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WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability.

In general, fair housing law targets housing practices that exclude or otherwise discriminate against anyone because of his or her race or other protected class. Owners, managers, and individual employees all may be held liable for discriminatory housing practices, including:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures;
• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms;
• Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
• Assigning residents to a particular section of a community or floor of a building;
• Providing different housing services or facilities, such as access to community facilities; and
• Failing to provide or delaying maintenance or repairs.

In addition, the FHA prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right. It’s also unlawful to advertise or make statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status.

FROM THE COURTS

HARASSMENT: Community Accused of Ignoring Tenant-on-Tenant Racial Harassment

In December 2019, a federal appeals court ruled that a New York community could be liable under the FHA for failure to do anything to stop an alleged campaign of racial harassment against an African-American resident by his neighbor. Last year, the Coach highlighted a previous ruling in this case, but the opinion was later withdrawn without explanation.

ALLEGATIONS: In his complaint, the resident alleged that his next-door neighbor began a relentless campaign of racial harassment, abuse, and threats directed toward him several months after he moved to the community.

After the first incident, the resident said he feared for his safety and contacted the police. In response, officers in the hate crimes unit visited the site, interviewed witnesses, and warned the neighbor to stop threatening the resident with racial epithets. According to the resident, he filed a police report, and a police officer told the management about the neighbor’s conduct. Allegedly, the management did nothing.

A few months later, the resident said he called the police and filed another police report. This time, the resident said he provided written notice to management about his neighbor’s racial harassment and provided contact information for the police officers responsible for investigating the neighbor. Allegedly, the management still took no action.

Nevertheless, the neighbor’s conduct allegedly persisted to the point that the police arrested him for aggravated harassment. The resident said he again notified management of the continued racial slurs directed to him and the fact that the neighbor had been arrested for harassment.

A month later, the resident said he contacted the police and sent the management group a third letter complaining about his neighbor’s continued harassment. After receiving the letter, according to the complaint, the management group advised the site manager “not to get involved,” and the management group declined to respond or follow up.

Allegedly, the neighbor was allowed to stay in his unit until his lease expired. A few months later, the neighbor pleaded guilty to harassment and a court entered an order of protection prohibiting him from contacting the resident.

The resident sued, accusing the owner and manager of violating fair housing law by failing to take action to address a racially hostile housing environment created by his neighbor. A district court ruled against the resident and dismissed the case.

DECISION: Reversed; case sent back for further proceedings.

REASONING: The resident was entitled to pursue his claims under the FHA against the community for intentionally discriminating against a resident by failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment.

At this stage of the proceedings, the court was required to read the complaint in the light most favorable to the resident. If everything he said were true, the resident’s complaint adequately alleged that the owners and managers engaged in intentional racial discrimination. Specifically, the complaint alleged that the owners and managers discriminated against the resident by tolerating and/or facilitating a hostile environment, even though they had authority to “counsel, discipline, or evict [the neighbor] due to his continued harassment of [the resident],” and also had “intervened against other tenants at [the site] regarding non-race-related violations of their leases or of the law.”

In other words, the court said, the resident adequately alleged that the owners and managers were actually aware of the neighbor’s criminal racial harassment of the resident—harassment so severe that it resulted in police warnings and the arrest and eventual conviction of the neighbor—“and that management intentionally refused to address the harassment because it was based on race even though they had addressed non-race-related issues in the past, including, it was reasonable to infer, tenant-on-tenant harassment” [emphasis in original]. Accepting these allegations as true, the defendants subjected the resident to conduct that the FHA forbids.

In further proceedings, the defendants may be able to show that they tried and failed to address the resident’s complaints. Or it may unfold that the management also declined to address other, similar complaints unrelated to race, or that they were powerless to address the neighbor’s conduct. But the resident was entitled to further proceedings to resolve these issues [Francis v. King Park Manor, Inc., December 2019].

TREND TAKEAWAY: Federal fair housing law bans not only sexual harassment, but also harassment based on race, national origin, or other protected characteristics. As a general rule, community owners may be liable for illegal harassment by managers or employees when they knew or should have known about it but failed to do enough to stop it.

You should take all necessary steps to prevent—and address—discrimination or harassment at the community. Aside from ensuring that your policies and procedures conform to fair housing law, you can reduce the likelihood of a complaint by properly training and supervising all employees—not only managers and leasing staff, but also maintenance workers and anyone else who interacts with the public. And be particularly careful when hiring and supervising outside contractors or anyone else who could be considered your agent.

You don’t have only your employees or other staff member to worry about—you could face liability for tenant-on-tenant harassment under certain circumstances. According to HUD regulations, communities may be liable under the FHA for failure to take prompt action to correct and end a discriminatory housing practice by a third party, where the community knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third party depends upon the extent of your control or any other legal responsibility you may have with respect to the third party’s conduct.

Example: In November 2019, HUD announced that it reached an $80,000 settlement to resolve allegations that the owners and management agent of an apartment complex in Savannah, Ga., subjected African-American residents to repeated instances of racial harassment by white residents, which included verbal attacks and physical assaults.

The case came to HUD’s attention when three African-American residents filed complaints claiming that the owners of the property refused to investigate and address their claims that white residents had subjected them to racial harassment and verbal and physical assaults, including attacks by dogs. The residents also alleged that the property’s management ignored their maintenance requests and delayed the maintenance requests of other African-American residents. The housing provider denied discriminating against the residents but agreed to settle their complaints.

Under the terms of the agreement, the owner and management company agreed to pay $20,000 to each of the three residents who filed complaints and create a $20,000 fund to compensate other residents who may have been subjected to racial harassment. The owners also agreed to provide annual fair housing training for the staff and on-site management at the community.

“No one should ever have to face threats or be subjected to physical violence in the place they call home because of their race,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “The agreement we’re announcing today is a reminder to housing providers everywhere that HUD is committed to ensuring that they meet their obligation to comply with the nation’s fair housing laws” [Conciliation/Voluntary Compliance Agreement with Oglethorpe Square Apartments, LP, of Savannah, GA, and Gene B. Glick Company, Inc., of Indianapolis, IN].

DISABILITY: Is Community Required to Grant Reasonable Accommodation Request for Exception to Minimum Income Standards?

In September 2019, a federal appeals court ruled that a Florida housing provider may be required to accept other forms of income as a reasonable accommodation to allow an applicant with a disability to qualify for housing.

ALLEGATIONS: In his complaint, the applicant alleged that shortly after graduating from high school, he was in a wrestling accident that left him completely paralyzed. His housing was inadequate to accommodate his quadriplegia because it wasn’t wheelchair accessible. After seeing an ad about Habitat for Humanity, a nonprofit that builds new homes for low-income individuals, he decided to apply.

When he met with a representative, he learned that Habitat imposed a minimum gross annual income requirement of $10,170, presumably to ensure that potential homeowners would be able to pay their mortgages. According to the applicant, his disability prevented him from working, so his main source of income was a Social Security Disability Insurance stipend of $778 per month, which equates to a gross annual income of $9,336. Given the fixed amount of his SSDI, he asked Habitat to consider one of two other sources of income toward its requirement—either the $194 per month in food stamps or the $100 per month he received from his father—either of which would be enough to get him over the minimal income threshold. After reviewing his application, Habitat allegedly said it couldn’t accept either of the two additional sources of income.

After efforts to negotiate a compromise were unsuccessful, the applicant sued Habitat for violating the FHA by denying his reasonable accommodation request to accept either his food stamps or familial support as income for purposes of qualifying for the housing.

After pretrial proceedings, both parties asked the court for judgment without a trial. Siding with Habitat, the court dismissed the case, ruling that the applicant’s accommodation request wasn’t necessary under the FHA because it was related solely to his financial condition, not his disability.

The applicant appealed.

DECISION: Reversed in part; sent back for further proceedings.

REASONING: The applicant was entitled to further proceedings on his claim that Habitat violated fair housing law by denying his reasonable accommodation request to consider supplemental forms of income for purposes of qualifying for housing.

To establish liability for failure to accommodate under the FHA, the applicant had to show that:

1.       He was disabled within the meaning of the FHA;

2.       He requested a reasonable accommodation;

3.       The requested accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling; and

4.       The housing provider refused to make the requested accommodation.

The first and fourth elements of the claim were undisputed—no one disputed that the applicant was disabled, or that Habitat refused to accommodate his request to consider his supplemental sources of income. At issue were the middle two: whether the accommodation he requested was “reasonable” and whether it was necessary to afford him an equal opportunity to use and enjoy a dwelling. In earlier proceedings, the lower court skipped the first question and decided the case solely on the basis of the second.

To determine whether his request was reasonable, the first step was to determine whether the applicant demonstrated that his requested accommodation was of a type likely to be reasonable in the run of cases. The court ruled that he did—he wasn’t asking Habitat to lower its minimum-income requirement or accept anything less than usual in terms of payment or interest. Instead, the applicant, who was unable to work, asked Habitat to accept proof that he brought in the same amount of money as any other Habitat homeowner, but in a different form.

That shifted the burden to Habitat to show that the applicant’s request was unreasonable by imposing an undue burden on Habitat or fundamentally altering Habitat’s program. Further proceedings were needed to resolve this issue.

The second question was whether the applicant’s requested accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling. Under fair housing law, a “necessary” accommodation is one that alleviates the effects of the disability. An accommodation addressing an inability to demonstrate wages earned could in some cases be necessary—that is, could alleviate the effects of a disability. Consequently, the lower court should have considered whether the applicant’s inability to demonstrate the minimum required income through W-2 wages was an effect of his disability.

A separate, but related issue was whether the requested accommodation was necessary to afford him an equal opportunity to enjoy the dwelling. He wasn’t entitled to an accommodation that would put him in a better position than a member of the general public. The applicant said he wasn’t asking Habitat to lower its income requirements or pay anything less than other applicants—his accommodation request involved only the form of payment, not the amount. In contrast, Habitat said that he was seeking an advantage that wasn’t available to other applicants. Further proceedings were needed to determine whether the requested accommodation would provide the applicant with an opportunity to enjoy a dwelling that would otherwise—due to his disability—elude him [Schaw v. Habitat for Humanity of Citrus County, Inc., Florida, September 2019].

TREND TAKEAWAY: Carefully consider requests by individuals with disabilities for reasonable accommodations to your financial screening requirements. In general, you don’t have to excuse individuals with disabilities from meeting minimum income standards or verifying their income, but you may have to be flexible when it comes to how they satisfy those requirements.

Example: In June 2019, a court ruled that an Arkansas community had to pay damages for denying a reasonable accommodation request by a disabled woman and her mother who couldn’t produce the documentation required under the community income-verification policies. In lieu of the necessary paperwork, the woman submitted documentation from the Social Security Administration showing the mother’s retirement benefits and her disability benefits, along with income received from a rental property, but the community wouldn’t accept the alternative documentation to verify their income. The court ruled that the community violated fair housing law by denying an accommodation that was both reasonable and necessary for an equal opportunity to use and enjoy a dwelling [Edwards v. Gene Salter Properties, Arkansas, June 2019].

SETTLEMENTS

CRIMINAL SCREENING POLICIES: Landmark $1.1M Settlement Reached in Fair Housing Case Challenging Alleged Criminal Record Ban

In November 2019, the owners and operators of a 900-unit apartment complex in Queens, N.Y., agreed to pay $1,187,500 to settle a lawsuit alleging that the community violated the FHA by refusing to rent to people with criminal records.

The lawsuit was filed by the Fortune Society, a New York not-for-profit organization that provided housing and other services to formerly incarcerated individuals. In its complaint filed in 2014, Fortune alleged that when it tried to rent apartments for its clients at the community in 2013 and 2014, the community refused because of its policy of prohibiting anyone with a criminal record from living there. Fortune alleged that the policy unlawfully discriminated because it disproportionately barred African Americans and Latinos from housing without considering each potential tenant’s individual history and circumstances.

The settlement follows a July 2019 court ruling denying the community’s request for judgment without a trial. The court rejected claims that Fortune itself wasn’t harmed by the policy and so didn’t have standing to pursue the case. The court ruled that further proceedings were needed to determine whether the community had a ban on applicants with criminal histories, and if so, what were the contours of that ban. Further proceedings were also needed to resolve conflicting expert testimony as to whether any criminal record ban, as applied at the community, had a discriminatory effect on any protected class, including people of color [Fortune Society v. Sandcastle Towers Housing Development Fund Corporation, New York, July 2019

The owners of the community at the time the lawsuit was filed have sold the building and don’t currently own or rent real estate.

According to a statement by Fortune’s attorneys, Relman, Dane & Colfax, the settlement sends a powerful message to other landlords that they must evaluate each applicant as an individual instead of automatically rejecting those with a criminal history. This is critical because obtaining affordable housing is central to successful reintegration for the hundreds of thousands of Americans–disproportionately people of color–released from confinement every year.

TREND TAKEAWAY: Familiarize yourself with the 2016 HUD guidelines on how federal fair housing law applies to the use of criminal records in both conventional and assisted housing communities. The guidelines spell out how HUD will evaluate fair housing complaints in cases where a community refuses to rent or renew a lease based on an individual’s criminal history. 

DISABILITY: Landlord Accused of Violating Resident’s Privacy by Telling Neighbors About Her Request for an Assistance Animal

In July 2019, the owner of a multifamily rental housing community in Santa Monica, Calif., agreed to pay $14,000 to resolve allegations that she violated fair housing law by disclosing confidential disability-related information about a resident’s request for an assistance animal to her neighbors.

In its complaint, the city claimed that a resident with a disability requested a reasonable accommodation to the community’s general policy against pets and included a letter from a medical professional with her request.

The landlord allegedly sent a group email to all the other residents in the building, in which she disclosed the resident’s request, indicated that a disability was involved, and claimed that the resident had a “psychological therapist” who had sent the landlord a letter. Allegedly, the landlord concluded by asking the other residents to report “anything annoying” about the assistance animal to her. The emails went to 10 people other than the disabled resident.

About six weeks later, the landlord emailed the resident to insist on coming into her home to inspect her bedrooms and meet the “comfort” animal. According to the complaint, none of the justifications for a landlord’s entry into a tenant’s home existed. Allegedly, the resident was in shock and distress over the landlord’s tactics.

After the resident filed a fair housing complaint with local authorities, the Public Rights Division of the Santa Monica City Attorney’s Office sued the landlord, alleging disability discrimination and harassment under federal, state, and local law. Specifically, the city claimed that the landlord violated the fair housing rights of a resident with a disability by violating her privacy, making a discriminatory statement, attempting to turn other residents against her, and entering her unit without justification.

Without admitting liability, the owner agreed to a settlement. Under the stipulated judgment with permanent injunction, the court ordered the landlord to pay $14,000 to the city to satisfy all penalties, fees, and costs of investigation and prosecution. The court order also required the landlord to obtain fair housing training and barred her from disclosing any information about a resident’s disability to a third party [City of Santa Monica v. Honda, California, July 2019].

TREND TAKEAWAY: When a resident makes a disability-related reasonable accommodation request, be careful about what you say about it to the neighbors. It doesn’t matter whether it’s for an assistance animal, a reserved parking spot, or something else—you could stir up fair housing trouble if you disclose disability-related information about the resident to her neighbors. According to federal guidelines, information gathered to evaluate reasonable accommodation requests must be kept confidential and must not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable accommodation request or unless disclosure is required by law (such as a court-issued subpoena requiring disclosure).

ENFORCEMENT NEWS

HUD Calls for Investigation into Websites Selling Assistance Animal Documentation

In November 2019, HUD Secretary Ben Carson called for an investigation into certain websites selling assistance animal documentation. In a letter to Chairman of the U.S. Federal Trade Commission (FTC) Joseph J. Simmons and Director of the Bureau of Consumer Protection Andrew Smith, Carson asked the FTC to investigate these websites for compliance with federal laws that protect consumers from unfair and deceptive acts or practices.

The letter stated: “Housing providers, fair housing groups, and disability rights groups have brought to HUD’s attention their concern that certain websites may be misleading consumers with disabilities into purchasing assistance animal documentation that is unreliable and unnecessary. According to these groups, the websites also may be selling assistance animal documentation to people who do not have disabilities substantially limiting a major life activity, enabling such people to claim that their pets are assistance animals in order to evade housing providers’ pet restrictions and pet fees. HUD shares these concerns” [emphasis in original].

The FHA requires housing providers to grant reasonable accommodations for individuals with disabilities that affect major life activities when it may be necessary for such individuals to have equal opportunity to enjoy and use a dwelling. One type of reasonable accommodation is an exception to a housing provider’s rules regarding animals to permit individuals with disabilities to keep assistance animals that do work, perform tasks, or assist individuals with disabilities. Documentation, such as a note from a healthcare professional, is helpful and appropriate when a disability is not obvious and not already known.

The FHA doesn’t require assistance animals to be “registered” or “certified,” nor, in HUD’s opinion, does certification or registration provide any benefit to the consumer with a disability who needs an assistance animal. “Certifications, registrations, and other documentation purchased over the internet through these websites are not necessary, may not contain reliable information, and, in HUD’s FHA enforcement process, are insufficient to establish an individual’s disability-related need for an assistance animal,” according to the letter.

In the letter, HUD offered to provide the FTC with examples of websites that sell the type of documentation described in the letter, “including at least one website that contains the seals of HUD and other federal agencies in an effort to imply that their products are endorsed by the federal government.”

“These certificates are not an acceptable substitute for authentic documentation provided by medical professionals when appropriate,” Carson said in a statement. “These websites that sell assistance animal certificates are often also misleading by implying that they are affiliated with the federal government. Nothing could be further from the truth. Their goal is to convince individuals with disabilities that they need to spend hundreds of dollars on worthless documentation to keep their assistance animal in their homes.”

HUD Assistant Secretary for Fair Housing and Equal Opportunity, Anna Maria Farías, explained, “Websites that sell verification for assistance animals take advantage of persons with disabilities who need a reasonable accommodation to keep their assistance animal in housing. This request for FTC action reflects HUD’s ongoing commitment to protecting the housing rights of persons with disabilities.”

“The Fair Housing Act provides for the use of assistance animals by individuals with disabilities. Under the law, a disability is a physical or mental impairment that substantially limits at least one major life activity or bodily function,” added HUD’s General Counsel Paul Compton. “These websites are using questionable business practices that exploit consumers, prejudice the legal rights of individuals with disabilities, dupe landlords, and generally interfere with good faith efforts to comply with the requirements of the Fair Housing Act.”

• Fair Housing Act: 42 USC §3601 et seq.

Answer. This can be a complicated issue. First, there are a series of state statutes governing the towing of vehicles from private property (here). They should be carefully reviewed before undertaking this process.

Here is a relevant portion of the law:

98.810 Unauthorized parking of vehicle on proscribed property prohibited. A person may not, without the permission of:

(1) The owner of a parking facility, leave or park any vehicle on the parking facility if there is a sign displayed in plain view at the parking facility prohibiting or restricting public parking on the parking facility.

(2) The owner of proscribed property, leave or park any vehicle on the proscribed property whether or not there is a sign prohibiting or restricting parking on the proscribed property.

Also, some cities and counties may have their own ordinances. The City of Portland, for example, has very specific rules (here). Gresham and Tualatin do as well. Plus, the Oregon Department of Justice has various consumer protection rules against "predatory towing". (here).

For manufactured housing communities, I suggest going much farther than relying on state or local laws. If your community decides to do this, it should be clearly disclosed in the rules and regulations. Of utmost importance is proper visible signage, which can either be created by management, or provided by the towing company you decide to use. Make sure the company has a good reputation in all respects, and no records of consumer complaints.

If the violator is a resident, I suggest one or more warnings (following a protocol in your rules) before having the vehicle towed. Once towed, the car is impounded, and the cost of getting it released is not insubstantial, and the towing company has storage lien rights. If the process is not strictly followed, the owner could have a claim against management for conversion, i.e. the civil side of theft.

Fining is a much safer alternative, but must also follow community rules. The worst that can happen if the fine is levied in error is to rescind it. Making an error in the lead-up or during a tow, can be much more costly to management.

Fines can be enforced with a 30-day notice under ORS 90.630, so long as it is found in the rules. I suggest a warning notice first. Take a picture of it on the car, with the plate visible. Include the date and time. Mail a copy of the notice and the picture to the resident within 7 - 10 days. Use a certificate of mailing.

Make sure there is proper visible signage describing the proscribed area, the times, if applicable, and the amount of the fine.

If the fine increases on multiple violations, describe that, or reference the park rule. Do not make the fine punitive. If other communities have such violations, find out what their fines are. Always use the rule of reason; don't impose a fine that most residents could not afford.

The issue of visitors is somewhat different, but rules may be enforced against the resident whose guest they are. That is why a warning notice should first be given. The notice and picture would go to the resident, who will, hopefully, warn their visitor about obeying marked No Parking signs.

Answer: First, please understand that Oregon law does not directly deal with this – and neither is it addressed in most rental/lease agreements, including MHCO’s. So my responses are based upon my opinion alone. Until an appellate court rules on these issues – which is unlikely, since most such cases are never appealed - the best we can do is speculate. My answers are in italics below.

1. Do we write a new lease for the remaining resident or keep the old lease with both residents on the lease?

I think I would prefer to see a new lease signed by the remaining resident – even if title remains in both their names. That way, the ex-spouse cannot argue that he or she has a right of occupancy a year or two down the road, when they patch things up, or one moves out and the other moves back in. A new lease would require than any new occupants be qualified all over again. Note that if the lease is changed into the name of the remaining resident, the ex-spouse would certainly have no liability for space rent going forward.

2. Can we legally keep the resident that moved out, responsible for the lease after a divorce and separation of assets?

Technically, yes. Neither the divorce decree nor the parties themselves can – without your consent – alter their joint legal duties under a lease they both signed. [This situation is not dissimilar to spouses jointly signing their mortgage and then divorcing; they both remain liable under the mortgage, even though one vacates the home.] The best a divorce court can do is to make the occupying ex-spouse primarily responsible for the rent and give indemnity rights to the non-occupying ex-spouse in case she or he end up having to pay for unpaid rent that should have been paid by the occupying ex-spouse.

3. Do we rescreen the remaining resident to see if he/she qualifies on their own?

I have a visceral reaction to doing so – if they did not pass the credit requirements, then what? Deny them the right to stay in the community in which they have lived for a number of years? Kick them out without waiting to see whether they can – or will make the payments? That is like punishing the remaining ex-spouse for being divorced. Remember, the occupying ex-spouse will likely be the custodial parent, if children are involved. The non-custodial parent will likely have some child support obligation, which would then make the custodial parent’s individual credit score less important. The same may be said even if there are no children; there may be a spousal support obligation by the non-occupying ex-spouse. It seems to me that it will become clear soon enough, whether the occupying ex-spouse can or will make the space rental payments, independent of what their current credit score may be.

4. If we do rescreen the remaining resident and he/she fails the credit or criminal background, what are our options?

Before you re-screen, re-read my answer to Question No. 3 above. If the lease agreement or rules do not address the possibility of spouses divorcing – and I have never seen any that do – the ultimate decision on whether you may re-screen could be left up to a judge. I submit that judges do not like to evict people out of their homes unless there is a compelling reason to do so. A case in which a resident is being evicted for no reason other than that they no longer meet the credit criteria – with no evidence that they are in default under the lease or rules – would be a very difficult sell to most judges. It is unlikely that you would prevail. I compare this situation to requiring a resident to be re-screened upon a job loss or death of a spouse. In cases of such unplanned events occurring after residents have been approved, I suggest that you let the situation play itself out. If a resident cannot afford to pay the space rent, you will then have sufficient cause to evict. But to try to evict because you doubt the ability of the resident to pay rent in the future, is premature and likely to fail.

5. Who owns the security deposit or pre-paid rent?

That depends upon whether you have the remaining resident sign a new lease. If a new lease is signed, you could issue a refund check to both of them under the first least, and require the remaining occupant to pay a new deposit under the new lease. It would be preferable, however, to see if they could agree to authorize you to leave the existing deposit in place, but permitting you to refund it, if appropriate, to the remaining occupant at the end of his/her tenancy. If no agreement can be reached, simply hold the deposit until expiration of the tenancy by the occupying non-spouse, and then, if a refund is in order, make the check out to both of them.

Rebekah Near is the owner and CEO of a Tenant and Employment screening company in the Northwest. 

Every day in my office at Orca information, Inc. I overhear my Background Investigators talking on their phones with rental or employment applicants.  Often the conversation is centered around Adverse Action - usually a denial of tenancy or employment, a landlord or employer has taken against them.  What is the first question my Background Investigators ask the applicant who has called in for help from Orca?  “Have you received your Adverse Action letter from the landlord?”  Concernedly, more often than not, the applicants tell us, “No, I have not yet received the Adverse Action letter from my Landlord (or employer).”

Next question for the Applicant asked by my Background Investigator is, “How did you find out you were denied tenancy (or employment)?”  Answer is usually, “The Landlord called me and told me I do not qualify and if I want to know why, call Orca.”  Or, another common answer we hear from an Applicant is, “The Landlord called me and told me I do not qualify because of past evictions.  So, I am calling you to find out why exactly I was denied.” 

A question to you the reader:  Does the above scenario resonate with you?  Do you have written policies in place for your staff specifically for taking Adverse Action against an applicant?  THERE ARE LAWS that clearly define the process of taking Adverse Action.  When those laws are not followed, it opens you up to expensive lawsuits.  I don’t know about you but I vehemently dislike lawsuits. 

For the sake of keeping each article short and sweet, I will write several explaining step by step - how to take Adverse Action towards an Applicant.  This includes a denial of tenancy.  For now, keep in mind that the FIRST step in taking Adverse Action is to find the document your screening company is required to provide.  It is titled, CONSUMER RIGHTS.  Then fill in the lines reflecting reasons why the applicant did not qualify for the rental or manufactured home and get it to them quickly.  Following up with a call or emailing them is great too!  But this CONSUMER RIGHTS letter should be the FIRST INFORMATION THEY RECEIVE ANNOUNCING THEIR (POTENTIAL) DISQUALIFICATION. 

……to be continued

Rebekah Near is the owner and CEO of a Tenant and Employment screening company in the Northwest.  Orca Information, Inc was established in 1993.  Check out our FREE training videos at www.orcainformation.com We take great pride in deep diving into court records, and cross-referencing documents to find possible discrepancies in information applicants provide.  We blend the new information technologies and the old, little-known investigative techniques to discover if an applicant has been “naughty or nice” therefore doing our part to help you protect your assets!  Rebekah Near is not an attorney and the above is not legal advice.  Seek an attorney for legal advice regarding all information and/or forms before utilizing. 

Rebekah Near

800-341-0022

www.Orcainformation.com

rebekahn@orcainfo-com.com

Answer: First, please understand that Oregon law does not directly deal with this - and neither is it addressed in most rental/lease agreements, including MHCO's. So my responses are based upon my opinion alone. Until an appellate court rules on these issues - which is unlikely, since most such cases are never appealed - the best we can do is speculate. My answers are in italics below.

1. Do we write a new lease for the remaining resident or keep the old lease with both residents on the lease? I think I would prefer to see a new lease signed by the remaining resident - even if title remains in both their names. That way, the ex-spouse cannot argue that he or she has a right of occupancy a year or two down the road, when they patch things up, or one moves out and the other moves back in. A new lease would require than any new occupants be qualified all over again. Note that if the lease is changed into the name of the remaining resident, the ex-spouse would certainly have no liability for space rent going forward.

2. Can we legally keep the resident that moved out, responsible for the lease after a divorce and separation of assets? Technically, yes. Neither the divorce decree nor the parties themselves can - without your consent - alter their joint legal duties under a lease they both signed. [This situation is not dissimilar to spouses jointly signing their mortgage and then divorcing; they both remain liable under the mortgage, even though one vacates the home.] The best a divorce court can do is to make the occupying ex-spouse primarily responsible for the rent and give indemnity rights to the non-occupying ex-spouse in case she or he end up having to pay for unpaid rent that should have been paid by the occupying ex-spouse.

3. Do we rescreen the remaining resident to see if he/she qualifies on their own? I have a visceral reaction to doing so - if they did not pass the credit requirements, then what? Deny them the right to stay in the community in which they have lived for a number of years? Kick them out without waiting to see whether they can - or will make the payments? That is like punishing the remaining ex-spouse for being divorced. Remember, the occupying ex-spouse will likely be the custodial parent, if children are involved. The non-custodial parent will likely have some child support obligation, which would then make the custodial parent's individual credit score less important. The same may be said even if there are no children; there may be a spousal support obligation by the non-occupying ex-spouse. It seems to me that it will become clear soon enough, whether the occupying ex-spouse can or will make the space rental payments, independent of what their current credit score may be.

4. If we do rescreen the remaining resident and he/she fails the credit or criminal background, what are our options? Before you re-screen, re-read my answer to Question No. 3 above. If the lease agreement or rules do not address the possibility of spouses divorcing - and I have never seen any that do - the ultimate decision on whether you may re-screen could be left up to a judge. I submit that judges do not like to evict people out of their homes unless there is a compelling reason to do so. A case in which a resident is being evicted for no reason other than that they no longer meet the credit criteria - with no evidence that they are in default under the lease or rules - would be a very difficult sell to most judges. It is unlikely that you would prevail. I compare this situation to requiring a resident to be re-screened upon a job loss or death of a spouse. In cases of such unplanned events occurring after residents have been approved, I suggest that you let the situation play itself out. If a resident cannot afford to pay the space rent, you will then have sufficient cause to evict. But to try to evict because you doubt the ability of the resident to pay rent in the future, is premature and likely to fail.

5. Who owns the security deposit or pre-paid rent? That depends upon whether you have the remaining resident sign a new lease. If a new lease is signed, you could issue a refund check to both of them under the first least, and require the remaining occupant to pay a new deposit under the new lease. It would be preferable, however, to see if they could agree to authorize you to leave the existing deposit in place, but permitting you to refund it, if appropriate, to the remaining occupant at the end of his/her tenancy. If no agreement can be reached, simply hold the deposit until expiration of the tenancy by the occupying non-spouse, and then, if a refund is in order, make the check out to both of them.

Are your catch basins cleaned out and ready for the fall rains, and are your speed bumps painted so vehicles and pedestrians can see them through the long winter months... neither of these two tasks take a lot of time or money, and Residents appreciate some of the attention to this detail!

Have you sent a "Prepare For Winter Memo" to your Residents reminding them to clean gutters, check their heat tape/pipe insulation? Have you WALKED your property taking note of any limbs on tall trees that need pruning attention in the fall and winter wind storms? While on your daily walk-throughs, did you follow-up on your spring four sided inspection reminding Residents to remove items improperly stored outside or in view of the street? Tarps suddenly have a way of appearing once fall rains start, so you will want to include in the memo that these are not allowed. (Check your "Guidelines For Living" aka R&Rs for inclusion of this prohibition!)

How about your inventory of emergency ice melt and sand... do you have them available for common area walkways... mailbox, clubhouse, laundry room and office entry areas... ? What is your plan for the leaf litter that can be overwhelming in the fall? If you own your snowplow equipment, is it serviced and ready to go? Before the rest of the property owners beat you to the phone, you may want to advance negotiations with a local snow removal company... now is the time to make the call and ask for a contract!

There is still an enormous list of tasks ahead of us especially if you own communities with outdoor pools, irrigation, systems, RV storage areas, lawn equipment and the like. These are all the PHYSICAL and FACILITY maintenance items that require our attention before the long winter "sleep." BUT, equally important is sharpening your pencil and looking back at the past year's financials and preparing your budget for NEXT year! Have you contacted utility agencies to establish anticipated raises on their part? How about your insurance agent or County Assessor? Did you sit down with your manager to generate a list of areas that he/she believes need attention administratively???? Have either of you generated a comparable market analysis of rents in your area... exactly where do YOU stack up??

The BEST run MHCs are occupied with content Residents who receive VALUE for their rental dollars. Therefore a very large part of our jobs is not just anticipating and addressing the physical and administrative needs of our communities as partially illustrated above; most importantly, treating Residents with respect and attention to detail will yield a rent roster of Tenants who will exhibit the pride of ownership we all strive to have in our land lease communities.

Joel Erlitz

First Commercial Property Corp

4500 Kruse Way #345

Lake Oswego, OR 97035

Phone: 206-985-7275

Fax: 206-985-3876

Email: ross@fcpcmgt.com

Web: http://firstcommercialpropertycorp.com

Sally Harrington

First Commercial Property Corp

4500 Kruse Way #345

Lake Oswego, OR 97035

Phone: 206-985-7275

Fax: 206-985-3876

Email: ross@fcpcmgt.com

Web: http://firstcommercialpropertycorp.com

Fair Housing Update on Advertising Fair housing law prohibits housing providers and the media from printing or publishing an advertisement that indicates a preference, limitation, or discriminates based on a protected class. Currently state and federal law protects people from housing discrimination based on an individual's race, color, national origin, religion, sex, family status, or disability. State law also protects marital status and source of income, and some cities or counties protect age, sexual orientation and gender identity. What should be avoided? o Direct discrimination, such as "No Children" or "Healthy Only" o Pictorial inserts that only show non-disabled white adults communicate the same illegal message as the words "non-disabled white adults only" What else should I know? o Words that describe behavior - not status - are generally permissible. Examples of acceptable words are "responsible" or "reliable." If the word "independent" is used, it should be clear that a person with a disability who can live alone with some outside assistance is not excluded. o Words that describe an attribute of a dwelling unit are permissible unless the ad restricts who can live there. For example "family room" or "mother-in-law apartment" are okay as long as it does not really mean only a mother-in-law can live there. Similarly "view" or "within walking distance of downtown" are descriptive and acceptable. What would be illegal are "no blind persons" or "no wheelchairs". o Age. Age is a protected class only in some areas, but beware of any ads limiting age, because they may discriminate against families with children. o Senior housing and "adults only". Senior housing may exclude families with children, but it must meet certain criteria, including an intent to be senior housing. Using "adults only" does not express the intent to be "senior housing." The ad should indicate the housing is for those over age 55 or age 62 or seniors. o Words that do not directly prohibit a protected class but are "neutral" are permissible. Permissible are phrases like "choice location, "executive home," "private." But if you know that your client wants to use "code" words because of an intent to exclude protected class individuals, follow the spirit of fair housing and do not do it. Other suggestions -- o Use the HUD fair housing logo where possible o If a dwelling unit is accessible to persons with mobility impairments, mention it in your ads

Answer: Since you said that the rent is paid every month, I assume that your resident is a month-to-month tenant (as opposed to weekly or fixed-term). If the tenant is within the first year of occupancy in the park, you can evict with a 30-day, no-cause eviction notice (MHCO Form 43 C).

(Caveat: Portland and Milwaukie both have ordinances requiring 90-day no-cause notices to allmonthly tenants, regardless of how long they have been tenants. In addition, Portland requires landlords to make "relocation assistance" payments to tenants evicted for no-cause, ranging from $2,900 to $4,500 - although the applicability of this requirement to RV tenants is legally questionable. Consult an attorney if you rent RV spaces in either of these cities.)

Unfortunately, due to recently enacted Senate Bill 608, you no longer have the right to evict a month-to-month tenant for no-cause afterthe first year of occupancy except in very limited circumstances that do not likely apply in your case (i.e., the RV park is being closed and converted to a nonresidential use). Instead, Senate Bill 608 now forces landlords to primarily rely on for-cause evictions after the first year of the tenancy.

In your particular case, you should issue a 72-hour rent nonpayment notice each and every month that the tenant is late with the rent (MHCO Form 82). If rent is due on the first day of the month, you can issue a 72-hour notice as soon as the eighth day of the month. At some point, you may catch the tenant missing the payment deadline in the 72-hour notice, after which you can file an eviction action in court.

If allowed by the tenant's rental agreement, you should also assess a late fee every month. If the tenant fails to pay the late fee as required by the rental agreement, you should issue a 30/14-day, for-cause notice to the tenant requiring payment of the late fee. Under ORS 90.392 (4), if the tenant does not pay the late fee within 14 days after delivery of the notice, the tenancy terminates 30 days after the notice was delivered.

You are correct that the "three strikes" law does not apply to an RV tenant. Only manufactured home tenants can be evicted with a 30-day notice after receiving three or more 72-hour notices within a 12-month period. As such, RV park landlords must rely on the strategies outlined above to evict month-to-month tenants on late rent payments.

One final strategy for the future is to consider using a fixed-term rental agreement. Senate Bill 608 does allow a landlord to evict a tenant at the end of the fixed term with a 90-day notice if the tenant has committed three or more violations of the rental agreement within the preceding 12 months. You must give a written warning for each violation that specifies the violation, states that three or more violations within a 12-month period may result in termination of the tenancy at the end of the fixed-term, and states that correcting the third or subsequent violation is not a defense to the termination. While this would not help in your current situation, it could be used with future tenants if you choose this strategy of using fixed-term leases.

As usual, you should always seek the advice of a knowledgeable attorney if you are unsure whether to issue an eviction notice to an RV tenant, have questions on what kind of eviction notice to issue, or need guidance to use fixed-term agreements for future residents.

Answer:  It’s easy to get confused. There is a lot to remember.  Generally all of the answers are contained in ORS 90.630[Termination by landlord; causes; notice; cure; repeated nonpayment of rent].[1]Here is a short summary:

· The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ noticein writing before the date designated in the notice for termination if the tenant:

• Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740[Tenant Obligations];
• Violates a rule or rental agreement provision;
• Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or
• Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534or 90.536.

· The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written noticespecifying the violation and the date of termination of the tenancy.  In such cases, the tenant does nothave a right to correct the violation – and the notice must so state. 

· Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period.  [Caveat: All three notices must have been validly prepared and delivered or served. – PCQ]The “three strikes” law is found at ORS 90.630(8)-(10).As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.