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History

The Civil Rights Act of 1968 enacted The Fair Housing Act ("FHA") to prohibit housing discrimination based on race, color, religion, sex, or national origin. The FHA was amended in 1988 to expand its coverage to prohibit discrimination based on disability or family status, meaning the presence of a child under the age of 18 and pregnant women. Because the creation of families as a protected class clashed with the operation of retirement or adult communities, the 1988 amendments included exemptions for housing developments that qualified as housing for persons over the age of 55. Because there was an inherent conflict between protected family status and the exemption for older persons, Congress responded with The Housing For Older Persons Act of 1995 ("HOPA") which fine tuned the exemptions and is now the definitive authority for owners of such housing. (You should also be aware that municipalities can have ordinances prohibiting discrimination for categories broader than the Civil Rights Act. Examples of common ordinances gaining popularity are discrimination in housing on the basis of HIV/AIDS status, sexual orientation. Such ordinances are not addressed in this article.)

Occupancy Requirement to Qualify for Exemption

HOPA maintained the requirement that at least 80% of exempt housing must have one occupant who is 55 years of age or older. It also still required that the exempt hosing publish and follow policies and procedures that demonstrate an intent to be housing for persons 55 and older. Significant in terms of capital costs, HOPA eliminated the requirement that 55 and older hosing had to maintain "significant facilities and services" designed for the elderly. (Communities that are occupied solely by persons who are 62 and older are also exempt from the prohibition against family discrimination under Section 100.303.)

"Wiggle Room" Factor

At first blush, the 80% requirement appears to give a property owner some "wiggle room" to comply with the exemption. HOPA specifically allows a 55 and older community to be "exempt" from the preference for families if, after September 13, 1988, 80% of the units are occupied by at least one person age 55 years or older. Units occupied by employees of the housing facility or community who are under the age 55 do not count against the 80% as long as the employees perform substantial duties related to the management or maintenance of the community. Likewise, units occupied by persons who are disabled and require a reasonable accommodation, also do not count against the 80%.

However, the 80% requirement can also be a property owners' pitfall if it is achieved improperly. The 80% requirement does not mean that the property owner can manipulate the remaining 20% of units occupied by persons under the age of 55. The 80% occupancy requirement is coupled with an additional requirement that the facility or community adheres to policies and procedures that demonstrate the intent to be a 55 or older facility. A manager cannot merely choose to rent to "good" non-seniors or families just because the facility is over 80% senior.

One provision of HOPA which, on the surface, appears troublesome is Section 100.305(h) which provides that each housing facility may determine the age restriction for units that are not occupied by at least one person 55 years of age or older. On its face, this provision appears to allow a community to set any age requirement it wishes for the twenty percent (20%) of spaces which are not required to be occupied by a person 55 years of age or older, including requiring the occupants of the remaining twenty percent (20%) of spaces to be adults. However, this would appear to be contrary to the general intent of the FHA to prohibit discrimination on the basis of "family status". A more likely interpretation is that the housing provider need not apply any age restriction on occupancy of the remaining twenty percent (20%) of rental units. This interpretation seems likely, not only in view of the general intent of the FHA, but in view of Section 100.306(d) which provides that a housing facility or community may allow occupancy by families with children as long as it meets the intent requirements of Sections 100.305 and 100.306(a).

An argument could well be made that a community must allow up to twenty percent (20%) of the spaces to be occupied by persons who do not otherwise satisfy the community's minimum age requirements. The problem is that a park which "uses up" its twenty percent (20%) allotment may find itself below the 80% requirement if a space which was previously occupied by a person 55 years of age or older ceases to be so occupied. This could occur as a result of an older tenant dying or moving out of the community.

It has been our experience that HUD has, from time to time, interpreted the "twenty percent" allowance as a "fudge factor" in order to avoid hardship where, for example, an older tenant dies, leaving a widow who does not satisfy the community's minimum age requirements. This interpretation was bolstered by the requirement that the housing be intended for persons 55 years of age or older and that the properties have rules that limit residency to persons meeting the age requirements. Deliberately allowing persons under the age of 55 to move into the community seems contrary to this intention.

**Tip: In many states the law requires that mobile home parks owners uniformly enforce all published rules. To allow some households to avoid the requirement could run afoul of such laws leaving the door open for a disgruntled tenant to sue on a claim that the management is not uniformly enforcing its own rules.

Published Procedures & Policies of Intent

In addition to requiring that at least 80% of the occupied units be occupied by at least one person who is 55 years of age or older, HOPA requires that the housing be "intended and operated" for person 55 years of age or older, and that the housing facility "publish and adhere to policies and procedures that demonstrate its intent" to qualify for the 55 or older exemption. Section 100.306(a) sets forth a non-exclusive list or relevant factors in determining whether the park "demonstrates" this "intent":

(1) The manner in which the housing facility is described to prospective residents;
(2) And advertising designed to attract prospective residents;
(3) Lease provisions;
(4) Written rules and regulations;
(5) The maintenance and consistent application or relevant procedures;
(6) Actual practices; and
(7) Public posting in common areas of statements describing the facility as housing for persons 55 years of age or older;

These requirements bolster the "common sense" approach to a community demonstrating its intent to be housing for older persons. Specifically, without limitation, the parks' residency documents need to clearly state the age restrictions on residency, and the age restrictions need to be consistently enforced.

Unscrupulous attempts by property owners to manipulate the intent to remain senior housing have resulted in adverse judgments. In a 2003 federal case in California, Housing Rights Center et al. v. Galaxy Apartments, et al., the apartment complex and management company was sued for allegedly telling an expectant mother that it would not accept families with children because it was a "seniors only" complex. The Housing Rights Center sent "testers" to the building and learned that childless adult testers of all ages were accepted and only testers with children or who were expecting children were told that the complex was seniors only. Obviously, the apartment owner was not complying with the "intent" of the over 55 exemption and was ordered to pay the plaintiffs $51,000 and enter into a two year fair housing training program.

Some states require that housing intended and operated for occupancy by persons 55 years of age or older register with state agencies. You should consult your legal counsel for the applicable registration and renewal process in your state.

Age Verification

HOPA provides specific guidelines for "age verification". To protect your property, these procedures should be followed to the point that, at any given time in the past, you should be able to demonstrate, the percentage of units that were occupied by at least one person age 55 or older.

Section 100.307(d) provides that the following documents are considered "reliable" documentation of the age of the occupants:

(1) Driver's license;
(2) Birth Certificate;
(3) Passport;
(4) Immigration card;
(5) Military identification;
(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability, or
(7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

This last provision is useful in those cases where tenants who are believed to be over 55 years of age fail or refuse to provide proof of age to the park by allowing any other adult member of the household to sign a statement to the effect that the person in question is, in fact, at least 55 years of age.

**Tip: Make it a policy to obtain a written application for tenancy from every household and keep those applications for the length of the tenancy.

Section 100.307(g) further provides that: "If the occupants of a particular dwelling unit fail to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older." This section goes on to provide that such evidence may include government records or documents, such as a census; prior forms or applications; or a statement from an individual who has personal knowledge of the age of the occupants. In the latter case, the individual's statement must set forth the basis for such knowledge. Compliance with this provision most probably would be met by a park employee statement as to their opinion of the age of a tenant, based upon the tenant's appearance and, if applicable, the apparent age of the tenant's adult children.

A typical pitfall for owners of such properties is the HOPA requirement that the age verification information must be updated at least every two years, pursuant to Section 100.307(c).

**Tip: In addition to keeping the tenant's application, the management should consider developing a form which it distributes to all spaces at least once every two years, asking residents to confirm the names and ages of all persons who are currently residing in the home. This is probably good policy in any case, since a record of what adults are actually occupying a home is useful in other situations (e.g., naming all adults occupants in an unlawful detainer complaint.)

MHCO has a number of forms specifically designed for use in a "55 and Older Community". Form are available for MHCO members at MHCO.ORG

Reprinted from MHCO "Community Update" March/April 2005

Answer:  I will address this in a series of suggestions which will hopefully provide some answers and/or approaches. First, remember that park property is private property. The landlord owns the spaces and common areas, and the residents own their home.  This gives Management the right to control who enters the community.

Second, this basic fact does not often get conveyed to the residents or their guests. Third, this communication gap can be addressed in written park policies and rules – which rarely happens. The result is that management frequently does not know how to deal with people inside the park but with questionable authority to be there. Accordingly, here are some suggestions:

1. Notify residents of management’s right to keep people off park property if they cannot account for why they are there.
2. This can be accomplished through communications with the residents, but best accomplished through adoption of a new rule providing that management reserves the right to require persons in the park (especially on foot) with no apparent reason, to identify themselves and their purpose. (The reasons could be work related, family/guest related, or possibly just strolling etc.). But absent those or similar reasons, management may be rightfully suspicious.
3. The Community should be properly posted that it is private property and unauthorized persons are not permitted without first contacting the management office. This would be management’s opportunity to vet the credentials of the people.
4. This posting could require that all people other than tenants must first register at the park office (at least the first time). It should say that unauthorized persons will be asked to leave.
5. Your question does not clarify why you contact the police. Was it because you saw someone suspicious, but never contacted them?  If you did make contact, did they refuse to tell you what they were doing there? Did they tell you but you either could not verify it or didn’t believe them? Going forward, I suggest that before you contact the police, you first do everything you can to determine for yourself what the person is doing there. If you don’t know and can’t tell the police, I understand their taking the path of least resistance by saying that unless they know the person has no business being there, its reasonable to assume they are a guest or a visitor of some tenant. But you can and should vet these issues first before asking the police to come remove the person.
6. Contact the local jurisdiction (county or city – whoever polices the area) and find out from them under what circumstances they will, at your request, trespass someone. Each jurisdiction can be different, so you want to know exactly what your police require.
7. My experience is that generally, the trespass issue doesn’t occur as much with vagrants who have no business there in the first place, but with guests and family members who are not tenants on the rental agreement - but using it as a crash-pad with the tenant’s permission. It is these people that can be biggest problem precisely because they are invitees of authorized tenants.
8. Your rules should address the amount of time these guests may remain before they either have to leave or apply for residency. (It’s often because they cannot be approved as a tenant that they just stay at a space without Management’s knowledge or consent. It is these folks who can cause the greatest problems, especially for the neighbors. Clearly, the first approach is to speak to the authorized tenant and try to secure their cooperation without issuing a for-cause rule violation.
9. My experience with obtaining police cooperation is generally to formally initiate the trespass issue first. This would include personally delivering the person a letter requiring them to leave the park and giving them a certain date and time after which they will be deemed to be a “trespasser. This leaves no question that if they are still on park property after the deadline, they are a “trespasser.” I would deliver the letter to the problem person and the tenant of the space.
10. Once you have the letter delivered (using a witness perhaps to verify service) I believe the police will remove the person. But you want to verify this protocol with them first.

Answer:  To clarify, when you refer to the “Moratorium” you are referring to HB 4401 which was signed by the Governor on December 23, 2020. It did two things: 

• Directed the Oregon Housing and Community Services Department to implement a program for direct aid to landlords reimbursing a percentage of outstanding rents; and 
• Modified the Emergency Period and Grace Period created under HB 4213 for tenants who claim financial hardship. 

Your question about the Hardship Declaration refers to what happens if the tenant delivers it to the landlord:  Afteratenantdeliversacopyofthe Hardship Declarationto the Landlord,theEmergencyPeriod andendoftheGracePeriodcreated in earlier legislation areextendedto June 30,2021. The Hardship Declaration can be filed by the tenant as late as the first appearance date after you file for eviction. After the filing, the landlordmaynot takeorattempttotakeanyactiontointerferewithatenant’spossession, subject to the following exceptions:

• Evictions for violation of a rental agreement, other than non-payment may continue;
• Evictions for nonpayment occurring before April 1, 2020 may also continue (Emphasis added);
•  “Landlord-cause” evictions[1]are allowed after the first year of occupancy. Landlord-cause evictions include:

• Demolition or converting dwelling unit to non-residential use;
• Intent to make repairs/renovations to the dwelling unit within a reasonable time, and the building is unsafe/unfit or occupancy or will be unsafe/unfit for occupancy during the repair/renovation period; 
• Landlord intends for immediate family member to occupy dwelling unit as a primary residence and no comparable units at the same location are available; or 
• Landlord has accepted an offer to purchase the dwelling unit; purchaser will use unit as a primary residence.[2]

Since the rents due to you under the Stipulated Judgment arose before April 1, 2020, I interpret your question to asked whether you can pursue them by filing an Affidavit of Noncompliance under ORS 105.146.  

Normally, I might give you a cautious green light. But in this environment, I must recommend against it. First, the court could ignore the above exception under HB 4401. Secondly, and more importantly, the Center for Disease Control and Prevention (“CDC”) has issued a blanket moratorium on nonpayment of rent evictions which arguably supersedes the exception under HB 4401. It was updated today. See details, here.

Bottom line, I would not attempt to enforce what we all agree was a legitimate stipulated judgment at the time. HB 4401 is supposed to end June 30, 2021. But until the CDC moratorium ends, I would follow it, regardless of Oregon law. 

And even though I do not believe the original CDC moratorium was intended to apply to rents due before September 2020, my brief reading of the federal law, including the update, suggests that if the eviction has not been completed– and yours has not because of the stipulated judgment – the filing of the Affidavit of Noncompliance could be interpreted as an attempt to evict in violation of the current CDC moratorium. 

Without getting into all the case details, suffice it to say that because of an inadvertent mistake on a background check, the couple claimed that they had become “tenants” (they were not) and refused to leave the park.  This forced the park to issue a formal eviction notice and go to court, at which point the guests demanded what turned out to be a two-day jury trial.  (NOTE:  While uncommon, defendants in an eviction case are entitled to a jury trial under Oregon law if they demand one.)

Before the actual trial, the case dragged on for over two months primarily due to court scheduling issues.  In the meantime, the couple harassed other park residents with their “beliefs” and promoted their hate speech websites by handing out unsolicited flyers.  The couple then represented themselves at trial and mostly used it as a forum to rant to the jury about their beliefs.  The jury returned a verdict for the park, so the couple will soon be evicted by the sheriff.

For RV parks, this highlights the need to include in your guest registration documents Oregon’s “vacation occupancy” language stating that: (1) the occupants rent the RV space for vacation purposes only, not as a principal residence, (2) the occupants have a principal residence other than at the RV space, and (3) the period of authorized occupancy does not exceed 45 days. This prevents occupants from becoming “tenants” and should allow you to have them removed as trespassers if they refuse to vacate upon request.  Also be sure to NEVER accept monthly payments from guests, which could arguably make them “tenants.”  Only charge and accept daily rates from vacation occupants and never let them stay more than 45 days.

This case also reinforces the need for all landlords to conduct thorough background checks on every tenant applicant.  There are numerous online tenant screening companies offering this service.  A tenant screening service can reveal important information that Oregon landlords can consider when denying an applicant.  This includes, among other things, negative credit history, certain criminal convictions, prior evictions, and other information that might threaten the health, safety or right to peaceful enjoyment of the premises for other residents.

UPDATE: Thanks to John VanLandingham for reminding me that pursuant to the recently enacted Senate Bill 970, ORS 90.303 was amended to provide that when evaluating an applicant for tenancy, the landlord may not consider: (a) A criminal conviction for possession of marijuana; nor (b) Possession of a medical marijuana card, or status as a medical marijuana patient. This new law becomes effective on January 1, 2020. ~ PCQ

Answer.  This applicant seems to believe he makes the rules. Please remind him otherwise. Regardless of the guest policy, you know he has a “lengthy criminal record” so you need to exercise extreme care in permitting him into the park under any circumstances.  

I do have some questions:

• It is unclear to me whether all his criminal history is over 10 years old, or just some of it. If all of it is over 10 years ago, the cuts in his favor.
• You did not describe the nature or severity of the crimes. Are they misdemeanors or felonies? Repeat offenses? 
• Crimes against persons or property? The former warrant more careful attention.
• Lastly, and perhaps most critical to any analysis is whether this person is a member of a protected class. Ex-cons are not, per se’ a protected class. If he is not, there is little he can do from a fair housing standpoint. However, this is not to say you can drop your guard. The main rule-of-thumb to always follow is to be consistent. 

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

At footnote 43 of the Memo, the following appears: 

***see Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven yearswithout reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record). (Emphasis added.) 

Does this mean that six or seven years is the maximum look-back that landlords can make when screening someone’s criminal background? I submit that for non-violent crimes, this is not an unreasonable review period. But in cases of crimes to the person, and most significantly, rape and child molestation, I agree a ten-year period is not unreasonable. 

However, the Memo is not to be read to say that anyconviction over seven years may not be taken into consideration when screen potential tenants or temporary occupants. Its purpose is to “…issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result.”  

 Here are some tenant screening tips I’ve suggested in past articles:  

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

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

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

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

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

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

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

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

·     What has the person been doing since their release? 

• Has the person been convicted once, or on multiple occasions? 
• What was the nature and severity of the crime?  

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

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

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

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

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

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

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

     (a) A drug-related crime; 

     (b) A person crime; 

     (c) A sex offense; 

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

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

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

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

1. Landlords should notassume that compliance with ORS 90.303 means that a denial of tenancy automatically avoids a disparate impact claim.  Landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  Thus, compliance with state law, but non-compliance with federal law, can still result in a disparate impact claim under the Fair Housing Act, as amended. 

Here are some considerations to keep in mind: 

1. The Memo and ORS 90.303 bothprohibit screening applicants for arrests, regardless of the conduct that led to the arrest; 

1. ORS 90.303 says that an arrest which has not been dismissed but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (i) When the matter will be resolved, e.g. a week, a month, or a year? (ii) What was the charge? (iii) If convicted, would the applicant automatically be denied? As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds.If so, there is no need to rely upon a landlord’s criminal background policy at all. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases.  

1. ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo. 

1. Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred or require an evaluation of what the applicant had been doing since the conviction. (e. g. evidence of rehabilitation). In the past, earlier Landlord-Tenant Coalitions could not reach agreement on whether to use a five- or seven-year standard in the statute3, nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this issue.  

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

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

So, to your two questions:

1. Can you still deny the temporary occupant based on a criminal record from 10 years ago, I would say yes, if the crimes were violent/sexual in nature, were repeated, and during the intervening years, the applicant had not exhibited any stability or rehabilitation. (Note, if the applicant is a member of a protected class, you probably should consult with your lawyer first.)
2. Can he “couch surf”? If your decision is to decline him as a temporary occupant, using the above screening criteria, you certainly don’t want him in the community under any other category. Just say No and let any residents who would aid him in this work-around know that.

Remember this: In the final analysis the decision is easy. Which would you rather defend against: (a) an angry ex-con, or (b) the parents of a child harmed by the ex-con you allowed into the community because he tried to make you bend to his rules?

UPDATE: Thanks to John VanLandingham for reminding me that pursuant to the recently enacted Senate Bill 970, ORS 90.303 was amended to provide that when evaluating an applicant for tenancy, the landlord may not consider: (a) A criminal conviction for possession of marijuana; nor (b) Possession of a medical marijuana card, or status as a medical marijuana patient. This new law becomes effective on January 1, 2020. ~ PCQ

Earlier this week the 2015 Oregon Legislative Session adjourned.    This session was notable for two reasons - the first for passing MHCO's long awaited changes eliminating past due taxes on abandoned homes and the second for the tenacity of rent control to raise it's head in floor debates, a legislative work group proposal and amendments. 

The increase in the cost of housing  particularly in many of Oregon's urban areas manifested itself in a drive to bring forward rent control in various forms.  This will not be the last we hear of rent control as we head into 2016.  Considering that in many cases MHCO was able to defeat rent control by just one vote in committee raises concerns as we set our sights on the February 2016 Oregon Legislative Session and especially the 2017 Oregon Legislative Session if elections continue to go as badly as they have for the business community over the past four years. 

In the end, MHCO is thrilled with what we were able to accomplish in the 2015 Legislative Session - one of the best pieces of pro-landlord legislation in the last decade, but we have serious reservations where the Legislature is headed on issues that are of great concern to landlords and business owners. 

MHCO will be providing extensive information on the new tax rules for abandoned homes later this year at the MHCO Annual Conference as well as information on other issues in the 2015 Landlord Tenant Coalition Bill that passed in this Legislative Session.  The new laws do not go into effect until January 1, 2016.  New forms will be necessary - MHCO will have those available to members on-line later this year as well.

Finally, here is a summary of some of the legislation that MHCO worked to defeat this session.  Other than the Coalition Bill (HB 3016) there were no other bills that MHCO supported - that in itself is a sad commentary on this legislative session considering the thousands of bills introduced.

MHCO Legislative Summary - MHCO Defeated Proposed Legislation

HB 2564 - (Inclusionary Zoning) Permits local governments to impose conditions on approved permits that effectively establish sales price for up to 30 percent of residential development or limit purchase to class or group of purchasers in exchange for one or more developer incentives.

This bill was the source of a lot of angst this session - with rent control advocates mentioning the need for rent control during the House Floor debate on this bill.  In the Senate rent control advocate drafted a rent control amendment (dash 5) - amendment defeated by just one vote in committee.

HB 2573 - Authorizes residential tenant to install on premises and use electric vehicle charging station for personal, noncommercial use.  Likely to be re-visited in Feb 2016.

HB 3494 - Prohibits landlord from requiring applicant or tenant to declaw or devocalize animal otherwise allowed on premises or to advertise in manner that discourages application from potential applicant with otherwise allowed animal that has not been declawed or devocalized.  Fine up to $1,000.

HB 3076A - Requires Oregon Health Authority to analyze ground water contaminant data and provide education in problem areas.  Would have increased reporting requirements for manufactured home communities operating wells.  Likely to be re-visited in Feb 2016.

HB 3081 - Directs Department of Consumer and Business Services to adopt by rule standards to address conflicts of interest of manufactured structure dealers that are also residential landlords.

HB 3129 - Authorizes tenant to whom real estate has been leased by landlord to install and use electric vehicle charging station for personal, noncommercial use.

SB 592 - Repeals law that prevents local governments from imposing conditions on approved permits that effectively establish sales price for residential development or limit purchase to class or group of purchasers. 

This bill became the vehicle for a proposed Legislative Work Group on Manufactured Housing.  This amendment was defeated in committee by one vote. 

Answer: The statute governing the issuance of a 24-hour notice is ORS 90.396 [Acts or omissions justifying termination 24 hours after notice.] Subsection (1)(f) states that a 24-hour notice may be appropriate in the following circumstances:

The tenant, someone in the tenant’s control or the tenant’s pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. For purposes of this paragraph, an act is outrageous in the extreme if the act is not described in paragraphs (a) to (e) of this subsection, but is similar in degree and is one that a reasonable person in that community would consider to be so offensive as to warrant termination of the tenancy within 24 hours, considering the seriousness of the act or the risk to others. An act that is outrageous in the extreme is more extreme or serious than an act that warrants a 30-day termination under ORS 90.392. [Emphasis mine.]

Unfortunately, in close cases, what is “outrageous” is frequently in the eyes of the beholder. The question is was this truly an isolated incident for which you could give a 30-day notice that he could cure by simply not repeated within the following 30 days? If he repeated it thereafter [i.e. within 6 months following the date of the 30-day notice] you could terminate with a 20-day, non-curable, notice.

In making a decision whether to do a 24-hour notice, which is non-curable, or a 30-day notice which is, you should consider the following factors:

1. Has this ever occurred before?

2. How long has the resident been in the park?

3. Is there a reason to believe the conduct will be repeated?

4. Does the resident have a drinking/emotional problem on a regular basis?

5. Did the conduct pose any immediate threat to health or safety?

6. Was actual violence involved?

If you genuinely believe that a 30-day notice would work, it will still provide you with the opportunity to issue a 20-day non-curable notice if he fell off the wagon again - either within the 30 days or within 180 days following the date of issuance of the 30 day notice. Remember that the 24-hour notice is final, whereas the 30-day notice is not, because it can be “cured.” This may be a case where you should issue the 30-day notice, and make it clear to him that the next time will be final. In any event, the conduct should not be ignored – a notice should issue.

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

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

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

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

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

New Oregon Law. No. 4 above has been stricken,2 and the following rules (found at ORS 90.675(14)(d) and (e) and (15) of HB 3016,) will apply. On January 1, 2016, if the landlord follows these new laws, the tax collector and Department of Revenue (collectively "tax collector") will be required to cancel unpaid taxes in the following additional circumstances:

1. The landlord sells the home to a buyer who intends to occupy it in the community in which it is currently located, after:

a. Purchasing it at the abandonment sale; or
b. Acquiring it as a result of a written agreement with the tenant or tenant's

personal representative, etc. in accordance with ORS 90.675(23)(a) [currently (22)(a)].

1 If there are remaining funds after that, the balance is paid in the following order to any lienholder to the extent of any unpaid balance owed on the lien and the remainder to the tenant, together with an itemized accounting.
2 Currently in ORS 90.675(d)(A), (B), and (C). Note that HB 3016 also added the following text to No. 2: "...and the landlord disposes of the property."

2. The following additional conditions must be met:

1. There is a lien on the home for unpaid property taxes and special assessments owed to a county or to the Department of Revenue;

2. The landlord must prepare and sign and affidavit or declaration (hereinafter "Affidavit of Compliance") in the form set forth on MHCO Form 31A, with the county tax collector or the Department of Revenue (hereinafter, "tax collector"). Upon filing this Affidavit of Compliance, the county tax collector will provide title to the home for the landlord to give to a buyer at the time of the sale.

3. After the sale, the landlord must file a second Affidavit of Compliance in the form set forth on MHCO Form 31B, with the tax collector. It must be accompanied by:

   i. Payment of the amount remaining from the sale proceeds after the deduction of the landlord's claims and costs, up to the amount of the unpaid taxes or tax lien. The landlord may retain the amount of the sale proceeds that exceed the amount of the unpaid taxes or tax lien;

   2. Payment of any county warrant fees; and

   3. A third Affidavit of Compliance, this time from the buyer, in the form set

      forth on MHCO Form 31C, stating his/her intent to occupy the property in the community. Thereupon, the tax collector shall cancel all any remaining unpaid taxes or tax liens on the property.

Effect of New Law. The new law will permit landlords to sell abandoned homes with unpaid property taxes to persons who will reside in them at the community in which they are currently located. To the extent that the net sale proceeds (after deduction of the landlord's statutory claims and costs) are insufficient to pay the former resident's unpaid property taxes, the shortfall will be waived by the tax collector. If the sale proceeds cover more than the landlord's statutory claims and costs, and all of the unpaid taxes, the landlord may retain any excess.