Search

Answer: Your question raises several issues worthy of discussion. First, the fact that the son is in the park and you didn'tknow he was a convicted sex offender, tells me that the park should beef up its rules to require all persons 18 years and over undergo a criminal background check.

If the son is on parole, you may want to try to contact his parole officer. I fully suspect that there may be conditions of his parole that may apply to keep him out of the park.

At the risk of sounding harsh, it is a fact that "sexual predators" are not a protected class under the state and federal constitutions. In short, you can have rules forbidding them to be in the park due to the proximity of children.

If you don't have such rules, you may want to enact some. But even though you don't, I believe you did the right thing to require that he not occupy the home. You can and should do the same thing with regards to forbidding him to come into the park at all. If his family wants to see him, they can go to where he currently lives. The person(s) who has/have hired him to do odd jobs should be told that he cannot come into the park for ANY reason.

If you wonder whether this can be done without some specific rules, my response is that I would prefer rules to be in place. But even though you presumably have nothing on point, it would not stop me from banning him from the park. If he legally objects and wins, then it was a court that said he could come in - not you. Your main duty is to the park residents and their children. Better to try to remove him and fail than not to try at all.

Lastly, for your information, ORS 90.630(1)(c), permits a landlord to terminate a tenant if it is determined that they are "a predatory sex offender under ORS 181.585 to 181.587." From your question, I could not tell whether the adult son was on the rental agreement, but if so, he is a "tenant." The statute is not clear whether it can be applied to only a single tenant, without terminating the tenancy of the remaining occupants. Of course, the statute doesn'taddress the larger issue of whether you may prohibit him from coming into the park, but I believe you are fully within your rights, as discussed above. However, you should first clear any such action with the park ownership, and they should secure legal advice on how to proceed

COVID 19 - Nonpayment of Rent In Multnomah County/City of Portland And The Rest of Oregon

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.

Later this week, the Oregon House Committee on Housing and Homelessness will introduce an amendment to HB3054 (Rent Control & Vacancy Control). The committee is expected to adopt this amendment later in April. MHCO has been negotiating with Rep Marsh (Committee Chair), but no agreement was reached as negotiations ended several weeks ago. 

The amendment to be introduced removes ‘vacancy control’ and increases the rent cap to 6% (the original bill limited rent increases to CPI). The new amendment also exempts communities/marinas with 30 or less units. MHCO is waiting to review the actual amendment and will provide further analysis once the actual language is available.

In the meantime, here is a summary of the amendment:

1. Applies only to the tenancies of the homeowners of manufactured dwellings and floating homes who rent a space in parks and marinas, known collectively as facilities.

2.      Lowers the maximum allowed annual rent increase to 6 percent from the current level of 7 percent plus CPI capped at 10 percent (SB 608 (2019)). 

a.       Parks and marinas with 30 or fewer spaces are exempted from this lower maximum and continue to be covered by the current level.

3.      Exception: Landlords of facilities with more than 30 spaces may increase the rent once every five years to 12 percent to address a significant infrastructure repair, upgrade, or addition cost, with the approval of the homeowners of at least 51 percent of the occupied spaces. 

a.       The bill describes requirements for this written vote including a written proposal with estimated costs and time frame, and with a recapture penalty if the improvement is not completed.

4.      Clarifies that a landlord may not require a selling tenant or a purchasing tenant to make aesthetic or cosmetic improvements to the home as a condition of approving a sale.  

a.       Note that an example of an aesthetic improvement would be a change in the paint color of the exterior of the home; peeling or faded paint is already defined as “deterioration,” and the law allows a landlord to require correction during a tenancy or as a condition of a sale. 

5.      Prohibits landlords from requiring selling tenants or purchasers to consent to or obtain an inspection of the interior of the home. 

a.       Note that current law requires a tenant to keep the home “safe from the hazards of fire,” which would include the exterior and the interior of the home. 

MHCO remains opposed to the amendment.

According to the American Psychological Association, “Don't let your fear of meddling in someone else's business stop you from reporting your suspicions. You could be saving someone's life. . . ”

You can help. You do not need to evict. You can help your abused resident oust the abusive caregiver immediately.  You can report, help with “move-out” orders, “stay-away” orders, and other relief for your abused residents in your parks. 

■ California Mobilehome Residency Law’s 

Absence of Protection for Seniors Can be 

Supplemented with Management Help (E.g., 

Elder Abuse and Dependent Adult Civil Protection

Act (EADACPA), Domestic Violence Prevention Act (DVPA)

     The common wisdom is that evicting an abusive co-occupant, even a criminal, is fraught with difficulty and uncertainty. But the elder subject to an abusive caregiver, or other abusive household members, can seek an order to oust them by court order and without notice. The California Mobilehome Residency Law (Civil Code §§798, et seq.) (“MRL”) is no help here. The MRL is a prime enabler of elder abuse by its “hands off” policy to any occupants, and its unintended consequences welcome every predatory opportunist who cajoles his or her way into a senior’s coach. This while management is handcuffed from interceding with prevention, remedies, or even effective detection. But if we choose, we can do plenty to help the resident once we know.

     Evictions take forever.  Management must always wait for a 60 day notice to expire (once prepared and served) to even file suit to evict the abuser. That 60 day period enables the abuser to intimidate, terrify and coerce witnesses not to testify. Horrified, residents take shelter, lock themselves in and become prisoners in their homes. When WMA introduced legislation to evict such violent criminals, the State Senate Judiciary Committee killed the bill: not enoughreason to give management this remedy. So, the park owner’s hands remain tied for 60 days after notice of termination of possession based on outrageous abuse or even dangerous felonies (all on a “substantial annoyance” grounds) if anyone will testify as to the annoyance. But an at-risk elderly frail resident can go to court nowand obtain a “move-out” order without notice. We, as management, can educate and help.

     Move-Out Order Issue NOW- Without Notice.  In summary, management can assistthe abused or harassed senior and help get to court and get the abusive caregiver out NOW. Many residents cannot afford a lawyer, and often, it is the family that is responsible for the abuse. Management can do more than report. Maybe senior protective services will respond, maybe not. But court forms are designed for non-lawyers. We can help with these preprinted forms–and attend court with the resident, offer to be a witness, and also report to the police, County agencies and other family. As for courts, there are no filing fees or service costs.

     As the numbers of elder victims climbs, understanding management options will become a customary “best” management practice: a sign of good quality management, and a reflection of care and concern for frail and vulnerable residents. Actively enhancing lifestyle and atmosphere has always been a hallmark of the manufactured housing industry. 

     We can help end pain and misery to elder abuse victims of caregivers, family and deceitful predators. There are ways to bring immediate relief to desperate, life-threatening situations which usually are never detected, and which the Mobilehome Residency Law does not allow a park owner to initially prevent.

■ The Scope of the Mushrooming Epidemic:

For Every Reported Elder Abuse Case, 24 More are Unreported.

     The New York State Elder Abuse Prevalence Study found that for every case known to programs and agencies, 24 were unreported. Another reports that 1 in 10 older adults report emotional, physical, or sexual mistreatment, or neglect. Often, physical, emotional or psychological abuse accompanies financial abuse. Neglect and abandonment, for example, when the kids get a power of attorney and ability to withdraw money. 

     For about 40 years now, from 55+ to “all-age” parks, owners and management bring me problems that they observe or their residents bring to them. This is because of genuine concern, not out of sense of legal duty or obligation.  Because they care.       

■ Warning Signs and Indicators of Caregiver Elder Abuse.

     Watch for the following from your residents. There are signs that elder abuse may be occurring at the hands of the caregivers residing on the space. Bear in mind that the homeowner may not be capable of telling us of the abuse. The elder may also be ashamed, fearful of retaliation or punishment, or somehow assuming some of the blame for his or her own condition. 

     Who are The Exploitive and Abusers?  They May be Closer Than They Appear.

■        Family members, abusive children, nieces, nephews, past or present paramours, homeless 

■        Caretaker/caregiver/care custodian - any person who has the care, custody, or control of or who stands in  position of trust with, an elder or a dependent adult.

■        Banks, mortgage brokers, lenders

■        Insurance companies and their agents

■        Financial advisors and life agents

■        Trust mills

■        Real estate agents, title and escrow companies

■        Attorneys (and others holding themselves out as having legal expertise–tax preparers, paralegals, assistants, J.D. graduates)

■        Scams – lotteries, sweepstakes

■        Home repair, unsolicited work

■        Sweetheart scams

SUMMARY OF SIGNS OF ELDER ABUSE

Physical Abuse

■ Unexplained signs of injury such as bruises, welts, scars, broken bones or sprains

■ Report of drug overdose or apparent failure to take medication regularly

■  Signs of being restrained, such as rope marks on wrists

■  Caregiver's refusal to allow you to see the person alone

■ Physical or chemical restraints for caregiver's convenience 

■ Repeated unexplained injuries

Emotional Abuse

■ Threatening, belittling, or controlling caregiver behavior that you witness

■ Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling

■ Uncommunicative and unresponsive

■ Unreasonably fearful or suspicious 

■ Lack of interest in social contacts

■ Evasive or isolated 

■ Unexplained or uncharacteristic changes in behavior

■ Unexplained venereal disease or genital infections

■ Torn, stained, underclothing

Financial Exploitation

■ Significant or unauthorized withdrawals from the elder's accounts

■ Sudden changes in the elder's financial condition

■  Items or cash missing from the household

■ Suspicious changes in mobilehome title, legal owner, wills, power of attorney, titles, and policies

■ Addition of names to the elder's signature card

■ Unpaid bills or lack of medical care, although the elder has enough money to pay for them

■ Financial activity the elder couldn't have done, such as an ATM withdrawal by a bedridden account holder

■ Unnecessary services, goods, or subscriptions

■ New caregiver cars in the driveway; new high frequency of deliveries

■  Evidence of inadequate care when bills are paid in full

Elders May Contribute to Abuse, Secreting of Abuse, Fail to Recognize or Report

■  May lack cognitive ability to recognize abuse and/or their rights to safety and protection 

■ May be in denial; distorted view of treatment

■ May not have functioning neuro-pathways; not feeling normal pain, discomfort

■ May be incapacitated– unable to message out

■ Are often reluctant to report or prosecute

■ “Report me and I will put you in a home”

■ Afraid of removal from home

■ Fear of retribution

■ Dependence on others to assist with activities of daily living and personal care;

■  Communication or physical impairments which may limit ability to verbally or physically defend against a perpetrator and disclose abuse

■ FIVE (5) IMMEDIATE ACTIONS TO CONSIDER NOW:

★  CONTACT FIRST RESPONDERS: USUALLY, ADULT PROTECTIVE SERVICES.

                        ■             Adult Protective Services (“APS”) can provide investigations, needs assessments, remedial and preventative social work activities, food, transportation, emergency shelter.

■          Cross report to police for criminal restraining orders.

■          State mandates that each County establish a 24/7 emergency response adult protective services program to take and investigate reports of abuse of an elder or a dependent adult. Cal. W&I Code §15763)

■          “Protective services” include investigations, needs assessments, remedial and preventive social work activities; the necessary tangible resources such as food, transportation, emergency shelter, and in-home protective care; the use of multi-disciplinary teams; and a system in which reporting of abuse can occur on a 24- hour basis. (Cal. W&I Code §15760).

Keep Adult Protective Services Honest–Insist They Do Their Jobs: Mandatory Effort to Investigate

■          When an allegation of abuse of an elder or dependent adult is reported; and,

■              The agency social worker has reason to believe an elder or dependent adult has suffered or is at substantial risk of abuse pursuant to  Cal. W&I Code §15630; 

■          The social worker is required to attempt to obtain consent to:

–          enter and meet privately with the elder or dependent adult in the residence or dwelling in which the elder or dependent adult resides, 

–          without the presence of the person's caretaker, attendant, or family or household member, unless the person requests the presence of the attendant, care giver, or family member, or refuses to meet with the social worker. (Cal. W&I Code §15762)

■          APS action requires victim consent unless a Penal Code violation has been alleged. Cal.  W&I Code § 15636)

■          If the victim is incapacitated and cannot legally give or deny consent to protective services, APS may initiate a petition for temporary conservatorship.

★  HELP RESIDENT GET ORDER TO IMMEDIATELY OUST THE ABUSER. 

The courts make the applications, declarations and orders available as consumer friendly forms. No lawyers needed. Lawyers may be helpful in many circumstances. But do not let the absence of a lawyer stop a valid  application to the court from being made. 

Help the resident obtain a Move-Out Order (“Elder Abuse Restraining Order”) under the Elder Abuse and Dependent Adult Civil Protection Act. Originally, the Elder Abuse Act was designed to encourage the reporting of abuse and neglect of elders and dependent adults and continues to be a major component of the Elder Abuse Act as it stands in its current form today.

            The Elder Abuse Act now permits and even requires certain heightened remedies subject to statutory criteria and limitations, including attorney's fees, punitive damages, pain and suffering damages even after the abused elder's death, and fees for a conservator who successfully brings an elder abuse claim.

■          EADACPA allows a court to issue an order protecting an elder or dependent adult from further abuse by an individual including ordering a move-out from the property.  Cal. W&I Code §15657.03(c) provides that an order may be issued with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, proof of a past act or acts of abuse of the petitioning elder or dependent adult. 

The evidence of past abuse is sufficient even without a particularized showing of evidence or risk that  wrongful acts will continue or be repeated.

■          Does Your Resident Qualify? In order to obtain an Elder Abuse Restraining Order, or EARO, the person requesting the order:

■          Must be an elder or dependent adult;

■          Must have suffered abuse.

■               An “Elder” is one who is 65 years of age or older.

■          For a Move Out Order, Must be a Legal or equitable Owner, and Defendant cannot be sole owner. 

■          Also included is the “Dependent Adult”, defined as a person between the ages of 18 and 64 who has physical or mental limitations that restrict the person's ability to carry out normal activities or to protect his or her rights.

■          If the Resident hires counsel, there is an entitlement to attorney’s fees. No reason park owner cannot supply counsel with reimbursement agreement. There is a right to recovery of attorney’s fees.

■          Does Your Resident Qualify for a Move Out Order?  The court may issue a restraining order excluding the abusive caregiver (including family members) from the resident’s home on a showing of the following:

■          Proof that the resident has a right of possession.

■          Proof that the abusive caregiver assaulted or threatens to assault the resident or other named family or household member including a conservator.

■          Proof that physical or emotional harm would otherwise result to the person to be protected.

■           After the restraining order is issued (without notice), the court may issue, after notice and hearing, an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner.

■          An order excluding the abusive caregiver from the dwelling is permitted, except not if legal or equitable title to, or lease of, the residence is in the sole name of the abuser, or is in the name of the party to be excluded and any other party besides the petitioner. Cal. W&I Code §15657.03 (b) (3) (B).

The courts provide pre-printed forms. This makes it easier to go to court and get the orders. The courts are familiar with the forms and often provide relief with the right language. Of course, management can assist in the preparation of the papers, if the resident is unable to do so in a winning fashion. 

The law states that (Cal. W&I Code §15657.03(d)) on filing a petition for protective order, “the petitioner may obtain a temporary restraining order.” The law says that an injunction is available without notice if:

■          It appears that great or irreparable injury will result before the matter can be heard on notice. 

■          The resident or his or her attorney certifies one of the following: 

–          That within a reasonable time prior to the application the applicant informed the opposing party or the opposing party's attorney at what time and where the application would be made. 

–          That the applicant in good faith attempted but was unable to inform the opposing party and the opposing party's attorney, specifying the efforts made to contact them. 

–          That for reasons specified the applicant should not be required to so inform the opposing party or the opposing party's attorney.

Note, that the court may grant a an elder abuse restraining order on a preponderance of the evidence.

★         HELPKICK-OUT THE ABUSER!!

(DOMESTIC VIOLENCE PREVENTION ACT– DVPA). 

Your resident may seek a DVPA “move-out” order to immediately oust the abusive, dangerous or harassing caregiver. The “kick out” order forces an ouster of an abusive caregiver.  An order can be issued to restrain contact either directly or indirectly:

■         By mail or otherwise, 

■         Coming within a specified distance of, or

■         Disturbing the peace of the other party.  Cal.Family Code §6320, 6211.

            The law provides that a court may issue an order, without notice, to exclude a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence. “Domestic violence” is abuse perpetrated against spouses, co-habitants, children and blood relatives within the second degree.  But the order may issues regardless of the owner of the property. 

            Types of “domestic violence protective orders” includes an order enjoining specific acts of abuse (Cal.Family Code §6320), excluding a person from a dwelling (Cal.Family Code §6321) and enjoining other specified behavior. (Cal.Family Code §6322).

■         For an order excluding a party from a dwelling, the following proof is required:

--         The resident has a right to possess the mobilehome; 

--         The resident’s spouse or significant other has assaulted or threatened to assault the abused resident,  child, or any person that is under the resident’s care, custody, and control;

--         If the exclusion order were not granted, physical OR emotional harm would otherwise result. 

While title ownership is not required, still, the relationship to the victim is a requirement must be established.  The resident must reasonably show that if the order were not granted, that physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party. (Cal.Family Code §6321)

■   What is  “Abuse”within the meaning of the DVPA? (Cal.Family Code §§6203 (a), (b), (c), (d).)

--         Intentionally or recklessly causing or attempting to cause bodily injury; or

--          Sexual assault; or

--         “Reasonable apprehension” of imminent serious bodily injury to person or

 another; or

--         Engaging in any behavior that has been or could be enjoined

 (Cal. Family Code  §6320).

Thus, the requisite “abuse” need not be actual infliction of physical injury or assault.

★         HELPGET A HARASSMENT INJUNCTION!! 

CAL. CODE OF CIVIL PROCEDURE §527.6

Civil injunctive scheme has a separate procedure to prevent civil harassment to prevent unlawful violence, threats of violence and suffering of emotional distress. (Cal. Code of Civil Procedure §527.6).

■   Court forms are available: ttp://www.courts.ca.gov/documents/ch100.pdf

■   Civil injunction requires demonstrating imminent irreparable harm, probability of success on the merits and a balancing of equities. An elder who has suffered financial abuse may seek a protective order, including a TRO:

            --         Enjoining someone from abusing, intimidating, molesting, attacking, stalking, threatening, sexually assaulting, battering, or harassing the petitioning elder,

            --         Preventing the destruction of the elder’s personal property, and

            --         Excluding someone from the elder’s home.

            ■   Family members residing in the home with the elder and caregivers can be added as protected parties to receive the full protection of the temporary restraining order.

★         HELPARREST A “SHORT TERM” ABUSER, GET JUDGMENT FOR POSSESSION FOR LONGER TERM ABUSER (CAL. CIVIL CODE §1946.5)

■              If there is a single lodger in the home:  Your resident can seek to oust the abusive occupant, boarder, lodger or caregiver.  Cal. Civil Code §1946.5 applies, only, if requirements are satisfied.

            --         The mobilehome must also be occupied by the resident; 

            --         The resident retains a right of access to all areas of the mobilehome and have overall control; 

            --         The abusive person is the sole, other, occupant, and 

            --         The abusive person must have contracted either for room, or room and board.

            ■         If all of the above conditions apply, the law prescribes an expedited procedure to bring about the removal of the lodger.The resident may terminate tenancy by serving written Notice of termination. The length of time must be equal to the tenancy period (e.g., 30 days for a month-to-month).  Note the occupant has no tenancy rights and is not subject to the MRL. 

            ■         At the expiration of the required Notice period, the resident must file an action for unlawful detainer. For short term occupants, the occupant can also be arrested if required conditions are met. A private person's arrest is authorized, on condition, for violation of Penal Code §602.3 (an infraction). 

            ■         In summary, if the situation involves a single occupant, the resident can make a private person arrest for Cal. Penal Code §602.3 in lieu of proceeding through the eviction process.  Penal Code§602.3 states:

  (a) A lodger who is subject to Section 1946.5 of the Civil Code and who remains on the premises of an owner-occupied dwelling unit after receipt of a Notice terminating the hiring, and expiration of the Notice period, provided in Section 1946.5 of the Civil Code is guilty of an infraction and may, pursuant to Section 837, be arrested for the offense by the owner, or in the event the owner is represented by a court-appointed conservator, executor, or administrator, by the owner's representative. Notwithstanding Section 853.5, the requirement of that section for release upon written promise to appear Shall not preclude an assisting peace officer from removing the Person from the owner-occupied dwelling unit.

(b) The removal of a lodger from a dwelling unit by the owner pursuant to subdivision (a) is not a forcible entry under the provisions of Section 1159 of the Code of Civil Procedure and Shall not be a basis for civil liability under that section.

            * * * 

            (f) This section applies only to owner-occupied dwellings where a single lodger resides. Nothing in this section shall be construed to determine or affect in any way the rights of persons residing as lodgers in an owner-occupied dwelling where more than one lodger resides.

■              No “Good Samaritan” standing:  Management is not entitled to be a party to assist the resident. But we may be of assistance and help save a life. 

There is no “Good Samaritan” standing to help an abused senior escape elder abuse. A park owner cannot assert claims directly for residents. Management can report claims and keep up the pressure to insist on positive and prompt action. As revealed by various cases of recent elder abuse, not even the agencies touting their dedication to ending elder abuse take any action in very clear cases. 

There are limits as to who may have standing to bring an elder abuse action on behalf of an alleged victim during the elder’s lifetime.

            The EADACPA supports third-party standing for certain representativesto bring an elder abuse claim on behalf of an abused elder while he or she is still alive. Such as conservators. But not many others, including concerned family members. There is also no “Good Samaritan” standing, which would allow concerned persons to intercede and seek relief.

★         YOUR RESIDENT HAS THE RIGHT TO DEMAND RETURN OF PROPERTY

WRONGFULLY TAKEN–ITSELF AN ACT OF ELDER ABUSE¹

■         The elder or a “representative of the elder” may demand the return of real or personal property from a person or entity who took, secreted, appropriated, obtained, or retained, or assisted in those acts when the elder or dependent adult lacked capacity or was of unsound mind.

■        The failure to return the property on demand gives rise to a separate claim for financial elder abuse, even if the original taking was not financial elder abuse within the meaning of EADACPA.

★        DEFINITIONS, LAWS, REGULATIONS, FURTHER INFORMATION 

              ■  What is Elder Abuse??  

Cal. W&I Code§15600 et seq.defines elder abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment resulting in physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. This definition applies to elders and dependent adults. Cal.W&I Code§15610.63:  

As defined by Penal Code, “physical abuse” includes: 

■  Assault, battery, sexual assault, battery or rape, 

■  Prolonged or continual deprivation of food or water,

■  Use of physical or chemical restraints for punishment,

    convenience, or without or beyond the scope of the doctor's order.

■  What Is “Neglect” And “Self-Neglect”?

“Neglect”means either of the following:

■ The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

■  The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

■  Neglect includes, but is not limited to, all of the following:

■  Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

■  Failure to provide medical care for physical and mental health needs.

■  Failure to protect from health and safety hazards.

■  Failure to prevent malnutrition or dehydration.

■ Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4) for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

         ■  What is “Isolation” ? 

“Isolation”means any of the following:

■ Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.

■  Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.

■ False imprisonment, as defined in Section 236 of the Penal Code.

■ Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.

         ■  What is “Financial Elder Abuse”?

“Financial abuse”of an elder or dependent adult occurs when a person or entity does any of the following:

■  Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

■ Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

■ Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence.

■ A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.

■ A person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.

■  Watch for “Powers of Attorney”  as Another Form of Elder Abuse

Powers of attorney are a frequent tool of abuse. These are low cost, easy to execute, can grant very broad powers and available on the internet without the need for legal counsel. The “POA” often grants the agent the same broad general powers of a Trustee but, unlike revocable trusts, generally lack provisions defining duties owed by the agent to the principal.  Because general POAs are not tied to particular assets, there may be multiple conflicting instruments empowering multiple agents.

■  Care-Giver Cannot Take from Estate of Deceased Resident 

California  law prohibits bequests to caregivers–they are barred from receiving anything from a homeowner.   A caregiver cannot move in with the hope of convincing residents to give them property after death. Cal. Probate Code §§21360 -21392. A caregiver, or "care custodian,"  means any ". . . person providing health services or social services. . . " Cal. W&I Code §15610.17(y). Fraud or undue influence is presumed if a bequest is made. Cal. Probate Code §21380(a)(3). The bequest is invalid.

Caregivers Can Steal Our Residents Blind (and do). Do they try to be signed on title for a "quick flip" of the mobilehome? Nothing stops that. And management must approve the buyer and not interfere with a sale. 

■ Conclusion: Make A Difference 

The expansive rights of “care-givers” and “companions” is a product of a pro-mobilehome-resident legislature that actively prevents park owners from ejecting even serious criminals. Moreover, the potential for resident abuse is drowned out by claims that owners will abuse such a remedy. So, the needy continue to suffer for sake of appeasement of tenants, who oppose anythinga park owner proposes. Usually, we do not evict without resident support. 

Plainly, the probability of resident abuse increases as the numbers of retirees grows in leaps and bounds. These people live in your parks. The additional occupant has an open invitation for interloping, domineering, and controlling the frail resident.  All these visitors–usually abusive family--are empowered to quash the free will of your frail resident, take the check book and lock them away. And the MRL provides no management rights to approve, affect or detect elder abuse. Management has no ability to intervene even if requested by a resident.

Watch for signs of elder abuse. Report it. You could be saving someone's life. Remember: The resident has five (5) options which can be pursued as soon as discovered.

Management’s powers of observation are therefore needed to report and persistently complain if needed. When objective evidence tells your instincts that something is “just not right,” report it and ask questions. Legally, is there a duty to do so? Absolutely not. But that is not us. We are in business to serve.

Answer: A judgment is a lien on all real property that is owned by the judgment debtor in the county in which the debtor resides. The lien gives the judgment creditor the right to "execute" on that real property, i.e. force a sale of the property with the proceeds being applied toward payment of the judgment. It is good for ten years and can be renewed for another ten years. If the creditor doesn'tknow if the debtor owns property in a particular county he can record the judgment there anyway (or some counties or every county in Oregon), and it will immediately attach if property is located there. This means that if the debtor attempts to dispose of, or mortgage, the property, the judgment lien will prevent the transaction until the creditor is paid in full. Judgments carry interest at 9% per annum. If the judgment debtor does not own any real property to which the lien can attach, he can still try to get paid, either through garnishment of wages or bank accounts, or execution upon other of the debtor's assets. If the creditor doesn'tknow what assets the debtor has, he can subpoena him into court, place him under oath, and ask questions about the existence and whereabouts of the debtor's assets. As you can see, armed with a recorded judgment, a creditor can make a debtor's life somewhat unpleasant. Once the judgment is satisfied, the debtor should insist that the creditor remove the lien by recording a Satisfaction of Judgment. This has the effect of nullifying the judgment and it will no longer appear as a negative comment on his credit history. In your case, you should tell the person that as long as the judgments appear on the record, it will appear on his credit report, affect his credit score, and could interfere with his ability to qualify to rent a space in your community. If, indeed, the liens have been taken care of, he needs to have the judgment creditors each record a Satisfaction of Judgment. A word of caution: ORS 90.680(6)(b) says that a landlord may not unreasonably reject a tenant's prospective purchaser. My concern here is that if you reject the purchaser before running the background check, you face a potential claim from the existing tenant that your rejection in advance, was per se unreasonable. Furthermore, if the applicant is a member of a protected class, you could be setting yourself up for a fair housing claim. Please consider this: If these are old judgments or very small amounts, they may say little about his qualifications as a tenant. It may be that no collection efforts are being made. Most collection agencies do not want to spend a lot of time chasing small sums, or if they do, they will discount the amount for a cash payment. How recent are the judgments? Is he gainfully employed? How long has he been employed? What is his debt-to-income ratio? His rental history? How is he paying for the home? If you don't know the answer to these questions, perhaps you should consider running the report just to find out. Since he is paying the cost of the credit check, completing the process may be your best and safest course of action, rather than "assuming" it's as bad as you think because of the unsatisfied judgments. It is far easier to say "No" after the credit, criminal, and background checks, because - if you're right - you'll have something to base the rejection on. Rejecting him in advance gives you no such safe harbor protection.

Answer. There is nothing in the Oregon landlord-tenant laws that addresses this subject. This is not like an adult who wants to be approved as a resident and move in to an existing home. In that case, I can see that you would want to run him through the fully battery of checks.

But in this case, what would you learn? You would not be able to get any juvenile records. He probably has no credit to speak of, and his income is not necessary for establishing that his parents can afford to live in the community. It strikes me that going forward, you retain the same control over him as any other adults in the park. He has to obey the rules, etc., and if he doesn'tyou could issue a 30-day notice to the parents about his conduct.

If you wanted to add him as a Temporary Occupant, you could do that. If he violated rules, etc., you could terminate his right to be a Temporary Occupant, and require that he vacate. However, in this case, it does not seem that there is cause for concern.

If he had been a problem child, and now had grown into a problem adult, I would strongly recommend that you use a Temporary Occupancy Agreement. Your options in requiring that he vacate upon breach of the rules, are much swifter, although you cannot terminate without cause.

Although I don't believe I've seen this issue addressed in park rules, it's not a bad idea to have something in place. You could say that all children remaining in the park after their 18th birthday, must do X, Y, and Z. That way, when it happens, you will not be accused of picking on one particular tenant's son or daughter.

Lastly, I've often seen a similar situation, where the child moves away after his or her 18th birthday, and then returns a year or so later. Some landlords treat this as they would any other third party wanting to move into an existing resident's home. While it would be nice if the situation was addressed in the community rules, I have not seen this. I believe I would treat any adult wanting to share space with other residents, even parents, the same way I would treat unrelated parties; they must at least pass a background check. The rule should be the same for two residents who have been approved, then one leaves and comes back a year or so later.

In all cases, you can use the Occupancy Agreement, assuming the person passes their background check. If there is ever any doubt about the boomerang child, or former tenant coming back into the community, your best alternative (other than saying "No" based upon the background check) is to use the Temporary Occupancy Agreement.[1] However, never let the Temporary Occupancy Agreement be perpetual; be sure to have an expiration date on the term. You can always renew it if they behave.

[1] The statute is here. Note that you cannot qualify the Temporary Occupant based upon finances, since it is presumed their income is not necessary for the existing tenant(s) to pay the monthly space rent.

Answer: This sounds like an episode from a Jerry Springer reality show! Your question doesn'tmake it clear whether the estate was formally filed for probate in court, in which case this "Administrator" would be subject to court supervision and would have to have a bond. I'm suspecting that is not the case - but if it is, you may want to secure legal counsel to notify the court of what's happening and perhaps get him removed.

Assuming that the person is just a designee for the un-probated estate (I will call him the "representative"), I would suggest that you look to ORS 90.675(20), which applies when a resident living alone passes away. Subsection (20) is summarized below, but should not be used as a substitute for reading ORS 90.675 (linked here) in its entirety:

• This subsection (20) applies the same duties as those of a resident who abandoned the property.
• It also applies to any personal representative named in a will or appointed by a court, or any person designated in writing by the decedent to be contacted by the landlord in the event of the tenant's death;
• The 45-day abandonment notice required in ORS 90.675(3) (go to above link) is to be sent by first class mail to this representative at the premises, and also personally delivered or sent by first class mail to them if actually known to the landlord.
• If the representative responds by actual notice to a landlord within the 45-day period provided in the letter and so requests, the landlord shall enter into a written storage agreement with the representative or person providing that the personal property may not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later.
• Note: Entering into the storage agreement includes the duty to pay a "storage fee" which can be no higher than the space rent. This duty is not triggered until the 45-day letter is sent. Presumably you will use a good storage agreement that requires, among other things, compliance with all applicable park rules and state, federal and local laws and ordinances, including a duty to maintain the space. On- site destruction of the home is NOT maintaining the space. Depending upon the home's age, on site destruction could be a violation of certain environmental laws, due to potentially hazardous material used in construction. In fact, since there is a risk that the representative will not comply with the storage agreement - based on his threat of destruction - you may want to consider - only upon the advice of your attorney - to restrict his unsupervised access to the home. Destruction of the home would not only take it off the tax rolls in violation of Oregon property tax law, but it would prevent you, as the landlord, from selling the home upon failure of the representative to meet his obligations. Remember, in addition to the tax collector, you have a vested interest in seeing the home sold for recoupment any sums due (arguably including attorney fees) incurred during the abandonment process.
• Since the abandonment law requires that the landlord has a duty of safe keeping pending completion of the abandonment process, it is my belief[1] that this entitles the landlord to secure the home (e.g. with a new lock) so that heirs and others cannot enter and remove personal property.
• A storage agreement entitles the representative to store the personal property on the space during the term of the agreement, but does not entitle anyone to occupy the personal property.
• If such an agreement is entered into, the landlord may not enter a similar agreement with a lienholder (if any) until the agreement with the representative ends.
• If the representative requests that a landlord enter into a storage agreement and there is a lienholder, also, you should review subsections (19)(c) to (e) and (g)(C) of ORS 90.675, which describes the rights and responsibilities of a lienholder with regard to the storage agreement.
• During the term of the Storage Agreement, the representative has the right to remove or sell the property, including a sale to a purchaser or a transfer to an heir who wishes to leave the property on the space and become a tenant. However, this prospective tenant is subject to the same statutory requirement, including landlord qualification and approval, as found in ORS 90.680 (linked here). The landlord also may condition approval for occupancy upon payment of all unpaid storage charges and maintenance costs.
• If the representative violates the storage agreement, the landlord may terminate it by giving at least 30 days' written notice to them stating facts sufficient to notify them of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the Storage Agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative.

• Upon the failure of a representative to enter into a storage agreement or upon termination of an agreement, unless the parties otherwise agree or the representative has sold or removed the home, the landlord may sell or dispose of it pursuant to sale provisions of ORS 90.675 without further notice to the representative.

So, in summary, the abandonment statute - which is quite lengthy and somewhat difficult to follow - applies in this case, and with proper guidance, you should be able to successfully deal with the representative.

[1] I'm not rendering a "legal opinion" in this Answer - PCQ

Answer: This sounds like an episode from a Jerry Springer reality show! Your question doesn'tmake it clear whether the estate was formally filed for probate in court, in which case this "Administrator" would be subject to court supervision and would have to have a bond. I'm suspecting that is not the case - but if it is, you may want to secure legal counsel to notify the court of what's happening and perhaps get him removed.

Assuming that the person is just a designee for the un-probated estate (I will call him the "representative"), I would suggest that you look to ORS 90.675(20), which applies when a resident living alone passes away. Subsection (20) is summarized below, but should not be used as a substitute for reading ORS 90.675 (linked here) in its entirety:

• This subsection (20) applies the same duties as those of a resident who abandoned the property.
• It also applies to any personal representative named in a will or appointed by a court, or any person designated in writing by the decedent to be contacted by the landlord in the event of the tenant's death;
• The 45-day abandonment notice required in ORS 90.675(3) (go to above link) is to be sent by first class mail to this representative at the premises, and also personally delivered or sent by first class mail to them if actually known to the landlord.
• If the representative responds by actual notice to a landlord within the 45-day period provided in the letter and so requests, the landlord shall enter into a written storage agreement with the representative or person providing that the personal property may not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later.
• Note: Entering into the storage agreement includes the duty to pay a "storage fee" which can be no higher than the space rent. This duty is not triggered until the 45-day letter is sent. Presumably you will use a good storage agreement that requires, among other things, compliance with all applicable park rules and state, federal and local laws and ordinances, including a duty to maintain the space. On- site destruction of the home is NOT maintaining the space. Depending upon the home's age, on site destruction could be a violation of certain environmental laws, due to potentially hazardous material used in construction. In fact, since there is a risk that the representative will not comply with the storage agreement - based on his threat of destruction - you may want to consider - only upon the advice of your attorney - to restrict his unsupervised access to the home. Destruction of the home would not only take it off the tax rolls in violation of Oregon property tax law, but it would prevent you, as the landlord, from selling the home upon failure of the representative to meet his obligations. Remember, in addition to the tax collector, you have a vested interest in seeing the home sold for recoupment any sums due (arguably including attorney fees) incurred during the abandonment process.
• Since the abandonment law requires that the landlord has a duty of safe keeping pending completion of the abandonment process, it is my belief[1] that this entitles the landlord to secure the home (e.g. with a new lock) so that heirs and others cannot enter and remove personal property.
• A storage agreement entitles the representative to store the personal property on the space during the term of the agreement, but does not entitle anyone to occupy the personal property.
• If such an agreement is entered into, the landlord may not enter a similar agreement with a lienholder (if any) until the agreement with the representative ends.
• If the representative requests that a landlord enter into a storage agreement and there is a lienholder, also, you should review subsections (19)(c) to (e) and (g)(C) of ORS 90.675, which describes the rights and responsibilities of a lienholder with regard to the storage agreement.
• During the term of the Storage Agreement, the representative has the right to remove or sell the property, including a sale to a purchaser or a transfer to an heir who wishes to leave the property on the space and become a tenant. However, this prospective tenant is subject to the same statutory requirement, including landlord qualification and approval, as found in ORS 90.680 (linked here). The landlord also may condition approval for occupancy upon payment of all unpaid storage charges and maintenance costs.
• If the representative violates the storage agreement, the landlord may terminate it by giving at least 30 days' written notice to them stating facts sufficient to notify them of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the Storage Agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative.

• Upon the failure of a representative to enter into a storage agreement or upon termination of an agreement, unless the parties otherwise agree or the representative has sold or removed the home, the landlord may sell or dispose of it pursuant to sale provisions of ORS 90.675 without further notice to the representative.

So, in summary, the abandonment statute - which is quite lengthy and somewhat difficult to follow - applies in this case, and with proper guidance, you should be able to successfully deal with the representative.

[1] I'm not rendering a "legal opinion" in this Answer - PCQ

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) makes it illegal to discriminate on the basis of race, color, religion, sex, familial status, national origin, or disability. The vast majority of undocumented alien discrimination cases involve exclusion of people who aren’t legal citizens of the U.S. The question: Is this legal?

Damned If You Do: How the FHA Applies to Undocumented Aliens

Notice that citizenship and immigration status aren’t on the list of FHA “protected classes.” In January 2003, the U.S. Department of Housing and Urban Development issued a memo clarifying that the FHA “does not prohibit discrimination based solely on a person’s citizenship status.” Nor does the law bar discrimination based on “immigration status or resident alien” status, the HUD memo adds. In other words, people who are in this country illegally can’t sue for discrimination under the FHA if that’s the sole reason they experience discrimination.  

However, there’s more to the story. Undocumented aliens and non-U.S. citizens who get excluded may have valid grounds to sue for other forms of discrimination, including religion, race, and especially national origin. Rule: FHA protections extend to every person in the U.S., regardless of their immigration or citizenship status. Stated differently, a person doesn’t have to be a U.S. citizen to sue for discrimination.

Example: A Virginia townhouse community rejected a resident alien couple because they weren’t U.S. citizens. The couple sued, and the federal court ruled that they had a valid FHA claim for national origin discrimination. A citizenship requirement may be part of a wider scheme to exclude persons based on their national origin, the court reasoned [Espinoza v. Hillwood Square Mut. Ass'n, 522 F. Supp. 559 (E.D. Va. 1981)].

Of course, the same principles could apply to other protected classes. Thus, for example, a citizenship requirement may also constitute discrimination on the basis of race, color, religion, sex, familial status, national origin, or disability.

Refusing to rent to non-U.S. citizens may also violate other federal civil rights laws. For example, people who aren’t U.S. citizens may be permanent legal residents with “Green Cards” who enjoy nearly all the same rights as citizens to live and work in the country.

In addition to federal laws, landlords must comply with any stricter requirements under state and local fair housing laws. And immigration status is a protected class in some states and municipalities. For example, California makes it illegal to inquire into an applicant’s immigration status; New York City bans discrimination on the basis of “alienage or citizenship status.”

DEEP DIVE

Anti-Harboring Laws

Federal and some states’ immigration laws make it a crime to “harbor” undocumented aliens. However, most courts have ruled that the laws don’t penalize landlords for simply renting housing to people without regard to their immigration status.

Example: In February 2017, a Texas federal appeals court ruled against two landlords who were willing to rent to persons regardless of immigration status but feared they might be prosecuted for “harboring” illegal aliens under state law. The lower court agreed and issued a temporary ban on Texas’s enforcement of the law. But the appeals court lifted the ban and dismissed the case, saying there’s a distinction between “harboring” and simply renting to an undocumented alien [Cruz v. Abbott, February 2017].

Damned If You Don’t: The Liability Risks of Not Screening Applicants’ Immigration/Citizenship Status

Here’s where things get tricky. While screening on the basis of immigration or citizenship status is problematic for conventional housing, it’s actually required for some forms of federally assisted housing. Thus, for example, landlords participating in the Section 8 program are obligated to ask and confirm that applicants and tenants are permanent U.S. citizens or hold some other lawful immigration status.

There are also states and municipalities where landlords are required to verify applicants’ immigration status or face severe penalties, including stiff fines and loss of their business license to operate.

Bottom Line: It’s crucial to consult an attorney and be aware of the fair housing requirements of your particular jurisdiction in determining your policies and protocols for screening and leasing to immigrants.

7 RULES FOR AVOIDING DISCRIMINATION AGAINST IMMIGRANTS

Once you sort out the basic legal landscape, you need to establish clear policies on leasing to undocumented aliens and train your leasing and management staff to implement them consistently. Here are the seven rules to cover in your training.

Rule #1: Ensure Nondiscriminatory Justification for Citizenship Screening

Technically, unless you live in a state or municipality that prohibits it, screening applicants’ citizenship and/or immigration status isn’t illegal; it might even be required. However, there are risks you must avoid if you adopt such a policy.

First, you need a legitimate, nondiscriminatory and documented business justification for making citizenship or immigration status a qualifying criterion. Doing it because the law requires it is one example. But also keep in mind that the vast majority of undocumented aliens in the U.S. belong to a minority racial, religious, and/or nationality group. Accordingly, stereotypes about undocumented aliens being troublemakers or not paying rent open the door to discrimination on the basis of religion, race, and national origin. Thus, for example, refusing to rent to immigrants because they “can’t keep a steady job” may be deemed a pretext for excluding certain nationalities, particularly in properties located near the Mexican border or on the West Coast where there are large numbers of Asian immigrants.

Rule #2: Apply Screening Policy Consistently

Whatever screening approach you adopt, you must apply it consistently. Just having a principled and justified policy requiring rental applicants to verify their U.S. citizenship won’t protect you if you follow it in some cases but not others. The 2003 HUD memo uses the following example to illustrate the fair housing liability risks of an inconsistent citizenship or immigration status screening policy.  

Example: A person from the Middle East applies for an apartment. Because he’s from the Middle East, the landlord requires him to provide additional information and forms of identification and refuses to rent him the apartment. Later, somebody from Europe applies for an apartment at the same complex. Because the person is from Europe, the landlord rents him the apartment without making him complete additional paperwork or verify the information on the application and rents the apartment. This would be disparate treatment on the basis of national origin.  

Implementation Strategy: The only way to ensure the consistency necessary for compliance is to have clearly written policies that explain why you screen for citizenship and/or immigration status along with procedures and protocols for implementing them. What you must guard against, above all, is allowing leasing staff to ask questions or make decisions about whether to screen particular applicants based on their appearance, accent, apparel, etc.

Rule #3: Ask for the Right Kind of Proof

If you do decide to screen for citizenship and/or immigration status, you need specific procedures and protocols to do it properly. You don’t have to take applicants at their word and have the right to request information enabling you to verify their status. Again, consistency is the key. If you ask one applicant for documentation, you must ask all applicants for it. You must also be careful to request the right information. Acceptable proof depends on whether you’re seeking to verify an applicant’s status as a citizen, immigrant, or nonimmigrant:

• Citizenship: Acceptable proof of U.S. citizenship includes a valid current U.S. passport, birth certificate, or certificate of naturalization;
• Legal immigrant: Proof of legal immigrant status—that is, noncitizens who have the right to permanently remain in the U.S., include a Permanent Resident Card (a.k.a., “Green Card”) and an official Social Security number;
• Legal nonimmigrants: Legal nonimmigrants are persons who are allowed to be in the U.S. on a temporary basis for specific reasons. Such applicants should have a non-U.S. passport from their native country along with a Form I-94 (a.k.a., Arrival Departure Record, or Entry Permit listing when they entered the U.S. and how long they have a right to stay). They also need a visa, such as an F-1 visa for students, unless they’re from one of the countries that has signed a visa waiver agreement with the U.S.

Rule #4: Apply Your Normal Screening Standards to Immigrants

There’s no rule requiring landlords to make special concessions for applicants based on their citizenship or immigration status. In other words, you may require verification of identity (such as a driver’s license, passport, or other form of government ID), financial and rental history, and other legitimate qualifications that you use to screen any other applicant.

It’s standard practice to ask applicants for Social Security numbers (SSNs). This is okay, especially since many screening companies require an SSN to perform tenant screening, such as credit and criminal background checks. But don’t automatically reject applicants because they don’t have SSNs. Explanation: Not having an SSN doesn’t necessarily mean the applicant is in the country illegally. Noncitizens need to get SSNs only if they want to work in the U.S. And tenant screening companies may still be able to vet their qualifications even without an SSN using alternative information, such as the applicant’s name, date of birth, and last known address.

Also, note that unauthorized immigrants may obtain drivers’ licenses in at least 16 states and the District of Columbia (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Massachusetts, Nevada, New Jersey, New York, Oregon, Utah, Vermont, Virginia, and Washington).

Coach’s Tip: Contact an immigration attorney, the U.S. Bureau of Citizenship and Immigration Services (BCIS), or State Department if you’re unclear about documentation requirements or have questions about the documentation of legal immigration that an applicant presents to you.

Rule #5: Don’t Make Ability to Speak English a Rental Criterion

In September 2016, HUD issued guidance confirming what several courts had previously ruled—namely, that excluding applicants or tenants based on their limited English proficiency (LEP) violates the FHA. Explanation: Statistically, most LEP people come from a country other than the U.S. Thus, disqualifying people because they’re LEP has the effect of discriminating on the basis of national origin (and, in some cases, race and/or religion). Discriminatory practices to avoid include:

• Imposing an English-speaking language-related requirement on people of certain races or nationalities;
• Posting ads that contain blanket statements, such as “all tenants must speak English”; or
• Immediately turning away applicants because they’re not fluent in English.

Example: In 2013, HUD ordered a Virginia property management company to pay $82,500 to settle allegations of not letting a Hispanic woman apply for an apartment. According to the complaint, the company refused to give her a rental application because she didn’t speak fluent English even though she brought along a bilingual person to act as translator. HUD investigators also found that the company actually had a written policy requiring all prospects to be able to communicate with management in English without help from others [Travsiňa v. Virginia Realty Company of Tidewater, Inc., FHEO Case Numbers 03-11-0424-8].

Strategic Pointer: It’s imperative to ensure that leasing, management, and other staff remain calm, patient, poised, and professional at all times when dealing with LEP people. Giving in to frustration, even if it’s just a momentary and isolated lapse, may result in comments and actions that serve as Exhibit A in an intentional discrimination case against you.

Example: In 2017, the owner and manager of a California community had to shell out $20,000 to settle claims of national origin discrimination against Latino tenants. The turning point came when a local fair housing group joined the case bringing along evidence showing that the manager repeatedly made statements about not liking having Latino tenants at the community because they didn’t speak English.

For more guidance on this topic, see the Coach’s July 2021 issue, How to Avoid Discriminating Against People with Limited English Proficiency.

Rule #6: Don’t Use Tenant’s Immigration Status as a Bargaining Chip

Citizenship and immigration status liability issues can arise not only during the leasing process but also in the context of dealing with current tenants. One common example is seeking to use that status to extort a rental or other concession from the tenant. In 2012, HUD issued guidance (in the form of FAQs) clarifying that it’s “illegal to coerce, intimidate, threaten, or interfere with a person’s exercise or enjoyment of” FHA rights. “This includes threats to report a person to U.S. Immigration and Customs Enforcement (ICE)” to get them to move out or accept unfavorable treatment, or in retaliation for reporting housing discrimination to HUD.

Example: A married couple sued their landlord for threatening to report them to federal immigration authorities if they didn’t move out within a matter of days. They also claimed the landlord threatened to report their attorney to the California Bar for illegally advocating on behalf of tenants it perceived to be undocumented. In April 2020, the landlord agreed to pay $250,000 in damages and attorney’s fees to resolve the allegations of national origin discrimination [DFEH settlement announcement, April 22, 2020].

Rule #7: Protect Immigrant Tenants from Harassment

Immigrant tenants may become a target for harassment, intimidation, and abuse by property staff and neighboring tenants. Regrettably, the emergence of immigration as a divisive political issue in recent years has made such behavior a more widespread problem in the context of not only rental housing but many other aspects of social activity. And to the extent it’s typically based on a tenant’s national origin, race, or religion, landlords that engage in or allow others to engage in such harassment are at risk of liability for interfering with tenants’ use and enjoyment of the property they lease.

Strategic Pointer: Preventing harassment is the bare minimum. Achieving true compliance requires a shift in culture, one in which nationality, racial, and religious differences are not only tolerated but appreciated and respected, if not actively embraced. Staff training should strongly emphasize professionalism and the need to respect the diverse ethnic and cultural differences among prospects, applicants, and tenants.

To accomplish this requires cultural sensitivity and awareness of how well intentioned and seemingly innocent acts and statements may be considered offensive to persons of different national, ethnic, or religious backgrounds.

Example: Training of maintenance and other staffers who may enter into a tenant’s apartment should emphasize that removing one’s shoes before entering another person’s home is an essential protocol of respect in some cultures.

Also train staff to avoid asking people about their accents or where they come from. While such questions might be the product of genuine curiosity or desire to engage on a personal level, they may also be construed as a form of illegal inquiry, especially if they’re accompanied by clumsy or insensitive remarks.

Example: In an attempt to make casual conversation, a real estate broker married to a Brazilian woman asked the wife of a married couple where she was from. What the broker didn’t know was that the wife, who was from Venezuela, felt as if she had just been denied a rental at another property because of her national origin. “Here we go again,” she thought when the broker asked the question. She was convinced that they had just lost a rental opportunity because of her national origin and that it was happening again. The couple filed a discrimination complaint. Result: The broker was found liable for discrimination and ordered to pay $76,500. The Massachusetts appeals court upheld the ruling—although it did reduce the damages [Linder v. Boston Fair Housing Commission, February 2014].

Over the past two years the Oregon Manufactured Housing Landlord Tenant Coalition reviewed sub metering statutes.  Last year a landlord-tenant work group drafted a number of significant changes to existing statute.  Those changes were adopted into the Landlord Tenant Coalition Bill (SB 586) and passed by the Oregon Legislature.  Attached is a review of those changes by MHCO Attorney Phil Querin.

Phil will be covering these changes during his presentation at the 2019 MHCO Annual Conference.