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Answer:   This is a good question, and all too frequently ignored by owners and managers. The first question is whether the issue is addressed anywhere in the community documents, i.e. the statement of policy, rules, or rental agreement. Likely not. It really isn’t addressed in the Oregon Residential Landlord-Tenant Act, with the exception of ORS 90.222, which covers renter’s liability insurance, and is excluded from the manufactured housing section of the law.  

Strictly speaking, the fact that the home was destroyed and is likely uninhabitable does not make it any less of a resident responsibility than before the fire. In other words, it is the resident’s primary responsibility to either promptly repair, replace, or remove the home.  The space is still under lease or rental to the resident, so all of the same rules apply, i.e. to keep it in good condition and safe. If the home is nothing more than a shell, the resident should likely remove it as soon as possible.

If the resident does not have fire insurance to repair or replace the home, I suspect he or she will abandon it, thus making it your problem - or the problem of the lienholder if there is one. Incidentally, if there is a lienholder, the loan documents likely require fire insurance, and that it be a named insured on the policy.  If that is the case, then hopefully, between the resident and their insurance company, there may be available proceeds to repair or replace.[1]

If the resident abandons the home, you should immediately send out a 45-day abandonment letter, thus triggering your right (and duty) to take control of the personal property.  It is likely an attractive nuisance for children, which could result in injury to them, and liability to you.  In such case, you should consider having it either cordoned off with “No Trespassing” signs, or removed.  Make sure that you independently confirm that it is a total loss, and with no salvage value.  If there is salvage value, it belongs to the resident.

ORS 90.675is the abandonment law that applies generally to homes located in manufactured housing communities. Today it contains 23 separate subsections, a behemoth in size compared to most statutes.  Buried 21 sections down in the subterranean recesses of the statute is that portion of the law dealing with health, safety and welfare issues, in which 45 day letters and 30 response periods could not possibly work. In such situations, time is of the essence.  Accordingly, subsection 21 sets forth a fast-track protocol for declaring the abandonment of a home that poses certain risks to others (such as the abandoned shell of a home destroyed by fire). Below is a summary of what this subsection says:

If a governmental agency determines that the condition of the abandoned  home constitutes an extreme health or safety hazard under state or local law andthe agency determines that the hazard endangers others in the facility andrequires quick removal of the property, the landlord may sell or dispose of it by taking the following steps[2]:

· The date by which a tenant, lienholder, personal representative or designated person must contact a landlord to arrange for the disposition of the property shall not be less than 15 days after personal delivery or mailing of the abandonment letter required by ORS 90.675(3);

· The date by which a tenant, lienholder, personal representative or designated person must remove the property must be not less than seven (7) days after the date the tenant, lienholder, personal representative or designated person issues the abandonment letter;

· The contents of the abandonment letter must be in accordance with ORS 90.675(5), except that:

• The dates and deadlines in the notice must be consistent with the fast-track protocol above;
• The abandonment letter must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and
• The landlord must attach a copy of the agency’s determination to the abandonment letter.

We all know that 80% or more of a community homesites must be occupied by at least one 55+ person, and that documented proof of age must be consistently required to qualify for 55+ status under HOPA. Let's not forget that the requirements also mandate the re-survey.

What do the Regulations say? "...The procedures described in paragraph (b) [routinely determining the occupancy of each unit, including the identification of whether at least one occupant of each unit is 55 years of age or older] ... must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place once every two years ...."

For example, there were objections to the re-survey mandate on the grounds it was too burdensome. HUD stated that owners would not be unduly burdened by the update requirements since the information "will be readily available in the files."

This comment reflects that the survey requirement can be fulfilled by preparation of a summary of names and ages of the homeowners based on existing file information (assuming the files are up to date). One might annotate a rent roll with resident ages and satisfy the requirement. HUD emphasizes that "...the re-survey does not require that all supporting documents be collected again - only that the community confirm that those persons counted as occupying dwellings for purposes of meeting the 80% requirement are, in fact, still in occupancy."

It is also clear that the survey is a "summary" and not required to include underlying documentation (remember the POA must be obtained for approval of tenancy and kept in the resident's file): "[Only the overall survey summary is required to be available for review, not the supporting documentation. The word 'summary' has been added to this section").

Compilation of the "Summary"

In review of the files to compile the required "summary," it is possible that some files may be missing POA (Proof of Age) documentation. Missing POA reflects inconsistent conformance to a required age verification policy. This can be fatal to defending a "55+" status. Yet, there are plausible reasons why POA may be absent. Perhaps a resident's tenancy commenced before the date of enactment of the Fair Housing Amendments Act of 1988 (September 12, 1988): this was the last date to "grandfather" underage residents excluded from the calculation of the 80-20 requirement; perhaps the Xerox copier did not work on the day identification was checked; perhaps the applicant's age was so obvious that documentation was overlooked; perhaps the POA was misplaced. None of these explanations will "wash" with fair housing enforcers. Now is the time for review of this information. Supplementing resident files may bolster a defense of the "55+" status by proving the 80-20 ratio, but cannot substitute for consistent conformance to a policy of seeking POA documentation. HUD's requirements are crystal clear: "The housing facility or community must establish and maintain appropriate policies to require that occupants comply with the age verification procedures required by this section."

Should you seek missing POA information?

Yes. In a large scale review of resident files by fair housing enforcers, the main objective for review of proof of age may be to establish the 80-20 ratio: Proof of age in the file may itself be seen as evidence of adherence to collection of required data: even after-acquired information reflects, at least, compliance with the 2-year survey requirement. Proof of age includes

the following: driver's license (an expired or out-of-state license seems 'ok'), birth certificate, passport, immigration card, military identification, any other state, local, national, or international official documents containing a birth date of "comparable reliability." This may include birth certificates, baptismal or marriage documents, perhaps, and other public records.

What if the tenant refuses to provide proof of age?

New purchaser: Of course, refusal to supply proof of age when applying for tenancy is a basis for denying a tenancy application. The regulations also allow for a declaration from a member of the household over 18 years of age, stating that at least one person in the homesite is at least 55 years of age. This after-acquired information is permissible for the survey, but again does not bolster evidence of conformance to proof of age documentation required for tenancy approval.

HUD provides a skeletal sample of certification. This can also be used as part of the tenancy application alone or better yet as a backup to production of proof of age. The sample reads as follows: "I, (name), am 18 years of age or older and a member of the household that resides at (housing facility or community), (unit number or designation). I hereby certify that I have personal knowledge of the ages of the occupants of this household and that at least one occupant is 55 years of age or older." Actual proof of age should be obtained at the application stage to avoid false reporting - no defense to a failure to achieve the 80-20 ration.

The regs also allow for other proof of age if an existing resident refuses to provide it. HUD states that "[I]f the occupants ... refuse to comply with the age verification procedures, the [management] may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older. Such evidence may include: (1) Government records or documents, such as a local household census; (2) Prior forms or applications; or (3) A statement from an individual who has personal knowledge of the age of the occupants. The individual's statement must set forth the basis for such knowledge and be signed under the penalty of perjury."

Thus, the survey could be supplemented by including a sworn declaration or affidavit by any person with personal knowledge of the age of the resident's age. In past cases where proof of age was critically important, private investigation of public records to obtain that information has been conducted to provide such knowledge. Remember however, that obtaining proof of age "after the fact" shows compliance with the 2-year survey requirement, but does not substitute for a consistent practice of securing the required information at the time of processing the tenancy application.

HUD gives the following example as acceptable: "the owner of a mobile home park where the residents own the coach but rent the land requires a statement of whether at least one occupant is 55 years of age or older before any sublease or new rental." In other words, the qualification procedure can be instituted within the application process itself. HUD states such an example ("All new leases, new purchase agreements, or new applications contain a provision directly above the signatory line for leases, asserting that at least one occupant or the swelling will be 55 years of age or older. In addition the community surveys all current residents for their occupancy status in compliance with the 55 - or-older requirements"). Actual proof of age should always be required with submission of the tenancy application as well.

Conclusion

The continuing survey requirement is mandatory. Whether failure to comply will be fatal to the assertion of "older persons" status is unknown, but this survey requirement is part of the "intent" prong of operating an "older persons" community. In sum, it is time to compile the summary for your park.

(Reprinted with permission from MHI)

Do you operate a 55 & Older Community?

Do you have the necessary MHCO Forms for 55 & Older Communities?

MHCO has the Resources You Need!

If you are one of the many members of MHCO who own and operate a 55 & Older manufactured home community - MHCO has the resources you need to keep that community compliant with current HUD rules.

• Addendum to the Rent/Lease Agreement for Age 55 & Older Communities (MHCO Form 71A)
• 55 & Older Community - Occupation Determination and Age Verification (MHCO Form 71B)
• 55 & Older Community HUD Verification of Occupancy Survey (MHCO Form 71C)

These are excellent tools to use in the effective management of your 55 & Older community. Get the most out of your MHCO membership by purchasing and using MHCO Forms. 

Answer:  The park cannot guarantee that health safety measures will be followed by everyone and it is not your job to police the stay-at-home order.  There is little in the way of legal enforcement mechanisms that the park can use to enforce COVID-19 safety measures, particularly on the tenant’s own space.

The best that you can do is to remind residents that for the overall safety of everyone in the park, they should avoid congregating on anyone’s rental space.  Your reminder could include the admonition that residents are obligated under Oregon law to notdisturb the peaceful enjoyment of the premises, and that gatherings right now pose a threat to that peaceful enjoyment. (With regard to visiting family members or guests, there is little you can do to prohibit that issue as long as they are not otherwise violating park rules.)

You do have more control over common areas such as playgrounds, recreational halls, swimming pools, etc. To the extent possible, you should close those areas to help reduce your risk of liability for any claims of negligence should someone become sick after using your park facilities.  For common areas that are necessities, such as laundry rooms or restrooms, post and enforce reasonable social distancing requirements according to government recommended practices, and more regularly clean and sanitize those facilities. 

If certain tenants or groups of tenants persist in gathering in an unsafe manner on their rental spaces, you might have good reason to issue a 30/14-day, for-cause eviction notice for disturbing the peaceful enjoyment of the premises.  Or, if a tenant did something intentional like trying to cough on someone, for example, then you could probably issue a 24-hour eviction notice for “outrageous behavior.”  However, as always, check with an attorney before issuing any eviction notices along these lines.

Industry experts on the panel noted that retaining people who are effective with coworkers and the public is an ongoing process. Periodic employment reviews and training programs are generally well received. Most people want to know how well they are doing and what needs to improve. Coaching by regional managers and outside consultants is critical to recognizing employment and operational issues and correcting them before they cause other problems.

Second "tip" is also simple and can be summarized in one word: Documentation. It is critical that your community have well prepared written rental agreements whether for a long-term or month-to-month tenancy. There are, of course, pros and cons to both forms of tenancy. Certainly, in a rent control jurisdiction, long-term leases are preferred. However, it is well understood that obtaining an economically viable long-term lease can be difficult in rent controlled communities because of the legislative constraints on tenant negotiations. To the extent a local jurisdiction has vacancy control it is critical to pay attention to those opportunities to offer suitable long-term lease agreements so that future rent increases are known by both the resident and the park.

Another form of documentation to consider is arbitration agreements. There are intense debates among lawyers, and even within the industry, about whether or not arbitration is a desirable means of conflict resolution. If arbitration is going to be pursued, however, it is critical that the arbitration agreements reference and be drafted in accordance with the Federal Arbitration Act. While the State of California has an arbitration statute, it is effectively useless in compelling arbitration in most circumstances in a mobilehome park context. Numerous appellate State court decisions, when deciding whether or not arbitration can be compelled under the state arbitration law, are uniform in declining to enforce landlord/tenant arbitration agreements.

Documentation also means due consideration of park rules. Park rules are the functional equivalent of covenants, conditions and restrictions created for residential developments such as condominiums and planned unit developments. California law requires that park/community rules be reasonable and that, of course, is key to any judicial enforcement. Park owners differ as to whether they prefer general rules or more detailed rules. Again, there are pros and cons to each. However, when it comes to enforcement, it is this writer's experience that more particular detailed rules are typically easier to enforce than a more vaguely worded general rule where "reasonable" discretion by the park's resident manager might be seen by a judge as being less objective or personal. The courts in California tend to err on the side of tenants and thus making sure documentation (Rules) are objectively reasonable can greatly aid in their enforcement.

Tip three is getting to know your customer/market. Understanding who wants to live in your park and why it is important to properly serve that segment of the public and the larger "neighborhood community".

Consistent with knowing your market and customer, is knowing your competition. A park's competition might be other manufactured housing communities or, possibly, nearby apartment complexes, duplexes and triplexes in the area. Knowing who is renting and at what price is critical to knowing if your park is offering all that it can at a competitive price.

A fourth issue noted by regional park managers is the need to conduct a thorough park assessment. Many of the larger owners in the industry have an annual reassessment of each community including what potential capital expenses and improvements might be required. An annual or semiannual assessment can be done in conjunction with a documented risk assessment and analysis. Reviewing a community's streets, curbs, gutters and any recreational amenities can help a community be prepared for accidents; weather cause events and the ever present potential for litigation. A proactive system of having maintenance logs and keeping records of what has been repaired, when, and by whom is critical in the event of a simple slip and fall accident or, more significantly, if a "failure to maintain" lawsuit is threatened. In California failure to maintain allegations are routinely made against many communities that, from all objective criteria, are well-maintained and are highly desirable places to live.

Capital improvement and risk analysis assessments also lead to insight as to how a community is evolving. Is there a plan for replacing or improving the current housing stock? To the extent the park has the ability to help renovate or replace older functionally obsolete housing is a plan being considered. In some areas of California, the options of potential closure or conversion to a resident owned community are worthy of discussion. In rent controlled communities it might be prudent to have park owned homes so as realize appropriate revenue from the park.

One final tip: manage your revenue properly. Successful park operations need to follow and have a well-defined timeframe and process for rent collections. How rents are collected, managed and deposited is critical to cash flow. An annual review of the community to understand whether reserved parking or storage facilities should be provided, for a fee, should be considered. A number of communities have added solar panels to parking areas that generate revenue and help offset electricity costs in the park. Whether or not the park accepts electronic payments and how it processes resident checks can be critical to cash management. Knowing when and where funds are spent is ultimately the reason that the investment is either successful or not.

Thanks to Mindy Parish from Hometown America and Tom Pacelli from J&H Management for their participation and insight as to how operations for community owners can be managed proactively and efficiently.

Bill Dahlin is a partner with the Southern California law firm of Hart King and a leader in the firm's Manufactured Housing Industry Practice Group. He can be reached at 714-432-8700, 714-619-7084 (direct dial) or bdahlin@hartkinglaw.com.

Meanwhile, veterans with disabilities are covered under current federal law. Among other things, fair housing law requires communities to respond properly to reasonable requests for accommodations or modifications that are necessary to meet the disability-related needs of veterans and returning servicemembers.

In this month’s lesson, we’ll explain how fair housing and other civil rights laws protect military servicemembers and returning veterans from discrimination and offer six rules to help you comply with your legal obligations. 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing based on race, color, religion, national origin, sex, disability, and familial status.

Veterans with disabilities are covered under the FHA’s ban on disability discrimination. Under the FHA, it’s unlawful to exclude or otherwise discriminate against prospects, applicants, and residents because they, or someone associated with them, has a disability.

The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activity. According to HUD regulations, “physical or mental impairment” includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more specified body systems. So the definition covers both physical injuries—such as loss of a limb, traumatic brain injury (TBI), burns, and hearing loss—as well as mental or psychological disorders—such as post-traumatic stress disorder (PTSD) and depression.

The disability protections may apply even if the veteran doesn’t now have—or hasn’t ever had—a physical or mental impairment that substantially limits a life activity. The FHA’s definition of disability protects individuals who are “regarded as” having such an impairment. So a community could trigger a fair housing complaint for denying housing to a veteran based on preconceived notions about emotional problems faced by some veterans transitioning from military service to civilian life.

The FHA goes further to protect individuals with disabilities from discrimination by imposing affirmative duties to provide reasonable accommodations and modifications as necessary to allow veterans with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.

Reasonable accommodations. The law requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. HUD defines “reasonable accommodation” as a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking space in a community that doesn’t have assigned parking.

Reasonable modifications. The law requires owners to permit applicants or residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises. Under the FHA, a “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, to afford that person full enjoyment of the premises. Communities must consider requests for reasonable modification not only to the interior of a unit, but also to lobbies, main entrances, and other public and common use areas of buildings. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for people in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area.

6 RULES TO COMPLY WITH LAWS PROTECTING

VETERANS AND MILITARY SERVICEMEMBERS

Rule #1: Comply with Applicable State and Local Law

Check whether your community is subject to state and local laws that prohibit housing discrimination against military servicemembers or veterans.

Currently, eight states have adopted some form of fair housing protections based on military status, though the laws vary in the language used and whom they cover. In New York, the law prohibits discrimination based on military status, while in Massachusetts, the law prohibits housing discrimination against an individual because “such person is a veteran or member of the armed forces.” In general, these laws prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

In some states, fair housing protections for veterans are tied to the nature of their discharge. In Illinois, the list of protected characteristics under the state’s human rights law includes military status as well as “unfavorable discharge from military service,” which generally applies to individuals who have been separated from the service with less than an honorable discharge, but it excludes those with a dishonorable discharge. In contrast, Washington’s fair housing law protects military status, but only honorably discharged veterans. The law in Rhode Island bans discrimination based on “military status as a veteran with an honorable discharge or an honorable or general administrative discharge,” or “servicemember in the armed forces.”

In the absence of statewide protections, there may be local laws protecting military status. Though Texas doesn’t list military status as a protected class, the law in San Antonio bans discrimination based an individual’s veteran’s status.

If subject to state or local laws banning discrimination based on military or veteran status, then you’ll need to review your policies and procedures to ensure compliance with legal requirements. It’s a good idea to ask your attorney about the specifics of the laws in your state and local area because of variations in the language used.

Coach’s Tip: Stay on top of proposed changes to antidiscrimination laws on the state and local level. In California, for example, the state legislators have approved a bill to ban housing discrimination based on veteran or military status; the measure was sent to the governor on Sept. 20, 2019. You should be able to get updates on what’s happening on the state and local level from your attorney or your local apartment association.

States with Laws Banning Discrimination Based on Military or Veteran Status

•      Connecticut
•      Illinois
•      Massachusetts
•      New Jersey
•      New York
•      Ohio
•      Rhode Island
•      Washington

Rule #2: Recognize Fair Housing Protections for Veterans with Disabilities

Regardless of whether military status is protected under applicable state or local law, federal fair housing law bans discrimination against veterans with disabilities. Under the FHA, disability means a physical or mental impairment that substantially limits one or more major life activities. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

Recent veterans report high rates of service-connected disabilities (that is, disabilities that were incurred in, or aggravated during, military service), according to the Equal Employment Opportunity Commission. About 29 percent of recent veterans report having a service-connected disability, as compared to about 13 percent of all veterans. Common injuries incurred by these veterans include missing limbs, burns, spinal cord injuries, PTSD, hearing loss, traumatic brain injuries, and other impairments. Other veterans leave service due to injuries or conditions that aren’t considered service connected.

Nevertheless, fair housing law doesn’t prevent communities from responding to actual incidents of dangerous or violent behavior by a resident, even if he has a disability. According to federal guidelines, the FHA doesn’t protect an individual whose tenancy would constitute a direct threat to the health and safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation.

TIME OUT!

What Is Traumatic Brain Injury?

Traumatic brain injury (TBI) is a significant health issue that affects servicemembers and veterans during times of both peace and war. The high rate of TBI and blast-related concussion events resulting from current combat operations directly affects the health and safety of individual servicemembers and subsequently the level of unit readiness and troop retention. The impacts of TBI are felt within each branch of the service and throughout both the Department of Defense (DoD) and the Department of Veterans Affairs (VA) health care systems.

In the VA, TBI has become a major focus, second only to recognition of the need for increased resources to provide health care and vocational retraining for individuals with a diagnosis of TBI, as they transition to veteran status. Veterans may suffer TBIs throughout their lifespan, with the largest increase as the veterans enter into their 70s and 80s; these injuries are often caused by falls and result in high levels of disability.

Active duty and reserve servicemembers are at increased risk for suffering a TBI compared to their civilian peers. This is a result of several factors, including the specific demographics of the military; in general, young men between the ages of 18 to 24 are at greatest risk for TBI. Many operational and training activities, which are routine in the military, are physically demanding and even potentially dangerous. Military servicemembers are increasingly deployed to areas where they’re at risk for experiencing blast exposures from improvised explosive devices (IEDs), suicide bombers, land mines, mortar rounds and rocket-propelled grenades. These and other combat-related activities put our military servicemembers at increased risk for suffering a TBI.

Source: Defense and Veterans Brain Injury Center (DVBIC)

Rule #3: Consider Reasonable Modification Requests by Veterans with Disabilities

Carefully consider requests by veterans with disabilities for reasonable modifications. Under the FHA, it’s unlawful to refuse to permit, at the expense of a person with a disability, reasonable modifications of existing premises as necessary to afford him or her full enjoyment of the premises.

The law requires you to consider modification requests by a current or prospective resident to make structural changes to the interior or exterior of units and to common and public use areas when there’s an identifiable relationship between the requested modification and the individual’s disability. For example, it would be unlawful to refuse to permit the installation of a ramp by a veteran who uses a wheelchair due to loss of a limb or other mobility impairment.

Before granting a request for a reasonable modification, you may require a description of the proposed modifications. You may also require the resident to obtain any building permits and that the work be performed in a workmanlike manner. You may not insist that a particular contractor perform the work.

Rule #4: Consider Reasonable Accommodation Requests by Veterans with Disabilities

If a veteran qualifies as an individual with a disability, then you may be required to grant a request for a reasonable accommodation in rules, policies, practices, or services as necessary to allow him an equal opportunity to fully enjoy his dwelling.

Requests for reasonable accommodations often involve assistance animals or parking, but communities may face a wide range of disability-related accommodation requests for exceptions to rules and policies. Examples include requests for live-in aides, transfers to different units, early lease termination, and allowing a cosigner on the lease. In general, communities are responsible for paying the costs associated with a reasonable accommodation as long as it doesn’t pose an undue financial and administrative burden.

It may be challenging to handle accommodation requests when the disability isn’t obvious. If the nature of the disability isn’t apparent, federal guidelines permit you to ask for reliable disability-related information to verify that the person meets the FHA’s definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities. Likewise, you’re allowed to ask for more information if there’s no identifiable disability-related need for the requested accommodation.

You can’t reject an accommodation request simply because it imposes some financial costs on the community. Before rejecting a request because you think it’s too costly, you should compare the cost of the requested accommodation and your financial resources against the benefits to the disabled resident, and whether there are other, less expensive alternative accommodations that would effectively meet the resident’s disability-related needs.

Example: In 2015, a court ordered a California community to transfer a veteran with disabilities and his family to a more expensive unit—and to let them stay there until the end of the lease—as a reasonable accommodation for his disability.

The resident was an Army combat veteran who was diagnosed with PTSD. Due to ongoing construction near his unit, the veteran asked the community to transfer his family to another unit away from the noise as a reasonable accommodation due to his disability. According to the veteran, the construction noise triggered nightmares, anxiety, and other symptoms because it reminded him of gunfire, explosions, and screaming, making him feel as if he were in a war zone.

Allegedly, the community didn't dispute that he had a disability-related need to be relocated during the construction, but the parties disagreed whether he could pay his current rent to live in a more expensive available unit. The community offered to move the family to another unit at his current rent but wanted them to move back when the construction was completed.

The resident rejected the offer, asking for a court order to let them stay until their lease ended five months later. He argued that the construction noise had already caused significant distress, so letting them stay until their lease ended would offer a reprieve from his PTSD triggered by the construction.

The court granted his request, ruling that the cost of moving the family to the more expensive unit during the construction was a reasonable accommodation that wouldn’t cause an undue financial burden on the community. And the increased financial burden to let them stay there through the end of their lease was minimal [Holland v. The Related Companies, July 2015].

Rule #5: Don’t Reject Disability-Related Requests for Assistance Animals

Pay particular attention to reasonable accommodation requests for an exception to your pet policies to allow a veteran to keep an assistance animal because of a disability.

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

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

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

Rule #6: Comply with Other Federal Laws Protecting Military Servicemembers and Veterans

Apart from your obligations under fair housing law, communities should know about—and comply with—two important federal laws protecting military servicemembers and returning veterans:

Servicemembers Civil Relief Act. The Servicemembers Civil Relief Act (SCRA), formerly known as the Soldiers’ and Sailors’ Civil Relief Act, is a federal law that provides protections for military members as they enter active duty. It covers issues such as rental agreements, security deposits, prepaid rent, eviction, installment contracts, credit card interest rates, mortgage interest rates, mortgage foreclosure, civil judicial proceedings, automobile leases, life insurance, health insurance, and income tax payments.

Among other things, the SCRA allows servicemembers to terminate, without penalty, leases and rental agreements before or during active military service under certain circumstances. The SCRA also bars communities from evicting military members or their dependents from their principal residence during the period of their active military service without a court order. Complying with the SCRA should be at the top of community concerns when it comes to dealing with military servicemembers. Failure to do so can lead to civil penalties or damages—even criminal liability.

Example: In March 2019, a Virginia-based property management company and related entities agreed to pay up to $1.59 million to resolve allegations that they violated the SCRA by obtaining unlawful court judgments against military residents and by charging improper lease termination fees, according to the Justice Department. The settlement is the largest ever obtained by the department against a landlord or property management company for violations of the SCRA.

The complaint alleged that from 2006 to 2017, the company obtained at least 152 default judgments against 127 SCRA-protected servicemembers by failing to disclose their military service to the court or by falsely stating that they weren’t in the military.

Under the SCRA, if a landlord files a civil lawsuit against a tenant and the tenant doesn’t appear, the landlord must file an affidavit with the court stating whether the tenant is in the military before seeking a judgment. If the tenant is in military service, the court typically can’t enter judgment until it appoints an attorney to represent the tenant, and the court must postpone the proceedings for at least 90 days. Landlords and lenders can verify an individual’s military status by searching the Defense Manpower Data Center’s free publicly available website or by reviewing their files to see if there are applications, military leave and earnings statements, or military orders indicating military status.

The complaint also alleged that the company imposed unlawful charges against servicemembers who attempted to terminate their leases early in order to comply with military orders. The SCRA allows military tenants to terminate a residential lease early if the servicemember receives deployment or permanent change of station orders or enters military service during the term of the lease. If a tenant terminates a lease pursuant to the SCRA, the landlord may not impose any early termination fee.

The Uniformed Services Employment and Reemployment Rights Act of 1994. In their role as employers, communities must comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits employment practices that discriminate because of an individual's past, current, or future military status, service, or obligation.

In general, USERRA seeks to ensure that servicemembers are entitled to return to their civilian employment upon completion of their military service. Servicemembers should be reinstated with the seniority, status, and rate of pay that they would have obtained had they remained continuously employed by their civilian employer. In addition, USERRA provides protection for veterans with disabilities, requiring employers to make reasonable efforts to accommodate the disability.

• Fair Housing Act: 42 USC §3601 et seq.
• Servicemembers Civil Relief Act of 2003: 50 USC App. §501 et seq.
• Uniformed Services Employment and Reemployment Rights Act of 1994: 38 USC §4301 et seq.

Answer: The Department of Revenue ("DOR") is treated like any other lienholder. It is critical that before the 45-day letter is sent, the park check with the Oregon Department of Consumer and Business Services ("DCBS") to determine if there are any lienholders on title. We understand that DOR is now showing up on the DCBS records. Remember, if they show up on the record and you fail to give them notice, they could come back against the park for failing to notify them.

If they show up on the DCBS records, they should be copied on the 45-day letter, and given all of the same rights as other lienholders, e.g. entering into a one year storage agreement, paying the storage fees, selling the home, etc. Currently, it is our understanding the DOR does not sign and returned storage agreements.

If there is a purchase money lien on the property, it will be superior to the DOR and then it [the DOR] will only get payment if there is any equity from the sale. Since the property is worth more than $8,000, if there is no sale, it would go to auction. [Caveat: Even if the DOR doesn'trespond to the 45-day letter, they still must be notified of the upcoming auction, per the statute. Again, there could be liability to the DOR if they have a valid lien, got the 45-day letter, but weren'tinformed of the date and time of the auction.]

As a lienholder, the DOR is behind the park, in terms of payment of cost, and then the county tax collector [which presumably is current - thanks to the DOR]. Next, as a lienholder, the DOR would receive some payment. If there are any further proceeds, they would go to the tenant, and if the tenant cannot be located, then to the county fund.

If the landlord follows these procedures, there is no remaining liability to the DOR for and of the taxes paid under the program.

Editor's Note: The next MHCO Management Training Seminar is three weeks away - June 13th in Medford.  We are very excited to be welcoming Bjorn Hess as our one of MHCO's newest members who will also be presenting at MHCO's training seminar on June 13th.  Bjorn Hessis a founding member and partner of the law firm Hazen, Hess & Ott, PLLC of Camas, WA. He is licensed to practice law in both Washington and Oregon. In addition, Bjorn is an owner of Sterling Properties Real Estate Services, a property management company based in Vancouver, WA / Lake Oswego, OR. After completing his Doctor of Jurisprudence and Master of Science in Personal Financial Planning at Texas Tech University, Bjorn returned to the Pacific Northwest where focuses his practice on landlord tenant law and serves as Chief of Operations at Sterling Properties Real Estate Services. Bjorn's passions include traveling abroad to experience different cultures, skiing, cycling, and pheasant hunting with his chocolate labrador Kona (who can often be found at his office). He is a volunteer member of the Mt. Hood Ski Patrol.

Bjorn will be presenting at MHCO's Medford Seminar on June 13th on Fair Housing.  We are extremely excited to have him participating in the MHCO training programing.  

By:  Bjorn A. Hess, Attorney at Law

Two weeks ago I had the unique opportunity to visit the National Museum of African American History and Culture in Washington D.C. Much of the museum dealt with race and the struggles experienced by African Americans in our nation and touched on difficulties in access to housing amongst other topics. Having dealt with Fair Housing issues as an attorney it was informative for me to experience a museum that dealt in part with housing laws and how we got to where we are today. The following article looks at the history behind current legislation intended to prevent discrimination in housing and how it became law. 

The Fair Housing Act (The Act") is federal legislation codified in Title VIII of the Civil Rights Act of 1968 intended to address discrimination in the context of housing. The purpose of the Fair Housing Act is to prevent discrimination by a landlord or homeowner against either a prospective tenant or prospective buyer on the basis of status as a member of a protected class.  The Civil Rights Act of 1968 was signed into law by then-president Lyndon B. Johnson one week after the assassination of Dr. Martin Luther King

Answer:   This is a good question, and all too frequently ignored by owners and managers. The first question is whether the issue is addressed anywhere in the community documents, i.e. the statement of policy, rules, or rental agreement. Likely not. It really isn’t addressed in the Oregon Residential Landlord-Tenant Act, with the exception of ORS 90.222, which covers renter’s liability insurance, and is excluded from the manufactured housing section of the law. 

Strictly speaking, the fact that the home was destroyed and is likely uninhabitable does not make it any less of a resident responsibility than before the fire. In other words, it is the resident’s primary responsibility to either promptly repair, replace, or remove the home.  The space is still under lease or rental to the resident, so all of the same rules apply, i.e. to keep it in good condition and safe. If the home is nothing more than a shell, the resident should likely remove it as soon as possible.

If the resident does not have fire insurance to repair or replace the home, I suspect he or she will abandon it, thus making it your problem - or the problem of the lienholder if there is one.  Incidentally, if there is a lienholder, the loan documents likely require fire insurance, and that it be a named insured on the policy.  If that is the case, then hopefully, between the resident and their insurance company, there may be available proceeds to repair or replace.[1]

If the resident abandons the home, you should immediately send out a 45-day abandonment letter, thus triggering your right (and duty) to take control of the personal property.  It is likely an attractive nuisance for children, which could result in injury to them, and liability to you.  In such case, you should consider having it either cordoned off with “No Trespassing” signs, or removed.  Make sure that you independently confirm that it is a total loss, and with no salvage value.  If there is salvage value, it belongs to the resident.

following my article titled “Home Fire in the Community” I received an email from John Van Landingham with a ‘gentle reminder’ that “…you might want to add that, if a governmental agency posts the burned-out home as constituting a health hazard, the abandoned property timelines can be shortened. ORS 90.675 (21).” John was – as usual – absolutely correct.  Below is an amplification of my earlier post.

ORS 90.675 is the abandonment law that applies generally to homes located in manufactured housing communities. Today it contains 23 separate subsections, a behemoth in size compared to most statutes.  Buried 21 sections down in the subterranean recesses of the statute is that portion of the law dealing with health, safety and welfare issues, in which 45 day letters and 30 response periods could not possibly work. In such situations, time is of the essence.  Accordingly, subsection 21 sets forth a fast-track protocol for declaring the abandonment of a home that poses certain risks to others (such as the abandoned shell of a home destroyed by fire). Below is a summary of what this subsection says:

If a governmental agency determines that the condition of the abandoned  home constitutes an extreme health or safety hazard under state or local law and the agency determines that the hazard endangers others in the facility and requires quick removal of the property, the landlord may sell or dispose of it by taking the following steps[2]:

• The date by which a tenant, lienholder, personal representative or designated person must contact a landlord to arrange for the disposition of the property shall not be less than 15 days after personal delivery or mailing of the abandonment letter required by ORS 90.675(3);
• The date by which a tenant, lienholder, personal representative or designated person must remove the property must be not less than seven (7) days after the date the tenant, lienholder, personal representative or designated person issues the abandonment letter;
• The contents of the abandonment letter must be in accordance with ORS 90.675(5), except that:
  • The dates and deadlines in the notice must be consistent with the fast-track protocol above;
  • The abandonment letter must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and
  • The landlord must attach a copy of the agency’s determination to the abandonment letter.

[1] Note that the MHCO Rental and Lease Agreements do have a provision for the resident to maintain fire insurance, but it is optional, and applies only if the box is checked.  This situation should be a cautionary tale for owners and managers requiring such insurance, with proof that it is being maintained.

[2] Note: the following steps are exceptions to the rest of ORS 90.675.  This means that if there is no exception in this list, the rest of the statute will apply.

Answer. I'm not a bankruptcy attorney, but can tell you generally what the process entails. The moment the resident files for bankruptcy - or even tells you they filed, you should halt any action you're in the process of taking. In the case of the 72-hour notice, you should not file for eviction, even though no rent payment was timely made. In the case of a 30-day notice, same thing; don't file for eviction even though correction was not timely made.

The main thing you want to verify is that, in fact, the resident did file for bankruptcy. In such case, they should be able to give you some evidence of the filing, such as the bankruptcy court filing number. Needless to say, if no filing was made, you are within your rights to proceed, at least until they do file, at which point you should then stop moving the matter forward legally. However, if the resident tells you they have taken out bankruptcy, you should assume it to be true unless and until you verify that that is not the case.

Once you have verified that the resident is in bankruptcy, the question is what you should do. Not being a bankruptcy attorney, I cannot tell you how long to expect the entire process will take before the resident exits the process. However, if you are listed in the bankruptcy petition, you will receive a notice of the First Meeting of Creditors, which you should attend. That will give you an opportunity to learn what the resident intends to do, i.e. abandon the home or remain there and resume paying rent. Your goal should be to have the resident resume making rental payments as soon as possible. You will have an idea whether that will occur at the First Meeting of Creditors. The same thing applies if the resident is under a curable 30-day notice.

If the situation is such that the tenant cannot pay, or cannot give you assurances that he or she can pay, or if the resident is under a default notice that is not curable, and you simply want them out, you should confer with a good bankruptcy attorney regarding your alternatives.

What you will likely be presented with from your attorney is a decision about whether you should file with the court to "lift" the bankruptcy stay of proceedings[1], so that you may complete whatever legal action you were in the process of taking when the filing occurred.

In the cases I have been involved with in the past, my experience was that if the bankruptcy stay was not going to assist the resident in dealing with his or her debts (e.g. it was a "no asset" case, and there was no chance the resident could pay the rent, etc.) the bankruptcy trustee would likely agree to lifting the stay so that your legal action could proceed. The decision to file is usually a cost-benefit analysis, e.g. what will the procedure cost, will it get the resident out sooner, and will you be able to get a rent-paying tenant into the space relatively quickly?

The take-away in all bankruptcy filings is (a) you do not want to take any steps (including a demand letter from a lawyer) against the resident the moment you know (or reasonably believe) he or she has filed for bankruptcy, and (b) you want to consult with an attorney to evaluate your legal alternatives. I have seen many cases where landlords simply stop, wait for the bankruptcy to be over, before pursuing legal action. That is a mistake. Too many times, the bankruptcy continues for several months, the resident has remained there rent-free for that time, and the landlord is the one who loses. The same thing applies when the resident has abandoned the premises and then files for bankruptcy. While you cannot legally proceed until the stay is lifted or the bankruptcy proceeding has either been dismissed or is completed, waiting without taking action to lift the stay means the space cannot be re-rented to anyone else.

[1] This means that upon filing, everything comes to a halt, i.e. it is "stayed."