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Answer: The following answers should not be regarded as "legal advice" since this column is intended to be purely educational and for general information purposes. You need to consult your own attorney for a legal opinion. - You are correct about the law; the limited dealer's license is just for park owners with abandoned homes. There is no provision for dealers with a limited license to sell new homes. According to the law, you need a regular dealer's license. See, ORS 446.696, 446.701 and 446.706. - I am troubled that the DFCS said they thought it was OK for you to sell new homes under a limited license, since limited licenses are for abandoned homes which are (presumably) pre-owned. Having said that, if you wanted to proceed on the DFCS's advice, I suspect that if some official later objected, they would have a hard time taking any punitive measures you're your noncompliance. Of course, you never know. The IRS gives out information all the time, and following their advice is no defense to a violation. Why don't you ask if they will put their verbal statement in writing? - I agree that the law says a dealer under a regular license (as opposed to a limited license) may sell new and used homes (so long as he/she discloses that they will sell used homes in the application). - Note that you do not need a MLO license to sell homes. You may use a real estate broker to list and sell your new homes. The fact that they are sited at your park and later sold does not make them "resales." However, to offer or negotiate the financing terms of a purchase money loan, you would need the services of an Oregon licensed MLO (i.e. a mortgage broker or mortgage banker). The real estate brokers can handle the transaction, write it up, etc., but cannot advertise or negotiate specific financial terms were you to carry the paper. - However, if you are going to require that the buyers secure their own financing (i.e. you are not going to "carry the paper"), I see no reason that you need to worry about MLOs, since you will be selling for cash. You will not be taking payments over time. It will be the buyer's lender who will be acting as the MLO (i.e. the mortgage broker or mortgage banker), and negotiating the terms of the purchase money loan to the buyer. - My reading of Oregon administrative rule 441-446-0203 prohibits dealers from acquiring an ownership interest in a park only appears to apply if you are going to offer or negotiate the terms of a residential mortgage loan, i.e. engage in MLO activities or are doing so under an exemption under the MLO laws. Since buyer financing is going to occur via third-party lenders, I do not believe you are prohibited as a "dealer" from owning an interest in a manufactured housing community. - From my perspective, you would be much safer to have someone with a full dealer's license handle the sales program. The real estate licensee can list the homes, find the buyers, write up the transactions (making them subject to third-party financing, etc.). The dealer can handle the transaction from there. Footnotes: Footnote 1: 446.696 Renewal of dealer license. A manufactured structure dealer license is valid for three years, but the Director of the Department of Consumer and Business Services may adjust the term of an initial license for the purpose of establishing uniform expiration dates. A dealer may renew a license as provided by the director. The director may renew a license only if the dealer: (1) Delivers to the director a bond or letter of credit that meets the requirements under ORS 446.726. (2) Provides evidence acceptable to the director that the dealer obtained a corporate surety bond as provided in ORS 86A.227 if the dealer employs or intends to employ a mortgage loan originator, as defined in ORS 86A.200, or is otherwise subject to ORS 86A.200 to 86A.239. (3) Certifies to the director in a form and manner the director specifies by rule that the dealer has independently verified that every individual the dealer hired or intends to hire as a mortgage loan originator meets the requirements set forth in ORS 86A.200 to 86A.239 and in ORS 86A.186. (4) Pays the fee specified in ORS 446.721 for renewal of a manufactured structure dealer license. (5) Submits a completed application for renewal in a form approved by the director that includes: (a) The name and residence address of the dealer. If the dealer is a firm or partnership, the application must include the names and addresses of the members of the firm or partnership. If the dealer is a corporation, the application must include the names and addresses of the principal officers of the corporation and the name of the state in which the corporation is incorporated. (b) The name under which the business will be conducted. (c) The street address, including city and county in Oregon, where the business will be conducted. (d) If the location of the dealership is being changed at the time of renewal: (A) For a business that will be conducted in a residential zone, a statement by the dealer that all manufactured structures sold or displayed at that address will meet any architectural and aesthetic standards regulating the placement of manufactured structures in that residential zone. (B) For a business that will offer for sale new manufactured structures that are recreational vehicles greater than eight and one-half feet in width, a certificate from the applicant stating that the applicant will maintain a recreational vehicle service facility for those recreational vehicles at a street address provided in the application. (e) Information the director requires to efficiently regulate manufactured structure dealers and dealerships or other relevant information the director requires. [2003 c.655 _29; 2009 c.863 _30] Footnote 2: 446.701 Issuance of temporary manufactured structure dealer license. (1) If a licensed manufactured structure dealer dies or becomes incapacitated, the Department of Consumer and Business Services may issue a temporary manufactured structure dealer license to the executor, administrator or personal representative of the estate of the dealer or to an agent of the dealer approved by the department. A temporary license issued under this subsection expires after six months, but the department may extend the license for good cause. The department may not extend a temporary license if the license has been suspended or the licensee placed on probation by the department. (2) A person issued a temporary manufactured structure dealer license must deliver to the department a bond or letter of credit that meets the requirements under ORS 446.726. A bond or letter of credit covering a license term of less than one year must be for the sum otherwise required for each year a license is valid and must be renewed if the term is extended. The temporary manufactured structure dealer is responsible for ensuring that, during the term of the temporary license, the dealership and its employees comply with ORS 446.661 to 446.756. and rules adopted thereunder. This subsection does not relieve a manufactured structure dealer licensed under ORS 446.691 or 446.696 from liability for a violation arising out of actions or omissions by the dealer. (3) Notwithstanding ORS 446.731: (a) Issuance of a temporary manufactured structure dealer license does not, by itself, affect the rights or interests of any creditors of the dealer in dealership assets or inventory. (b) Issuance or expiration of a temporary license is not a transfer of interest for purposes of ORS 446.736. (4) A person obtaining a temporary manufactured structure dealer license must pay the applicable fee specified in ORS 446.721 for issuance of a temporary manufactured structure dealer license. [2003 c.655 _29a] Footnote 3: 446.706 Limited manufactured structure dealer; licensing. (1) A person who holds a limited manufactured structure dealer license issued under this section may sell during a calendar year up to 10 manufactured dwellings located at a manufactured dwelling park identified in the license. The manufactured dwellings sold under a limited manufactured structure dealer license must be dwellings that: (a) Have been abandoned as described in ORS 90.675 at any manufactured dwelling park. If the manufactured dwelling is not subject to sale by the limited manufactured structure dealer under ORS 90.675 (10), the dealer must have the certificate of title or registration for the dwelling transferred to the dealer prior to offering the dwelling for sale; or (b) Have been purchased by the park owner from a person holding title, and at the time of purchase by the park owner, were sited in the manufactured dwelling park identified in the license. (2) Notwithstanding ORS 90.525, if a limited manufactured structure dealer sells a manufactured dwelling that was abandoned at a manufactured dwelling park other than the park where the dwelling is being sold, the sale terms for the manufactured dwelling must require that the dwelling is to be sited under a rental agreement at the park where sold for at least 12 months following the sale. (3) Except as provided in ORS 446.741, the Director of the Department of Consumer and Business Services shall issue a limited manufactured structure dealer license to a person if the person: (a) Owns or operates a manufactured dwelling park as defined in ORS 446.003; (b) Submits a completed application for a limited manufactured structure dealer license in a form approved by the director; (c) Delivers to the director a bond or letter of credit that meets the requirements under ORS 446.726, except that the bond or letter of credit must be in the sum of $15,000 for each year that the license is valid; (d) Delivers to the director a corporate surety bond that meets the requirements specified in ORS 86A.227 if the person employs or intends to employ a mortgage loan originator, as defined in ORS 86A.200, or is otherwise subject to ORS 86A.200 to 86A.239; (e) Certifies to the director in a form and manner the director specifies by rule that the person has independently verified that every individual the person hired or intends to hire as a mortgage loan originator meets the requirements set forth in ORS 86A.200 to 86A.239 and in ORS 86A.186; (f) Is 18 years of age or older or is legally emancipated; and (g) Pays the fee specified in ORS 446.721 for issuance of a limited manufactured structure dealer license. (4) If the person is a firm or partnership, the application for a limited manufactured structure dealer license must include the names and residence addresses of the members of the firm or partnership. If the person is a corporation, the application must include the names of the principal officers of the corporation and residence addresses of the officers and the name of the state under whose laws the corporation is organized. If the person is the owner of a manufactured dwelling park, the person may submit a joint application on behalf of the person and a named park operator employed by the person. If the person is the operator of a manufactured dwelling park, the application must include the name and signature of the park owner. (5) A limited manufactured structure dealer license is valid for use at a single manufactured dwelling park. The manufactured dwelling park location must be specified in the license application. A limited manufactured structure dealer may not employ a salesperson. (6) A limited manufactured structure dealer license is valid for two years, but the director may adjust the term of an initial license for the purpose of establishing uniform expiration dates. (7) Notwithstanding subsection (6) of this section, the limited manufactured structure dealer license for the person expires immediately if the person ceases to be an operator or owner of the manufactured dwelling park at which the license may be used. The owner of a manufactured dwelling park shall immediately notify the director if a person licensed under this section ceases to be an owner or operator of a manufactured dwelling park at which the license may be used. (8) Notwithstanding subsections (6) and (7) of this section, if a licensed person ceases to be an operator of the manufactured dwelling park, the park owner may apply to have a corrected license issued to a new operator employed by the owner. A corrected license issued under this subsection is valid for the unexpired portion of the original license term. The director shall charge the fee specified in ORS 446.721 for issuing a corrected license. (9) A limited manufactured structure dealer may renew a license as provided by the director. The director shall renew a license only if the dealer: (a) Submits a completed application for renewal in a form approved by the director; (b) Delivers to the department a bond or letter of credit that meets the requirements described in subsection (3) of this section; and (c) Pays the fee specified in ORS 446.721 for renewal of a limited manufactured structure dealer license. [2003

Pitfall: In 1991, HUD issued guidance called the Keating Memo establishing two-per-bedroom as the default standard for reasonable occupancy standards. However, attorneys caution that the most common mistake landlords make with occupancy standards is applying the two-per-bedroom rule on a blanket basis. The reasonableness of a particular occupancy standard depends on the specific situation. Thus, two-per-bedroom may be too restrictive for some situations and not restrictive enough for others.  

Example: A Connecticut landlord forced a married couple to move out of their one-bedroom apartment for violating the community’s two-per-bedroom occupancy standard after the wife gave birth. I just followed the Keating Memo, the landlord claimed. But the court didn’t buy it, noting that Keating is a “totality” test that the landlord applied as a blanket rule without considering the other factors the Memo cites, like the size and sleeping area of the bedrooms [Gashi v. Grubb & Ellis Property Management Servs., 801 F. Supp. 2d 12 (D. Conn. 2011)].  

Solution: While two-per-bedroom might be the starting point, landlords must consider other factors listed in the Keating Memo to determine how many people can occupy it in safe and habitable conditions, including:

• How big the bedrooms are: Rejecting a family of five for a two-bedroom apartment might be unreasonable if at least one of the bedrooms is large enough to accommodate three persons. By the same token, it may be justifiable to refuse to rent a two-bedroom unit to a family of four if one of the bedrooms is too small for two people to share safely and in habitable conditions.
• Size and configuration of the apartment: Consider the unit’s overall size and configuration, including other rooms or spaces that can be used as bedrooms. Thus, two-per-bedroom may be too restrictive for an apartment with a den that can be easily converted into a bedroom; but it may be not restrictive enough for an apartment that doesn’t have ample living or dining room space per occupant.
• Physical limitations on the property or building systems: Consider the age and condition of the building, including the capacity of water, sewer, sanitation, electrical, HVAC, and other critical building systems. Thus, for example, occupancy standards of less than two-per-bedroom may be justifiable for older buildings with crumbling and fragile infrastructure.
•  Age of children: Occupancy standards are typically based on the premise that occupants can share bedrooms. However, the age of the child(ren) may challenge the basis of that premise. For example, suppose a couple wants to share a one-bedroom apartment with their child in violation of the landlord’s two-per-bedroom standard (absent other factors):
  • Child is a newborn or infant: Rejecting the couple is likely to be unreasonable;
  • Child is a teenager: Rejecting the couple is likely to be reasonable.

Caveat: Age doesn’t come into play in determining whether children of different sexes can share a bedroom. The Rule: Whatever your moral views, you can’t require male and female children to have separate bedrooms, regardless of their age. Period.

Screening Criteria

The manufactured housing section of Oregon's landlord-tenant law provides that "Any conditions the landlord applies in approving a purchaser... as a tenant in the event the tenant elects to sell the home" should be disclosed in the rental or lease agreement."[1] Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what may be placed in the rental or lease agreement.

MHCO's rental and lease agreement forms[2] contain a number of criteria that landlords may impose, such as: (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.

Although there may be other criteria that landlords may wish to use when deciding whether to accept an applicant as a tenant, the above list is very comprehensive, and should be sufficient in imposing adequate guidelines when a tenant wishes to sell their home on site. MHCO additionally has an application form which solicits this and other information from prospective tenants.

Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check that provides the necessary verification. Although Oregon law imposes a 7-day period within which landlords have to respond to a submitted application, it does not prohibit landlords from imposing a longer period so long as the applicant agrees. Additionally, Oregon law expressly states that the 7-day period does not commence if the application is incomplete or inaccurate. Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete - and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned. Accepting an incomplete application or continuing with the process after discovering that the applicant has provided bad information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.

It is also important to note that Oregon law permits the '_landlord and the prospective purchaser (to) agree to a longer time period for the landlord to evaluate the prospective purchaser's application or to allow the prospective purchaser to address any failure to meet the landlord's screening or admission criteria." Thus, as noted on the MHCO Application form, there is a place for the landlord to insert a period longer than the statutory seven day period. If the landlord suspects any delay, either on the applicant's part or his own part, a longer period should be inserted. If the applicant rejects this extension, then the landlord can decide whether he wants to proceed to process the application at all.

Note: If a tenant has not previously given the landlord the 10 days' advance notice of intent to sell as required in ORS 90.680(4) (a), the landlord's seven day response time is extended to 10 days. But remember, in no instances does the landlord have to receipt and process an inaccurate or incomplete application. It is better not to accept a defective application - or return it immediately upon finding that it is inaccurate or incomplete, than continuing to process it.

If a landlord requires a prospective purchaser to submit an application for occupancy at the time that the landlord gives the prospective purchaser the application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale. It is important to remember that the terms of these park document given to the prospective tenant need not be the same as those in the existing (i.e. selling) tenant's documents.[3]

Park Documents.

Landlords and managers should always remember that when they change one of the park documents, they may have to change others. This is because of two risks: (a) The failure to incorporate a change in the lease, say, into the Statement of Policy, and (b) An inconsistency between one or more of the park documents, such as the rental agreement and the rules. Rules can generally be changed in the middle of a tenancy, but rental agreements cannot. So landlords should remember to make sure their documents are all internally consistent.

Fair Housing Laws.

The state and federal fair housing laws are essentially - but not completely - the same. Landlords and managers should familiarize themselves with any special ordinances found in their city or county laws. However, Oregon law prohibits any form of discrimination in the sale or rental of housing when directed at the following protected classes: '_race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income."[4] The easiest, best, and safest way to deal with the risk of a discrimination claim is to make all screening criteria facially neutral. Do not have rules which - even unintentionally - could have a negative impact on a member of a protected class.

In Oregon, most claims of discrimination relate to familial status. Examples range from managers encouraging families to purchase and reside in one particular area of the community (where there are more children), to making off-hand comments to applicants (e.g. "there would be very few children for your kids to play with here") that may be construed as indicating a desire not to rent to people with children. For this reason, landlords and managers should strive to apply their screening criteria neutrally regardless of the applicant's membership in a protected class.

Additionally, caution should be exercised in answering questions over the phone, since federal and state "testers" have been known to test parks by making multiple phone calls asking various loaded questions, such as "Is this a good place to raise my children?" If the community is a family park, the best response to open-ended telephone inquiries is to tell the caller that it is a family park, open to all, and that they are welcome to come in and pick up an application for processing.

One of the biggest areas of concern for landlords and managers today involve issues of immigration status. At the risk of minimizing the problem, there is one basic rule that landlords and managers should always remember when screening applicants. While it is not a "silver bullet," it should help avoid the vast majority of issues regarding immigration status. Never treat any single applicant differently from another. This means that landlords should not automatically "suspect" that certain persons are illegally in this country and then impose more rigorous screening criteria on them alone. It is best not to ask about immigration status.[5] If the applicant passes the same screening criteria imposed upon others, and all of the information in their application checks out, you should accept the current applicant, regardless of whether you have suspicions about their immigration status. One of the frequently asked questions is whether a landlord may insist that applicants provide their social security number. While this is not automatically illegal, it can be when applied to some applicants and not others. Consistency is the name of the game. Do not request verification in some cases and not others. Do not accept some tenants who fail to provide the number, but accept others (who are not obviously immigrants) without also providing such proof.

Another area of concern is occupancy limits or extra occupancy charges.[6] This is somewhat of a grey area because Oregon law currently permits a two person per bedroom rule - assuming that it is expressly listed as part of the park's screening criteria and uniformly applied. However, the problem is that federal law contains no specific occupancy limits. This means that, in theory, one could be in compliance with state law, while violating federal law. For example, if a family consisted of two adults and three children who owned a 2-bedroom home, a "2-persons per bedroom" requirement would mean that they could not move into the park. But if the third child was an infant who slept in the parents' room, one may ask whether this standard is reasonable, even though it complies with Oregon law. At the risk of violating federal law, which imposes no such occupancy limits, the better approach might be to avoid the "slippery slope" problem entirely, by not creating occupancy limits.[7]

Perhaps the most difficult of screening criteria issues is in the area of assistance animals. Since handicap is a protected class, this means that if one could establish a legitimate need for an assistance animal they could not be prevented from having one - even though the park might have a one-pet policy and this might be their second pet. This could be so even though the animal was not trained or certified in providing assistance. MHCO has Form 15 that may be given to tenants applying for a "reasonable accommodation" which is the technical term used when an allegedly handicapped person requests relief from strict application of a rule that interferes with their handicapped. [8] As most landlords and managers know, the handicap protections can be severely stretched. There are many reasons for this, including, among other things, the handicap may be allegedly psychological, and the tenant has nothing more than a note from a doctor - not a treating psychologist or psychiatrist.

The other difficult issue is that assistant animals are not technically "pets" and therefore are not subject to the requirement that the Pet Agreement be completed. Ultimately it comes down to a rule of reason and proof. Does it appear that the person requesting the accommodation is legitimately handicapped? Do they have a known history of the handicap - that is, has it ever come up before? Does it appear that the claim of a handicap is new, and possibly raised as a pretext, say to circumvent a one-pet policy?

Ultimately, the issue comes down to public safety in the community. For example, if the tenant wanted to have a pit bull (in violation of a dangerous breed prohibition) or a bull-mastiff (in violation of a size restriction), the landlord should ask which battle he or she wants to fight? If the tenant isn't credible, has a history of skirting the rules on this or other issues, it might make sense to refuse and let them take the next step. If they bring the animal into the park in light of the denial, you will have a choice; either do nothing or send out a notice of violation which would require removal of the animal. The risk in allowing dangerous or oversized breed into the park is that it may harm someone, and then the landlord will have to defend a lawsuit for failing to enforce their own rules. Additionally, in consenting, the precedent has been set, now permitting such animals based upon a tenant's assertion the need it for assistance. Remember, "reasonable accommodations" need only be "reasonable." Dogs with vicious propensities or who pose danger to children because of their size, are not the only type of assistance animals available.

Marijuana cards raise the same issue, although perhaps even worse, since the cards seem to be freely given to almost anyone. In some cases, however, this too can be dealt with on another level. If the persons with medical marijuana cards have an inordinate amount of traffic at their home throughout the day and night, perhaps the issue is one for the police, since it is still illegal to sell or distribute marijuana, medical or otherwise. If they are dealing in the illegal drug, careful (documented) scrutiny of these comings and goings might prove useful.

Miscellaneous Screening and Application Issues

• Occasionally, tenants apply for occupancy even though they cannot afford to purchase the home on their own, and perhaps would not qualify under the financial criteria imposed for acceptance into the park. However, they may have a parent or other person willing to assist in the purchase and willing to guarantee the applicant's performance. There is nothing wrong with this approach, assuming that the guarantor passes all of the financial criteria the park would impose. First, remember that the guarantor will not be living in the home - they may have their own housing requirements that impose financial limitations on them. If the tenant defaults, can the guarantor actually afford to pay the space rent? Under such cases, the financial criteria applied to co-signers should be more rigorous than those imposed on tenant applicants. Secondly, landlords should be sure to have their attorney draft a solid guarantee agreement that gives them the right to seek payment against the guarantor without having to first evict the tenant. Third, before accepting a co-signer, a landlord should ask whether they have a sufficiently significant relationship with the applicant such that they will actually be willing to subsidize the space rent if it is not paid.

• A fundamental problem in the tenant screening process is the denial process. Landlords must be prompt in informing applicants if their application is denied. Obviously, a denial can provoke an angry response. Landlords need to be proactive. MHCO has two forms to address the issue, so that the landlord or manager does not have to engage in any more explanation than that provided in the form. MHCO Form 10, identifies the source of the material or information resulting in the turn down. That is all the landlord is required to do, unless it comes from a credit reporting agency. In that case, MHCO's Form 10A should be given so that applicant has the ability to know which credit company was involved and track down the source of the information.

• It is due to financial issues that many applicants get turned down. Especially today. For that reason, MHCO has developed the "Straight Talk" form, describing manufactured home living and affordability issues. It should be used in all cases, if possible.

• Although we discussed the Statement of Policy ("SOP") above, there are two additional points to be made: (a) Always be sure to obtain a receipt (MHCO Form 7C), since it is proof positive that the resident received the SOP and the Rules and Rental or Lease Agreement. Without the receipt, the tenant can deny receiving it, and the burden of proof to establish delivery is on the landlord. This can be a difficult task unless witnesses were present who can verify delivery. (b) The second item to note is use of the Rent History attachment to the SOP a copy of the Rent History (Form 7A). This permits the tenant to see the monthly base rent for each of the five years preceding the current year of tenancy.

• Perhaps one of the most important (and newest) forms if not used, is the Flood Plain Notice (MHCO Form 6). It notifies those residents whose homes are located in all or part of a 100-year floodplain. This means that landlords and/or their managers, should look at a current FEMA map to determine whether all or a portion of their park is located inside such a plain. If so, those residents whose spaces are in the floodplain should be notified. While technically, being located in a 100-year floodplain means that flood water levels are statistically expected to flood onto the plain once every 100 years, most people realize that over the course of 100 years, there could be three or more such floods or none at all. The MHCO form, in compliance with Oregon statute, suggests to those receiving the notice that they consider obtaining flood insurance. The good news is that once having given this notice, a landlord is not liable for any uninsured water loss suffered by the resident due to a flood; the bad news is that failing to give the notice can subject the landlord to the lesser of two months' rent or the resident's actual damages, whichever is less.

Conclusion

Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes. Unfortunately, the desire to have the rental flow commence quickly sometimes results in the process becoming rushed. And landlords and managers should never allow the applicant to rush them. Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed. Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws.

[1] Rental Agreement MHCO Form 5A and Lease Agreement Form 5B.

[2] Rental Application MHCO Form 1, and Application Screening Charge Notice and Receipt, MHCO Form 9.

[3] See, ORS 90.680(5)

[4] Source of income would refer to whether the applicant was receiving some form of state or federal assistance, or child support, for example.

[5] While compliance with the law seems like a reasonable area of inquiry, the problem is that managers and landlords don't ask this question of a family from England or Germany. This creates the appearance that questions regarding immigration status are reserved for Latinos or those from other Central American countries. National origin is a constitutionally protected class. As a result, this type of selective screening creates (in legal terms) a "disparate impact" on folks from Mexico and Central America, and can therefore be found to be a violation of the Fair Housing laws.

[6] Occupancy limits are sometimes used as "tools" by landlords to impose restrictions on persons with larger families, and therefore poses a potential violation of the familial status protected status. This has not been a significant problem Oregon.

[7] Generally, the only strong justification for occupancy limits in family parks is where it can be claimed that too many people in a home overtaxes the utility systems. While legitimate in some instances, proving it could be very costly.

[8] However, prudence should be exercised here. You would not ask an obviously blind person to fill out a request for reasonable accommodation when asking for a guide dog.

Screening Criteria

The manufactured housing section of Oregon’s landlord-tenant law provides that “Any conditions the landlord applies in approving a purchaser…as a tenant in the event the tenant elects to sell the home” should be disclosed in the rental or lease agreement.”[1]Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what may be placed in the rental or lease agreement.

MHCO’s rental and lease agreement forms[2]contain a number of criteria that landlords may impose, such as:  (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.

Although there may be other criteria that landlords may wish to use when deciding whether to accept an applicant as a tenant, the above list is very comprehensive, and should be sufficient in imposing adequate guidelines when a tenant wishes to sell their home on site.  MHCO additionally has an application form which solicits this and other information from prospective tenants.

Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check that provides the necessary verification.  Although Oregon law imposes a 7-day period within which landlords have to respond to a submitted application, it does notprohibit landlords from imposing a longer period so long as the applicant agrees.  Additionally, Oregon law expressly states that the 7-day period does not commence if the application is incomplete or inaccurate.  Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete – and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned.  Accepting an incomplete application or continuing with the process after discovering that the applicant has provided bad information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.

It is also important to note that Oregon law permits the “…landlord and the prospective purchaser (to) agree to a longer time period for the landlord to evaluate the prospective purchaser’s application or to allow the prospective purchaser to address any failure to meet the landlord’s screening or admission criteria.”  Thus, as noted on the MHCO Application form, there is a place for the landlord to insert a period longer than the statutory seven day period.  If the landlord suspects any delay, either on the applicant’s part or his own part, a longer period should be inserted. If the applicant rejects this extension, then the landlord can decide whether he wants to proceed to process the application at all.

Note: If a tenant has not previously given the landlord the 10 days’ advance notice of intent to sell as required in ORS 90.680(4) (a), the landlord’s seven day response time is extended to 10 days. But remember, in no instances does the landlord have to receipt and process an inaccurate or incomplete application.  It is better not to accept a defective application – or return it immediately upon finding that it is inaccurate or incomplete, than continuing to process it. 

If a landlord requires a prospective purchaser to submit an application for occupancy at the time that the landlord gives the prospective purchaser the application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale. It is important to remember that the terms of these park document given to the prospective tenant need not be the same as those in the existing (i.e. selling) tenant’s documents.[3]

Park Documents. 

Landlords and managers should always remember that when they change one of the park documents, they may have to change others. This is because of two risks: (a) The failure to incorporate a change in the lease, say, into the Statement of Policy, and (b) An inconsistency between one or more of the park documents, such as the rental agreement and the rules. Rules can generally be changed in the middle of a tenancy, but rental agreements cannot.  So landlords should remember to make sure their documents are all internally consistent.

Fair Housing Laws.

The state and federal fair housing laws are essentially – but not completely – the same.  Landlords and managers should familiarize themselves with any special ordinances found in their city or county laws.  However, Oregon law prohibits any form of discrimination in the sale or rental of housing when directed at the following protected classes: “…race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income.”[4]  The easiest, best, and safest way to deal with the risk of a discrimination claim is to make all screening criteria facially neutral.  Do not have rules which – even unintentionally - could have a negative impact on a member of a protected class.  

In Oregon, most claims of discrimination relate to familial status.  Examples range from managers encouraging families to purchase and reside in one particular area of the community (where there are more children), to making off-hand comments to applicants (e.g. “there would be very few children for your kids to play with here”) that may be construed as indicating a desire not to rent to people with children.  For this reason, landlords and managers should strive to apply their screening criteria neutrallyregardless of the applicant’s membership in a protected class.  

Additionally, caution should be exercised in answering questions over the phone, since federal and state “testers” have been known to test parks by making multiple phone calls asking various loaded questions, such as “Is this a good place to raise my children?”  If the community is a family park, the best response to open-ended telephone inquiries is to tell the caller that it is a family park, open to all, and that they are welcome to come in and pick up an application for processing.

One of the biggest areas of concern for landlords and managers today involve issues of immigration status.  At the risk of minimizing the problem, there is one basic rule that landlords and managers should always remember when screening applicants. While it is not a “silver bullet,” it should help avoid the vast majority of issues regarding immigration status.  Never treat any single applicant differently from another.  This means that landlords should not automatically “suspect” that certain persons are illegally in this country and then impose more rigorous screening criteria on them alone.  It is best not to ask about immigration status.[5]  If the applicant passes the same screening criteria imposed upon others, and all of the information in their application checks out, you should accept the current applicant, regardless of whether you have suspicions about their immigration status. One of the frequently asked questions is whether a landlord may insist that applicants provide their social security number.  While this is not automatically illegal, it can be when applied to some applicants and not others.  Consistency is the name of the game.  Do not request verification in some cases and not others.  Do not accept some tenants who fail to provide the number, but accept others (who are not obviously immigrants) without also providing such proof.

Another area of concern is occupancy limits or extra occupancy charges.[6]  This is somewhat of a grey area because Oregon law currently permits a two person per bedroom rule – assuming that it is expressly listed as part of the park’s screening criteria and uniformly applied.  However, the problem is that federal law contains no specific occupancy limits.  This means that, in theory, one could be in compliance with state law, while violating federal law.  For example, if a family consisted of two adults and three children who owned a 2-bedroom home, a "2-persons per bedroom" requirement would mean that they could not move into the park.  But if the third child was an infant who slept in the parents’ room, one may ask whether this standard is reasonable, even though it complies with Oregon law.  At the risk of violating federal law, which imposes no such occupancy limits, the better approach might be to avoid the “slippery slope” problem entirely, by not creating occupancy limits.[7]  

Perhaps the most difficult of screening criteria issues is in the area of assistance animals.  Since handicap is a protected class, this means that if one could establish a legitimate need for an assistance animal they could not be prevented from having one – even though the park might have a one-pet policy and this might be their second pet.  This could be so even though the animal was not trained or certified in providing assistance. MHCO has Form 15 that may be given to tenants applying for a “reasonable accommodation” which is the technical term used when an allegedly handicapped person requests relief from strict application of a rule that interferes with their handicapped. [8]As most landlords and managers know, the handicap protections can be severely stretched.  There are many reasons for this, including, among other things, the handicap may be allegedly psychological, and the tenant has nothing more than a note from a doctor – not a treating psychologist or psychiatrist. 

The other difficult issue is that assistant animals are not technically “pets” and therefore are not subject to the requirement that the Pet Agreement be completed.  Ultimately it comes down to a rule of reason and proof.  Does it appear that the person requesting the accommodation is legitimately handicapped? Do they have a known history of the handicap – that is, has it ever come up before?  Does it appear that the claim of a handicap is new, and possibly raised as a pretext, say to circumvent a one-pet policy?  

Ultimately, the issue comes down to public safety in the community.  For example, if the tenant wanted to have a pit bull (in violation of a dangerous breed prohibition) or a bull-mastiff (in violation of a size restriction), the landlord should ask which battle he or she wants to fight?  If the tenant isn’t credible, has a history of skirting the rules on this or other issues, it might make sense to refuse and let them take the next step.  If they bring the animal into the park in light of the denial, you will have a choice; either do nothing or send out a notice of violation which would require removal of the animal.  The risk in allowing dangerous or oversized breed into the park is that it may harm someone, and then the landlord will have to defend a lawsuit for failing to enforce their own rules.  Additionally, in consenting, the precedent has been set, now permitting such animals based upon a tenant’s assertion the need it for assistance.  Remember, “reasonable accommodations” need only be “reasonable.”  Dogs with vicious propensities or who pose danger to children because of their size, are not the only type of assistance animals available.

Marijuana cards raise the same issue, although perhaps even worse, since the cards seem to be freely given to almost anyone.  In some cases, however, this too can be dealt with on another level. If the persons with medical marijuana cards have an inordinate amount of traffic at their home throughout the day and night, perhaps the issue is one for the police, since it is still illegal to sell or distribute marijuana, medical or otherwise.  If they are dealing in the illegal drug, careful (documented) scrutiny of these comings and goings might prove useful.

Miscellaneous Screening and Application Issues

• Occasionally, tenants apply for occupancy even though they cannot afford to purchase the home on their own, and perhaps would not qualify under the financial criteria imposed for acceptance into the park.  However, they may have a parent or other person willing to assist in the purchase and willing to guarantee the applicant’s performance.  There is nothing wrong with this approach, assuming that the guarantor passes all of the financial criteria the park would impose.  First, remember that the guarantor will not be living in the home – they may have their own housing requirements that impose financial limitations on them.  If the tenant defaults, can the guarantor actuallyaffordto pay the space rent?  Under such cases, the financial criteria applied to co-signers should be more rigorous than those imposed on tenant applicants.  Secondly, landlords should be sure to have their attorney draft a solid guarantee agreement that gives them the right to seek payment against the guarantor without having to first evict the tenant.  Third, before accepting a co-signer, a landlord should ask whether they have a sufficiently significant relationship with the applicant such that they will actually be willing to subsidize the space rent if it is not paid.  

• A fundamental problem in the tenant screening process is the denial process.  Landlords must be prompt in informing applicants if their application is denied. Obviously, a denial can provoke an angry response.  Landlords need to be proactive.  MHCO has two forms to address the issue, so that the landlord or manager does not have to engage in any more explanation than that provided in the form.  MHCO Form 10, identifies the source of the material or information resulting in the turn down.  That is all the landlord is required to do, unless it comes from a credit reporting agency. In that case, MHCO’s Form 10A should be given so that applicant has the ability to know which credit company was involved and track down the source of the information.  

• It is due to financial issues that many applicants get turned down.  Especially today. For that reason, MHCO has developed the “Straight Talk” form, describing manufactured home living and affordability issues.  It should be used in all cases, if possible. 

• Although we discussed the Statement of Policy (“SOP”) above, there are two additional points to be made: (a) Always be sure to obtain a receipt (MHCO Form 7C), since it is proof positive that the resident received the SOP and the Rules and Rental or Lease Agreement.  Without the receipt, the tenant can deny receiving it, and the burden of proof to establish delivery is on the landlord.  This can be a difficult task unless witnesses were present who can verify delivery.  (b) The second item to note is use of the Rent History attachment to the SOP a copy of the Rent History (Form 7A).  This permits the tenant to see the monthly base rent for each of the five years preceding the current year of tenancy.

• Perhaps one of the most important (and newest) forms if not used, is the Flood Plain Notice (MHCO Form 6).  It notifies those residents whose homes are located in all or part of a 100-year floodplain.  This means that landlords and/or their managers, should look at a currentFEMA map to determine whether all or a portion of their park is located inside such a plain.  If so, those residents whose spaces are in the floodplain should be notified.  While technically, being located in a 100-year floodplain means that flood water levels are statistically expected to flood onto the plain once every 100 years, most people realize that over the course of 100 years, there could be three or more such floods or none at all.  The MHCO form, in compliance with Oregon statute, suggests to those receiving the notice that they consider obtaining flood insurance.  The good news is that once having given this notice, a landlord is not liable for any uninsured water loss suffered by the resident due to a flood; the bad news is that failing to give the notice can subject the landlord to the lesser of two months’ rent or the resident’s actual damages, whichever is less.

Conclusion

Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes.  Unfortunately, the desire to have the rental flow commence quickly sometimes results in the process becoming rushed.  And landlords and managers should never allow the applicant to rush them.  Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed.  Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws.

©Copyright by Phillip C. Querin. No portion may be reproduced without the express written consent of the author.

[1]Rental Agreement MHCO Form 5A and Lease Agreement Form 5B.

[2]Rental Application MHCO Form 1, and Application Screening Charge Notice and Receipt, MHCO Form 9.

[3]See, ORS 90.680(5)

[4]Source of income would refer to whether the applicant was receiving some form of state or federal assistance, or child support, for example.

[5]While compliance with the law seems like a reasonable area of inquiry, the problem is that managers and landlords don’t ask this question of a family from England or Germany.  This creates the appearance that questions regarding immigration status are reserved for Latinos or those from other Central American countries. National origin is a constitutionally protected class.  As a result, this type of selective screening creates (in legal terms) a “disparate impact” on folks from Mexico and Central America, and can therefore be found to be a violation of the Fair Housing laws.

[6]Occupancy limits are sometimes used as “tools” by landlords to impose restrictions on persons with larger families, and therefore poses a potential violation of the familial status protected status.  This has not been a significant problem Oregon.

[7]Generally, the only strong justification for occupancy limits in family parks is where it can be claimed that too many people in a home overtaxes the utility systems.  While legitimate in some instances, proving it could be very costly. 

[8]However, prudence should be exercised here. You would not ask an obviously blind person to fill out a request for reasonable accommodation when asking for a guide dog.

In this article, MHCO tackles a challenging problem: resident hoarding. In multifamily housing communities, extreme cases of hoarding can pose serious health and safety hazards—not only to anyone living in the affected unit, but also to neighbors who may share walls, ceilings, floors, hallways, and even HVAC systems. Potential problems include fire hazards, mold and other environmental dangers, pests and vermin, foul odors, and even structural damage. 

Unfortunately, it’s often difficult to detect because people with a hoarding problem rarely seek help on their own. Conditions inside the unit may not come to light until an emergency crops up—or conditions inside seep out into neighboring units or common areas. By the time it’s discovered, the problem may be so out of hand that your first impulse is to order the resident to clean up immediately or move out.

But that approach could land you in fair housing trouble. Hoarding disorder is a recognized mental health impairment, so the resident would probably qualify as an individual with a disability under fair housing law, triggering your responsibility to try to work out a reasonable accommodation to allow him to continue to live there. There are limits to your obligations toward the resident, but you’ll have to tread carefully—and document your efforts to work out a resolution—to prevent or defend a potential fair housing complaint.

In this lesson, we’ll explain how fair housing law may protect residents engaged in hoarding behavior, as well as the limits to those protections. Then, we’ll offer seven rules to help you comply with fair housing laws when dealing with a hoarding problem. 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans discrimination against individuals with disabilities. The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activities. The law applies to individuals who have a disability, as well as those who are “regarded as” or have a “record of” having a disability—even though they may not in fact have a qualifying disability under fair housing law.

Hoarding is more than simply having too much clutter. It’s a recognized mental health disorder, characterized by saving things that others may view as worthless, and persistent difficulty in getting rid of or parting with possessions, which leads to clutter that disrupts an individual’s ability to use their living space, according to the American Psychiatric Association (APA). At some point, it’s likely that you’ll be confronted with a hoarding problem, which may affect 2 to 6 percent of the U.S. adult population, according to the APA.

TIME OUT!

What Is Hoarding Disorder?

In 2013, the APA recognized hoarding disorder as an official psychiatric diagnosis in its Diagnostic Statistical Manual V (DSM-V). Specific symptoms for a hoarding diagnosis include:

• Lasting problems with throwing out or giving away possessions, regardless of their actual value.
• The problems are due to a perceived need to save the items and distress linked to parting with them.
• Items fill, block, and clutter active living spaces so they cannot be used, or use is hampered by the large number of items (if living spaces are clear it is due to help from others).

Hoarding causes major distress or problems in social, work, or other important areas of functioning (including maintaining a safe environment for self and others). Many people with hoarding disorder also experience other mental disorders, including depression, anxiety disorders, attention deficit/hyperactivity disorder, or alcohol use disorder.

Source: APA

The inclusion of hoarding as an official psychiatric disorder in the DSM-V confirms that hoarding is a mental disability, says fair housing attorney Lynn Dover. Federal and state fair housing laws protect people with mental disabilities from discrimination and require housing providers to make reasonable accommodations when necessary to afford a resident with a disability an equal opportunity to use and enjoy her housing, she says.

In hoarding cases, for example, the community may be asked to hold off on eviction proceedings to allow enough time for the resident to remedy the health and safety issues. Assuming it’s safe to do so, the community may have to grant the request—made by or on behalf of the resident—because there’s an identifiable relationship between the requested accommodation and the resident’s disability.

Nevertheless, there are limits to your obligations to grant reasonable accommodations even if a resident qualifies under the disability provisions. For one thing, the FHA doesn’t protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation.

Furthermore, the law doesn’t require you to grant an accommodation request if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. But tread carefully: Even if the resident’s request is unreasonable, communities are required to engage in an “interactive process” with the resident to try to work out an alternative accommodation that would meet his disability-related needs without posing an undue burden on the community or require a fundamental alteration of its operations.

7 RULES FOR RESPONDING TO A HOARDING PROBLEM

Rule #1: Watch for Signs of Hoarding

Train your staff to be vigilant for any signs of hoarding behavior by your residents. Residents engaged in hoarding behavior rarely come forward on their own, so you may not be aware of a hoarding problem until its effects seep outside the resident’s unit and into hallways or neighboring units.

The observations of staff members are crucial to detect hoarding problems. During their routine duties, your leasing, maintenance, housekeeping, or security staff may notice excess clutter or noxious odors in hallways and common areas that seem be emanating from a particular unit. Train staff to report such problems immediately, so that you’ll be able to address the issue at the earliest stage possible.

For the same reason, pay attention to similar complaints from neighbors, particularly when the source of the problem seems to be next door or on the floors above and below a particular unit. Hoarding isn’t limited to common possessions, such as clothing, newspapers, or plastic bags; some people hoard garbage and rotting food—even animals or human waste products. Any and all can lead to serious health and safety problems involving fire hazards, impaired air quality, mold growth, pest infestation, and structural damage, which can spread rapidly and lead to serious injury or disease without prompt attention. 

Rule #2: Investigate Potential Hoarding Problems

As soon as potential hoarding problems come to your attention, inspect common areas and inside the units of residents who have lodged complaints. Make an effort to determine whether complaints all seem to be pointing to a particular unit.

The next step is to contact the resident whose unit appears to be the source of the problem. Your right to enter and inspect a resident’s unit depends on a variety of factors, including the seriousness of the reported problem, state and local sanitary codes and landlord-tenant laws, the provisions of the lease, and other legal requirements.

In general, communities may enter the units of residents only with reasonable advance notice and during normal business hours, except in cases of emergency. Be sure to document that you have complied with applicable requirements, which will be particularly important if the resident in fact has a hoarding problem and denies you entry.

Once inside, document the conditions, particularly focusing on any violations of lease provisions and applicable health and safety codes. Make notes about the nature and cause of any noxious smells, pest infestations, and other problems that have spread outside the unit. Attempt to take photos since descriptions of hoarding conditions can go only so far to show the seriousness of a hoarding problem. However, if the resident is adamant about not having photos taken, it’s best not to push the issue since the goal is to gain the resident’s cooperation in remedying the unit’s condition.

Whatever you find inside the unit, be sure to treat the resident with dignity and respect. That may be challenging if confronted with the telltale signs of hoarding: an accumulation of large amounts of clothing, papers, bags, newspapers, blocked exits, rotting food, signs of rodent or pest infestation, large numbers of animals, or human or animal waste. Unless you maintain a neutral, nonjudgmental demeanor, you could inadvertently make matters worse by exacerbating the resident’s distrust and resistance to change.

Here’s what you shouldn’t do: Take matters into your own hands to clear away the resident’s possessions. You might believe that you’re helping the resident to conquer a problem that she’s been promising to rectify for years, but that approach can backfire unless the resident gives you the authority to do so, warns F. Willis Caruso, Esq., Clinical Professor Emeritus of the John Marshall Law School Fair Housing Legal Support Center and Clinic.

Rule #3: Listen for Reasonable Accommodation Requests

When resident hoarding comes to light, follow your standard policies and procedures for addressing safety and health problems. Comply with notice requirements dictated by the lease and applicable law if conditions inside the unit are bad enough to rise to the level of a direct threat that can’t be eliminated or sufficiently mitigated by a reasonable accommodation.

Before taking legal action against a resident with a hoarding problem, determine whether the resident qualifies as an individual with a disability under fair housing law. Obvious signs of unsafe and unsanitary hoarding are usually enough to suggest that the resident has hoarding disorder—a recognized mental impairment. As a result, fair housing law may require you to grant a reasonable accommodation that would give the resident time to clean out the unit to preserve her residency.

Dover says it’s rare for residents with hoarding issues to specifically ask the owner or management for an accommodation. Nevertheless, you should listen for reasonable accommodation requests, which may be framed as something the resident “needs” or “wants” because of a disability. In hoarding cases, it may be a request from the resident, a family member, or an advocate to delay legal action against the resident to give him more time to clean out the unit.

In most cases, that’s enough to qualify as a reasonable accommodation request since the FHA doesn’t require that the request be made in a particular manner or at a particular time. According to federal guidelines, a resident or applicant makes a reasonable accommodation request whenever he makes it clear to the housing provider that he’s requesting an exception, change, or adjustment to a rule, policy, practice, or rule because of a disability.

Caruso emphasizes the need to train staff on how to respond to reasonable accommodation requests. It’s a good idea to have a standard form for detailing requests for reasonable accommodations, but you could get into trouble if the staff isn’t trained on how to use it. Training should also cover what to do with the request, including when to go up the chain of command when dealing with hoarding and other challenging issues, he says.

Rule #4: Evaluate Reasonable Accommodations to Remedy Hoarding Problems

Follow your community’s policies and procedures if a resident or someone on his behalf requests a reasonable accommodation to address hoarding problems within a unit. Depending on the seriousness of the health and safety risks involved, you may not have to grant the request—but you do have to take it seriously by responding formally and promptly. Under HUD guidelines, an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation.

Fair housing advocates take the position that before trying to evict a resident whose mental disability is causing him to violate the terms of his lease or community rules, good faith efforts must be made to accommodate his disability even if he hasn’t specifically asked for an accommodation, according to Dover. This generally requires the resident be given opportunities to come into compliance so he can retain the residency.

Dover offers these examples of potential accommodations:

• Meeting with the resident to identify health and safety issues that need to be addressed in the unit;
• Establishing goals and timelines with the resident to address the health and safety issues;
• Setting periodic dates for follow-up visits to the unit to monitor compliance;
• Memorializing the goals, timelines, and re-inspections in a written agreement that the resident signs;
• Providing the resident with a list of community resources that can assist persons with hoarding issues;
• Working with a fair housing and/or mental health advocacy group or attorney assisting the resident to develop a plan to bring the unit into compliance;
• Extending time for compliance with a legal notice that has been served or entering into a stipulation in an eviction that gives the resident a final opportunity to address the health and safety issues and retain the tenancy.

When dealing with a hoarding situation, the focus should only be on solving legitimate health and safety issues rather than on trying to achieve ideal housekeeping habits, says Dover. Even if the resident meets minimum health and safety standards, you should recognize that the unit may not meet your expectations of an “optimal condition.” It’s also important to realize that residents with hoarding issues may not recognize they have the problem (or the severity of the problem) or be equipped to resolve the hoarding problem on their own, she says.

If health and safety issues are initially resolved, you should be aware that, even with treatment, hoarding disorder has a high rate of recidivism, says Dover. This means that a resident with hoarding issues may “slip” and re-hoard again in the future. Therefore, any written agreement made with the resident should include language that provides for periodic unit “check-ins” to monitor ongoing compliance after the health and safety issues have been remedied and a specified time period for correction of any future health and safety issues.

Rule #5: Engage in an Interactive Process to Resolve Hoarding Problems

Even when a resident qualifies as an individual with a disability, a request for an extended period to clean the unit may be unreasonable if conditions inside pose immediate or serious health and safety risks.

Fair housing law doesn’t require communities to grant accommodation requests that are unreasonable. Dover says that accommodation may not be required, and termination of the tenancy may be possible, if:

• The person is a clear, direct, and immediate threat to the health and safety of other residents or the property and there’s no accommodation that will eliminate or sufficiently mitigate the health and safety issues;
• There are serious health and safety issues that can’t be mitigated through accommodation;
• The resident has caused serious monetary damage to the unit and won’t reimburse the landlord for the cost to repair the unit; or
• The resident won’t engage in the accommodation process or cooperate to bring the unit back into compliance.

Nevertheless, tread carefully before rejecting a requested accommodation on the grounds that it’s unreasonable. HUD says you should discuss with the resident whether there’s an alternative accommodation that would effectively address his disability-related needs without posing an undue burden on the community.

For example, you may work out a plan with time frames for resolving lease violations, but you may have to be flexible if the resident fails to remove enough belongings to remedy valid safety and health concerns. It may take multiple attempts, extended deadlines, or outside help to alleviate problems inside the unit. And you may have to be satisfied with less than “broom clean” conditions; if the resident remedies health and safety problems, it may be unreasonable to impose overly stringent standards.

To keep things on track, the plan should allow for periodic unit visits during the accommodation process—as often as once a month, if warranted. Hoarding is notoriously difficult to treat, and recurrences are common, so periodic unit visits to monitor compliance may help ward off future problems. But it’s important to make sure that the frequency of these visits isn’t overly intrusive. In most situations, the visits after the resident has remedied the unit shouldn’t be more frequent than quarterly at most. The agreement should also spell out consequences for failing to maintain the unit as agreed—for example, by giving you the right to serve a new legal notice or reinstate eviction proceedings if the resident doesn’t live up to her agreement to maintain the premises.

Rule #6: Proceed with Eviction if Interactive Process Fails

If the resident ignores warnings about lease violations or otherwise fails to address hoarding problems, you may initiate proceedings to recover possession of the unit. Be sure to document your compliance with notice provisions and other legal requirements imposed by state and local law. It’s also important to have documentation of the condition of the premises, including photos, if available; descriptions; and witness testimony.

Even after legal proceedings have commenced, however, you should be prepared for an 11th-hour request to delay eviction proceedings to allow the resident more time to clean up the premises. Because people with hoarding disorder are resistant to parting with their possessions, it often takes official legal proceedings that threaten their continued residency to prompt them to do something to remedy the problem.

Nevertheless, there are limits on your obligation to accommodate residents whose hoarding behavior poses ongoing safety and health hazards to other residents. Fair housing law doesn’t protect anyone, with or without a disability, who poses a direct threat to the health and safety of others or whose behavior would result in substantial physical damage to the property of others, if the threat can’t be substantially reduced or eliminated with a reasonable accommodation.

To determine whether a resident with a hoarding problem poses a direct threat, the community must make an individualized assessment based on reliable, objective evidence, such as current conduct or recent history of overt acts. HUD says that the assessment must consider:

• The nature, duration, and severity of the risk of injury;
• The probability that injury will occur; and
• Whether there are reasonable accommodations that will eliminate the direct threat.

Because of these and other requirements, Dover says it’s a good idea to seek legal advice before taking any action to terminate a tenancy if hoarding issues may be involved. No two hoarding situations are alike, so each situation involving a resident with hoarding issues requires analysis based on the facts of the particular case. If not handled appropriately, it could result in a fair housing complaint being filed against you, the property, and the company, she warns.

Rule #7: Recognize that Residents May Get Multiple Chances to Remedy Hoarding Problems

Even when you’ve proven that the resident’s hoarding justifies eviction, you should be prepared for further delays under certain circumstances. No matter how patient you’ve been with efforts to address hoarding problems, the courts may be willing to put an eviction on hold to allow more time to remedy the situation.

Example: In November 2019, a court ruled that a New York cooperative community proved that hoarding conditions in a resident’s unit justified her eviction but put the matter on hold to give her guardian more time to clean it up or move her to another residence.

The resident was an elderly woman who had lived at the community for 10 years. In 2017, the landlord issued a termination notice and later initiated eviction proceedings because conditions in her unit amounted to a nuisance. The landlord claimed that the resident violated the lease by keeping her unit in poor condition by amassing clutter in the form of garbage, books, and newspapers, resulting in infestation, unreasonable odors, and an increased risk of fire.

Nearly a year later, a court appointed a guardian with authority to access her unit, arrange for a heavy-duty cleaning, and if necessary, remove the resident from the premises to complete the cleaning. The court later expanded the guardian’s authority to defend the resident in housing court proceedings and arrange for heavy-duty cleanings and home care services.

After multiple attempts to resolve the matter, the case went to trial in 2019. An employee of the management company testified that strong odors of urine and garbage continued to emanate from the resident’s unit as recently as the day before the hearing. Although a cleaning had occurred in 2018, the employee said that it alleviated the odors for only a few weeks.

A maintenance worker also testified that he was in the resident’s unit twice that year to inspect her air conditioning units. He said he observed piles of garbage, clothing, papers, and other debris that made navigating the unit difficult and that there were extreme odors of urine and feces. He produced photos, which showed garbage and clutter strewn throughout her unit.

The resident’s next-door neighbor also testified about pungent odors emanating from the resident’s unit and that he was concerned that the smell could cause health problems or diminish the value of his apartment.

The court ruled that the landlord proved that the resident breached the lease by maintaining a nuisance, which interfered with other residents’ use and enjoyment of their homes. It was clear that the resident’s failure to keep her unit free from clutter and in a sanitary condition over the course of at least two years represented a continuity and recurrence of objectionable conduct.

Although the landlord was entitled to final judgment of possession and warrant of eviction, the court had broad discretion to determine whether a resident with a disability should be given an opportunity to cure the condition or be allowed additional time to relocate. In this case, the court said that the resident, an elderly woman who had lived in the current unit for 10 years, would be likely to suffer extreme hardship if a stay weren’t granted. Furthermore, the guardian was making good faith efforts to secure a safe, affordable dwelling for the resident and that it was reasonable to afford the guardian more time to do so. In the meantime, the resident had allowed the landlord to have access to her unit and had cooperated with the guardian’s efforts to keep the unit clean and free of clutter.

The court granted a stay of execution for 90 days to allow the guardian time to sell her unit and relocate her to a suitable environment, or in the alternative, to allow the guardian an opportunity to cure the nuisance condition, without prejudice to seek a further stay upon the showing of good cause [140 W. End Ave. Owners Corp. v. Dinah L., New York, November 2019].

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

MHCO.ORG Note:  Pressure continues to build to provide more renter rights and legalize some form of rent control or rent justification.  Portland City Council's action this afternoon is yet another precursor of more to come in the Oregon Legislature.  Stay tuned - this issue is not going away anytime soon.

* * * * * *

By Jessica Floum

The Oregonian/OregonLive

Exceptions to Portland land use rules, protections for city renters facing eviction or big rent hikes, and political pressure to devote taxpayer and donor money to affordable housing will continue for the foreseeable future, following a unanimous Portland City Council vote Wednesday.

All those measures are intended to curb Portland's critical shortage of affordable housing and spike in homelessness.

The council voted Wednesday to extend for a second time its a declared "housing emergency." It also voted to extend a renter protection policy adopted in February by six months to give city officials time to implement a permanent renter's rights policy.

Instituted in 2015, the emergency declaration has encouraged spending on housing, allowed for flexibility in where city and county officials can open shelters and fast-tracked building permits for affordable housing projects. The council extended the declaration by 18 months and charged the Portland Housing Bureau and the city and county's Joint Office on Homeless Services to develop criteria for when the city should lift the temporary rules.

Commissioners hope to implement permanent rules in the city's zoning codes by then. They might include permanent zoning exemptions that allow for homeless camps such as Right 2 Dream Too or emergency homeless shelters in the winter.

"There's more we need to do to stabilize the systems that impact housing and homelessness in our community," Mayor Ted Wheeler said. "This is an emergency that requires action now."

Led by former housing advocate and city Commissioner Chloe Eudaly early this year, the council adopted a tenant protection rule that requires landlords to pay $2,900 to $4,500 in relocation costs to renters whom they evict without cause or who must move as the result of a rent increase of 10 percent or more.

The council extended that policy, set to expire Friday, by six months. Wheeler, the housing commissioner, pledged to bring a permanent renter protection rule back to the council on December 6.

Dozens of renters urged the council Wednesday to take the rule further.

They shared experiences of landlords finding ways around the rule such as increasing rents by 9.97 percent instead of 10 percent and requiring renters to pay for utilities that the landlord previously covered.

They advocated for closing an exemption for "mom and pop" landlords who only rent one unit. The impact on the renters is harmful, regardless of who the landlord is, they said.

Many of the most vulnerable tenants rent from smaller landlords because they can't access "mainstream" rental opportunities due to criminal histories or other "troubled records," said Katrina Holland, executive director of renter advocacy group Community Alliance of Tenants.

The rule carried out a 2015 Oregon Legislature directive through Senate Bill 705 that the Oregon Department of Environmental Quality enact rule changes by the end of 2015, requiring an owner of a residential building or a person proposing a demolition of a residential building to have an accredited inspector perform an asbestos survey before demolishing that building.

The rules addresses growing concern among Oregonians about exposure to cancer-causing asbestos fibers, which can be released into the air as a result of improper handling or disposal of asbestos-containing materials. In addition, the temporary rules require the owner of a residential building or person performing a home demolition submit to the DEQ, upon DEQ's request, a copy of the asbestos survey report.

The rule changes offer three exemptions to the pre-demolition survey requirement:

• If the residential building was built after Jan. 1, 2004
• If all materials in a residential building is managed as asbestos-containing material
• DEQ may approve, on a case-by-case basis, a written request to waive the survey requirement. The written request must include supporting documentation that demonstrates, to DEQ's satisfaction, that a survey is not required. Under this exemption, no demolition may occur until DEQ has approved, in writing, the request for a pre-demolition survey waiver.

State of Oregon Department of Environmental Quality
Licensed Asbestos Abatement Contractors

This is a list of asbestos abatement contractors that have obtained a license from the Oregon Department of Environmental Quality. This list does not constitute an endorsement by the Department. Services provided and costs are solely determined between the abatement contractors and their customer.

Abatement Pro, Inc.

4149 S. Cubola Avenue Meridian, ID 83642 208-853-1789

Abatement Services, Inc.

PO Box 747 Beavercreek, OR 97004 503-765-5257

Alpine Abatement Associates, Inc.

PO Box 1557 Bend, OR 97709 541-388-2672

Asbestos Abatement, Inc.

PO Box 2593 Boise, ID 83714 208-345-3574

Asbestos Control Group, Inc.

19386 SW 55th Court Tualatin, OR 97062 503-692-5174

ATEZ, Inc.

PO Box 126 Harrisburg, OR 97446 541-995-6008

Cascade Insulation, Inc.

22356 Nelson Road Bend, OR 97701 541-388-2600

Envirocon, Inc.

PO Box 16655 Missoula, MT 59808 406-523-1150

Enviromex Contracting, Inc.

12435 Clow Corner Road Dallas, OR 97338 503-831-2000

Environmental Resources, Inc.

PO Box 5954 Salem, OR 97304 503-991-3545

First Response Environmental Services

PO Box 3323
Central Point, OR 97502 541-621-0911

Global Pacific Environmental

PO Box 2759 Vancouver, WA 98660 360-993-4479 503-223-4401

Gre-Energy Constructors, Inc.

PO Box 13218 Salem, OR 97309 503-877-1495

IRS Environmental of Portland

777 SW Armco Avenue Hillsboro, OR 97123 503-693-6388

IRS Environmental of Washington

PO Box 15216 Spokane, WA 99215 509-927-7867

Keystone Contracting, Inc.

417 NW 209th Street Ridgefield, WA 98642 360-887-0868

3 Kings Environmental, Inc.

PO Box 280 Battleground, WA 98604 360-666-5464

Koos Environmental Services, Inc.

PO Box 4068
Coos Bay, OR 97420 541-266-0511

Lake Oswego Insulation Company (1)

5930 SW Jean Road Lake Oswego, OR 97035 503-245-6460

Lake Oswego Insulation Company (2) Mid-Valley Office
27171 Clear Lake Road
Eugene, OR 97402

541-953-8301

Lodge Environmental, Inc.

2084 Roosevelt Blvd. Suite A Eugene, OR 97402 541-461-8001

Minority Abatement Contractors

3200 NE 65th Street Vancouver, WA 98663 360-750-1900

Net Compliance Environmental LLC

2112 E. 26th Street Vancouver, WA 98661 360-699-4015

Northstar CG, LP

10367 SE Helena Street Milwaukie, OR 97222 503-255-5999

Northstar Demolition & Remediation LP

404 N. Berry Street Brea, CA 92821-3104 714-672-3501

Northwest Abatement Corporation

7735 SE 68th Avenue Portland, OR 97206 971-263-9815

Oregon Abatement

4929 NE 35th Avenue Portland, OR 97211 503-740-9758

Oregon Environmental

558 SE 36th Avenue Hillsboro, OR 97123 503-710-0346

Pacific Environmental Group, Inc. (1)

PO Box 22306 Eugene, OR 97402 541-767-3770

Pacific Environmental Group, Inc. (2)

2302 Ermine Court SE Albany, OR 97322 541-926-8707

Pacific Northwest Environmental

19645 SE Sunnyside Road Damascus, OR 97089 503-658-6606

Pacific Technologies, Inc.

PO Box 4846 Boise, ID 83711 208-344-8668

Performance Abatement Services, Inc.

13600 NE 10th Avenue Vancouver, WA 98685 360-574-8400

Petrochem Insulation, Inc.

110 Corporate Place Vallejo, CA 94590 707-644-7458

Revised 6/17/15

Professional Minority Group, Inc.

27090 SE Highway 224 Eagle Creek, OR 97022 503-761-5924

Rhine Demolition, LLC

1124 112th Street East Tacoma, WA 98445 253-537-5852

RMCAT Environmental/BELFOR

12823 NE Airport Way Portland, OR 97230 541-261-6442

Rose City Contracting, Inc.

29791 SW Kinsman Road Wilsonville, OR 97070 503-685-9505

Safeway Services LLC

285 Liberty Street NE Salem, OR 97301 713-824-1730

SMAF Environmental LLC

PO Box 672 Prineville, OR 97754 541-447-5643

SPS Environmental Services

1201 S. Childers Road Orange, TX 77630 409-886-3959

Western States Environmental Services

PO Box 787
877 Beatty Street Medford, OR 97501 541-770-2482

W.L. Thomas Environmental, LLC

PO Box 8
Albany, OR 97321 541-928-5383

WM Dickson Company

3315 S. Pine Street Tacoma, WA 98409 253-472-4489

ZILCO NORTHWEST LLC

PO Box 1781
Beaverton, OR 97075-1781 503-519-1462

Revised 6/17/15

Checklist for Determining Contractor Qualifications

1. Regardless of how you may feel about a particular contractor, always ask for a list references from previous projects. That list should include persons willing to describe the reliability of the contractor and the quality of work performed by the contractor.

2. All asbestos contractors must have an Oregon DEQ asbestos abatement license and use only Oregon certified workers and supervisors.

3. You may also want to ask your contractor to provide air-monitoring data from previous projects done in accordance with Oregon OSHA or Oregon DEQ requirements. That information can also help you determine if the work habits and general procedures that contractor uses are acceptable.

4. All contractors must have written standard operating procedures and employee protection plans which include specific reference to Oregon OSHA medical monitoring and respirator training programs. In addition, the contractor must make available a copy of the Oregon OSHA and the DEQ asbestos rules. (Oregon rules: under OAR 340-248- 0005 through -0290.)

5. Contractors must also provide a list of any penalties that the contractor has paid due to not completing contractual requirements, because of cost overruns, and/or liquidated damages.

6. Any citations levied against the contractor by any Federal, State, or local government agencies for violations related to asbestos abatement should be identified by the contractor. Included with that information should be the name or project location, the date(s) of the project, and how the allegations were resolved.

7. Contractors should also supply a description detailing all legal proceedings, lawsuits, or claims that have been filed or levied against them or any of their past or present employees for asbestos related activities.

8. The contractor should also supply a list of all equipment that will be used for asbestos work. That list should include negative air machines, HEPA vacuums, the type of respiration equipment they will use, scaffolding, decontamination facilities, disposable clothing, etc.

Answer: All good questions. Here is what ORS 90.275 says about temporary occupant agreements:

• To create a temporary occupancy, the landlord, tenant and proposed temporary occupant must enter into a written temporary occupancy agreement (See, MHCO Form No ___.)
• The temporary occupant:
  • Is not a tenant entitled to occupy the dwelling unit to the exclusion of others; and
  • Does not have the rights of a tenant.
• 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.
• 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 shall 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.
• Except as provided in ORS 90.449 (Landlord discrimination against victim), the landlord may terminate the tenancy of the tenant as provided under ORS 90.392 (Termination of rental agreement by landlord for cause) or 90.630 (Termination by landlord) if the temporary occupant fails to promptly vacate the dwelling unit or if the tenant materially violates the temporary occupancy agreement.
• A temporary occupant shall be treated as a squatter if the temporary occupant 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.
• A landlord may not enter into a temporary occupancy agreement for the purpose of evading landlord responsibilities under ORS Chapter 90 or to diminish the rights of an applicant or tenant under this chapter.
• A tenant under a rental agreement may not be turned into a temporary occupant in the tenants own dwelling unit.
• A tenancy may not consist solely of a temporary occupancy - each tenancy must have at least one tenant.

So, to answer your question based upon the above rules, once the tenant passed away, the temporary occupant's right of occupancy ended, and it cannot be renewed, since there is no "tenant" to also reside there. Temporary occupants cannot occupy the premises alone. Here's my thinking:

• The temporary occupancy law does not contemplate that the person residing at the premises will be paying rent. That is why landlords may not pre-qualify temporary occupants based upon their financial capacity. If that was the intent in this case, you should have had the person apply for tenancy and become a co-tenant.
• Accordingly, you should not accept rent from the temporary occupant.
• You should try to find out who the next of kin are and learn what they intend to do with the home;
• It's possible, perhaps that if the estate wants to sell the home (which they have a right to do) the temporary occupant can purchase it and apply for tenancy (he/she should not complete any purchase until they qualify for tenancy).
• Otherwise, if the temporary occupant can make arrangements to vacate within a reasonable time (e.g. a couple of weeks) you can agree to this, perhaps in a short written agreement, but it should not accompany the payment of rent;
• Technically, the space was rented out until the end of the month, so not accepting rent for a few days into the following month should not be a hardship to you. Moreover under the abandonment statutes, once you issue a 45-day abandonment letter to the proper parties representing the estate, it is responsible for payment of the storage fee (which may not exceed current rent) going forward until removal or resale during the ensuing twelve months. See ORS 90.675(20).

Answer: 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.

Temporary occupants may be screened (except for financial capacity), and are held to the same criteria as tenants in regards to conduct, etc. Accordingly, if the Community has rules on pets, the TO must qualify.

If the tenant and daughter try to turn this into a reasonable accommodation issue, it is my opinion it still does not get her to first base. I can find no case law supporting the contention that a housing provider must make a reasonable accommodation to the daughter (as a TO) for permitting three large dogs in the Community.

You do NOT want to put the daughter on the rental agreement because that would make her a "tenant" in a legal sense, and trigger reasonable accommodation entitlements.

Introduction.  The Fair Labor Standards Act (“FLSA”) generally provides that when most employees work more than a 40-hour week, they are entitled to additional compensation. Commencing on July 1, 2024 the Department of Labor (“DOL”) regulations will provide new eligibility standards for overtime pay. Required overtime pay will now apply to workers earning less than $844/week (i.e., $43,888/year). The current rate is $684/week (i.e., $35,568/year).

Exemptions From New Law. These include bona fide executive, administrative or professional employees (typically referred to as the “EAP” exemption). They apply when: 

1. The employee is paid a salary;  

2. It is not below the minimum salary threshold amount; and 

3. The employee primarily performs executive, administrative or professional duties.

Generally. The DOL’s new overtime rule was based upon 33,000+ written comments and almost 30 meetings with stakeholders across the US. The department’s final rule on July 1, 2024 will increase the standard salary level and clarify which salaried workers are entitled to overtime pay protections under the FLSA. 

On January 1, 2025, the July 1, 2024 figures will increase; most salaried workers making less than $1,128/week (i.e., $58,656/year will become eligible for overtime pay. As these changes occur, job descriptions will determine overtime EAP exemption status.

The rule will also increase the total annual compensation requirement for highly compensated employees (who are not entitled to overtime pay under the FLSA (if certain requirements are met) from $107,432 per year to $132,964 per year on July 1, 2024, and to $151,164 per year on Jan. 1, 2025.

Starting July 1, 2027, these earnings thresholds will be updated every three years to keep pace with changes in worker salaries.

Conclusion.  The above discussion is a summary only and not legal advice. MHCO members should consult with their own legal counsel to (a) find out whether their employees qualify under the new standards and (b) revisit the job descriptions they have for them. See the DOL website here for more information.