, don't accept it. The same holds true of any other form of payment (e.g. cash or money order) unless there is clear evidence that it came from the lawful tenant. Just remember, though, that acceptance of rent from the lawful tenant - in any form - can count as a waiver under ORS 90.412 if you know they have an unlawful occupant at the space.

As for a park rule, I think it's always a good idea to have a rule about the time, place and form of payment. It's OK to say non-residents cannot pay the space rent for residents, but even without such a rule, I believe you are within your rights to refuse payment. Rent is defined at ORS 90.100(37) as follows:

Rent means any payment to be made to the landlord under the rental agreement, periodic or otherwise, in exchange for the right of a tenant and any permitted pet to occupy a dwelling unit to the exclusion of others and to use the premises. (Emphasis added.)

Since the payment from the unauthorized resident is not from a "tenant", and not pursuant to the "rental agreement", and not "in exchange for the right to occupy" the space, it's my opinion that, with or without a rule to this effect, you are within your rights to reject it, regardless of form.

Answer: ORS 90.485 specifically allows landlords to have a vehicle towed if it: (a) Blocks or prevents access by emergency vehicles; (b) Blocks or prevents entry to the premises; (c) Violates a prominently posted parking prohibition; (d) Blocks or is unlawfully parked in a space reserved for persons with disabilities; (e) Is parked in an area not intended for motor vehicles including, but not limited to, sidewalks, lawns and landscaping; (f) Is parked in a space reserved for tenants but is not assigned to a tenant and does not display a parking tag or other device; or, (g) Is parked in a specific space assigned to a tenant (but only with the tenant's agreement at the time of the tow).

First and foremost, you should ensure that you have the proper signage in your park specifying whether and/or when parking is allowed in certain areas (i.e., "No Overnight Street Parking"). Also contact a local towing company to have them post towing company signs around the park.

When you have an illegally parked vehicle towed, the towing company is responsible for taking a photo of the vehicle and reporting to the police that it has been towed. After the car is removed, the towing company takes responsibility for the vehicle and returning it to the owner (after paying the tow fees, of course).

I would also suggest a rule allowing the park to assess parking violation charges of $50 per violation. As required by ORS 90.302 (3), the rule should specify that the first violation would result in a written warning, with subsequent violations within one year being assessed the $50 charge. ORS 90.302 (3) specifies the language that must be included in the written warning, which you should consult with an attorney to draft.

There are certain technical nuances to these statutes, so as usual consult with an experienced attorney before implementing a parking enforcement plan. But the bottom line is that you do have tools at your disposal to cut down on parking problems.