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Spot the Discrimination Mistake

Without the financial resources to provide lifeguards, a landlord adopts a safety rule banning children from using the community swimming pool.   

Pitfall: While banning children from the community pool might prevent drownings, it would also run afoul of FHA regulations that make it illegal to “deny or limit services or facilities in connection with the sale or rental of a dwelling” on the basis of family status [24 C.F.R. §100.65(a)]. Prohibited actions include “[l]imiting the use of privileges, services or facilities associated with a dwelling because of . . . familial status” [24 C.F.R. §100.65(b)(4)].

Although HUD guidelines state that it’s okay to impose “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” they also impose specific restrictions. Among other things, the rule must serve a compelling safety interest that can’t be achieved via less discriminatory alternatives.

Example: A California landlord adopted a rule stating that “under no circumstances may children play” in the pool area walkways. The federal court held that the rule was “facially discriminatory” because it treated children less favorably than other persons. While child safety was a compelling goal, the rule wasn’t the least restrictive means of ensuring it, the court reasoned. If the landlord was concerned about safety in the pool walkways, it should have banned all residents from playing on them, not just children [Rojas v. Bird, 2014 WL 260597, at *2 (C.D. Cal. Jan. 10, 2014)].  

Solution: Even if you could show that its sole intention is to ensure kids’ safety, banning children from the pool would be all but unjustifiable given all the less restrictive ways you could accomplish that objective. If it’s unruly behavior you’re worried about, the answer isn’t to exclude children but any and all troublemakers. If children are the problem, your first recourse should be to speak to their parents or guardians.

Answer: By way of refresher, ORS 90.630 pertains to curable maintenance/appearance violations relating to residents' spaces. However, if the violation relates to the physical condition of the home's exterior, ORS 90.632 applies, to address repair and/or remediation that can take more time to cure, either due to the weather, the amount or complexity of the work, or availability of qualified workers.

SB 277A, became law on June 14, 2017 ("Effective Date"), applies: (a) To rental agreements for fixed term tenancies - i.e. leases - entered into or renewed on or after the Effective Date; and, (b) To rental agreements for periodic tenancies - i.e. month-to-month tenancies - in effect on or after the Effective Date.

Both ORS 90.632 and the MHCO form (No. 55) provides that if the tenant performs the necessary repairs before the end of the compliance date, or extended compliance date, they have the right to give the landlord/manager a written notice that the issues have been corrected. There is no fixed time for management's response as to whether the repairs have been satisfactorily and timely performed; it is sufficient if it is within a reasonable time following the tenant's written notice. However, if a tenant gives this notice to management at least 14 days prior to the end of the completion deadline, or extended deadline, their failure to promptly respond is a defense to a landlord's termination of tenancy.

I am assuming the tenant gave you no such notice, otherwise, you would have responded that the color was too bright.

MHCO Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. As I said in an article last year on this form, '_you cannot expect the tenant to be a mind reader - just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity."

Is there a technical argument that since the requirement was not in the Form 55 Notice, that it is not effective? In other words, he complied with the Notice, but not the letter. As you said: "He did paint like we asked him, but it was not a color approved by management." I personally think such an argue is specious - assuming that the letter accompanied, or quickly followed the Notice.

But to the question whether you can proceed under the Notice, I don't think I would recommend that, because the Notice was complied with. Assuming you have some rule about pre-approval on painting in your rules, I would issue a 30-day notice.

If you do not have such a rule, you will likely have to tread lightly, as you may not be in a good position to declare a violation upon which to issue a termination notice. In other words, you should try to reach a compromise, which may result in some form of cost sharing. I'm sorry to reach this conclusion, but without the requirement of management approval somewhere (i.e. in the rules or the Form 55 Notice) you may find that it the tenant secures legal counsel, you options are limited.[1]

The cautionary tale here is to make sure that when issuing Form 55 Notice, you not only need to identify what the problem is, but all completely explain what is necessary to cure. Had the pre-approval requirement been set out in the Form, you would have at least had a reasonable argument of non-compliance. I say "reasonable" because there still remains an argument by the tenant that you are imposing a requirement (i.e. management pre-approval), that is not contained in the rules or rental agreement.

[1] There is an argument that the Letter was part of the Form 55 Notice, and therefore the tenant is in violation. However, unless one of them referred to this cross-reference, it is not a pitch I would try to make in court.

Answer. Before addressing your question directly, it is important to understand what state and federal law say about 55+ communities. Besides several qualifying requirements, a legally established 55+ community 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% means immediate disqualification. Does this mean that the 20% margin must be reserved for families with children? The answer is "No." In fact, a 55+ community may 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 or older? Again, the answer is "No."

If desired, a community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years. Similarly, a community may impose a more restrictive minimum age requirement than 55. In order to maintain this exemption from the Fair Housing laws which prohibit discrimination against families with children, it is important for park owners and managers to make sure that all such age/occupancy requirements are properly reflected in the community's Rules and the Statement of Policy - and be consistently applied.

So, technically, assuming that your community demographic is well above the 80% floor, there is nothing per se' illegal with the situation you describe.[1] Say, for example, the resident was not ill, but wanted her sister and child to live in the home with her, you could - but are not required - to grant permission. Under those circumstances, if the resident subsequently became ill and was hospitalized, thus leaving the sister and her child in the home on a temporary basis, I view that as an acceptable situation, and not a violation of the law. Even though the resident is not "occupying" the home while she is in the hospital, she is the lawful occupant, and would return to that home upon her recovery.

There is, metaphorically speaking, another 80/20 rule: ORS Chapter 90 is, like most laws, enacted to address essentially 80% of the most commonly observed landlord-tenant issues. That leaves the other 20% to be dealt with on an ad hoc basis, i.e. as they arise. Your situation raises issues that while not technically addressed under the law, it is close enough, and one rather simple to justify.

• It is not a violation of the state and federal law;
• It does not endanger the health, safety or welfare of others in the community; and
• Despite some grumbling from a few residents, permitting them to stay on a temporary basis is the right thing to do, even though it may not fall directly under the temporary occupant statute. (ORS 90.275)

However, in order to avoid setting some sort of "precedent" and perhaps to quell a few complaints, you should consider having a written agreement with the sister, saying something to the effect that she and her daughter are permitted to live at the home, with the understanding that she is doing so on a temporary basis and with the knowledge and consent of the hospitalized resident; that she will abide by the community rules; and that the rent will continue to be paid on time.

You should, of course, continue to monitor the situation, making sure the agreement is being honored, and that there are periodic updates on the health of the resident. If it begins to appear that the resident may not be coming back to the space, you will have to address a sale of the home to another qualifying resident.

[1] Your question did not address whether there is a second-person age requirement. But even if there was, and the 5-year old was in violation, my answer would be the same, i.e. this is more of a charitable response to a difficult situation. And since you are the landlord - with the power to enforce violations - you can, under these circumstances, choose not to enforce the technical violation of the second-person age limit.

WHAT DOES THE LAW SAY?

Section 804(c) of the federal Fair Housing Act (FHA) makes it illegal “[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.” Notice that the rule covers not just landlords who make discriminatory statements in ads but also those who publish them.

The U.S. Department of Housing and Urban Development (HUD) interprets the prohibition very broadly as applying to all kinds of ads, not just newspaper ads. Moreover, the offense isn’t discriminatory advertising but making discriminatory statements, which includes communications that you may not normally think of as advertising, such as:

• Spoken, written, and online statements—including words, phrases, pictures, symbols, and other graphic images—that send the message that housing isn’t available to particular groups because of race, color, religion, sex, handicap, familial status, or national origin (which we’ll refer to collectively as “protected characteristics”);
• Expressing to leasing agents, employees, prospects, or any other person a preference for or against any renter because of the renter’s protected characteristic; and/or
• Selecting media or locations for advertising that deny particular segments of the housing market information about housing opportunities based on a protected characteristic.

Example: “Loft Apartments. . . . For Adults 21 & Over.” A family with a young child sued the owner of a Pennsylvania luxury community that placed ads including this language in local newspapers. HUD joined the lawsuit. The federal court found the owner liable for discriminatory advertising and ordered it to pay $35,000 in damages [U.S. v. Joyce, 2010].

It’s Not What You Mean But What You Say

Unlike with most other forms of fair housing violations, liability for making discriminatory statements doesn’t require proof of discriminatory intent. What matters is not what you meant but whether the statement you actually made would suggest a preference to an “ordinary reader or listener.” Thus, innocent intentions are no defense to a violation.

Example: The Massachusetts landlord probably acted with the best of intentions in running a Craigslist ad stating that an apartment was “not deleaded, therefore it cannot be rented to families with children under six years old.” But whatever the landlord’s intentions were, the ad clearly communicated the message that the apartment was off limits to families with children. Result: The landlord had to shell out over $38,000 in damages [Massachusetts Attorney General’s Office, May 2013].

You also need to recognize that exclusion can take the form of not only discouraging but also encouraging groups of people. Thus, phrases like “ideal for singles” imply that married couples with children are unwelcome.

Beware of State Fair Housing Laws

Finally, keep in mind that federal requirements are just the baseline for compliance and that most states have adopted their own fair housing laws covering groups or characteristics that the FHA doesn’t list as protected, such as sexual orientation, gender identity, marital status, ancestry, age, military status, and source of income. Thus, for example, an ad that includes the phrase “No Section 8 vouchers” would violate the laws of states that ban discrimination on the basis of a person’s source of income.

7 RULES FOR AVOIDING DISCRIMINATORY ADVERTISING

The ban on making discriminatory statements applies to a broad range of advertising and marketing practices, but the basic rules don’t vary by medium. Stated differently, the formula for avoiding discrimination in traditional advertising is pretty much the same as it is for avoiding discrimination in internet advertising. Thus, HUD, fair housing groups, and victims continue to bring cases against landlords and publishers for discriminatory statements made in newspapers and other traditional media outlets.

Rule #1: Avoid Discriminatory Buzzwords

Landlords that use phrases like “Whites Only” or “No Wheelchairs” in their ads richly deserve the liability they incur. But unlike obscenity, people don’t intuitively recognize discriminatory advertising when they see it. If they did, the vast majority of landlords who do believe in fair housing principles and want to comply wouldn’t get into trouble because of their ads. Inadvertent liability is often the result of using certain buzzwords and phrases that send subtle messages of exclusion. They may include not only references to protected classes and characteristics but seemingly neutral words like “restricted,” “exclusive,” or “private.”

Descriptions of the neighborhood can also raise a red flag. In describing the community, stick to neutral terms, such as “desirable neighborhood” or “quiet streets,” and avoid words indicating which groups live in it.

Standard descriptions of a unit’s features that include otherwise taboo words, such as “walk-in closets” and “family room,” don’t violate fair housing law, as long as the advertisement doesn’t otherwise suggest a discriminatory preference, according to HUD. (See this table based on government guidelines from the State of Oklahoma.)

Rule #2: Market Property, Not People

The rule of thumb for avoiding discriminatory advertising is to market the property and its amenities, not the people you think should live in it. Vet every ad, slogan, and marketing piece you create with one question in mind: Will the prospects who look at this item feel welcome? In making this determination, set aside your own personal opinions and consider the view of the “ordinary reader or listener,” since this is the standard by which you’ll be judged if somebody files a fair housing complaint.

Compliance strategy: Because litigation is so expensive—even when you win—the primary goal should be to avoid it at all costs. Thus, if there’s even a question about whether ad language will cross the line, err on the side of caution by not including it.

Example: If it could have done things differently, an Ohio community would have probably chosen not to run an online ad suggesting that, “Our one bedroom apartments are a great bachelor pad for any single man looking to hook up.” The good news is that the community eventually won the lawsuit claiming that the ad discriminated on the basis of familial status and sex; the bad news is that it took the community over five years of litigation and tens if not hundreds of thousands in legal fees to ultimately prevail [Miami Valley Fair Housing Center, Inc. v. The Connor Group, December 2015].

DEEP DIVE

Exceptions Where Ads May Express Preferences

While the law generally bans statements that express a preference based on a protected characteristic, there are a few exceptions, including:

• Roommates: Ads stating a preference for members of a particular sex as a roommate in a shared-living arrangement;
• Senior housing: Ads excluding children in communities that qualify under the “housing for older persons” exception, which applies if:
  • HUD has determined the housing is specifically designed for and occupied by elderly persons under a federal, state, or local government program; or
  • The housing is occupied solely by persons 62 or older; or
  • It houses at least one person 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 or older; and
• Accessible housing: Ads with information about the availability of accessible housing; and
• Affirmative advertising: Ads designed to attract persons to dwellings who would not ordinarily be expected to apply, when such efforts are part of an affirmative marketing program or undertaken to remedy the effects of prior discriminatory housing advertising or marketing.

Rule #3: Beware of Discriminatory Use of Human Models

Pay close attention to not just the words but the images contained in your ads and marketing materials. Be especially careful about using human models, whether via video, photograph, drawing, or other graphic techniques, to express preferences for or against different groups. The classic example is a picture or video that uses all white models to portray your residents. Whether you realize it or not, such an ad sends the message that people of color aren’t welcome in your community. Similarly, ads showing nothing but able-bodied people running, playing tennis, or engaging in other physical activities may send subtle exclusionary messages to persons with disabilities; failing to display kids may have the same effect on families with children.

Accordingly, HUD cautions that models used in display advertising campaigns “should be clearly definable as reasonably representing majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children.” If used, models should also portray persons in an equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, etc., HUD adds.

Landlords and their employees need to keep these principles in mind for not just professional shoots but handheld videos shot with a smartphone for posting to Facebook, Instagram, Zillow, or any other online site. There should be guidelines in place for vetting videos for potential fair housing risks before hitting the “send” button.   

Rule #4: Put the HUD EHO Logo in All Ads

There is one thing you should include in all of your advertising: the HUD equal housing opportunity (EHO) logotype, statement, or slogan. While not technically required under the FHA, these materials send the very opposite message conveyed by discriminatory ads, namely, that the property is available to all persons regardless of race, color, religion, sex, handicap, familial status, or national origin.

In addition to enhancing your reputation as an equal housing opportunity provider, including the logo may also serve to contradict any discriminatory messages your ads inadvertently send. One example is advertising for communities that have a religious name (such as “Roselawn Catholic Home”) or use of a religious symbol in an ad. According to HUD, these practices may indicate an illegal religious preference. But HUD also says that use of the religious name or symbol will be deemed acceptable if it’s paired with a disclaimer stating that the community doesn’t discriminate based on race, color, or any other characteristic protected under federal, state, or local law.

The logo examples here come from HUD’s fair housing advertising regulations that were officially rescinded as part of a large effort to eliminate advisory materials from official regulations, but which HUD still unofficially follows in implementing the law. The choice of logotype, statement, or slogan will vary depending on the type of media used (visual or auditory) and, in space advertising, the size of the advertisement. The rescinded regulations include a table for determining logo size in newspapers and other traditional print media:

For other ads, the EHO logo should be at least equal in size to the largest of the other logotypes; if no other logotypes are used, the type should be bold display face which is clearly visible.

Rule #5: Avoid Discriminatory Ad Placement  

Consider not just the content of your ads but where you place them. Explanation: Historically, landlords have been able to perpetuate segregation by deliberately advertising only in certain publications or outlets that minorities targeted for exclusion are known not to use. Examples include strategically placing billboard ads in predominately white neighborhoods and running newspaper ads in local publications read mostly by a white audience. The digital age and rise of websites that use sophisticated algorithms to target highly specific audiences have significantly increased the potential for landlords to engage in selective and manipulative ad placement strategies.

Of course, HUD and fair housing organizations are aware of these practices and scrutinize landlords’ marketing practices for evidence of discrimination.

HUD has also warned against relying exclusively on English-language media or media catering to the majority population in an area where non-English language or other minority media is also available.

Example: A group of 15 Latino residents sued the owners and operators of seven rental properties in Los Angeles for deliberately excluding Latinos by marketing newly vacated units primarily through websites directed at young, English-speaking, single, nondisabled people (such as Radpad, Hotpads, and Walk Score). The defendants denied the accusations and asked the federal court to toss the case without a trial. The court ruled that the residents had a legally valid claim and could take their case to trial [Martinez v. Optimus Props., LLC, March 2017].

Your best defense is a proactive strategy relying on the creation and implementation of a written marketing plan to ensure that your marketing campaign is as broad and inclusive as possible. Retain copies of the ads you place, along with detailed records of when and where you placed them. Documenting your efforts to reach a wide, diverse audience will help you defend yourself against claims of selective advertising; better yet, it may prevent such claims altogether.  

Coach’s Tip: One exception to the ban on selective ad placement allows for targeting a particular group as part of a broad, inclusive marketing campaign, provided that the landlord has a valid, nondiscriminatory reason for doing so. For example, it may be permissible to run ads in a Vietnamese language newspaper if large numbers of Vietnamese people settle into your community and surrounding area.

DEEP DIVE

Fair Housing & Facebook

In 2018, the National Fair Housing Alliance and other fair housing groups sued Facebook for “virtual redlining” by allowing housing advertisers to use its platform and lists of “excluded” groups to customize ads that families with children, women, and other protected classes wouldn’t be able to receive. The complaint also accused Facebook of giving housing advertisers the ability to exclude certain “interest” categories from receiving ads that are disability-based (such as people who are interested in disabled veterans or disabled parking permits) or national origin-based (such as people who are interested in English as a second language).

Facebook settled the suit in 2019 by agreeing to change its advertising platform. However, HUD wasn’t impressed with the solution and has filed its own lawsuit challenging Facebook’s advertising practices in federal court.

Meanwhile, a group of Facebook users have brought a class action against the social media giant contending that they were on the receiving end of housing advertisers’ discriminatory practices enabled by the use of the Facebook platform. In January 2021, a federal court rejected the claim for lack of specificity; however, the dismissal was “without prejudice.” Translation: The plaintiffs can still file an amended complaint.    

Rule #6: Keep Your Advertising Methods Consistent

Expansive campaigns targeting multiple markets can expose you to liability if your advertising methods are selective. So try to keep your campaigns consistent from market to market. For example, when using human models primarily in media that cater to one racial or national origin segment of the population, consider a complementary advertising campaign using models targeting other groups. Another example of selective marketing is using racially mixed models to advertise one property and not others. You also need to be careful when advertising in publications or other media directed at one particular sex or persons without children.

Rule #7: Beware of Discriminatory Advertising on Your Community Website

As a matter of fair housing compliance, your website is an extension of your advertising to the extent you use it to show the benefits of living in the community. Result: You need to be careful that the content you post—including words, photos, video, and other graphic images—don’t express preferences for or against any groups based on race, religion, sex, or other characteristics protected under federal, state, or local fair housing laws.

In general, the website should describe the community, its units, and amenities, but not the kind of people who should want to live there. Providing maps and directions can also express preferences if they include references to institutions or landmarks associated with certain racial, religious, ethnic, or other groups. Examples: Saying your community is within walking distance of:

• A church (signal to Christians)
• A black development (signal to blacks);
• A development known for its history of excluding minorities (signal to whites); or
• A community center dedicated to a particular nationality.

Answer: Before getting into specifics, here is a rule you and all community owners and managers should never forget:

In most disputes, the lapse of time without resolution favors the tenant.

In your situation, this issue could have and should have been nipped in the bud. Since that has not been the case, you now take the risk that he, or his attorney, could argue that you have waived your rights to require him to vacate.

Now to the point:

1. I disagree with the Oregon Fair Housing Counsel, if I correctly understand their initial response. Just like with all such issues, a resident is no more entitled to permit a mean, contentious, threatening care giver in the community than it would be in permitting a known dangerous assistance animal. A balance must always be reached between granting the resident their Fair Housing rights, and the peace, safety, and quiet enjoyment of the rest of the community.

1. While some may disagree with me here, I believe that the Temporary Occupancy statute, ORS 90.275 can be very helpful in this type of situation.[1] But the issue should have been resolved long ago. Once you have someone on a signed Temporary Occupancy Agreement containing a fixed term, you have a degree of control that you did not have before. I would suggest that he be placed on a Temporary Occupancy Agreement for, say, six months, with a commitment that you will renew it for another six months, so long as he does not cause further disturbances, etc. [The Fair Housing law would likely require this commitment, and I agree.]

1. Here are the statutory rules regarding temporary occupancy:

• The temporary occupant is not a tenant entitled to occupy the dwelling unit to the exclusion of others;
• He/she does not have the rights of a tenant;
• The temporary occupancy agreement may be terminated by the tenant [in this case the elderly mother] without cause at any time and the landlord only for cause that is a material violation of the temporary occupancy agreement.
• The temporary occupant does not have a right to cure a violation that causes a landlord to terminate the temporary occupancy agreement;
• Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record [The landlord may not screen the proposed temporary occupant for credit history or income level.]
• A temporary occupancy agreement:
  • May provide that the temporary occupant is required to comply with any applicable rules for the premises; and
  • May have a specific ending date;
• The landlord, tenant and temporary occupant may extend or renew a temporary occupancy agreement or may enter into a new temporary occupancy agreement;
• A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement;
• The temporary occupant must promptly vacate the dwelling unit if a landlord terminates a temporary occupancy agreement for material violation of the temporary occupancy agreement or if the temporary occupancy agreement ends by its terms;
• Subject to certain exceptions, the landlord may terminate the tenancy of the tenant if the temporary occupant fails to promptly vacate the dwelling unit or if the tenant materially violates the temporary occupancy agreement;
• A temporary occupant may be treated as a "squatter" if he/she continues to occupy the dwelling unit after a tenancy has ended or after the tenant revokes permission for the occupancy by terminating the temporary occupancy agreement; and
• A tenancy may not consist solely of a temporary occupancy. Each tenancy must have at least one tenant. [Emphasis added.]

1. As you can see with the last rule, the son may not occupy the dwelling in the absence of his mother being there as a resident. If the mother is in Southern California and he is living in the home during her absence, he is starting to look like a "tenant" and not a caregiver. At the risk of him morphing into a "tenant," you cannot permit this to situation to continue.

1. ORS 90.100(43) defines a "squatter" as a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit. Oregon landlord law does not apply to squatters, meaning that they do not have the protection of tenants. However, since you do not have the son under a Temporary Occupancy Agreement, his status is up in the air.

1. If the son remains in the home, while his mother resides in Southern California, he should not be permitted to stay there. Technically, he cannot do so as a caregiver or a temporary occupant. If you can meet the following requirements, your rights would appear to be governed by ORS 90.403(1) (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.

1. If you do not meet the above statutory criteria, then your best bet is to get him on a Temporary Occupancy Agreement, making sure that he still understands that he cannot remain in the home while his mother is living - albeit temporarily - in Southern California.

[1] Some might say that just as you cannot required a "Pet Agreement" for an assistance animal, my response is that the Temporary Occupancy Agreement can, in my opinion, set forth "rules" for the caregiver, which, if not unreasonable, would be proper. In this case, for example, your "reasonable accommodation" to the resident's request that you permit her son to be her caregiver, is to say "Yes, but given his prior known history, these are the rules."

Answer: In theory, you should be able to give a 20-day non-curable notice within the 30 days if the same violation occurs. This is because the law provides that the 20-day notice may be issued if substantially the same violation occurs within six months of the date of issuance of the 30-day notice. A few years ago, the law measured the six month period from the end of the 30-day period. However, the law was changed a few years ago, and it would seem that now you should not have to wait until expiration of the 30-day period before issuing a 20-day notice. Otherwise, after the first 30-day notice, the tenant could speed through the park with impunity for the entire 30 days and the landlord could do nothing until the violation occurred again. This result makes no sense. However, there is a related situation which gives a different result: What if the violation was not an "act" such as speeding, but a "failure to act," such as not maintaining the yard? In that case, if the tenant failed to clean up the yard within the 30-day period, the landlord would be entitled to file for eviction immediately after expiration of the 30 days and would not have to issue a 20-day notice.

Answer: Assuming that the landlord has a temporary occupancy agreement in place, the answers are found in ORS 90.275 (Temporary occupancy agreement; terms and conditions). Specifically: - The temporary occupancy agreement is between the landlord, tenant and temporary occupant - all must sign. - The temporary occupant does not have the same rights as a tenant under the landlord-tenant law. - One may terminate the temporary occupancy agreement as follows: _ Only for cause that is a material violation of the temporary occupancy agreement ; presumably the theft constitutes a material violation under your rules and regulations which the temporary occupant is required to comply with; it is certainly a violation of law, which would suffice. _ The temporary occupant does not have a right to cure the violation; _ Legally, you do not have to give written notice of termination to the temporary occupant. However, in this case, I would do so, just for the record, and to make it clear that a notice of termination was, in fact, given. _ The temporary occupant is required to "promptly vacate" upon receipt of the notice. I suggest you give him/her a couple of days, just to avoid an issue. _ Although the statute doesn'texpressly require it, I would copy the resident on the notice. - If, after you give the notice, the temporary occupant sneaks back in the evenings, as seems to occur frequently, you should give the temporary occupant a formal "No Trespassing" letter, with a copy to the resident. It would be preferable if you had these notices personally delivered if you can. Then if the temporary occupant comes back, you may call the police to have him/her removed. - Alternatively, except as provided in ORS 90.449 (the statute protecting victims of domestic violence), a landlord may terminate the tenancy of the resident under ORS 90.630 (the statute permitting for-cause terminations) if the temporary occupant fails to promptly vacate the dwelling, or if the resident materially violates the temporary occupancy agreement. - A temporary occupant shall be treated as a squatter if he/she continues to occupy the dwelling unit after you have terminated the temporary occupancy agreement. _ ORS 90.100 (41) defines a squatter as "a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit." _ The landlord-tenant statutes do not have a specific provision dealing with eviction of "squatters." Although it implies you could have them forcefully removed, I would not attempt any self-help remedies. Rather, you could simply file an eviction, attach a copy of the termination notice, and proceed from there. Alternatively, you could proceed against the temporary occupant and the mother, if she did nothing to make sure he was out. If all else fails, I prefer the former approach, since frequently, a parent - especially an aged parent - is simply not capable of insisting that the son/daughter leave, and I don't believe that failure alone, should result in them losing their right to remain in the community. - Before entering into a temporary occupancy agreement, the law permits landlords to screen the proposed temporary occupant for issues regarding conduct or for a criminal record. If that was not done in this instance it should have been. (Note that a landlord may not screen the proposed temporary occupant for credit history or income level.) Lastly, I see no significance in the temporary occupant having a marijuana card. It isn'ta license to steal.

Answer.  No. There are many reasons for this answer:

The term “rent” is defined in ORS 90.100(37) as “…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 petto occupy a dwelling unit to the exclusion of others and to use the premises.” Ergo,  rent already includes the tenant’s pet. You cannot charge twice for Fido.

Secondly, ORS 90.302 provides that landlords may charge certain “fees”; one of them is for violation of a written pet agreement or of a rule relating to pets in a facility, pursuant to ORS 90.530.

Here is a summary of ORS 90.530:

· A landlord may not charge a one-time, monthly or other periodic amount based on the tenant’s possession of a pet; 

· A landlord may provide written rules regarding control, sanitation, number, type and size of pets. 

· The landlord may require the tenant to sign a pet agreement and to provide proof of liability insurance. 

· The landlord may require the tenant to make the landlord a co-insured for the purpose of receiving notice in the case of cancellation of the insurance.

· A landlord may charge a tenant an amount for a violation of a written pet agreement or rules relating to pets not to exceed $50 for each violation

Landlords may also charge tenants a security deposit for their pets. See, ORS 90.300. However, alandlord may notcharge a tenant a pet security deposit for keeping a service animal or companion animal that a tenant with a disability requires as a reasonable accommodation under fair housing laws.

So, while landlords may not charge a separate amount for “pet rent”, the Oregon Legislature has built in several protections for landlords where their tenant(s) have pets.  

Answer. This sounds like a cross between Fatal Attraction and Pacific Heights! It appears your friend never saw either film, or if he did, he failed to get the message.

Here is a short - and not comprehensive - summary of the temporary occupancy agreement law, which is found in ORS 90.275:

• The temporary occupancy agreement may be terminated by:
  • The tenant without cause at any time; and
  • The landlord - but only for a cause that is a material violation of the temporary occupancy agreement.
• The temporary occupant does not have a right to cure a for-cause violation issued from the landlord.
• Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record.
  • However, the landlord may not screen the proposed temporary occupant for credit history or income level, since they are not a "tenant" and their financial capacity to pay rent is immaterial.
• A temporary occupancy agreement:
  • May provide that the temporary occupant is required to comply with any applicable rules for the premises; and
  • May have a specific ending date.
• A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement.
• A temporary occupant is treated as a squatter if they continue to occupy the dwelling in violation of the agreement.

In this case, the landlord does not appear to have a basis for termination, since you did not mention any "cause", such as a violation of the community rules, etc. However, since the tenant can terminate at any time, it appears that going forward, the occupant's right to remain has been terminated, and her continued presence makes her a squatter. ORS 90.100(43) defines a "squatter" as '_a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit." A squatter is not a holdover tenant.

Pursuant to ORS 90.110(5) the Oregon Residential Landlord Tenant Act ("ORLTA") does not apply to squatters. Accordingly, it would appear[1] that the tenant will have to file his own eviction. No notice is necessary. The complaint would be under ORS 105.126, for occupancies in which ORLTA does not apply.

As for the deputy, while his answer was technically wrong, since she had no legal right to occupy the premise after the temporary agreement was terminated, I would submit that he was interpreting the situation as he saw it at the time, not knowing the technicalities of ORLTA. And I would agree, to avoid a breach of the peace, an eviction is the safer way to go, where the squatter refuses to voluntarily leave.

And tell your friend to download Fatal Attraction and Pacific Heights. Together they provide a cautionary tale for the future.

[1] I am hedging here, because that statute applies where the person entered lawfully. In this case, however, I would argue that once the tenant revoked permission and she refused to leave, she was entering possession unlawfully.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination against individuals with disabilities, including the refusal to make reasonable accommodations in rules, policies, practices, or services when they’re necessary to provide individuals with disabilities an equal opportunity to use and enjoy their home at the community.

The reasonable accommodation provisions come into play whenever an individual with a disability wants to use an assistance animal in communities that either prohibit or impose restrictions or conditions on pets at the community. Like all reasonable accommodation requests, the determination of whether an individual has a disability-related need for an assistance animal involves an individualized assessment, according to HUD.

Federal fair housing law broadly defines “disability” to mean physical or mental impairments that substantially limit one or more major life activities. That covers a wide variety of physical and psychological impairments—many of which aren’t obvious or apparent—as long as the impairment is serious enough to substantially limit a major life activity, such as seeing, hearing, walking, or caring for oneself.

Assistance animals are not pets under fair housing law, according to HUD. They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability. You can’t charge an extra fee or pet deposit as a condition of granting a reasonable accommodation for an assistance animal.

Don’t get confused by the different rules under the Americans with Disabilities Act (ADA), which governs the types of animals used by individuals with disabilities in places that are open to the public, such as restaurants, hotels, and other venues. With one limited exception, the ADA permits only individually trained service dogs—and excludes emotional support animals.

But the FHA, which governs multifamily housing communities, is much broader than that. Fair housing law allows not only service dogs, but also any type of animal that provides assistance or emotional support to an individual with a disability. Breed, size, or weight limitations may not be applied to an assistance animal, according to HUD. Assistance animals don’t have to be individually trained or certified—and they all have the same legal standing—regardless of what type of assistance they provide to an individual with a disability.

8 RULES FOR HANDLING REQUESTS

FOR ASSISTANCE ANIMALS

Rule #1: Adopt Pet Policy Subject to Exceptions for Assistance Animals

Fair housing law doesn’t prevent you from having a pet policy—as long as you don’t use it to keep out assistance animals. Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, pet deposits, or additional rent charges. Whatever your policy on pets, it’s unlawful to deny an exception for an assistance animal needed by an individual with a disability to fully use and enjoy the community.

Example: In July 2019, HUD charged a Maine community and one of its agents with discrimination for denying a veteran with disabilities the right to keep his assistance animal. In his HUD complaint, the veteran alleged that he called the community in response to an ad on Craigslist. When he told the agent that he had a disability-related need to live with his assistance dog, the agent allegedly responded, “absolutely not,” and she regretted allowing a prior tenant to live with his assistance dog because other tenants then wanted to get pet dogs.

“No person with a disability should be denied the accommodation they need, especially individuals who served in the Armed Forces to defend our freedom,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work to ensure that housing providers meet their obligation to comply with this nation’s fair housing laws.”

Rule #2: Don’t Make Snap Decisions About Requests for Assistance Animals

Anytime someone asks for an exception to your pet policy to keep an assistance animal, you should treat it as you would any other request for a reasonable accommodation. The reasonable accommodation rules kick in anytime anyone says he needs or wants something—including an assistance animal—because of a disability. The law doesn’t require that a request be made at a particular time or in a particular manner. The person doesn’t have to mention fair housing law or use the words “reasonable accommodation.”

When you receive a request for an assistance animal, HUD says there are two relevant questions:

1. Does the person seeking to use and live with the animal have a disability—that is, a physical or mental impairment that substantially limits one or more major life activities?
2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks with services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to both questions is “no,” then HUD says that fair housing law doesn’t require you to make an exception to your pet policy and the reasonable accommodation request may be denied.

If the answer to both questions is “yes,” however, you’re required to make an exception to your pet policies to permit an individual with a disability to live with and use an assistance animal at the community, unless doing so would impose an undue financial or administrative burden or would fundamentally alter the nature of the community’s services.

The request may also be denied if the animal is a direct threat to your property or the health and safety of others. But HUD warns that you can’t make that decision based on speculation about the animal’s size or breed—you have to look into the specifics of the particular animal involved. It can get complicated, so don’t make snap decisions about whether to bar an animal on that basis without reviewing all the facts.

Rule #3: Request Documentation When Needed to Evaluate Request

Don’t deny a request just because you’re uncertain about whether the person seeking the accommodation has a disability or a disability-related need for an assistance animal. Though fair housing law generally forbids housing providers from making disability-related inquiries, there’s an exception for reasonable accommodation requests when either the disability—or the disability-related need for the requested accommodation—isn’t obvious or apparent.

Just remember: You can’t ask questions about an applicant’s disability or disability-related need for an assistance animal if both are known or readily apparent. The classic example is a request by a blind or visually impaired applicant to keep a guide dog. Since both the disability and the need for the animal are readily apparent, you can’t ask for documentation about the applicant’s disability or disability-related need for the dog.

You may request information from a resident with a known or obvious disability—but only if his need for the assistance animal isn’t readily apparent. As an example, federal guidelines point to a request by an applicant who uses a wheelchair to keep a dog as an assistance animal. The applicant’s disability is readily apparent, but the need for the assistance animal isn’t obvious, so you can ask the applicant to provide information about the disability-related need for the dog—as long as you don’t go overboard by asking for too much information.

Rule #4: Ask for Verification If Resident Doesn’t Have Apparent Disability

Be careful about how you handle requests for assistance animals from applicants or residents who don’t have an obvious or apparent disability. Under fair housing law, all individuals with disabilities are equally protected—whether they’re physical or mental, obvious or not–so don’t let outward appearances affect how you treat them.

If the resident’s disability isn’t readily observable, you may ask for reliable disability-related information that’s necessary to verify that the resident has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal. You can’t ask the resident for information about what his disability is or what the animal does to assist him—only for confirmation that there is a disability and that the animal is needed because of that disability.

In general, verification may come from a doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability—even the resident himself, under certain circumstances. But you can’t ask applicants or residents for access to medical records or medical providers—or for detailed or extensive documentation about their physical or mental impairments.

For example, HUD says that communities may ask applicants who want a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support, according to HUD.

Editor's Note: For model forms you can use to verify an applicant or resident's need for an assistance animal, see “Use Forms to Verify Resident’s Need for  Assistance Animal,” which appeared in our June 2018 issue.

Rule #5: Consider Requests for Emotional Support Animals

Treat requests for emotional support animals the same as any other request for a service dog or any other type of assistance animal. Fair housing law allows people with disabilities to have assistance animals that perform work or tasks, or that provide disability-related emotional support.

Example: In April 2019, the Justice Department sued the owner and property manager of a seven-unit rental property in New York City for refusing a reasonable accommodation to allow a resident with psychiatric disabilities to live with an emotional support German Shepherd in his unit. According to the complaint, the resident was a retired law enforcement officer and September 11th first responder who required an emotional support dog to assist him with his disabilities. The complaint alleged that the community sought to evict him for living with an emotional support dog and, after discontinuing the eviction action in which each side was supposed to pay its own attorney’s fees, the community allegedly retaliated and harassed him by billing him for its attorney’s fees related to its unsuccessful eviction attempt [U.S. v. Higgins, April 2019].

Example: In March 2019, the owner and property manager of a 232-unit housing cooperative in New York City agreed to pay $70,000 to settle allegations that they violated fair housing law by refusing to allow a resident with disabilities to keep an emotional support beagle in his unit. The Justice Department filed the complaint, alleging that the resident had disabilities and requested a reasonable accommodation to keep an assistance dog in his unit. According to the complaint, the community effectively denied the request by issuing a notice of default stating that he violated his lease by harboring a dog in his unit. A few months later, the complaint alleged that the community notified him that his tenancy would be terminated because he kept a dog in his unit [U.S. v. 118 East 60th Owners, Inc., March 2019].

Rule #6: Don’t Put Too Much—or Too Little—Stock in Online Certifications

Knowing the rules on disability verification is essential to avoiding the common mistakes that lead to complaints involving requests for assistance animals. It’s particularly important now that so many applicants or residents can go online and find a quick “certification” process to say their dog is a certified assistance animal.

Example: In November 2018, a court dismissed claims against a Florida homeowners association for denying a resident’s request for an assistance animal. In his complaint, the resident alleged that he was disabled as a result of a 2009 auto accident and bought a Rottweiler puppy in 2017 to serve as a service dog allegedly on the advice of his doctor. When he received a notice of violation stating that Rottweilers weren’t permitted, the resident said he informed the community that the puppy was a service animal. Instead of completing a medical release and form to verify his accommodation request, he allegedly produced service dog identification cards purchased online, his handicap parking placard, and copies of his disability checks. Allegedly, the community denied his reasonable accommodation request because he didn’t provide documentation of his disability or need for a service dog. 

He sued, but the court dismissed the case because the resident failed to prove that he had a disability under fair housing law. The only information about his disability was in his complaint. Although he alleged permanent mobility impairments from his 2009 car accident, he failed to present evidence of his injuries or limitations. And the community presented photos of him riding a scooter, and standing and walking unaided, which contradicted his allegations of disability [Fitzsimmons v. Sand & Sea Homeowners Association, November 2018].

When an applicant provides you with an online certification that he needs an assistance animal, it’s necessary to determine whether it meets the requirements that it’s reliable and from someone familiar with the applicant’s disability. Don’t automatically assume that an online certification wasn’t issued by any recognized group, or a medical or mental health provider, and deny the request.

You still have the obligation to consider, respond, and act on the request—even when you suspect that the online verification doesn’t provide you with all the information you need to act on the accommodation request. Unless the applicant has an obvious disability, you may request confirmation from her treating mental or medical health professional to verify that the applicant is under the provider’s care and treatment and that the provider has diagnosed a medical or mental condition that renders the patient disabled. You may also request confirmation from the treating doctor or mental health provider that the animal is prescribed to assist with the disability.

If the applicant or resident is unwilling to cooperate or obtain the proper medical or mental health provider’s assistance in verifying the information, then you may have grounds for denying the request. But this is a difficult area, so it’s important to get legal advice before taking any adverse action.

Rule #7: Consider Requests for Dogs Otherwise Excluded Under Pet Policies

Carefully consider requests for assistance animals—even if it’s for an animal that’s generally prohibited under your pet policies. It’s common for communities to allow only certain types of pets or to exclude animals based on their size or breed. But remember—these limits don’t apply to assistance animals. HUD says that breed, size, and weight restrictions may not be applied to an assistance animal.

Example: In February 2019, the owner and manager of an apartment building in Manhattan agreed to pay $100,000 to settle allegations of disability discrimination for refusing to rent a unit to an applicant with a psychiatric disability and her fiance because she had a large assistance animal.

According to the complaint filed by the Justice Department, the couple expressed interest in renting a unit, but they had a “service animal” that was “probably over the permitted weight limit” for the building. After they submitted forms requesting a reasonable accommodation, the manager allegedly notified them that the community would permit them to have a dog up to 50 pounds as a reasonable accommodation but their current dog—a 120-pound Cane Corso—was too large, so it would be best if they didn’t pursue their application for an unit in the building [U.S. v. Glenwood Management, February 2019].

It can get complicated when it comes to breed restrictions. Many communities have policies restricting certain dog breeds, most notably pit bulls, but HUD says that breed restrictions don’t apply to assistance animals. To comply with fair housing law, you must assess whether the particular animal in question poses a direct threat; otherwise, you may be accused of denying a reasonable accommodation by excluding an assistance animal based on its breed.

It’s another matter if your community is subject to a local ordinance banning pit bulls or other “dangerous breeds.” If allowing the dog would violate local law, then you may have grounds to deny the request, but this is another gray area where it’s a good idea to get legal advice before taking action on the request.

Example: In April 2019, the Nebraska Supreme Court ruled against a resident who claimed that the city violated fair housing law by denying his reasonable accommodation request to keep his pit bull as an emotional support animal despite its ordinance banning pit bulls and other “dangerous dogs.”

The lawsuit was filed by a resident who was partially paralyzed and had a pit bull as an emotional support animal. That same year, the city adopted an ordinance banning pit bulls and other dangerous dogs but grandfathered in dogs registered with the city before the law took effect. The resident failed to register the dog on time, so an enforcement officer said he’d have to get rid of the dog.

After obtaining documentation from his doctor, the resident sued the city for violating fair housing law. Rejecting the city’s argument that it was exempt from the FHA, the court issued an order that the ordinance was invalid as applied to the resident’s retention of the dog in his home.

On appeal, the state’s highest court reversed in part, ruling that the resident failed to prove that the requested accommodation was necessary. Assuming that he needed an emotional support dog, he failed to prove that other dogs not covered by the ordinance couldn’t provide comparable therapeutic benefit with regard to his disability. Fair housing law didn’t give him a right to his preferred option [Wilkinson v. City of Arapahoe, April 2019].

Rule #8: Don’t Ban Assistance Animals from Common Areas

Don’t impose unreasonable limits that prevent residents with disabilities from bringing their assistance animals into common areas. HUD says that residents with disabilities may use assistance animals in all areas of the premises where persons are normally allowed to go unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of your services.

Example: In February 2019, a court ruled that a Nevada homeowners association had to pay a couple $635,000 for refusing to grant the wife’s disability-related reasonable accommodation request to bring her assistance animal, a Chihuahua, into the clubhouse.

The court ruled that the FHA applied because access to the clubhouse was necessary for the couple’s enjoyment of their home. The dog qualified under the ADA as an assistance animal because it assisted the wife with acute pain attacks and with retrieving her walker. The dog was not disruptive, threatening, or harmful to the other residents in the community or in the clubhouse, so the accommodation to allow the dog to accompany the wife into the clubhouse was clearly a reasonable accommodation of the wife’s disability.

The court assessed punitive damages against some of the parties involved in denying the wife’s accommodation requests. Among other things, the court said they:

• Continued, in a harassing and malicious manner, to request documentation about the wife’s need for the dog’s assistance even after sufficient documentation was provided regarding her disability and the ways in which the dog assisted her;
• Actively and wantonly prevented the couple from using the clubhouse once documentation was provided;
• Sent or directed to be sent communications on behalf of the board portraying the couple as litigious and untruthful and knew that these communications would contribute to a hostile, threatening, and intimidating living environment; and
• Failed to discourage other residents from harassing and threatening the couple at open meetings and through anonymous letters.

The court further found that they acted with personal animus toward the couple, which fueled the antagonism among the community [Sanzaro v. Ardiente Homeowners Association, LLC, February 2019].

Nevertheless, you don’t have to tolerate bad behavior by individuals with disabilities—or their assistance animals—when they’re in common areas. You may expect them to have their assistance animals under their control, for example, by requiring them to be leashed unless doing so would interfere with the animal’s ability to perform disability-related tasks. You may establish rules to require residents with assistance animals to pick up and dispose of the animal’s waste and to hold them accountable if the animal becomes disruptive or acts aggressively toward other residents.

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