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Answer:  Disclaimer: Certain folks, especially those of the regulatory bent, will likely disagree with my answer.  The reason stems, I believe, from one of four sources: (a) Rigid (some might say “stubborn” or “dogmatic”) adherence to a law or regulation, regardless of how illogical and silly it may be; (b) A belief that everyone is a victim, and deserves to pampered and coddled even in the face of obvious evidence they are gaming the system; (c) Political correctness run amok; or (d) A combination of some or all of the preceding causes.

I admit I am one of those folks who have watched in disbelief as some residents have taken the most outlandish positions in an effort to keep a pet they know full well violates the community rules.  I recently saw a situation where a new tenant, knowing that the community did not permit pets, moved in and promptly moved her large dog in to live with her, having paid to get the necessary sham certifications and paperwork online, no questions asked. 

 Here are some general rules:

• The Americans with Disabilities Act, or “ADA” does not apply to private residential housing – only public accommodations. 
• ORS 659A.143 governs the use of assistance animals in public accommodations.  The rules seem rational and reasonable, but technically do not directly apply to private housing.
• The Fair Housing Act applies to the use of assistance animals in housing.
• HUD has set out the issues to be vetted for a landlord to make a determination whether to grant a resident the right to have an assistance animal.
• Assistance, emotional support and service animals are not pets, and accordingly, pet rules do not strictly apply (such as requiring pet deposits).
• Service animals (or “assistance animals” under Oregon’s definitions) are required to be certified as such. Not so for emotional support animals. Nevertheless, all such animals are to serve the disability of the requesting resident. But getting a doctor’s letter, or that of another person in the medical profession is not that difficult.
• You do not have to accept just any animal as an assistance animal.  If it requires some additional cost to the landlord, it is not required. (See, HUD article here.)

Here is what HUD says in the above article (HUD footnotes omitted):

“For purposes of reasonable accommodation requests, neither the FHA nor Section 504[1] requires an assistance animal to be individually trained or certified.  While dogs are the most common type of assistance animal, other animals can also be assistance animals.

Housing providers are to evaluate a request for a reasonable accommodation to possess an assistance animal in a dwelling using the general principles applicable to all reasonable accommodation requests. After receiving such a request, the housing provider must consider the following:

1. Does the person seeking to use and live with the animal have a disability - i.e., a physical or mental impairment that substantially limits one or more major life activities?

1. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?

If the answer to question (l) or (2) is "no," then the FHA and Section 504 do not require a modification to a provider's "no pets" policy, and the reasonable accommodation request may be denied.

Where the answers to questions (1) and (2) are "yes," the FHA and Section 504 require the housing provider to modify or provide an exception to a "no pets" rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider's services. “(Emphasis added.)

The Fair Housing law basically requires that if one has a disability, they may request that their landlord grant them a “reasonable accommodation” – that is, an exception to the community rules, allowing the resident permission to do that which is otherwise prohibited. 

Thus, size limits don’t strictly apply. And occasionally, residents attempt to have a second pet, claiming that it isn’t a “pet,” but an assistance animal.  However, here is where the line blurs. How far does the landlord have to bend to accommodate residents, especially in those situations where the resident is gaming the system?

MHCO has forms for dealing with requests for reasonable accommodations, whether they be a non-compliant animal, or some other issue, such as an additional parking space, etc.  First and foremost, I suggest following the same protocols in all cases, from the legitimate to the illegitimate.

Secondly, I suggest following the 3-prong test (besides cost, which doesn’t really apply in most cases) as follows:  Would granting of the request endanger the Health, Safety, or Welfare of other residents or guest in the community.  If the resident, for example, asks to have a pit bull as an assistance animal, it is not altogether unreasonable, after vetting the dog’s demeanor, socialization, etc., to propose another less aggressive animal as a “reasonable accommodation.” 

Third, for such breeds with known vicious propensities, you should check with your liability insurance carrier to see if they have a short list of animals they will not insure if there is an attack.  If the carrier says that animal is on that short list, then you should propose another less aggressive animal. In discussing this with the Fair Housing Council of Oregon while drafting the reasonable accommodation request portions of MHCO’s form, they acknowledge the financial burden exception – however, suggested another step, i.e. finding an insurance carrier that would insure such aggressive animals if it was not overly expensive for the landlord to do so. I will leave extra step for discussion with your own attorney.

Then there are cases in which the request is clearly a ruse to get a pet approved as an assistance animal, when and it is clear to any reasonable person, it is a ruse.  You will have to decide on your own, or with the assistance of your attorney, how to proceed.  If, after giving the resident the MHCO form to complete, you are satisfied that it is a ruse, you are going to have to decide whether to call their bluff, or relent. If you relent, you will have done so only after requiring them to complete the necessary paperwork. However, be prepared for more copycats - pardon the pun.

1. If the tenant, in violation of the rental agreement, keeps on the premises a pet capable of causing damage to persons or property, the landlord may deliver a written notice specifying the violation and stating that the tenancy will terminate upon a date not less than 10 days after the delivery of the notice unless the tenant removes the pet from the premises prior to the termination date specified in the notice. If the pet is not removed by the date specified, the tenancy shall terminate and the landlord may take possession in the manner provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings).

1. For purposes of this section, a pet capable of causing damage to persons or property means an animal that, because of the nature, size or behavioral characteristics of that particular animal or of that breed or type of animal generally, a reasonable person might consider to be capable of causing personal injury or property damage, including but not limited to, water damage from medium or larger sized fish tanks or other personal injury or property damage arising from the environment in which the animal is kept.

1. If substantially the same act that constituted a prior noncompliance of which notice was given under subsection (1) of this section recurs within six months, the landlord may terminate the rental agreement upon at least 10 days written notice specifying the breach and the date of termination of the rental agreement.

1. This section shall not apply to any tenancy governed by ORS 90.505 (Definition for ORS 90.505 to 90.840) to 90.840 (Park purchase funds, loans). [Formerly 91.822; 1995 c.559 §28; 1999 c.603 §25]

While I suppose there is an argument that this statute doesn’t apply, since it pertains to “pets,” I believe that argument begs the question, since it is your position that these are pets disguised as “assistance animals.” If the resident believes you’re prepared to commence an eviction proceeding, perhaps they will relent.  If not, the judge can decide. Of course, be prepared for the resident to bring in some doctor, chiropractor, or therapist, to claim the resident needs the animal for some protected purpose. 

If the animal is dangerous, I strongly believe you are correct to take the issue to the mat, since doing nothing could result in injury to a resident or guest, and you can be sure you will then be accused of permitting the animal to remain when you should not have. Unfortunately, these issues can become expensive, and there is no assurance of victory in court.

It is possible for you and your attorney to develop some type of agreement which closes the loophole that is occurring at your community.  I can envisage language that with the proper recitals and provisions, would give you more protection than you now have.  However, as we know, until the matter is litigated, you’ll never know if the form is bullet-proof.  But having it in place is probably better than where you are now, and would likely make a resident think twice about trying to play the “support animal” card, if the agreement expressly says the animal is a pet and that was the sole reason for their wanting it.

The take-away here is that landlord must deal with reasonable accommodation requests on a case-by-case basis. Each set of facts are different. Not long ago I had a park client who refused a reasonable accommodation request, because it was too outlandish. A complaint was filed with BOLI, and we butted heads for a while. Eventually, BOLI relented, largely because the resident was too unreliable. Landlords must remember to pick their shots. Some principles are worth defending, and others not. In this case we believed that the issue was worth defending, to send a message to the tenant, and others who might be waiting to see the outcome, before they stepped up to test the landlord.

Lastly, there are indications that HUD may be tightening the definitions and loopholes so that landlords do not continue dealing with either gamesmanship, or accepting the risk of a dangerous breed, just to avoid a fight.

[1] Section 504 of the 1973 Rehabilitation Act was the first disability civil rights law to be enacted in the United States. It prohibits discrimination against people with disabilities in programs that receive federal financial assistance, and set the stage for enactment of the Americans with Disabilities Act. Section 504 works together with the ADA and IDEA to protect children and adults with disabilities from exclusion, and unequal treatment in schools, jobs and the community. [See link here.]

Answer: Disclaimer: Certain folks, especially those of the regulatory bent, will likely disagree with my answer. The reason stems, I believe, from one of four sources: (a) Rigid (some might say "stubborn" or "dogmatic") adherence to a law or regulation, regardless of how illogical and silly it may be; (b) A belief that everyone is a victim, and deserves to pampered and coddled even in the face of obvious evidence they are gaming the system; (c) Political correctness run amok; or (d) A combination of some or all of the preceding causes.

Whew! I feel better already!

I admit I am one of those folks who have watched in disbelief as some residents have taken the most outlandish positions in an effort to keep a pet they know full well violates the community rules. I recently saw a situation where a new tenant, knowing that the community did not permit pets, moved in and promptly moved her large dog in to live with her, having paid to get the necessary sham certifications and paperwork online, no questions asked.

Here are some general rules:

• The Americans with Disabilities Act, or "ADA" does not apply to private residential housing - only public accommodations.
• ORS 659A.143 governs the use of assistance animals in public accommodations. The rules seem rational and reasonable.
• The Fair Housing Act applies to the use of assistance animals in housing.
• HUD has set out the issues to be vetted for a landlord to make a determination whether to grant a resident the right to have an assistance animal.
• Assistance animals are not pets, and accordingly, pet rules do not strictly apply (such as requiring pet deposits).
• You do not have to accept just any animal as an assistance animal. If it requires some additional cost to the landlord, it is not required. (See, HUD article here.)

The Fair Housing law basically requires that if one has a disability, they may request that their landlord grant them a "reasonable accommodation" - that is, an exception to the community rules, allowing the resident permission to do that which is otherwise prohibited.

Thus, size limits don't strictly apply. And occasionally, residents attempt to have a second pet, claiming that it isn'ta "pet," but an assistance animal. However, here is where the line blurs. How far does the landlord have to bend to accommodate residents, especially in those situations where the resident is gaming the system?

MHCO has forms for dealing with requests for reasonable accommodations, whether they be a non-compliant animal, or some other issue, such as an additional parking space, etc. First and foremost, I suggest following the same protocols in all cases, from the legitimate to the illegitimate.

Secondly, I suggest following the 3-prong test (besides cost, which doesn'treally apply in most cases) as follows: Would granting of the request endanger the Health, Safety, or Welfare of other residents or guest in the community. If the resident, for example, asks to have a pit bull as an assistance animal, it is not altogether unreasonable, after vetting the dog's demeanor, socialization, etc., to propose another less aggressive animal as a "reasonable accommodation."

Third, for such breeds with known vicious propensities, you should check with your liability insurance carrier to see if they have a short list of animals they will not insure if there is an attack. If the carrier says the animal is on that short list, then you should propose another less aggressive animal.

Then there are cases in which the request is clearly a ruse to get a pet approved as an assistance animal, when and it is clear to any reasonable person, it is a ruse. You will have to decide on your own, or with the assistance of your attorney, how to proceed. If, after giving the resident the MHCO form to complete, you are satisfied that it is a ruse, you are going to have to decide whether to call their bluff, or relent. If you relent, you will have done so only after requiring them to complete the necessary paperwork. However, be prepared for more copycats - pardon the pun.

1. If the tenant, in violation of the rental agreement, keeps on the premises a pet capable of causing damage to persons or property, the landlord may deliver a written notice specifying the violation and stating that the tenancy will terminate upon a date not less than 10 days after the delivery of the notice unless the tenant removes the pet from the premises prior to the termination date specified in the notice. If the pet is not removed by the date specified, the tenancy shall terminate and the landlord may take possession in the manner provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings).

1. For purposes of this section, a pet capable of causing damage to persons or property means an animal that, because of the nature, size or behavioral characteristics of that particular animal or of that breed or type of animal generally, a reasonable person might consider to be capable of causing personal injury or property damage, including but not limited to, water damage from medium or larger sized fish tanks or other personal injury or property damage arising from the environment in which the animal is kept.

1. If substantially the same act that constituted a prior noncompliance of which notice was given under subsection (1) of this section recurs within six months, the landlord may terminate the rental agreement upon at least 10 days written notice specifying the breach and the date of termination of the rental agreement.

1. This section shall not apply to any tenancy governed by ORS 90.505 (Definition for ORS 90.505 to 90.840) to 90.840 (Park purchase funds, loans). [Formerly 91.822; 1995 c.559 _28; 1999 c.603 _25]

While I suppose there is an argument that this statute doesn'tapply, since it pertains to "pets," I believe that argument begs the question, since it is your position that these are pets disguised as "assistance animals." If the resident believes you're prepared to commence an eviction proceeding, perhaps they will relent. If not, the judge can decide. Of course, be prepared for the resident to bring in some doctor, chiropractor, or therapist, to claim the resident needs the animal for some protected purpose.

If the animal is dangerous, I strongly believe you are correct to take the issue to the mat, since doing nothing could result in injury to a resident or guest, and you can be sure you will then be accused of permitting the animal to remain when you should not have. Unfortunately, these issues can become expensive, and there is no assurance of victory in court.

It is possible for you and your attorney to develop some type of agreement which closes the loophole that is occurring at your community. I can envisage language that with the proper recitals and provisions, would give you more protection than you now have. However, as we know, until the matter is litigated, you'll never know if the form is bullet-proof. But having it in place is probably better than where you are now, and would likely make a resident think twice about trying to play the "support animal" card, if the agreement expressly says the animal is a pet and that was the sole reason for their wanting it.

Answer: One of the most common types of residential eviction is also the most misunderstood - the nonpayment of rent eviction. A good tenant's attorney can frequently retain possession for his/her client, even though they clearly failed to pay the rent when due. All it takes is a little familiarity with that labyrinthine set of statutes in the Oregon Residential Landlord Tenant Act, or "ORLTA."

It is common knowledge that unless the parties have agreed otherwise, rent is due on the first day of each month. Rent does not become delinquent until after the expiration of seven days, including the date rent is first due. An eviction cannot be filed until after the expiration of 72 hours' written notice. This means that the earliest a 72-hour notice may be delivered to the resident is on the 8th day of the month, and the earliest one may file for eviction is on the 11th day of the month, i.e. 72 hours hence.[1]

However, oftentimes it is not until the first appearance following the filing of the eviction that the landlord discovers that the resident has gone to an attorney and is now raising various counterclaims under ORLTA. Some of these counterclaims may be without any real factual basis, and may have been raised primarily to secure either more time or some other concession from the landlord.

Assuming that the resident either has the money to pay the rent, or can somehow gather it together prior to a trial, this is a battle that the landlord is almost sure to lose. The reason is found in the rent-tender statute, ORS 90.370. Essentially, this statute, and several cases that have construed it, permit the resident to tender the past due rent into Court, even though it was not paid during the 72-hour period set forth in the notice. At the conclusion of the case, if the Court finds that the amount tendered into Court covers the amount found to be due, the resident automatically retains possession.

Example: Landlord files an eviction against resident based upon the failure to pay monthly rent of $400. Resident files counterclaims alleging ORLTA violations, and claims that because of the deficiencies, the "market rent" (as opposed to the "contract rent", i.e. the amount due under the rental agreement) for the premises is only $100 per month - not $400 per month. Resident has had possession for seven month, six of which he paid the full rent that was due, and on the seventh month, i.e. the one for which the eviction was filed, he withheld the monthly rent. But he tendered the full $400 rent into court for the seventh month, and counterclaimed for $1,800, i.e. $300 for each of the prior six months' possession for which he "overpaid". Assuming that the counterclaims were made in good faith, here are the various scenarios:

1. Worst Case for Landlord: The Court finds in favor of the resident, awarding him a judgment for $1,800 (6 months X $300) plus costs and attorney fees.

2. Best Case for Landlord: Although the Court finds against the resident on his counterclaims, and finds that the amount due to the landlord is the full $400, since it has already been tendered into Court, the resident is allowed to retain possession, and may submit a request for recovery of his costs and attorney fees. This is because subsection (1)(b) of ORS 90.370 provides that "If no rent remains due after application of this section and unless otherwise agreed between the parties, a judgment shall be entered for the tenant in the action for possession. (Italics mine.) Thus, the resident is still the prevailing party and entitled to an award of attorney fees.[2]

The only exception to the "Best Case" scenario is where the landlord is able to convince the Court that the resident's counterclaims are improper and/or have been filed in bad faith. If so, the rent tender will do the resident no good, and if he loses his counterclaims, he will be evicted and become subject to a judgment for the landlord's costs and attorney fees.

So, when should the landlord fight to evict a resident for nonpayment of rent, where the resident has tender rent into Court? Only in the following situations: (a) Where the landlord is confident that he/she can convince the Court that the counterclaims were filed in bad faith; or, (b) Where the rent tender is believed to be inadequate and the resident's attorney does not realize that the shortfall could be tendered into Court so that no rent would remain due '_after application of this section... ." In virtually every other situation, the odds of winning a contested nonpayment of rent eviction where there has been a full rent tender are virtually nonexistent.[3]

[1] This analysis does not consider the 144-hour notice provisions of ORS 90.394(2)(b). However, the rationale is exactly the same whether the notice is based upon 72 hours or 144 hours. The only difference is the calculation of the time periods.

[2] ORS 90.255 provides: In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, prevailing party means the party in whose favor final judgment is rendered. (Italics mine.)

[3] These conclusions are based not only upon a reading of the statute, but also several well-established Oregon cases construing it.

By Troy Brost Owner SongBrook MHC, Eugene, Past President and Legislative Chair of Manufactured Housing Communities of Oregon The title of this Community Update should have caught your attention. It is not a gimmick, I have done it myself. Adam Cook's MHCO Community Update article, "Can You Afford to Keep Utilities Included in Your Rent?" from last week is spot on! My answer is no, I cannot and no longer do". Both Landlords and Tenants agree of the importance of sub-metering; it is a win-win proposition. Enduring years of Landlord/Tenant Coalition, one of the most daunting tasks was demonstrating Landlords do not have safes' locked full of money. Financing options simply did not exist to fund mandatory sub-metering. Where were Landlords to find upwards of $750+ per homesite to install water sub-meters? Of course, Landlords proved their argument and negotiated the right to unilaterally amend rental agreements to permit community-wide sub-metering; creating provisions to recapture installation expenses by billing Tenants. Considering a new program now available, I believe every Landlord should sub-meter sooner than later! Now available is a sub-meter and installation program at zero expense to any Landlord wanting to install new or replace old sub-meter systems. No applications, no qualifications, and no money down gets you state of the art wireless monitored sub-meters (water, electric, and gas are all available). What's the catch? ... the Landlord signs a 10 year Billing Agreement with the provider, in which the Tenant pays. So, how does it work? First, the meters are purchased/installed/administered/maintained/repaired/monitored/insured/read/etc. by an Independent 3rd party. Just as all meter reading companies, this 3rd party charges a monthly fee for their service ... it is their cost of doing business. In Eugene, this 3rd party charges nearly 1/2 less of what EWEB (Eugene Water and Electric Board) charges it's customers. Second, per ORS 90, the 3rd party bills the Tenant the cost of the sub-meter and installation over a minimum of 60 months. The sub-metering process is complicated; no worries, this 3rd party is experienced, has been in business for nearly a decade, has all the systems and sample notices in place, and handles the entire process on behalf of the Landlord. The Bottom line: local government agencies and utility companies use Landlords to pass through their exorbitant "fees" and rate increases, in which Landlords are forced to carry until the next "rent" increase ... making the Landlord the greedy bad guy. Prior to sub-metering, utility expenses were 23% of my rent; my monthly invoices now line item sub-meter every utility possible. My rents are now very competitive within the market and I have direct control over costs. I see every reason why all Landlords should do the same. Indeed, it sounds too good to be true ... it is. Contact me at troybrost@gmail.com, 541-554-1499, or visit www.infrasystems.us to find out for yourself. I will provide you with the contact and information you need and assist you along the way. -- Troy Brost

Answer: By your question, it appears that your community is not sub-metered. If it were, the owners of the home would likely recognize the problem and immediately and fix it.

In my experience when water is included as a part of the base rent, most owners really don't care, and don't check. But when the community institutes a sub-metering program, everyone becomes an overnight conservationist. Sub-metering is a win-win for everyone; the landlord saves money in not having to pay for wasted water, and the residents save in (a) controlling their own water bills, and (b) not having to suffer needless rent increases to recapture the cost of wasted water.

Now to your questions. Clearly, if water is visibly running out of the home, the tenants should be notified and told to fix the problem. They are responsible for their own homes.

As for the less obvious leaking problems, the only way to find out is to survey the tenants on the issue; e.g. do they hear the toilet leaking, for example.[1]Same question for faucets. Next, what about under the home? Has anyone checked lately? I have heard of management offering to do inspections under the home for free, as a part of instituting a submetering program.

But can you require residents take these proactive steps, especially hiring someone to inspect under the home. Except for the rules regarding the siting of home on a space, there are likely no regulations that mandate such action on an ongoing basis - at least if there is no present evidence of leaking. If there is evidence, ORS 90.740 can be relied upon to secure compliance, if nothing can be found in the rules or rental agreement:

90.740 Tenant obligations. A tenant shall:

(4)Except as provided by the rental agreement:

(a)Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

(e)Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;

(f)Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

If the rules do not contain such a provision, consider amending them to add language to address the issue. Rule changes can be done in a fairly straightforward manner. See, ORS 90.610. Alternatively, even if submetering is not addressed in your rules, you can unilaterally add it to your rental agreements, as a "Plan B", if you are unsuccessful in implementing the necessary rules.

[1]From the City of Portland website here: "How to check for toilet leaks: Lift of the toilet tank lid. Place 1 dye tablet in the toilet tank. Do not flush. Wait 15 minutes (or more) without flushing. Check the water in the bowl of the tank. If color appears in the bowl, the toilet has a leak."

Answer: The applicable statute is ORS 90.304. In summary, it provides as follows:

1. If you require an applicant to pay a screening charge and the application is denied (or if the applicant makes a written request following your denial of an application) you must promptly provide the applicant with a written statement of one or more reasons for the denial.

2. Your statement of reasons for denial may consist of a form with one or more reasons checked off. MHCO has such a form. The reasons for rejection under the statute include, but are not limited to, the following:

- Rental information, including:

o Negative or insufficient reports from references or other sources;
o An unacceptable or insufficient rental history, such as the lack of a reference from a prior landlord;
o A prior eviction action for possession under ORS 105.105 to ORS 105. 168 that resulted in a general judgment of restitution in the landlord's favor; and
o The inability to verify information regarding a rental history.

- Criminal records, including:

o An unacceptable criminal history;
o The inability to verify information regarding criminal history.

- Financial information, including:

o Insufficient income;
o Negative information provided by a consumer credit reporting agency; and
o Inability to verify information regarding credit history.

- Failure to meet other written screening or admission criteria in your lease or rental agreement. (See Footnote 1)

- The dwelling unit has already been rented.

3. If you fail to comply with these provisions, the applicant may recover from you $100.

Footnote 1: The MHCO Lease (MHCO Form 5B) and Rental (MHCO Form 5A) forms list the screening criteria which a landlord may impose when the resident is seeking to sell their home to an applicant who wants to become a resident in the community. They are the following: (a) unsatisfactory rental references; (b) the absence of any prior tenant history or credit history; (c) unsatisfactory credit history; (d) unsatisfactory character references; (e) any criminal history; (f) insufficient income to reasonably meet the monthly rental and other expense obligations under this Agreement; (g) presence of pets or the number, type or size of pets; (h) if the Community is an age 55+ or 62+ Community, reasonable evidence verifying that at least one occupant is age 55 or 62, or over, as the case may be; (i) evidence that the prospective tenant has provided LANDLORD with falsified or materially misleading information on any material items; (j) if the prospective tenant refuses to sign a new written rental or lease agreement; (k) the number of additional occupants; or, (1) adverse information contained in the public record.

Question.Residents are concerned about the return of the son of a long-time resident who is being released from prison for burglary.  His name is on a rental agreement for a home that he lived in with his parents. His mom still lives in the community under the same rental agreement.  Since his name is still on the rental agreement, does management have to let him back in the community after being away for two years in prison.  The mother says he is still a resident - the residents and management object.  How should management proceed?

Answer.  I’m going to assume the son was a minor when he first came to the park with his mother. That being the case, he never went through the formal application process. I’m also going to assume he is no longer a minor now.  In other words, if he applied for tenancy today, he certainly would have to go through the application process including a criminal background check.

The fact that he is on the rental agreement as a minor is irrelevant today. He should be treated the same as any other tenant applicant.  If he wants to apply for tenancy he may do so. This would include a criminal background check.

You did not say whether this was a misdemeanor or felony conviction. Nor did you say whether he has other convictions. What has he been doing since release? Is he employed? Does he have any references? Does he have a parole officer? Generally, today, certain property-related convictions (as opposed to person-related, such as assault and battery) are not, per se’ the basis of an automatic denial.

Included below are some helpful links, one of which applies to the City of Portland, which has much stricter – some landlords might use other adjectives – than the rest of the state.

Uultimately, the issue is notwhether you must accept this person simply because he had formerly lived at the park – you do not. This applies to adult tenants who were previously approved, left and came back a few years later. You are within your rights to require updated background information as a condition to a person’s approval as a new tenant, whether living with an existing tenant, or in their own home.

One, “middle ground” approach you may consider is to approve the son as a “temporary occupant” under ORS 90.275.  This arrangement allows you to keep a tighter rein on him; if he causes problems, termination is much easier and fast. If you do this, be sure to limit the agreement to a short period of time, e.g. three months. Once that period expires you do not have to renew it. And if he immediately creates a problem, you can terminate immediately. And, there is no right to cure. Good luck.

Resources:

· https://www.mysmartmove.com/SmartMove/blog/hud-guidance-criminal-background-screening.page

· http://fhco.org/index.php/discrimination-in-oregon/protected-classes/national-origin/screening-options

· https://www.opb.org/news/article/portland-tenant-screening-regulations-pass/

· https://www.portlandoregon.gov/phb/article/752954

Answer:  By your question, it appears that your community is not submetered.  If it were, the owners of the home would likely recognize the problem and immediately and fix it.

In my experience when water is included as a part of the base rent, most owners really don’t care, and don’t check. But when the community institutes a submetering program, everyone becomes an overnight conservationist. Submetering is a win-win for everyone; the landlord saves money in not having to pay for wasted water, and the residents save in (a) controlling their own water bills, and (b) not having to suffer needless rent increases to recapture the cost of wasted water.

Now to your questions. Clearly, if water is visibly running out of the home, the tenants should be notified and told to fix the problem. They are responsible for their own homes.

As for the less obvious leaking problems, the only way to find out is to survey the tenants on the issue; e.g. do they hear the toilet leaking, for example.[1] Same question for faucets. Next, what about under the home? Has anyone checked lately? I have heard of management offering to do inspections under the home for free, as a part of instituting a submetering program.

But can you require residents take these proactive steps, especially hiring someone to inspect under the home. Except for the rules regarding the siting of home on a space, there are likely no regulations that mandate such action on an ongoing basis – at least if there is no present evidence of leaking. If there is evidence, ORS 90.740 can be relied upon to secure compliance, if nothing can be found in the rules or rental agreement:  

90.740 Tenant obligations. A tenant shall:    

(4) Except as provided by the rental agreement:

      (a) Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

      (e) Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;

      (f) Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

If the rules do not contain such a provision, consider amending them to add language to address the issue.  Rule changes can be done in a fairly straightforward manner. See, ORS 90.610. Alternatively, even if submetering is not addressed in your rules, you can unilaterally add it to your rental agreements, as a “Plan B”, if you are unsuccessful in implementing the necessary rules.

EXECUTIVE RULE NO. 388 ADDENDUM

Declaration of Emergency-Additional Measures

Multnomah County/Portland. Effective immediately, Multnomah County (which includes the City of Portland) has issued a temporary moratorium on nonpayment of rent evictions caused by wage loss resulting from COVID-19.

To establish eligibility, affected tenants must:

1. Demonstrate a substantial loss of income, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic (including County, State, and Federal restrictions imposed to mitigate its spread); and 

2. Notify their landlords on or before the day rent is duethat they are unable to pay rent due to a substantial loss of income as a result of the COVID-19 pandemic.

The Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID 19. 

For example, a restaurant service worker who no longer has a job due to closure would likely be eligible under this Moratorium if timely notification is made to the landlord.

The Executive Rule clarifies that:

• Nothing in the Moratorium relieves tenants of liability for unpaid rent;
• Any deferred rent must be paid within six months after expiration of Oregon’s Declaration of Emergency;
• No late fees may be charged for rent that has been deferred due to the Moratorium;
• Landlord may not file for eviction due to unpaid rent deferred by the Moratorium.

Multnomah County Circuit Court hearings for eviction proceedings are suspended until April 30, 2020, or later.  So the question for landlords is how to proceed if there is a non-payment of rent for which the tenant has not sought, or has not qualified for, rent deferral under the Executive Rule? 

Should a 72-hour notice be sent? What happens if it is not paid? Can an eviction complaint be filed, even though the FED court is closed?

These are judgment calls up to each landlord. Much depends on the tenant. Is he/she a serial late-payer, in which case, this Moratorium might come as a welcome excuse for nonpayment.  In other cases, the tenant may be legitimately short of funds due to COVID-related job loss. In the former case, perhaps the 72-hour notice should be sent – after all, there is a non-curable right of termination when three such notices are sent within a rolling 12-month period. The same approach could be said about filing for eviction, even though the courts are currently closed.

For landlords of communities within Multnomah County/City of Portland, they should inform their tenants about the Moratorium, so they can apply for the Moratorium, i.e. rent deferral. Otherwise, if rent is not paid, a landlord is left to wonder about the cause. With non-communicative tenants, written notices are the only real alternative, even if landlords cannot act on them right now.  

The Rest of Oregon.Subject to jurisdictional changes in other cities or counties, at the current time,there are no abate/deferral of rent laws similar to those discussed above. However, residents elsewhere are seeking rent concessions, and some landlords may be willing to voluntarily cooperate. 

Accordingly, MHCO felt that the Multnomah County/Portland model had certain merits, since we felt it was better for landlords to adopt voluntary arrangements, such as partial payments consistent with ORS 90.417, versus having residents unilaterally paying reduced rent or nothing at all with no explanation.  Although we do not agree with the mandatory moratorium on non-payment of rent evictions, that issue is, for now, moot, since Oregon circuit courts are closed to such proceedings.

What MHCO is Doing.  We are creating two new forms to address rent deferrals. The first one is limited to communities located withinthe Multnomah County/City of Portland area (Form 13-A). The second one is similar to the first insofar as allowing deferred/partial payments, but apples to the rest of the state (Form 13-B).  Both forms have certain similarities, although Form 13-B gives more latitude to negotiate with tenants over the length of the repayment period. The Multnomah County/Portland Form 13-A mandates a 6-month term.

Final Note.  When using either form, it is important to remember that resident participation in both rent deferral programs is based upon several prerequisites:

1. The request and documentation must occur before the applicable rental period for which the relief is sought; 
2. There must be evidence of actual or impending “substantial loss of income”;
3.  The evidence must be in the form of “documentation” or through other “objectively verifiable means”; and
4. The loss of income must “result” from the COVID-19 Pandemic.  

Lastly, this is not to suggest that if a resident was in dire straits for reasons unrelated to COVID-19, landlords should not try to assist if possible. We’re all in this together.

Legal Risk: “Source of income” discrimination is among the fastest growing areas of fair housing litigation, generating 1,713 complaints in 2022, a year-over-year increase of 39.8 percent, according to the NFHA. Source of income discrimination occurs when landlords reject applicants or evict tenants not because they can’t afford the rent but because they use something other than traditional income from employment to pay, such as Section 8 or other housing vouchers, welfare, disability, unemployment, veteran, or other government benefits. The case can be made that source of income discrimination violates the FHA to the extent that racial minorities, people with disabilities, and other FHA-protected classes rely on these income sources at disproportionate rates. However, the principal risk of liability stems from the 20 states and over 70 major cities whose fair housing laws expressly ban source of income discrimination.

States that Ban Source of Income Discrimination in Housing: California, Connecticut, Colorado, Delaware, District of Columbia, Hawaii, Maryland, Massachusetts, Minnesota, New Jersey, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Texas (covers homeowners associations only), Utah, Vermont, Virginia, Washington, Wisconsin (doesn’t cover housing vouchers)

Solution: There are five steps you can take to guard against inadvertent liability for source of income discrimination:  

Accept all forms of legal income;

Don’t charge fees or impose less favorable rental conditions based on a tenant’s source of income, for example, by requiring a tenant to get the lease guaranteed because they don’t pay in cash;

Don’t require prospects or tenants to be employed if they have the non-employment income necessary to pay rent;

Be careful about imposing minimum income requirements or credit score benchmarks; and

Keep your ads free of statements, images, or other content that express or imply a preference for or against prospects with housing vouchers or other forms of income.

You Make the Call

Can you reject a rental applicant who’s unemployed and dependent on welfare and alimony because she doesn’t meet your community’s income requirements?

a.         Yes, as long as you consistently reject other applicants who don’t meet your income requirements

b.         No, because rejecting her would be discrimination based on sources of income

c.          Yes, because applicants who don’t have steady jobs are too great a financial risk

Answer:

a. If an applicant has the lawful funds to pay her rent each month, you can’t reject her simply because you object to where those funds come from. On the other hand, you don’t have to accept an applicant with insufficient income. So, a. is the right answer.

Wrong answers explained:

b. is wrong because an insufficient amount of income, regardless of source, is a legitimate, non-discriminatory reason for rejection as long as you consistently apply the income standard with all prospects.

c. is wrong because requiring applicants to have a steady job is a form of source of income discrimination that the laws ban. As long as applicants can get the money they need to pay rent from legal sources, the source of that income is none of your concern.