Search

Answer:   All good questions. Let’s look at each document.

Changes to the Rules and Regulations. Pursuant to ORS 90.610(3), a landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlords bargain with a resident.  This is done by giving written notice of the proposed rule change, and unless residents of at least 51 percent of the eligible spaces in the facility object in writing within 30 days of the date the notice was served, the change shall become effective for all residents of those spaces on a date not less than 60 days after the date that the notice was served by the landlord.

One resident per eligible space may object to the rule change through either:

• A signed and dated written communication to the landlord; or
• A petition format that is signed and dated by residents of eligible spaces and that includes a copy of the proposed rule or regulation and a copy of the notice.

If a resident of an eligible space signs both a written communication to the landlord and a petition, or signs more than one written communication or petition, only the latest signature of the resident may be counted.

A proxy may be used only if a resident has a disability that prevents the resident from objecting to the rule or regulation change in writing.

The landlord’s notice of a proposed rule change must be given in the same manner as other notices. See, ORS 90.155 (Service or delivery of written notice) and must include:

• Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change; and
• A statement substantially following the text set forth in subsection 90.610(7)(b)in the following form, with all blank spaces in the notice to be filled in by the landlord:

Unless residents of at least 51 percent of the eligible spaces object, the proposed rule will go into effect on a date that is at least 60 days plus three additional days, if mailed regular first class mail, from the date of mailing.

There are additional provisions of the statute, so owners and managers contemplating a rule change should become familiar with all of them.

Changes to the Statement of Policy.  Every landlord who rents a space for a manufactured dwelling (or floating home) is required to provide a written statement of policy to prospective and existing residents. The purpose of the statement of policy is to provide disclosure of the landlord’s policies to prospective residents and to existing residents who have not previously received a statement of policy. The statement of policy is not a part of the rental agreement.

The statement of policy must contain the following information in summary form:

• The location and approximate size of the space to be rented.
• The federal fair-housing age classification and present zoning that affect the use of the rented space.
• The community policy regarding rent adjustment and a rent history for the space to be rented. The rent history must, at a minimum, show the rent amounts on January 1 of each of the five preceding calendar years or during the length of the landlord’s ownership, leasing or subleasing of the facility, whichever period is shorter.
• The personal property, services and facilities that are provided by the landlord.
• The installation charges that are imposed by the landlord and the installation fees that are imposed by government agencies.
• The community policy regarding rental agreement termination including, but not limited to, park closure.
• The community policy regarding on-site sales.
• The community policy regarding informal dispute resolution.
• The utilities and services that are available, the name of the person furnishing them and the name of the person responsible for payment.
• If a residents association exists, a one-page summary about the association. The residents association is required to provide the summary to the landlord.
• Any community policy requiring removal of a home, including a statement that removal requirements may impact the market value of a home.
• Any facility policy regarding the planting of trees on the rented space.

The rental agreement and rules and regulations are required to be attached as an exhibit to the statement of policy. If the recipient of the statement of policy is an existing resident, the rental agreement attached to the statement of policy must be a copy of the one entered by the landlord and resident.

Here are the delivery requirements:

• Landlords are required to give prospective residents a copy of the statement of policy before the residents sign their rental agreement.
• Existing residents who have not previously received a copy of the statement of policy and who are on month-to-month rental agreements must receive a copy of the statement of policy at the time of a 90-day notice of a rent increase is issued.
• All other existing residents who have not previously received a copy of the statement of policy, a copy of the statement of policy upon the expiration of their rental agreements and before the residents sign new agreements. [Note: This provision refers to residents on fixed term leases.]

As you can see from the above discussion, the statement of policy statute makes no provision for amendment or change.  That isn’t to say it cannot be changed, however.  Assuming that your statement of policy only addresses the required policies listed above, it would be my suggestion that if one or more of those policies change, you should change your statement of policy accordingly, and reissue it to all of the residents. 

For example, assume that your community has held itself out as a family park under federal and state fair housing laws, but in fact, could qualify under the 80% rule as a 55+ park.  Under certain circumstances, by a rule change, it could convert to a 55+ community. In that case, you would want to change your statement of policy accordingly.

As for other changes, either due to Oregon law, or rule changes, if they are not on the required list of items to be addressed in the statement of policy, I see no reason to change the existing statement of policy.  However, if your statement of policy addresses additional items, and one or more of them are impacted by a change in Oregon law or the community rules, I would recommend amending your statement of policy accordingly.

Changes to the Rental Agreement or Lease. Pursuant to ORS 90.510(4) landlords are required to provide a written rental agreement to their residents.  It must be signed by the landlord and resident and may not be unilaterally amended by one of the parties to the contract except by:

• Mutual agreement of the parties;
• Actions taken pursuant to ORS 90.530 (Pets in facilities),90.533 (Conversion of billing method for garbage collection and disposal), 90.537 (Conversion of billing method for utility or service charges), 90.543 (Utility or service charge billing for large manufactured dwelling parks) (3), 90.600 (Increases in rent), 90.725 (Landlord or agent access to rented space) (3)(f) and (7) or 90.727(Maintenance of trees in rented spaces); or
• Those provisions required by changes in statute or ordinance.

The rental agreement must specify:

• The location and approximate size of the rented space;
• The federal fair-housing age classification;
• The rent per month;
• All personal property, services and facilities to be provided by the landlord;
• All security deposits, fees and installation charges imposed by the landlord;
• Any community policy regarding the planting of trees on the rented space;
• Improvements that the resident may or must make to the rental space, including plant materials and landscaping;
• Provisions for dealing with improvements to the rental space at the termination of the tenancy;
• Any conditions the landlord applies in approving a purchaser of a home as a resident in the event the resident elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;
• A provision that the resident may not sell the their home to a person who intends to leave it on the rental space until the landlord has accepted the person as a resident;
• The term of the tenancy;
• The process by which the rental agreement or rules and regulations may be changed; and
• The process by which the landlord or resident shall give notices to each other.

Thus, for those residents in your community on periodic tenancies, e.g. month-to-month rental agreements, you may not change the terms of their contract except in the limited instances listed above.  Clearly, you may do so, if required by statute or ordinance. For the past several years, most changes to Oregon’s manufactured housing rental laws, provide whether the rental agreement may be “unilaterally amended” to accommodate the change.

Note that under ORS 90.545, Oregon law allows “fixed term tenancies” i.e. leases.  Under this law, it is much easier to change all three of the community documents.  Although leases may be not less than two years, at least 60 days prior to the end of the term, the landlord may give the resident a new set of community documents. Although there are certain restrictions found at subsection (3), they are not onerous.  Essentially, you are permitted to give existing residents on lease the same documents as you are currently giving new residents.  You do not have to follow the rule change statute, and do not need permission from the resident to change their rental agreement. The same thing applies to the statement of policy.  It is for this reason that I am a proponent of short term, e.g. two to five year leases; they allow landlords to update their community documents as the laws and regulations change.

ADA

Under revised ADA regulations, a "service animal" is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or task performed by the service animal has to be directly related to the handler's disability.2 The service animal fulfills what the regulations refer to as "recognition and response" tasks and is distinguish from animals that provide emotional support, well-being, comfort, or companionship. The key under ADA is that the animal must be specifically trained to "recognize and respond" a disabled person's certain mental or physical condition, e.g., a diabetic's dog may be trained to notice when the person's blood sugar reaches critical levels and alert the person.3 The ADA service animal test makes no reference to a dog's breed, size or weight, any required professional training or certification or registration or required wearing of a vest, patch or special harness. (Same under FHAA) The DOJ suggests that these are not factors in determining ADA compliance. A so called service animal certification or registration documents that can be obtained online confer no rights under ADA and are not recognized by the DOJ as proof that a dog is a "service animal." 4 On the other hand, DOJ notes that a service animal may be required under local law to be licensed and vaccinated.5

In determining whether an animal meets the ADA service animal test community management may make only two inquires of the disabled person: (1) Is this a service animal that is required because of a disability? and (2) What work or tasks has the animal been trained to perform? Management may not require documentation proving the animal has been "certified," trained or licensed as a service animal. Further, these inquiries cannot be made if it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (for example, an individual is using a dog to assist with vision, or the dog is pulling a person's wheel chair or is providing stability or balance for a person with an observable mobility disability). A "no" answer to no. 1 renders ADA inapplicable, likewise if the task described is unrelated to a disability or is a "non-response" type task. In such cases the answers may drift into areas which must then be assessed under FHAA regulations pertaining to reasonable accommodations for support or comfort animals, discussed below.

Can management ask a disabled person to remove an ADA qualified service animal from the community? No... unless, the animal is out of control to the extent the handler is unable to control it or the animal is not house broken or based on an individualized assessment of animal's actual conduct the animal poses a direct threat to the health and safety of other residents that cannot be mitigated by other means.6 (Same under FHAA) Community rules or guidelines governing "pet" conduct therefore, should be written to apply to "animals" not simply "pets" which make it clear the community may enforce its rules or guidelines to remove a problematic service animal according to ADA standards.

Finally, ADA applies to places of public accommodation. Manufactured home communities and mobile home parks experiencing a HUD or DOJ ADA violation charge have contended that as private property not open to the public ADA is inapplicable. However, it's well established under the regulations and case law that an area within a mobile home community (usually office or clubhouse), apartment complex or condominiums where sales and leasing activities are conducted with members of the general public and areas such as parking lots or spaces that serve these areas are within the definition of a public accommodation subject to ADA. Does this mean the entire community is then a public accommodation? No. However, U.S. District Courts in Arizona and California have held that allegations of a mobile home park hosting and conducting Bingo in the park clubhouse where the public was invited or where estate, garage or rummage sales were conducted in the community where the public was invited could state a claim under ADA that the community was a place of public accommodation. The take away... do not allow the general public to be invited

to attend events conducted in your community or risk becoming "a place of public accommodation."

FHAA

FHAA prohibits discrimination in housing and housing related mattes based on a person's disability defined as: (1) a physical or mental impairment which substantially limits one or more of such person's major life activities, or (2) a record of having such impairment . . . . 7The FHAA's definition of prohibited discrimination encompasses "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 8 This applies to assistance animals that may not satisfy the ADA definition of a "service animal" but nevertheless provide emotional support, comfort, well-being or companionship for a disabled person seeking an exception to a community's "no pet" or "restrictive pet" rules or guidelines.

Generally, an "assistance or emotional support animal" is a "companion animal" that provides a therapeutic benefit by alleviating or mitigating some symptom caused by an individual's mental or psychiatric disability as confirmed by a professional health care provider. Unlike ADA, these animals require no specific "recognition and response" training and management may ask the person for documentation of a disability and disability related need for the assistance animal, but may not request access to medical records or medical providers or to provide detailed or extensive information or documentation of the persons physical or mental impairments. These animals are not limited to dogs but may be any other animal within reason if the person requesting the accommodation has a confirmed disability supported by a medical professional.9

Thus, prohibited conduct under FHAA is refusing to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. A request for a reasonable accommodation may be denied only if providing the accommodation is unreasonable, defined as imposing an undue financial and administrative burden on the community or if it would fundamentally alter the nature of the community's operations. This could include a denial based on increased liability insurance costs if an "aggressive dog breed" were allowed in the community thus potentially creating an undue financial burden.

Requests for a reasonable accommodation regarding assistance animals must be evaluated objectively and thoroughly through an interactive process with the person requesting the accommodation. Each request should be evaluated on a "case by case basis" promptly and fairly, on its own facts. Naturally, if questions arise, consult the community's counsel, especially regarding state law that may parallel ADA and FHAA or be more expansive in coverage regarding definitions of service and assistance animals. The above is not intended as legal advice but offered as general information. Consult your legal counsel for specific questions or issues regarding your particular communities.

Robert G. Williamson, Jr. is partner with Hart King. He represents manufactured home community owners and managers with their various legal issues including FHA and ADA compliance issues. He may be reached at rwilliamson@hartkinglaw.com or at 714.432.8700

1 Set forth in HUD's Fair Housing and Equal Opportunity Notice

(FHEO-2013-01) issued April 25, 2013 ("HUD Notice").

2 28 C.F.R. _ 36.104

3 DOJ, Frequently Asked Questions about Service Animals and

ADA, July 20, 2015, www.ADA.gov.

4 Ibid.

5 Ibid.

6 28 C.F.R. _ 36.302(c); HUD Notice, supra., fn. 1.

7 42 U.S.C. _ 3602(h)

8 Giebeler v. M&B Associates, 343 F.3d 1143, 1146-47 (9th Cir.

2003); 42 U.S.C. _ 3604(f)(3)(B).

9 HUD Notice.

Answer:  ORS 90.725 deals with the abandonment of owner-owned manufactured homes located in manufactured housing communities. MHCO Form No. 30 contains an extensive Intake Worksheet for park owners and managers to initiate the abandonment process. It starts with the issuance of a 45-day letter.[1]Form No. 30 includes the 45-day letter. 

The 45-day letter permits the landlord to reasonably decide whether the associated personal property is, or is not, worth $1,000 or less. If the value is $1,000 or less, the landlord may dispose of it or give it without consideration to a nonprofit organization, or to a person unrelated to the landlord. The landlord may not retain the property for personal use or benefit.

If the landlord is not declaring the abandonment of a home located in a manufactured housing park, the personal property abandonment statute, ORS 90.425, would apply. It deals exclusively with a landlord’s disposition of personal property, which is defined as:

“…goods, vehicles and recreational vehicles and includes manufactured dwellings and floating homes not located in a facility. “Personal property” does not include manufactured dwellings and floating homes located in a facility and therefore subject to being stored, sold or disposed of as provided under ORS 90.675.” (Emphasis added.)

Although the statutory procedure is much the same as for abandoned manufactured homes, the landlord would issue a “15-day letter” rather than one for 45-days. 

• It would notify the former tenant that the property is considered abandoned;
• It would be sent to the tenant’s space address and any other address you reasonably believe will reach them or a relative, friend, or other person known to you;
• If you can determine that there is a lien on the vehicle, you should include the lienholder in the notice and send the letter by regular and certified mail;
• The 15-day letter would tell the former tenant/lienholder to contact the landlord or manager at an address and phone number, to arrange for removal of the vehicle within 15 days – be sure to add 3 additional days for mailing, where appropriate;
• You would tell them that before removal you may require payment of all removal and storage charges;
• If you reasonably believe the value is $1,000 or less you would tell them so, together with your intent to dispose of the vehicle as described above;

• If you believe the value is over $1,000 you would include that in your letter; you may sell by public or private sale, and you may participate as a bidder

During this period, you have a duty to keep the vehicle in a place of safekeeping. 

Although the statute does not address this alternative option, here is one that may be useful, although you should confirm with your own attorney first:  Have the vehicle towed by a towing and storage facility, and so notify the former tenant using the same 15-day letter format described above. 

You should first make sure with the towing company that if there will be a charge to you, it is established up front, and the events to occur if the owner does not pick the vehicle up from them. I do not recommend this option if the car has any significant value, or there is a lienholder on title.

The 2011 Oregon Legislative Session has now reached the halfway point.  MHCO has been successful in defeating a number of particularly bad pieces of legislation.  We need to stay engaged and vigiliant as the Legislative Session moves to adjournment in late June. 

MHCO Defeated:

HB 2172 - Rent Control with mandatory mediation and the establishment of a regulatory enforcement regime that would all the Oregon Attorney General enforcement landlord- tenant law in Oregon manufactured home communities.  For those of you who are familiar with Washington State this is a similar program with rent control.  This bill had strong support from many legislators who are in powerful positions, including Representative Buckley who is the House Ways and Means Co-Chair.  Peter Ferris was heavily involved in this bill - many of MHCO's members from southern Oregon have probably heard about his bill over the last year.  Many of the concepts will resurface again in future Legislatures.

HB 2885 - This bill originally applied to all  residential properties that had Department of Education employees who where evicted - required landlord to inventory their belongs and return appropriate property to the Department of Education.  This bill has been amended to exclude residential property.

HB 3073 - This bill expanded upon HB 2383 from 2009 that established a 14 day right of first refusal.  This bill was designed to increase the 14 days to an undetermined amount.  I will have more about this issue in a subsequent update on the landlord tenant coalition bill.  Representative Nathanson was hoping to increase the 14 days to a higher number.

HB 3183 - This bill lift the ban on local governments from passing rent control ordinances.  It will still have a hearing later this session, but since it the public hearing did not occur before today the bill cannot move forward to a work session.  It can only have a hearing - nothing more.  That being said, please do not be complacent when a hearing is scheduled - we need as many people to show up to oppose this bill as possible.  We will be dealing with this issue for the next session or two - we need to be vigilant.

Two additional issues that MHCO has been focused - mandatory water sub-metering and mandatory escrow when a community owner sells a manufactured home in their community have been significantly altered.  MHCO was able to perserve the exemption from mandatory water sub-metering for communities with 199 or less spaces.  MHCO also successfully changed SB 85 to eliminate the mandatory escrow requirement for community owners who sell a manufactured home in their community.  Two big wins for community owners in Oregon.

Evictions.

Most evictions are either for failure to pay rent or violation of rules. An eviction (formally known as a "forcible entry and detainer" or "FED") is an expedited legal procedure designed to allow landlords to obtain possession of their property through the court system. Oregon does not require that landlords obtain an attorney in order to file an FED. The necessary summons and complaint can be obtained from the courthouse and they can be filed and served quickly. This has its advantages and disadvantages: It is good insofar as it keeps the cost of the process down, but it is bad if the owner or manager fails to strictly follow all of the legal procedures required by the statutes. Accordingly, for the inexperienced manager or new owner, it is strongly, recommended that guidance first be sought, either through the MHCO, from an experienced attorney, or by consulting with a knowledgeable community management company.

Since the FED process is designed to be a "summary" or quick proceeding, the law imposes upon those seeking its assistance, i.e. owners and managers, the duty to strictly comply with all of the requirements set out in the statutes. This means, for instance, that the written notice that must precede the filing of the complaint (e.g the 72-hour nonpayment of rent notice or the 30-day notice of termination for cause) must be properly filled out to the letter. Since the notice is required to be attached to the FED complaint, and thereby becomes a part of it, if it is defective in any respect, the Court can unilaterally dismiss it - thus forcing the landlord or manager to start all over again. It is for this reason that before actually filing the summons and complaint which starts the FED court process, the plaintiff should closely review the notice to make sure it complies with the law.

Leases & Rental Agreements.

As a result of MHCO's efforts in the recent Legislative Session, landlords will be able to use leases for two year terms or more. At the end of the term, the tenant must either agree to a new updated lease as well as rules and regulations. Briefly, the process is as follows: Not more than 60 days prior to the termination of the lease, the landlord must provide the tenant with a copy of the new proposed lease and rules. Thereafter, the tenant has 30 days within which to either agree to the new terms or to vacate and remove the home. If the tenant declines to sign and elects to vacate, he/she can try to re-sell the home in the park for up to 12 months, so long as storage fees are paid.

The one limitation on landlords - and not an unreasonable one - is that the new lease agreement or rules that the tenant may be asked to sign must be the substantially the same as those the landlord is currently offering others who are seeking to rent a space in the community.

One caveat for landlords: If they fail to offer the new rules and lease agreement to the tenant on or before 60 days prior to expiration of the current term, the lease turns into a month-to-month tenancy.

Thus, the use of leases under the new law will now permit landlords to unilaterally update their rental agreements and rules. We'll be talking about this in depth at the Annual Convention.

Day Care Facilities.

Frequently, community managers are confronted with tenants who seek to open day care businesses in their home. There are multiple issues involved here. First, is it a violation of the existing zoning laws to use the home for a commercial business? Secondly, will it impact the landlord's insurance rates? Lastly, what about increased traffic and risk of accidents? All of these issues militate against permitting tenants to open such enterprises.

Landlords should review their rules and regulations to make sure they have adequate limitations on day care businesses. If they do not, consideration should be given to updating the rules to make the appropriate amendments. However, for those landlords or managers whose rules do not address the issue, how is one to proceed? Oregon law provides that violation of the law constitutes a breach for which a curable 30-day notice of termination may be given. Accordingly, the landlord or manager should first check the zoning law. If it is a residential neighborhood, there may be zoning restrictions on such business enterprises. Also, even if there is not current restriction, there is nothing illegal about instituting a restriction of day care facilities immediately. Oregon law permits such rules, even if they make a material modification to the landlord-tenant relationship, so long as they are passed by the tenants in a legally adopted rule change (i.e. 51% or more do not object.)

Answer: This situation is not directly addressed in the Oregon manufactured housing laws. First, some general observations: The manufactured housing side of the landlord-tenant law regards the "space" as the "premises." For example, a resident in an apartment may not, without landlord permission, intentionally make major structural changes to the interior of the premises. However, most apartments have rules against this, or it is included in the rental agreement. Your space agreement or rules may have similar prohibitions regarding major changes to the space. In this case, however, you permitted the work to commence. It is unclear whether you had reviewed any plans, before the work started. You should have made this a condition of building the carport in the first place. What about permits? It is unclear whether they are required in your jurisdiction, but it is something you should always make sure is complied with. I am unclear what you mean when you say that other such structures are "free standing and permanent." If they are permanent, in the sense of being permanently affixed to the space, then presumably, you are treating these as structures that would remain if the home were sold and removed. However, your independent conclusion that a structure is "permanent" and therefor stays with the space is really not the complete issue; what does the resident believe? It was his money that presumably paid for the work, and he may have some say in whether he intended it to be a part of the home, and movable if the time came. The same issues pertain to the new buyer. While your opinion is important, so are those of your resident and his buyer. For this reason, I suggest that before doing this again, you might consider addressing it in the community rules. Some of the things that should be covered are the following: - Code compliance - Management pre-approval of completed drawings - Time to complete work - Your right to post a notice of non-responsibility for liens if the resident hires a contractor - Method of affixing to the ground - Safety of final structure and perhaps inspector sign-off - Who owns the structure upon completion? - Can it be removed upon sale and removal of the home (I suggest "yes" so long as the space is returned to its original condition and all holes are safely and completed filled, etc.) - Duty to keep the carport in good and safe condition - remember if it is a part of the space, absent agreement with the resident, it would be your duty, since you own the park. In this particular case, I suggest that if you have not pre-addressed these issues with your resident, he may believe this is his structure to do with as he sees fit. I really can't disagree, since you permitted the project and from your question, it appears no ground rules were established regarding ownership in the event the home was moved. However, if you permit the carport structure to be removed, you should insist that the space be returned to its original pre-construction condition. That's about the best you can do with this situation, although establishing rules - or at least agreed-upon terms - before construction commences again, is a good idea.

The 2015 Oregon Legislative Session convened this month with House and Senate Committees beginning their work the first week in February.  There are a wide variety of issues the Oregon Legislature will be dealing with - many being repeats from previous sessions such as education funding and taxes that never seem to go away.

The Manufactured Housing Landlord-Tenant Coalition continues to work on possible legislation.  The group has been meeting since June 2014 - at least once a month to address a variety of issues.  The issues have been significantly narrowed down as we rapidly approach the end of these negotiations.  The odds are that there will either be a compromise bill (typically know as the coalition bill) or we could face some nasty political battles on some onerous legislation.  The coalition provides a venue for both landlords and tenants to work through selected issues.  In general the coalition's work tends to be better thought out than most of the knee jerk legislative proposals we see from individual legislators. 

The biggest challenge of any negotiation process is the end - reaching a final compromise.   We all know, compromise is something that is not easily accomplished in today's political environment.  Perhaps the best sign of a successful compromise is when both sides are unsatisfied with the final product.  Having worked on coalition bills since 1999 most times both sides grumble their way to agreement.  I suspect this year will be no different.

Over the last six months MHCO has posted updates on the issues we have been working. There are now four issues in the proposed 2015 Coalition Bill.  Many of these issues are complicated and consume pages of proposed legal language.  We will spare you that in this report but will try to convey the key substance of each issue.  The following is a summary of where those issues stand in very broad brushstrokes:

1. Unpaid Taxes on Abandoned Homes

The County Tax Collector and the Oregon Department of Revenue have agreed to cancel all unpaid property taxes and special assessments as provided under ORS 311.790.  There is no limit on the market value of the home or limit on the amount of tax to be canceled.

In general, in order to obtain the tax cancelation of unpaid taxes on an abandoned home the landlord will be required to file an affidavit with the county tax collector stating that the landlord will sell the property in an arms length transaction to an unrelated buyer who intends to occupy the property in that facility.  Once the home is sold by the landlord another affidavit or declaration with the county tax collector would have to be filed stating that the landlord has sold the property, the sale price and description of any costs incurred by the landlord to improve the property for sale.

MHCO will create these affidavits as new MHCO Forms for community owners or managers to utilize. 

This is an issue MHCO has wanted to address over the past ten years.  We are very happy that the issue is finally resolved and the unpaid taxes on an abandoned home will be completely eliminated.  This will impact nearly every community in the state of Oregon.  

In addition, on a separate issue there will also be and increase in the yearly fee paid by community owners paid to Oregon Housing and Community Services.  The department will charge $50 for communities with more than 20 spaces and $25 for those communities with less than 20 spaces.  Under ORS 446.525 the special assessment levied annual upon each manufactured dwelling will increase from $6 to $10.  This  $10 assessment is to be paid by the tenants.

2. Habitability - Ground Support, Natural Gas and Garbage Cans

This issue has been significantly altered since it was first introduced last summer. 

One of the main concerns the residents have is being able to cancel a rental agreement or lease if the foundation of their home is partially washed away.  The proposed language is: For manufactured dwellings only

The FHAA

In 1988, Congress amended the Fair Housing Act (FHA) to prohibit not just discrimination on the basis of race, color, sex, religion, disability, or national origin, but also included familial status discrimination. Familial status is defined as " one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent or another person having legal custody of such individual or individuals."

Among other provisions, it is unlawful:

"To discriminate against any persons in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... familial status ..."

Thus, a restriction on access or use of common facilities and amenities bases on age of a child (familial status) is a violation of the FHAA, absent compelling business necessity. Any such rule must be proved to be the least restrictive means to achieving a health and safety justification. What does this legalese mean to the community owner in practical terms? A full-blown trial, risks of heavy penalties, damages, and attorney's fees and costs. This is because there is no bright line test for any age-restrictive regulation: the law is bereft of any standards or guidance to make a reasonable, predictable risk-assessment or likelihood of success. Each case depends on the facts and surrounding circumstances. In other words, each case is a test-case. In sum, the penalties are so severe that prudent counsel would admonish all to eliminate age-restrictive rules and regulations.

Children are as protected as any other protected class. Thus, a simple way to test a rule for FHA compliance is this: insert any other protected class in the place of "children" when testing a rule and regulation. For example, a common past rule (and no longer a valid one) is "all children under 14 years of age must be accompanied by an adult resident when in the pool area." Then, how does this sound: "All Methodists must be accompanied by an adult resident ...." Obviously, such a rule is patently violative of the FHA.

It is also a violation of the FHAA to express to agents, brokers, employees, prospective sellers, or renters a preference, (e.g. "... gosh, if I had my druthers, I would rather not rent to families"). Another issue is use of selective advertisements, or denying information about housing opportunities to particular segments of the housing market because of their race, color, religion, sex, handicap, familial status, or

national origin, (example, in an area overwhelmingly populated by non-English speakers, advertising only in English language publications). Other violations will be found where there are ads or statements made regarding applicants, including: "mature person;" stating an aversion to "families with children" or "teenagers in the building;" advertisements stating non more than "one child;" or, stating that the community owner does not "rent to children." Posting "Adult Community: at the entrance to a non-exempt community also violates the FHAA. Use of the word "adult" without more, constitutes a violation of the FHAA. There are no such thins as adult manufactured home communities, and use of the phrase is deemed to chill family applicants from applying for tenancy in them.

The various rules cited by the courts as impermissibly restricting access or denying the use of the communities' facilities and/or areas on the basis of age, included the following. If your rules contain any of the following restrictions, or any rules similar to them, it is strongly advised that a legal advisor conversant with the FHAA (and implanting regulations and judicial and administrative interpretations) be promptly consulted.

• Children under the age of fourteen (14) years old shall not be allowed to ride a bicycle on the community streets without the accompaniment of an adult registered to the manufactured home in which they reside;
• Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence;
• Children shall not be allowed to play on community streets, or in any other common are areas; Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the manufactured home in which they reside;
• Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
• Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10 a.m. to 12 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12 noon;Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or therapeutic jet pool at any time;
• Children under the age of fourteen (14) years old must be accompanied by a registered resident adult to be allowed to ride a bicycle in the community streets;The adult resident host must accompany all guests of their manufactured home who use the recreation building (clubhouse) or any of the recreational facilities of the community;
• Children under the age of fourteen (14) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
• When using the clubhouse, persons under ten (10) years old must be accompanied by an adult resident;
• Use of the billiards room was restricted to residents over eighteen (18) years old;
• Use of the spa was prohibited to children under eighteen (18) years old;
• Use of the pool by children fourteen (14) years old and under required accompaniment by a resident;
• Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host;
• Parent or resident child or resident host must accompany children at all times in the pool or pool area.
• Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 9 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host;
• No one under the age of eighteen (18) years old is permitted in the billiard room at any time;
• No one under the age of fourteen (14) years old is allowed to use the Jacuzzi;
• At 2 p.m. children are to be out of the pool area;
• Children are not to walk around the community without adult supervision;
• Minors under sixteen (16) years old are not permitted in the therapeutic pool;
• For safety, children are not to ride bicycles, roller skate, skateboard, play in the street, play in RV storage, plan in car wash or wander around the community;
• Children under with (8) years old shall be confided to a play area in the rear fenced yard of the family residence.

The court held that these rules were not based on compelling business necessity and did not represent the least restrictive intrusions on familial status rights in promoting a health and safety interest. Having held that these rules were unlawful, the issues remaining for trial in the Plaza Mobile Estates case included damages, punitive damages, civil penalties, injunctive relief and attorney's fees and costs for the private plaintiffs.

While the action had been brought as a class claim (in which all of possibly thousands of affected residents could have been included in damages awards), class certification efforts were defeated, allowing only the named parties to seek damages.

The court's comments regarding the invalidation of these rules is telling and troubling. The court stated the age-restrictive rules were facially discriminatory. In other words, no matter how administered, the rules were invalid as drafted. Even if never enforced , such rules might dissuade a prospective applicant from applying for tenancy. These rules "...treat children, and thus, families with children differently and less favorably than adults-only households." "Describ[ing] parks as 'adult' parks are clear examples of illegal steering. Although they are not outright refusals to sell or rent or families with children, they indicate a preference for adults only and certainly discourage families with children from applying."

Considering the various age restrictive rules, they fall into three categories: (1) absolute prohibitions, (2) adult supervision requirements, and (3) hours of access restrictions.

Absolute prohibitions

The absolute prohibitions include those rules that (1) prohibit all children under 18 (or 21) years old from using the billiard room and from riding bicycles, (2) prohibit all children under 16 (or 18) years old from using the therapeutic pool, (3) prohibit all children under 14 (or 18) years old from using the sauna or Jacuzzi, (4) require all children under 8 years old to be confined to rear fenced yard of family residence, and (5) prohibit all children from playing on community streets and any other common areas.

The court held that absolute prohibitions such as the foregoing are illegal. The regulations are not the least restrictive means to achieve health and safety objectives ("...prohibiting all 'children' from playing in common areas ... cannot be justified"). The same applies with the billiard room ("... it is unclear how a 17-year-old's access to a billiard room is any more hazardous to ... health or safety that a 22-year-old's access").

Supervision restrictions

The fundamental premise adopted by the court is that "[A]ny concerns that defendants may have are not necessarily linked to age, and any concerns about problem behavior can be address with the use of rules." Thus, the court invalidated blanket prohibitions of all 15-year-olds from using the therapeutic pool and all 13-year-olds from using the sauna or Jacuzzi

In certain instances adult supervision might less restrictively advance health and safety concerns ("assuming arguendo that defendants' concerns were more logically linked to the age restrictions, requiring adult supervision rather than imposing an absolute ban is clearly a less restrictive means ..."). But where to set the limit is uncertain. California regulations state:

"Where no lifeguard service is provided, a warning sign shall be placed in plain view and shall state 'Warning - No Lifeguard on Duty' with clearly legible letters at least 10.2 centimeters (4 inches) high. In addition, the sign shall also state 'Children Under the Age of 14 Should not Use Pool Without an Adult in Attendance."

Based on the Plaza Mobile Estates decision, it is needlessly legally risky to impose any supervision requirement. Clearly, a 14 year age limit for an adult supervision is not enforceable, not legal, and constitutes a violation of the FHA, despite former administrative decisions suggesting the contrary and California regulations cited above. Yet, the need for an age limit is strikingly clear. The same rule applies to use of spas and whirlpools. Certainly an adult supervision requirement should be reasonable[1], but eh court has ruled that such concerns are fro the parents, not the management.

A few apparently unassailable precepts

Given that this case raises many more questions than it answers, the ability to promulgate and rely on age-restrictive rules for access and supervision are certainly less than a matter of clarity. While the previous rulings concerning the enforceability of age-restrictive rules are in some doubt, a few precepts can be stated with some reliability. The first is that an outright prohibition of use or access to any facility or amenity cannot be allowed. Setting up selected hours for usage of a facility of amenity cannot be allowed. Less certain is the ability to promulgate rules requiring adult supervision of children of varying ages for use of facilities or amenities. It would appear that no supervision can be mandated for areas such as clubhouse, billiard room, library or common areas.

Establishing minimum age requirements for supervision: A foray into the uncertain

The "14 and under" requirement of California regulations for pool supervision is a should not a must provision. Hence, management cannot require supervision of 14 years of age and under. The only clearly legal position is not to require supervision, and let it be for the parents to take personal accountability and responsibility for their children. The court makes this statement:

"... there is nothing magical about the age 18 or 14 years old if defendants' concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement."

The courts have intervened on occasion to require discrimination against children for their own good and government does so all the time. For example, you cannot vote until you are 18, drink alcohol until you are 21, cannot drive until you are 16.[2] However, housing providers subject to the FHA may not rely on or use the same governmentally-established restrictions in developing their rules and regulations despite the dangers posed by the common area facilities.

Another example: Pedestrian injuries are the second greatest cause of harm to children from five to 14 years of age. See the National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997.[3] However, it is illegal to have a rule and regulations which states that "children are not to walk around the community without adult supervision."

Is it unreasonable to require adult supervision within the common areas of a manufactured home community? It would seem that such a rule is reasonable. However, for a community owner, such a rule violates the FHA. On the other hand the Consumer Products safety Commission urges supervision of children while on a playground for example (Consumer Product Safety Commission, Public Playground Safety Checklist, CPSC Document #327: "10. Carefully supervised children on playgrounds to make sure they're safe"). The federal law states that the parents are responsible for their children, not the management.

Previously sustained rules

The courts have previously allowed the following rules. This information may be largely historical at this juncture, for it remains unclear whether or not they remain viable in light of the Plaza Mobile Estates decision (these rules were sustained under the previous "reasonableness" test, not the "compelling interest" basis test):

1. Rules which bar use of a pool for children fourteen (14) years of age and less have been upheld because the prohibition implements legislative policy. HUD v. Paradise Gardens, HUDALJ 04-90-0321-1, 1992 WL 406531 (HUDALJ Oct. 15, 1992)
2. A rule which required children under the age of fifteen (15) years to be accompanied by an adult who is at least eighteen (18) years old when using the swimming pool and exercise equipment. (HUD vs. Trace Corporation 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).
3. Rules have been sustained for age restricted access as to power tools. "...Respondents may keep the machine shop with industrial power tools accessible only to tenants who are at least fifteen (15) years of age and may require tenant children between the ages of fifteen (15) and eighteen (18) years to be accompanied by an adult who is at least eighteen (18) years old when using the machine shop. Further, Respondent may require all users of the machine shop to hve complete training on the proper use of such tools." (HUD vs. Trace Corporation, 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).]\
4. In the unpublished decision of United States v. Town Hall Terrace Association, 1997 WL 128353 (W.D.N.Y. 1997), the housing provider made available four pieces of exercise equipment: a multi-purpose with lifting machine, a stationary bicycle, an inclining board and a rowing machine - in its "the fitness center." Until 1992 an express policy restricted the use of the fitness center and its equipment to persons at least eighteen (18) years old. After mid-1992, this threshold was lowered to sixteen (16).[4]
5. One case allowed for a rule requiring adult supervision of children six (6) and under while biking in a street. U.S. v. M. Westland Co., CV 93-4141, Fair Housing-Fair Lending 15,941 (HUD ALJ 1994)). Another authority states that no child should be permitted in a street on a bicycle until at least ten (10) years of age. ("Cycling should be restricted to sidewalks and paths until a child is age 10 and able to show how well he or she rides and observes the basic rules of the road. Parental and adult supervision is essential and until the traffic skills and judgment thresholds are reached by each child." The National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997).

But under the more recent Plaza Mobile Estates decision, the past allowances provide no basis on which to write your rules and regulations.

Don't blame the court!

However, it is too much to criticize or impugn the court for adhering to the letter of the law, and not legislating by "judicial fiat." The court interprets what the law is and does not legislate. That is the job of Congress and more pointedly in this case HUD (in its rule-making powers). The FHA prohibits discrimination, period. The federal law makes NO exceptions; exceptions to familial status rights is the job of HUD. It is not the court's duty. The court is not the Legislature.

The need for uniform guidelines to inform the housing providers of permissible restrictions

HUD should provide guidance for housing providers and establish bright line tests for common sense age-restrictive rules. HUD should defer to other legislative judgments made for child protection by allowing community owners to replicate existing laws in their rules and regulations. Model regulations for protection of the young could be published. HUD could establish a rule pre-approval procedure.

Community owners just want to comply with the law and provide reasonable requirements for protection of children. But now, even experienced lawyers cannot intelligibly predict the enforceability of any age-restrictive rules. At this time, attaining any ascribed legitimacy of a rule only follows after an expensive legal defense with a heavy burden of proof requiring compelling business necessity. A conciliation agreement binds the complainant. If another resident complains the next day, the conciliation agreement is worthless as a defense to the rule. This is an inconceivably inefficient manner of testing rule validity. The costs to business in such concerns vastly outweigh the benefit to be achieved. The cost to the consumer in spreading the expense of this exercise could be largely obviated if the housing provider had some guidance in defining acceptable rules for promotion of health and safety. The suggestion of administering proficiency tests is a null and void concept. The liability for negligently administering such tests, seeking and paying for qualified testers, and then excluding the non-proficient residents will not be pursued by a single housing provider.

What can we do? Even in the absence of specific rules, educational materials may help parents understand common risks associated with youth. When educational information is provided as an adjunct to an activity rather than a rule restricting an activity, the chance of a claim of discriminatory preference is less likely to be made. For example, when a community owner offers such educational material from organizations who seek better protection of children, (e.g., police departments, charitable organizations, etc.) the community owner is providing a service - disseminating information and facts - not discriminating against children.[5]

You may also consider consulting with HUD in advance of amending rules and regulations. IF HUD even informally opines that a proposed policy is not defensible, or that no comment can be offered, at least the community owner can better assess the risk faced with a new rule and regulation. For example, if a resident complains that a particular resident who has open sores due to infection with the AIDS virus desires to use the swimming pool, can the management require that resident to stay out of the pool?

When faced with the question, the manger called to advise that she was not sure how to proceed. While administrative regulations require a doctor's letter stating that no public health or safety risk was posed by the patient's use of the pool, I consulted with HUD before announcing the management policy.

Finally

All the community owner wants is to know what the law is! What we do know is certain rules, certain practices reflecting what the law is not. But it is grossly unfair to relegate the duty to set standards on management. Having read this article, can you now, safely amend your rules to impose such a rule? No. No attorney can give an absolute assurance that such a rule will be sustained until ruled valid in a court. Until a court actually rules on the validity of the rule, or HUD or DFEH offers guidance on their interpretation of the rule, there can be no assurance of what an will not be permitted in developing age-restrictive rules and regulations. The best policy is to eliminate any and all age restrictive rules and regulations to avoid FHA claims.

Reprinted with permission from Western Manufactured Housing Communities Association (WMA) "Reporter", June 2008.

Terry Dowdall has specialized in manufactured home communities' law since 1978. His firm, Dowdall Law Office, APC is located in Orange County and Sacramento, with a practice limited exclusively to the manufactured housing industry. Mr. Dowdall serves as a legal advisor on WMA's Legislative Committee and has authored publications for the Continuing Legal Education of the State Bar. He is a frequent contributor to the WMA Reporter and facilitator at WMA educational seminars. He can be reached at 714-532-2222 (Orange) or 916-444-0777 (Sacramento).

[1] According to the United States Consumer Product Safety Commission, "...The main hazard from hot tubs and spas is the same as that from pools - drowning. Since 1980, CPSC has reports of more than 700 deaths in spas and hot tubs. About one-third of those were drownings to children under age five. Consumers should keep a locked safety cover on the spa whenever it is not in use and keep children away unless there is constant adult supervision. Hot Tub Temperatures - CPSC knows of several deaths from extremely hot water (approximately 110 degrees Fahrenheit) in a spa. High temperatures can cause drowsiness which may lead to unconsciousness, resulting in drowning. In addition, raised body temperature can lead to heat stroke and death. In 1987, CPSC helped develop requirements for temperature controls to make sure that spa water temperatures never exceed 104 degrees Fahrenheit. Pregnant women and young children should not use a spa before consulting with a physician. ... "CPSC Document #5112 "Spas, Hot Tubs, and Whirlpools Safety Alert".

[2] Municipal curfew regulations abound which restrict children. Los Angeles is typical. No one under 18 years of age is permitted in public places during school hours (" ... present in or upon the public streets, ... or any place open to the public during the hours of 8:30 am and 1:30 pm"). L.A.M.C. 45.04. The same restrictions apply after 10 pm. ("... any minor under the age of eighteen years to be present in or upon any public street, ... between the hours of 10:00 pm on any day and sunrise of the immediately following day; ...."). L.A.M.C. 45.03. Regulations for pool halls E.g. 17 (Midland Mi. Mun. Code Sec. 15-34) and 18 (1063-B. Pool halls. Public Laws of Maine) year age requirement), are commonly promulgated for the health and safety concerns for minors. It is unsafe for a park owner to rely on local or state laws in this respect in drafting rules and regulations.

[3] "[P]edestrian injury is the second leading cause of unintentional injury-related death among children ages 5 to 14. While the majority of pedestrian deaths and injuries are traffic-related, children ages 0 to 2 are more likely to suffer non-traffic-related pedestrian injuries, including those occurring in driveways, parking lots or on sidewalks. Although pedestrian injuries are not as common as motor vehicle occupant injuries, a disproportionate number of the injuries sustained by child pedestrians are severe. Between 25 and 50 percent of child pedestrian injuries require hospital admission. Children ages 5 to 9 are at the greatest risk from traffic-related pedestrian death and injury. Nearly one-third of all children ages 5 to 9 who are killed in traffic crashes are pedestrians").

[4] According to the U.S. Products Safety Commission: "The U. S. Consumer Product Safety Commission estimates that between 1985 and 1989, the latest period for which data are available, there were 1,200 amputations of children's fingers because of contact with exercise bikes. Most children were under the age of five. Many of the injuries occurred when the child's fingers touched the moving bike wheel or the chain and sprocket assembly. The Commission is concerned about the severity of injuries to children, especially because the hazard may not be obvious. Therefore, the commission warns parents always to keep children away from exercise bikes. Never use a bike without a chain guard, and when not using the bike, store it where children cannot get to it. Children's fingers can be amputated if they touch moving parts of exercise bike." Prevent Finger Amputations to Children From Exercise Bikes: Safety Alert: CPSC Document #5028.

[5] For example, educational material exist which explain that young children have peripheral vision which is two-thirds that of an adult; they have difficulty determining the source of sounds; traffic noises and sirens may be confusing; they may not understand that an automobile may seriously hurt or kill them; most children cannot understand a complex chain of events; children believe that all grownups will look out for them; they think that if they can see an adult driving a car toward them, the driver must be able to see them; children often mix fantasy with reality - they may give themselves superhuman powers and o not understand that a moving vehicle can hurt them; they have difficulty judging the speed and distance of oncoming vehicles. 

The FHAA

In 1988, Congress amended the Fair Housing Act (FHA) to prohibit not just discrimination on the basis of race, color, sex, religion, disability, or national origin, but also included familial status discrimination. Familial status is defined as " one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent or another person having legal custody of such individual or individuals."

Among other provisions, it is unlawful:

"To discriminate against any persons in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... familial status ..."

Thus, a restriction on access or use of common facilities and amenities bases on age of a child (familial status) is a violation of the FHAA, absent compelling business necessity. Any such rule must be proved to be the least restrictive means to achieving a health and safety justification. What does this legalese mean to the community owner in practical terms? A full-blown trial, risks of heavy penalties, damages, and attorney's fees and costs. This is because there is no bright line test for any age-restrictive regulation: the law is bereft of any standards or guidance to make a reasonable, predictable risk-assessment or likelihood of success. Each case depends on the facts and surrounding circumstances. In other words, each case is a test-case. In sum, the penalties are so severe that prudent counsel would admonish all to eliminate age-restrictive rules and regulations.

Children are as protected as any other protected class. Thus, a simple way to test a rule for FHA compliance is this: insert any other protected class in the place of "children" when testing a rule and regulation. For example, a common past rule (and no longer a valid one) is "all children under 14 years of age must be accompanied by an adult resident when in the pool area." Then, how does this sound: "All Methodists must be accompanied by an adult resident ...." Obviously, such a rule is patently violative of the FHA.

It is also a violation of the FHAA to express to agents, brokers, employees, prospective sellers, or renters a preference, (e.g. "... gosh, if I had my druthers, I would rather not rent to families"). Another issue is use of selective advertisements, or denying information about housing opportunities to particular segments of the housing market because of their race, color, religion, sex, handicap, familial status, or

national origin, (example, in an area overwhelmingly populated by non-English speakers, advertising only in English language publications). Other violations will be found where there are ads or statements made regarding applicants, including: "mature person;" stating an aversion to "families with children" or "teenagers in the building;" advertisements stating non more than "one child;" or, stating that the community owner does not "rent to children." Posting "Adult Community: at the entrance to a non-exempt community also violates the FHAA. Use of the word "adult" without more, constitutes a violation of the FHAA. There are no such thins as adult manufactured home communities, and use of the phrase is deemed to chill family applicants from applying for tenancy in them.

The various rules cited by the courts as impermissibly restricting access or denying the use of the communities' facilities and/or areas on the basis of age, included the following. If your rules contain any of the following restrictions, or any rules similar to them, it is strongly advised that a legal advisor conversant with the FHAA (and implanting regulations and judicial and administrative interpretations) be promptly consulted.

• Children under the age of fourteen (14) years old shall not be allowed to ride a bicycle on the community streets without the accompaniment of an adult registered to the manufactured home in which they reside;
• Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence;
• Children shall not be allowed to play on community streets, or in any other common are areas; Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the manufactured home in which they reside;
• Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
• Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10 a.m. to 12 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12 noon;Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or therapeutic jet pool at any time;
• Children under the age of fourteen (14) years old must be accompanied by a registered resident adult to be allowed to ride a bicycle in the community streets;The adult resident host must accompany all guests of their manufactured home who use the recreation building (clubhouse) or any of the recreational facilities of the community;
• Children under the age of fourteen (14) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
• When using the clubhouse, persons under ten (10) years old must be accompanied by an adult resident;
• Use of the billiards room was restricted to residents over eighteen (18) years old;
• Use of the spa was prohibited to children under eighteen (18) years old;
• Use of the pool by children fourteen (14) years old and under required accompaniment by a resident;
• Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host;
• Parent or resident child or resident host must accompany children at all times in the pool or pool area.
• Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 9 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host;
• No one under the age of eighteen (18) years old is permitted in the billiard room at any time;
• No one under the age of fourteen (14) years old is allowed to use the Jacuzzi;
• At 2 p.m. children are to be out of the pool area;
• Children are not to walk around the community without adult supervision;
• Minors under sixteen (16) years old are not permitted in the therapeutic pool;
• For safety, children are not to ride bicycles, roller skate, skateboard, play in the street, play in RV storage, plan in car wash or wander around the community;
• Children under with (8) years old shall be confided to a play area in the rear fenced yard of the family residence.

The court held that these rules were not based on compelling business necessity and did not represent the least restrictive intrusions on familial status rights in promoting a health and safety interest. Having held that these rules were unlawful, the issues remaining for trial in the Plaza Mobile Estates case included damages, punitive damages, civil penalties, injunctive relief and attorney's fees and costs for the private plaintiffs.

While the action had been brought as a class claim (in which all of possibly thousands of affected residents could have been included in damages awards), class certification efforts were defeated, allowing only the named parties to seek damages.

The court's comments regarding the invalidation of these rules is telling and troubling. The court stated the age-restrictive rules were facially discriminatory. In other words, no matter how administered, the rules were invalid as drafted. Even if never enforced , such rules might dissuade a prospective applicant from applying for tenancy. These rules "...treat children, and thus, families with children differently and less favorably than adults-only households." "Describ[ing] parks as 'adult' parks are clear examples of illegal steering. Although they are not outright refusals to sell or rent or families with children, they indicate a preference for adults only and certainly discourage families with children from applying."

Considering the various age restrictive rules, they fall into three categories: (1) absolute prohibitions, (2) adult supervision requirements, and (3) hours of access restrictions.

Absolute prohibitions

The absolute prohibitions include those rules that (1) prohibit all children under 18 (or 21) years old from using the billiard room and from riding bicycles, (2) prohibit all children under 16 (or 18) years old from using the therapeutic pool, (3) prohibit all children under 14 (or 18) years old from using the sauna or Jacuzzi, (4) require all children under 8 years old to be confined to rear fenced yard of family residence, and (5) prohibit all children from playing on community streets and any other common areas.

The court held that absolute prohibitions such as the foregoing are illegal. The regulations are not the least restrictive means to achieve health and safety objectives ("...prohibiting all 'children' from playing in common areas ... cannot be justified"). The same applies with the billiard room ("... it is unclear how a 17-year-old's access to a billiard room is any more hazardous to ... health or safety that a 22-year-old's access").

Supervision restrictions

The fundamental premise adopted by the court is that "[A]ny concerns that defendants may have are not necessarily linked to age, and any concerns about problem behavior can be address with the use of rules." Thus, the court invalidated blanket prohibitions of all 15-year-olds from using the therapeutic pool and all 13-year-olds from using the sauna or Jacuzzi

In certain instances adult supervision might less restrictively advance health and safety concerns ("assuming arguendo that defendants' concerns were more logically linked to the age restrictions, requiring adult supervision rather than imposing an absolute ban is clearly a less restrictive means ..."). But where to set the limit is uncertain. California regulations state:

"Where no lifeguard service is provided, a warning sign shall be placed in plain view and shall state 'Warning – No Lifeguard on Duty' with clearly legible letters at least 10.2 centimeters (4 inches) high. In addition, the sign shall also state 'Children Under the Age of 14 Should not Use Pool Without an Adult in Attendance."

Based on the Plaza Mobile Estates decision, it is needlessly legally risky to impose any supervision requirement. Clearly, a 14 year age limit for an adult supervision is not enforceable, not legal, and constitutes a violation of the FHA, despite former administrative decisions suggesting the contrary and California regulations cited above. Yet, the need for an age limit is strikingly clear. The same rule applies to use of spas and whirlpools. Certainly an adult supervision requirement should be reasonable[1], but eh court has ruled that such concerns are fro the parents, not the management.

A few apparently unassailable precepts

Given that this case raises many more questions than it answers, the ability to promulgate and rely on age-restrictive rules for access and supervision are certainly less than a matter of clarity. While the previous rulings concerning the enforceability of age-restrictive rules are in some doubt, a few precepts can be stated with some reliability. The first is that an outright prohibition of use or access to any facility or amenity cannot be allowed. Setting up selected hours for usage of a facility of amenity cannot be allowed. Less certain is the ability to promulgate rules requiring adult supervision of children of varying ages for use of facilities or amenities. It would appear that no supervision can be mandated for areas such as clubhouse, billiard room, library or common areas.

Establishing minimum age requirements for supervision: A foray into the uncertain

The "14 and under" requirement of California regulations for pool supervision is a should not a must provision. Hence, management cannot require supervision of 14 years of age and under. The only clearly legal position is not to require supervision, and let it be for the parents to take personal accountability and responsibility for their children. The court makes this statement:

"... there is nothing magical about the age 18 or 14 years old if defendants' concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement."

The courts have intervened on occasion to require discrimination against children for their own good and government does so all the time. For example, you cannot vote until you are 18, drink alcohol until you are 21, cannot drive until you are 16.[2] However, housing providers subject to the FHA may not rely on or use the same governmentally-established restrictions in developing their rules and regulations despite the dangers posed by the common area facilities.

Another example: Pedestrian injuries are the second greatest cause of harm to children from five to 14 years of age. See the National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997.[3] However, it is illegal to have a rule and regulations which states that "children are not to walk around the community without adult supervision."

Is it unreasonable to require adult supervision within the common areas of a manufactured home community? It would seem that such a rule is reasonable. However, for a community owner, such a rule violates the FHA. On the other hand the Consumer Products safety Commission urges supervision of children while on a playground for example (Consumer Product Safety Commission, Public Playground Safety Checklist, CPSC Document #327: "10. Carefully supervised children on playgrounds to make sure they're safe"). The federal law states that the parents are responsible for their children, not the management.

Previously sustained rules

The courts have previously allowed the following rules. This information may be largely historical at this juncture, for it remains unclear whether or not they remain viable in light of the Plaza Mobile Estates decision (these rules were sustained under the previous "reasonableness" test, not the "compelling interest" basis test):

1. Rules which bar use of a pool for children fourteen (14) years of age and less have been upheld because the prohibition implements legislative policy. HUD v. Paradise Gardens, HUDALJ 04-90-0321-1, 1992 WL 406531 (HUDALJ Oct. 15, 1992)
2. A rule which required children under the age of fifteen (15) years to be accompanied by an adult who is at least eighteen (18) years old when using the swimming pool and exercise equipment. (HUD vs. Trace Corporation 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).
3. Rules have been sustained for age restricted access as to power tools. "...Respondents may keep the machine shop with industrial power tools accessible only to tenants who are at least fifteen (15) years of age and may require tenant children between the ages of fifteen (15) and eighteen (18) years to be accompanied by an adult who is at least eighteen (18) years old when using the machine shop. Further, Respondent may require all users of the machine shop to hve complete training on the proper use of such tools." (HUD vs. Trace Corporation, 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).]\
4. In the unpublished decision of United States v. Town Hall Terrace Association, 1997 WL 128353 (W.D.N.Y. 1997), the housing provider made available four pieces of exercise equipment: a multi-purpose with lifting machine, a stationary bicycle, an inclining board and a rowing machine – in its "the fitness center." Until 1992 an express policy restricted the use of the fitness center and its equipment to persons at least eighteen (18) years old. After mid-1992, this threshold was lowered to sixteen (16).[4]
5. One case allowed for a rule requiring adult supervision of children six (6) and under while biking in a street. U.S. v. M. Westland Co., CV 93-4141, Fair Housing-Fair Lending 15,941 (HUD ALJ 1994)). Another authority states that no child should be permitted in a street on a bicycle until at least ten (10) years of age. ("Cycling should be restricted to sidewalks and paths until a child is age 10 and able to show how well he or she rides and observes the basic rules of the road. Parental and adult supervision is essential and until the traffic skills and judgment thresholds are reached by each child." The National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997).

But under the more recent Plaza Mobile Estates decision, the past allowances provide no basis on which to write your rules and regulations.

Don't blame the court!

However, it is too much to criticize or impugn the court for adhering to the letter of the law, and not legislating by "judicial fiat." The court interprets what the law is and does not legislate. That is the job of Congress and more pointedly in this case HUD (in its rule-making powers). The FHA prohibits discrimination, period. The federal law makes NO exceptions; exceptions to familial status rights is the job of HUD. It is not the court's duty. The court is not the Legislature.

The need for uniform guidelines to inform the housing providers of permissible restrictions

HUD should provide guidance for housing providers and establish bright line tests for common sense age-restrictive rules. HUD should defer to other legislative judgments made for child protection by allowing community owners to replicate existing laws in their rules and regulations. Model regulations for protection of the young could be published. HUD could establish a rule pre-approval procedure.

Community owners just want to comply with the law and provide reasonable requirements for protection of children. But now, even experienced lawyers cannot intelligibly predict the enforceability of any age-restrictive rules. At this time, attaining any ascribed legitimacy of a rule only follows after an expensive legal defense with a heavy burden of proof requiring compelling business necessity. A conciliation agreement binds the complainant. If another resident complains the next day, the conciliation agreement is worthless as a defense to the rule. This is an inconceivably inefficient manner of testing rule validity. The costs to business in such concerns vastly outweigh the benefit to be achieved. The cost to the consumer in spreading the expense of this exercise could be largely obviated if the housing provider had some guidance in defining acceptable rules for promotion of health and safety. The suggestion of administering proficiency tests is a null and void concept. The liability for negligently administering such tests, seeking and paying for qualified testers, and then excluding the non-proficient residents will not be pursued by a single housing provider.

What can we do? Even in the absence of specific rules, educational materials may help parents understand common risks associated with youth. When educational information is provided as an adjunct to an activity rather than a rule restricting an activity, the chance of a claim of discriminatory preference is less likely to be made. For example, when a community owner offers such educational material from organizations who seek better protection of children, (e.g., police departments, charitable organizations, etc.) the community owner is providing a service – disseminating information and facts – not discriminating against children.[5]

You may also consider consulting with HUD in advance of amending rules and regulations. IF HUD even informally opines that a proposed policy is not defensible, or that no comment can be offered, at least the community owner can better assess the risk faced with a new rule and regulation. For example, if a resident complains that a particular resident who has open sores due to infection with the AIDS virus desires to use the swimming pool, can the management require that resident to stay out of the pool?

When faced with the question, the manger called to advise that she was not sure how to proceed. While administrative regulations require a doctor's letter stating that no public health or safety risk was posed by the patient's use of the pool, I consulted with HUD before announcing the management policy.

Finally

All the community owner wants is to know what the law is! What we do know is certain rules, certain practices reflecting what the law is not. But it is grossly unfair to relegate the duty to set standards on management. Having read this article, can you now, safely amend your rules to impose such a rule? No. No attorney can give an absolute assurance that such a rule will be sustained until ruled valid in a court. Until a court actually rules on the validity of the rule, or HUD or DFEH offers guidance on their interpretation of the rule, there can be no assurance of what an will not be permitted in developing age-restrictive rules and regulations. The best policy is to eliminate any and all age restrictive rules and regulations to avoid FHA claims.

Reprinted with permission from Western Manufactured Housing Communities Association (WMA) "Reporter", June 2008.

Terry Dowdall has specialized in manufactured home communities' law since 1978. His firm, Dowdall Law Office, APC is located in Orange County and Sacramento, with a practice limited exclusively to the manufactured housing industry. Mr. Dowdall serves as a legal advisor on WMA's Legislative Committee and has authored publications for the Continuing Legal Education of the State Bar. He is a frequent contributor to the WMA Reporter and facilitator at WMA educational seminars. He can be reached at 714-532-2222 (Orange) or 916-444-0777 (Sacramento).

[1] According to the United States Consumer Product Safety Commission, "...The main hazard from hot tubs and spas is the same as that from pools – drowning. Since 1980, CPSC has reports of more than 700 deaths in spas and hot tubs. About one-third of those were drownings to children under age five. Consumers should keep a locked safety cover on the spa whenever it is not in use and keep children away unless there is constant adult supervision. Hot Tub Temperatures – CPSC knows of several deaths from extremely hot water (approximately 110 degrees Fahrenheit) in a spa. High temperatures can cause drowsiness which may lead to unconsciousness, resulting in drowning. In addition, raised body temperature can lead to heat stroke and death. In 1987, CPSC helped develop requirements for temperature controls to make sure that spa water temperatures never exceed 104 degrees Fahrenheit. Pregnant women and young children should not use a spa before consulting with a physician. ... "CPSC Document #5112 "Spas, Hot Tubs, and Whirlpools Safety Alert".

[2] Municipal curfew regulations abound which restrict children. Los Angeles is typical. No one under 18 years of age is permitted in public places during school hours (" ... present in or upon the public streets, ... or any place open to the public during the hours of 8:30 am and 1:30 pm"). L.A.M.C. 45.04. The same restrictions apply after 10 pm. ("... any minor under the age of eighteen years to be present in or upon any public street, ... between the hours of 10:00 pm on any day and sunrise of the immediately following day; ...."). L.A.M.C. 45.03. Regulations for pool halls E.g. 17 (Midland Mi. Mun. Code Sec. 15-34) and 18 (1063-B. Pool halls. Public Laws of Maine) year age requirement), are commonly promulgated for the health and safety concerns for minors. It is unsafe for a park owner to rely on local or state laws in this respect in drafting rules and regulations.

[3] "[P]edestrian injury is the second leading cause of unintentional injury-related death among children ages 5 to 14. While the majority of pedestrian deaths and injuries are traffic-related, children ages 0 to 2 are more likely to suffer non-traffic-related pedestrian injuries, including those occurring in driveways, parking lots or on sidewalks. Although pedestrian injuries are not as common as motor vehicle occupant injuries, a disproportionate number of the injuries sustained by child pedestrians are severe. Between 25 and 50 percent of child pedestrian injuries require hospital admission. Children ages 5 to 9 are at the greatest risk from traffic–related pedestrian death and injury. Nearly one-third of all children ages 5 to 9 who are killed in traffic crashes are pedestrians").

[4] According to the U.S. Products Safety Commission: "The U. S. Consumer Product Safety Commission estimates that between 1985 and 1989, the latest period for which data are available, there were 1,200 amputations of children's fingers because of contact with exercise bikes. Most children were under the age of five. Many of the injuries occurred when the child's fingers touched the moving bike wheel or the chain and sprocket assembly. The Commission is concerned about the severity of injuries to children, especially because the hazard may not be obvious. Therefore, the commission warns parents always to keep children away from exercise bikes. Never use a bike without a chain guard, and when not using the bike, store it where children cannot get to it. Children's fingers can be amputated if they touch moving parts of exercise bike." Prevent Finger Amputations to Children From Exercise Bikes: Safety Alert: CPSC Document #5028.

[5] For example, educational material exist which explain that young children have peripheral vision which is two-thirds that of an adult; they have difficulty determining the source of sounds; traffic noises and sirens may be confusing; they may not understand that an automobile may seriously hurt or kill them; most children cannot understand a complex chain of events; children believe that all grownups will look out for them; they think that if they can see an adult driving a car toward them, the driver must be able to see them; children often mix fantasy with reality – they may give themselves superhuman powers and o not understand that a moving vehicle can hurt them; they have difficulty judging the speed and distance of oncoming vehicles. 

Editor's Note:  By far - the largest number of phone calls to the MHCO office - year after year - is assistance animals.  Probably one of the most abused laws in landlord-tenant law.  Finally, HUD is offering some further - and much needed guidance.  The actual statement from HUD is attached above ("HUD Guidance on Assistance Animals 01-28-2020").  We have forward this to our legal team to review the appropriate forms and to provide an additional article - with greater clarity - on how to proceed on this thorny issue.  Stay tuned ....

***

HUD recently announced new guidance to clarify how housing providers can comply with the Fair Housing Act when assessing a person’s request to have an animal in housing to provide assistance because of a disability.

Federal fair housing law prohibits housing discrimination against individuals with disabilities. Among other things, the law requires housing providers to permit a change or exception to a rule, policy, practice, or service that may be necessary to provide people with disabilities an equal opportunity to use and enjoy their home. In most circumstances, a refusal to make such a change or exception, known as a reasonable accommodation, is unlawful.

A common reasonable accommodation is an exception to a no-pet policy. A person with a disability may require the assistance of an animal that does work, performs tasks, or provides therapeutic emotional support because of the disability. Housing providers may confirm, if it isn’t apparent, whether the requested accommodation is needed because of a disability that affects a major life activity and is a reasonable request.

HUD says its new assistance animal guidance will help housing providers in this process by offering a step-by-step set of best practices for complying with the law when assessing accommodation requests involving animals and the information that a person may need to provide about his or her disability-related need for the requested accommodation, including supporting information from a health care professional.

The new guidance also provides information on the types of animals that typically may be appropriate and best practices for when the requested animal is one that isn’t traditionally kept in the home. It also provides information for both housing providers and persons with disabilities regarding the reliability of documentation of a disability or disability-related need for an animal that’s obtained from third parties, including Internet-based services offering animal certifications or registrations for purchase.

“Countless Americans rely on assistance animals to fill a void, providing individuals with disabilities with the means to have a home that supports their quality of life,” Secretary Ben Carson said in a statement. “In my many discussions with housing providers and residents impacted by the need for assistance, I recognized the necessity for further clarity regarding support animals to provide peace of mind to individuals with disabilities while also taking in account the concerns of housing providers. Today’s announcement responds to the ambiguity surrounding proper documentation for assistance animals with clarity and compassion to provide an equal opportunity for a person living with a disability to use and enjoy their home.”

Because they apply to more types of facilities than housing, the laws applicable to public accommodations and government-funded facilities, including Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, while sometimes overlapping with the Fair Housing Act, have different, and sometimes narrower, requirements. Similarly, public transportation and common carriers, such as airlines, are also subject to different rules. The Assistance Animal Notice doesn’t address those circumstances.