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The Fair Housing Amendments Act (FHAA) went into effect on March 12, 1989.  That Act amended Title VIII of the Civil Rights Act of 1968, which prohibited discrimination based on race, color, religion, sex or national origin in the sale, rental, or financing of residential housing.  The FHAA added two additional protected classes; (1) persons with disabilities and (2) families with children.  Children include persons under the age of 18 years.

Virtually all forms of “familial discrimination” became illegal under the FHAA, such as the refusal to rent to tenants because they had children; imposing different terms or conditions of rental depending upon whether they had children; discouraging persons from living in a manufactured housing community if they had children, etc.

The FHAA created certain exemptions, or “safe harbors,” from the prohibition against familial discrimination.  The primary one, embraced by many manufactured housing communities, was the 55+ age exemption.  On May 3, 1999, the Housing for Older Persons Act (HOPA) became effective.  HOPA substantially relaxed the earlier highly restrictive – and unworkable - requirements initially established by the FHAA for housing providers to qualify for the 55+ exemption.   Under the FHAA and HOPA, a housing provider may now, without fear of violating the law, legitimately refuse to rent or sell to persons with families, if the provider properly qualifies under the 55+ exemption.

Currently, in order to qualify for the 55+ exemption under the FFHA and HOPA, a community must:

1. Be intended and operated for persons age 55 or over.  This intent can be met by such things as (1) The manner in which the community is described to prospective residents; (2) Advertising designed to attract prospective residents; (3) Lease or rental provisions; (4) The written rules and regulations; (5) Consistent application of the rules, regulations and procedures; (6) Actual practices; and (7) Publicly posting statements describing the facility as a 55+ community.   The age verification procedures must be updated every two years.  This means maintaining a complete file on each space, including with the tenant application updated information, circulated every two years, confirming the names and ages of all persons who are currently residing in the home.
2. Have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.  Generally, communities strive to be over 80%, since falling below 80% means immediate disqualification.  Does this mean that the 20% margin must be reserved for families with children?  The answer is “No.”  In fact, a 55+ community may to strive for 100% occupancy by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age or older?  Again, the answer is “No.”  If desired, the community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   Similarly, the community can make the 55+ requirement “more restrictive” e.g. by either saying EVERYONE has to be 55+ or that the minimum age must be OVER 55+.  The only limitation by the federal government is that the age requirement can’t be LESS restrictive, e.g. under 55, or less than 80% occupied. However, it is important for park owners and managers to make sure that all such age/occupancy requirements be properly reflected in the community’s rules and statement of policy – and be consistently applied. 
3. Publish and adhere to policies and procedures that demonstrate an intent to be operated as a 55+ community. This requirement is fairly self-explanatory.  The community must make sure that in all that it does, from its advertising, rules, rental agreements, and all other policies, always hold itself out in writing as a 55+ facility. 
4. Comply with HUD age verification of occupancy procedures to substantiate compliance with the requirement that 80% of the facility be intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older. 

When the FHAA was first enacted, it imposed an additional requirement mandating that all 55+ communities must have “significant facilities and services” meeting the needs of older persons.  This requirement quickly became a stumbling block for otherwise qualified housing providers from ever obtaining the exemption.  HOPA deleted that requirement, and imposed a transition period for facilities to attempt to meet the 80% requirement.  The period began on the effective date of the law, May 3, 1999, and ended one year later.  During that transition period, HOPA permitted communities that otherwise qualified – without the “significant facilities and services” requirement – to reserve space for 55+ applicants.  This meant that during the one year period, communities could legally decline to rent or sell to families without violating the FHAA.  However, communities that tried but failed during the one year transition, were then expected to commence renting and selling to families.

However, one major question still exists:  What about communities that, for whatever reason, did not qualify for 55+ status?  This would include those that tried but failed; those that never tried because they wanted to be a family facility; or those that were unaware of the HOPA transition period in the first place.  What if today, a community already has qualified under the 80% rule, but still holds itself out as a family facility?  Assuming that it does not discriminate in any respect against the existing families, nor against all those who have applied for occupancy, may it “convert” to a 55+ community, by holding itself out as such, and otherwise meet the HOPA requirements?  This is an open – but inviting  - question.  It would seem that if the community could meet the HOPA requirements in all respects (not because it discriminated in getting there, but simply by attrition of family occupants and the influx of more 55+ residents), it should be permitted to do so.  The process would be fairly simple:  Implement a rules change, combined with new published policies and age verification procedures, which confirm the 55+ status. 

One caveat:  Even though the Oregon landlord-tenant law does permit rules changes to implement material modifications in the parties’ bargain, there is a risk of possible argument by families in the community, complaining that they are now limited in the pool of available buyers for their homes.  However, it would seem that this risk could be remedied, by “grandfathering” those family residents in, thereby permitting them to sell their homes to other families.  This assumes, of course, that by doing so, the community would not jeopardize its 80%-20% ratio.  Before proceeding down this path, park owners are urged to contact their own legal counsel familiar with the FFHA and HOPA for advice and direction.

The above article is a discussion of the federal Fair Housing law governing 55+ communities.  The contents are not intended to constitute legal advice, and should not be relied upon by the reader as such.  All legal questions regarding this complicated and important law should be directed to legal counsel familiar with the area.

© Copyright 2006.  Phillip C. Querin.  No portion may be reproduced without the express written consent of the author.

History

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

Occupancy Requirement to Qualify for Exemption

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

The "Wiggle Room" Factor

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

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

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

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

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

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

Published Procedures and Policies of Intent

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

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

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

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

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

Age Verification

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

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

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

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

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

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

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

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

Conclusion

While there is no guaranteed insulation from lawsuits, a property owner or landlord is well advised to have their policies and procedures in writing and reviewed by competent legal counsel. All levels of a property owners' management should be instructed to adhere strictly to those written policies and procedures. With competent advice, you should be able to avoid needless and expensive litigation which only detracts from your eventual retirement.

*/The Housing for Older Persons Act of 1995 is codified in 24 CFR 100.300 et seq. The Code of Federal Regulations can be viewed on line. One such site is the National Archives and Records Administration found at www.gpoaccess.gov/cfr

Robert S. Coldren is a founding partner of the law firm of Hart, King & Coldren. For over 20 years he has represented various entities as they relate to the manufactured housing industry.

A: HB 4038, which has not yet been codified, requires an owner to give written notice of the owner's interest in selling the park before the

owner markets the park for sale or when the owner receives an offer to purchase that the owner intends to consider, whichever occurs

first. If possible, I advise my clients to send the notice before entering into a listing agreement but definitely before actively listing the property.

Q: Does the notice need to be sent to each tenant individually versus all tenants (e.g. "Dear Mr. Johnson" vs. "Dear Tenant")?

A: The plain language of the law states "all tenants," but the 2014 Summary of Legislation states that the purpose of the bill is to require park owners to notify "individual park residents" if the owner is interested in selling the park. Because it appears that the original intent was to notify each individual, the safer course is to send the notice to each tenant individually.

If a tenants committee has been formed, and the purpose of the committee is (in part) to purchase the park, and you have met with the committee in the previous 12 months, you can send a notice to the tenants' committee in lieu of all tenants. Also note that you must send a copy of the notice to the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department (say that 5 times fast).

Q: What does the notice have to include?

A: (1) The owner is selling the park; (2) The tenants, through a tenants committee, have an opportunity to purchase the park; (3) In order to compete to purchase the park, within 10 days after delivery of the notice, the tenants must form (or identify) a single tenants committee for the purpose of purchasing the park and notify the owner in writing of: (a) the tenants' interest in competing to purchase the park; and (b) the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase; (4) The representative of the tenants committee may request financial information described in section 2(2) of the act within the 10 day period; and (5) information about purchasing a park is available from the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department.

Q: Does 10 days really mean 10 days?

A: The law discusses "delivery of the notice." I advise my clients that all notices should be sent by first class mail and 3 days should be allowed for mailing just as if you were sending a 30 day notice or a 72 hour notice. Certificates of Mailing (Not certified mail!!) for each notice are strongly encouraged. By way of example, if you send the notice on June 1, then the "10 days" would run on June 13.

Q: What do the tenants have to do after I send them the notice?

A: If the tenants are interested in competing to purchase the park, within the 10 days, the tenants must notify the owner in writing of their interest in competing to purchase the park, the formation or identification of a single tenants committee formed for the purpose of purchasing the park and the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

Q: Do I have to give the tenants my tax returns?

A: No. But, during the 10 days of delivery of the notice, and in order to perform a due diligence evaluation of the opportunity to compete to purchase, your tenants may request specific financial information which may include: the asking price, if any (this provision contemplates that you may not yet know your asking price when you send your notice); the total income collected from the park and related profit centers, including storage and laundry, in the 12-month period immediately before delivery of the notice; the cost of all utilities for the park that were paid by the owner in the 12-month period immediately before delivery of the notice; the annual cost of all insurance policies paid by the owner as shown by the most recent premium; the number of homes in the park owned by the owner; and the number of vacant spaces and homes in the park. Please note that I have seen requests that ask for additional information; providing information outside of what is outlined above is discretionary.

Bill Miner is currently Partner in Charge of the Portland office of Davis Wright Tremaine. DWT is a full service law firm with 500 attorneys on both coasts and in Shanghai, China. The Portland office consists of approximately 80 attorneys and over 80 staff. He works with clients to resolve their legal problems through pre-litigation counseling, litigation, and mediation. He tries cases in state and federal courts and through private arbitration. His experience includes defending and prosecuting business torts; breach of contract claims; disputes between and among members of limited liability companies; residential and commercial real estate matters, including landlord-tenant, title, lien, and timber trespass disputes; and probate and trust cases. He is a frequent and popular speaker at MHCO seminars and conferences. You can reach Bill at: http://www.dwt.com/people/WilliamDMiner/

Bill Miner | Davis Wright Tremaine LLP1300 SW Fifth Avenue, Suite 2300 | Portland, OR 97201Tel: (503) 778-5477 | Fax: (503) 778-5299 Email: billminer@dwt.com | Website: www.dwt.comAnchorage | Bellevue | Los Angeles | New York | Portland | San Francisco | Seattle | Shanghai | Washington, D.C.

Virtually all forms of “familial discrimination” became illegal under the FHAA, such as the refusal to rent to tenants because they had children; imposing different terms or conditions of rental depending upon whether they had children; discouraging persons from living in a manufactured housing community if they had children, etc.

The FHAA created certain exemptions, or “safe harbors,” from the prohibition against familial discrimination.  The primary one, embraced by many manufactured housing communities, was the 55+ age exemption.  On May 3, 1999, the Housing for Older Persons Act (HOPA) became effective.  HOPA substantially relaxed the earlier highly restrictive – and unworkable - requirements initially established by the FHAA for housing providers to qualify for the 55+ exemption.   Under the FHAA and HOPA, a housing provider may now, without fear of violating the law, legitimately refuse to rent or sell to persons with families, if the provider properly qualifies under the 55+ exemption.

Currently, in order to qualify for the 55+ exemption under the FFHA and HOPA, a community must:

1. Be intended and operated for persons age 55 or over.  This intent can be met by such things as (1) The manner in which the community is described to prospective residents; (2) Advertising designed to attract prospective residents; (3) Lease or rental provisions; (4) The written rules and regulations; (5) Consistent application of the rules, regulations and procedures; (6) Actual practices; and (7) Publicly posting statements describing the facility as a 55+ community.   The age verification procedures must be updated every two years.  This means maintaining a complete file on each space, including with the tenant application updated information, circulated every two years, confirming the names and ages of all persons who are currently residing in the home.

2.  Have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.   Generally, communities strive to be over 80%, since falling below 80% means immediate disqualification.  Does this mean that the 20% margin must be reserved for families with children?  The answer is “No.”  In fact, a 55+ community may to strive for 100% occupancy

by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age or older?  Again, the answer is “No.”  If desired, the community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   Similarly, the community can make the 55+ requirement “more restrictive” e.g. by either saying EVERYONE has to be 55+ or that the minimum age must be OVER 55+.  The only limitation by the federal government is that the age requirement can’t be LESS restrictive, e.g. under 55, or less than 80% occupied. However, it is important for park owners and managers to make sure that all such age/occupancy requirements be properly reflected in the community’s rules and statement of policy – and be consistently applied. 

3. Publish and adhere to policies and procedures that demonstrate an intent to be operated as a 55+ community.This requirement is fairly self-explanatory.  The community must make sure that in all that it does, from its advertising, rules, rental agreements, and all other policies, always hold itself out in writing as a 55+ facility. 

4.            Comply with HUD age verification of occupancy procedures to substantiate compliance with the requirement that 80% of the facility be intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older. 

When the FHAA was first enacted, it imposed an additional requirement mandating that all 55+ communities must have “significant facilities and services” meeting the needs of older persons.  This requirement quickly became a stumbling block for otherwise qualified housing providers from ever obtaining the exemption.  HOPA deleted that requirement, and imposed a transition period for facilities to attempt to meet the 80% requirement.  The period began on the effective date of the law, May 3, 1999, and ended one year later.  During that transition period, HOPA permitted communities that otherwise qualified – without the “significant facilities and services” requirement – to reserve space for 55+ applicants.  This meant that during the one year period, communities could legally decline to rent or sell to families without violating the FHAA.  However, communities that tried but failed during the one year transition, were then expected to commence renting and selling to families.

However, one major question still exists:  What about communities that, for whatever reason, did not qualify for 55+ status?  This would include those that tried but failed; those that never tried because they wanted to be a family facility; or those that were unaware of the HOPA transition period in the first place.  What if today, a community already has qualified under the 80% rule, but still holds itself out as a family facility?  Assuming that it does not discriminate in any respect against the existing families, nor against all those who have applied for occupancy, may it “convert” to a 55+ community, by holding itself out as such, and otherwise meet the HOPA requirements?  This is an open – but inviting  - question.  It would seem that if the community could meet the HOPA requirements in all respects (not because it discriminated in getting there, but simply by attrition of family occupants and the influx of more 55+ residents), it should be permitted to do so.  The process would be fairly simple:  Implement a rules change, combined with new published policies and age verification procedures, which confirm the 55+ status. 

One caveat:  Even though the Oregon landlord-tenant law does permit rules changes to implement material modifications in the parties’ bargain, there is a risk of possible argument by families in the community, complaining that they are now limited in the pool of available buyers for their homes.  However, it would seem that this risk could be remedied, by “grandfathering” those family residents in, thereby permitting them to sell their homes to other families.  This assumes, of course, that by doing so, the community would not jeopardize its 80%-20% ratio.  Before proceeding down this path, park owners are urged to contact their own legal counsel familiar with the FFHA and HOPA for advice and direction.

1. Inadequate response time to a resident's questions.

In an era when customer relations is the new icon of successful marketing it only makes sense to get back to a resident's question or action-item in a timely manner. What is timely? Within 48 hours, at least tell the customer that you are checking on the matter and will have an answer soon. That's better than taking a week with no answer, or worse, forgetting about it.

1. Poor resident relations & communications.

Like timely responses, overall customer communications is important. That includes such basic things as listening. Periodically walk the park just to talk with residents and see how they are doing. Does anyone need special help? Keep a note pad and pen in your pocket. Seek input. Better yet, issue report cards at least twice per year to see how they grade you. Help them coordinate social activities. Host spontaneous events like an ice cream social at the clubhouse. Ice cream is an inexpensive alternative to customers grumbling about invisible management and owners. But it all boils down to something quite simple: treat them like you want to be treated.

1. Lax rules & regulations enforcement.

Irregular enforcement of rules and regulations or poorly written rules can only lead to confusion and trouble. Make sure maintenance violations are quickly handled with the proper notice. But be fair, friendly and firm. If your rules seem to prompt lots of confusion and questions, get someone outside the park to read the rules with an eye to clarity and possible changes.

1. Poor park maintenance.

The visual appeal of your park is essential to both residents and non-residents who drive by your park. Always maintain its "curb appeal." Regularly check for light outages, broken fencing, faded paint and common-area cleanliness. Neglected streets are especially annoying to residents. Of special importance is your entrance. It should look sharp, upscale

and inviting. Invest in flowering plants to add seasonal color. A well-kept park makes necessary rent adjustments easier to accept.

1. Inadequate training of on-site managers.

If your park manager is not familiar with mobile home park residency laws, unintentional violations could result. Staff should be updated on the latest changes. don't assume they know. Training for on-site managers is mandatory. Bring them up-to-date with the latest aspects of insurance, OSHA and health safety issues, worker's compensation laws, Fair Housing and especially Mobilehome Park Landlord/Tenant Laws.

1. Poor marketing.

Like any business, you have to keep an eye on your local competition while you're keeping your park filled. But marketing is more than park fill and advertising. Marketing includes everything from market surveys to community and government relations, from promotions and incentives to get new residents, to good relations with current residents. Good marketing means keeping a close eye on the target audience you want and how you will sell and service them.

7. Mishandling delinquent rents.

Delinquent rents need quick action. Monitor them closely. Mishandling a notice can lead to delays/problems. Listen to a problem to decide if it's permanent/temporary. If it's permanent, act decisively. If temporary, you may want to set up a written payment plan if possible.

8. Getting the wrong insurance package.

Keeping costs down is important in any business, but so is risk management. That means insurance. The key is to look beyond the basic, generic policy and to seek property and general liability insurance with umbrella coverage. You want to insure your park for its actual insurable replacement value. Check the rating of the insurance carriers you are considering. Shop and compare rates/ratings.

1. Inadequate safety & accident prevention programs.

Insurance is not enough. Prevention is just as important. It's all about having a park safe for residents, their visitors and the park staff who serve them. Potholes in roads are unsafe. A child's cheerful bike ride could suddenly be ended by an unseen driver because bushes were not trimmed. Walkways must be well-lighted and free of cracks. Pools must be free of bacterial growth. Workers need equipment and training to avoid body movements that can injure them. Money spent on repairs, signage, equipment, and training is cheap compared to thousands in legal bills, insurance rate increases and time wasted.

1. Insufficient awareness of economic changes.

Like any business you have to cover costs and make a profit. In order to maximize your investment, keep abreast of changing local conditions around your park. An ill-informed decision could make your park unattractive to potential homeowners. For example, if a local plant closes or unemployment suddenly jumps, that's not a good time to raise rents. Even in healthy times, periodic small rent adjustments make more sense than one big increase that finds residents unprepared and prone to action. Subscribe to local newspapers. It's all about staying in touch and informed to make good decisions.

Note: This article orignially was published in MHCO's Community Update

Inadequate response time to a resident’s questions.

In an era when customer relations is the new icon of successful marketing it only makes sense to get back to a resident’s question or action-item in a timely manner.  What is timely?  Within 48 hours, at least tell the customer that you are checking on the matter and will have an answer soon.  That’s better than taking a week with no answer, or worse, forgetting about it.

Poor resident relations & communications.

Like timely responses, overall customer communications is important.  That includes such basic things as listening.  Periodically walk the park just to talk with residents and see how they are doing.  Does anyone need special help?  Keep a note pad and pen in your pocket.  Seek input.  Better yet, issue report cards at least twice per year to see how they grade you.  Help them coordinate social activities.  Host spontaneous events like an ice cream social at the clubhouse.  Ice cream is an inexpensive alternative to customers grumbling about invisible management and owners.  But it all boils down to something quite simple: treat them like you want to be treated.

Lax rules & regulations enforcement.

Irregular enforcement of rules and regulations or poorly written rules can only lead to confusion and trouble.  Make sure maintenance violations are quickly handled with the proper notice.  But be fair, friendly and firm.  If your rules seem to prompt lots of confusion and questions, get someone outside the park to read the rules with an eye to clarity and possible changes.

Poor park maintenance.

The visual appeal of your park is essential to both residents and non-residents who drive by your park.  Always maintain its “curb appeal.”  Regularly check for light outages, broken fencing, faded paint and common-area cleanliness.  Neglected streets are especially annoying to residents.  Of special importance is your entrance.  It should look sharp, upscale

and inviting.  Invest in flowering plants to add seasonal color.  A well-kept park makes necessary rent adjustments easier to accept.

Inadequate training of on-site managers.

If your park manager is not familiar with mobile home park residency laws, unintentional violations could result.  Staff should be updated on the latest changes.  Don’t assume they know.  Training for on-site managers is mandatory.  Bring them up-to-date with the latest aspects of insurance, OSHA and health safety issues, worker’s compensation laws, Fair Housing and especially Mobilehome Park Landlord/Tenant Laws.

Poor marketing.

Like any business, you have to keep an eye on your local competition while you’re keeping your park filled.  But marketing is more than park fill and advertising.  Marketing includes everything from market surveys to community and government relations, from promotions and incentives to get new residents, to good relations with current residents.  Good marketing means keeping a close eye on the target audience you want and how you will sell and service them.

Mishandling delinquent rents.

Delinquent rents need quick action.  Monitor them closely.  Mishandling a notice can lead to delays/problems. Listen to a problem to decide if it’s permanent/temporary.  If it’s permanent, act decisively.  If temporary, you may want to set up a written payment plan if possible.

Getting the wrong insurance package.

Keeping costs down is important in any business, but so is risk management.  That means insurance.  The key is to look beyond the basic, generic policy and to seek property and general liability insurance with umbrella coverage.  You want to insure your park for its actual insurable replacement value.  Check the rating of the insurance carriers you are considering.  Shop and compare rates/ratings.

Inadequate safety & accident prevention programs.

Insurance is not enough.  Prevention is just as important.  It’s all about having a park safe for residents, their visitors and the park staff who serve them.  Potholes in roads are unsafe.  A child’s cheerful bike ride could suddenly be ended by an unseen driver because bushes were not trimmed.  Walkways must be well-lighted and free of cracks.  Pools must be free of bacterial growth.  Workers need equipment and training to avoid body movements that can injure them.  Money spent on repairs, signage, equipment, and training is cheap compared to thousands in legal bills, insurance rate increases and time wasted. 

Insufficient awareness of economic changes.

Like any business you have to cover costs and make a profit.  In order to maximize your investment, keep abreast of changing local conditions around your park.  An ill-informed decision could make your park unattractive to potential homeowners.  For example, if a local plant closes or unemployment suddenly jumps, that’s not a good time to raise rents.  Even in healthy times, periodic small rent adjustments make more sense than one big increase that finds residents unprepared and prone to action.  Subscribe to local newspapers.  It’s all about staying in touch and informed to make good decisions.

Note:  This article orignially was published in MHCO's Community Update

The Justice Department announced that the owners and property managers of a 15-unit apartment community have agreed to pay $40,000 to settle allegations that they failed to stop disability-related harassment of a resident’s daughter by neighbors and then refused to renew their lease because of her disability and that of her daughter.

The Backstory: The case involved a mother and daughter who moved into the community in 2013. Both allegedly had disabilities: The mother had cerebral palsy and a vision impairment, and her 21-year-old daughter was born with Down Syndrome. A family friend helped the family by arranging their housing, taking care of their finances, communicating with others on their behalf, and running errands for them.

While moving in, the mother said they were subjected to offensive comments and gestures by at least three other residents. Among other things, the neighbors allegedly called the daughter “mentally retarded,” and said, “You don’t belong here…you belong in an institution.” Allegedly, the neighbors said much the same thing in complaints to the owner.  

A few days later, the friend said she emailed the owner, explaining that the daughter had a few rough evenings, crying loudly, but that the mother had calmed her down; she also defended the girl against the neighbors’ accusations by saying that she was a great kid and an honor student. Soon after, the friend said that the owner called her; allegedly, he said his policy was not to get involved in neighbor disputes and told them to develop a “plan” to deal with noise complaints about the daughter.

In the months that followed, the friend said she repeatedly complained to the owner and the building manager about continued harassment by the neighbors, one of whom allegedly followed them around making offensive comments and and telling them that they couldn’t use common areas. Allegedly, the mother called police, who warned the neighbor to stop the harassment, but it continued throughout their tenancy, making the daughter afraid to leave the unit.

Eventually, the residents said that their lease wasn’t renewed, so they moved out at the end of the term.

The mother filed a HUD complaint, which triggered the Justice Department to file suit against the owner and manager for fair housing violations. The complaint accused them of disability discrimination by refusing to renew the lease because of the disabilities of the mother and daughter; demanding that they develop a “plan” to deal with the daughter’s disability-related behavior; and pressuring them to move. The complaint also accused them of failure to take prompt action to correct and end the neighbors’ disability-related harassment of the residents.

Though the owner and manager denied the allegations, the parties reached a settlement to resolve the matter. In addition to paying the $40,000 settlement, the community agreed to maintain nondiscrimination housing policies, advertise that they are equal opportunity housing providers, and provide fair housing training.

“No family should have to endure degrading insults and comments in the place they call home,” Gustavo Velasquez, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s settlement reflects HUD and the Justice Department’s ongoing commitment to taking appropriate action against individuals who violate the housing rights of persons with disabilities.”

Lessons Learned:

1.   Rethink “Don’t Get Involved” Policy: It would be exhausting to get involved in every dispute between neighbors, but you should pay close attention to any complaints involving offensive comments or harassment by or against anyone based on race, color, or any other characteristic protected under federal, state, and local law. Depending on the nature and severity of the complaint, you could face liability for harassment under fair housing law if you knew about the offensive conduct but failed to do anything to stop it.

2.   Make a Plan to Address Residents’ Harassment Complaints: Promptly address any complaints of discrimination or harassment based on a protected characteristic—regardless of whether it’s against an employee, an outside contractor, another resident, or other third party. Conduct an investigation and, if warranted, take adequate steps to stop the offending conduct. Get legal advice if necessary, and document what you’ve done to resolve the matter.

3.   Stay Tuned for Upcoming Regulations: HUD is currently in the process of finalizing proposed regulations on liability for harassment under fair housing law. Under the proposed regulations, a person may be directly liable for failure to fulfill a duty to take prompt action and end a discriminatory housing practice by a third party, where the person knew or should have known of the discriminatory conduct.

Answer. As far as I know, there are no laws that "require" the posting of certain things. I will try to summarize - off the top of my head - two types of information: (1) Things that can be posted without risk of liability; and (2) Things that should not be posted due to potential liability. Remember, these are just my opinions; your own attorney may or may not agree.

(1) Things that can be posted without risk of liability.

• General information about the community, such as maps of the community and space numbers, location of common facilities, etc.
• Safety information, such as permitted speeds, water hazards, emergency phone numbers such as police and fire, etc.
• Publically available information such as location of services, schools, places of worship, libraries, etc.
• If you are a 55+ community, you definitely want that promoted, since one of the requirements to qualify is holding yourself out as a 55+ community, with signs and rules, e.g. a generic definition of what it means and entails. This explanation should be reviewed and approved by your legal counsel.
• If you are a family community, you should say so, including a generic definition of what it means and entails. This explanation should be reviewed and approved by your legal counsel.
• General fair housing-type posters, including, perhaps, pamphlets. It is best if you can secure these through so recognized fair housing organization, such as the Fair Housing Council of Oregon or HUD.

(2) Things that should not be posted due to potential liability.

• Do not post the names of tenants or any other personal non-public information.

• Copies of bad checks - Murphy's Law says the drafter could have some reasonable explanation or bank error, etc.
• Unless it is vetted by your attorney, I don't encourage posting a long list of "Don's" such as unleashed pets, etc. I say this because it can give the wrong picture of management. If you have them covered in the rules, that's enough - no need to shout.
• You'll notice above that I said "General fair housing-type posters," etc. There are several reasons: (a) There are many protected classes, and some municipalities have certain ordinances that add others. You don't want to inadvertently miss one or more. (b) Too much information detracts from the message, which is that you follow the fair housing laws. (c) Since there is always a risk of testers coming to the office, you don't want to open up a discussion about specific protected classes, etc.

On screening criteria I would give a cautious "yellow" light. Remember there always exceptions and if made, it exposes you to complaints from others seeking the same exception. If there are some simple, basic, criteria, e.g. 55+ rules, OK, so long as there is a proviso stating that they are general in nature, and other restrictions or limitations may apply - and direct the reader to the community rules. So not post any limits regarding occupancy, since the number of permitted occupants in a home can be dependent on the size and number of bedrooms, and federal law is different that Oregon law. Do not include income formulas, etc., since source of income, e.g. is protected, and you don't want to post incorrect information.

If you have a community-wide "no marijuana" policy, I'm generally OK with posting it, but make it's vetted by your attorney.

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

Background. Although the Shepard case arose under the non-MHP section of the Act (pre-90.505) the principle is the same for MHPs.

Tenant had been living in an apartment since 2008. In 2013 the landlord changed rent policies to add a monthly fee for utilities. In 2019 the tenant failed to make rent payments on time and the resulting eviction proceeding went to trial.

As a defense, the tenant claimed the landlord had violated certain provisions of ORS 90.315(4) which governs a landlord’s ability to pass-through utility charges to tenants. Specifically, that the landlord had failed to bill the tenant on time and failed to explain the way utility bills were both assessed to the tenant and divided among the complex’s other residents.

The trial court granted the tenant damages of $11,010 – one month’s rent for each of the 12-months of billing violations. The landlord appealed, arguing that the legislation did not contemplate that the penalty would be applied “per violation.” The court of appeals sided with the landlord awarding the tenant only $960 dollars, twice the wrongful $40 dollar utility charge for the preceding 12 months.

After evaluating the statute, the court determined that one-month’s rent was the minimum amount a landlord would have to pay for any number of violations of the statute. They reasoned the wording “twice the amount wrongfully charged” was meant to address a situation where repeated billings might incur damages greater than a single month’s rent. They said that the legislature intended to create a damages statute with “some, but not too many, teeth.” If the legislature had intended for damages to result from each incident they would have used language indicating that penalties accrued for each noncompliant billing cycle.

Why Does This Matter? Manufactured housing park landlords should be heartened by this new ruling. Note, however, it will be appealed to the Oregon Supreme Court, so we do not know final word.

Though ORS 90.315 applies to non-mobile home tenancies, it contains language very similar to statutes that apply to utility billing in manufactured housing parks, specifically ORS 90.582.

(3)   If a landlord fails to comply with a provision of ORS 90.560 to 90.584, the tenant may recover from the landlord the greater of:

(a)      One month’s rent; or

(b)      Twice the tenant’s actual damages, including any amount wrongfully charged to the tenant.

The language in 90.315 is relatively new, having been added to the ORLTA in 2015. Because of this, Shepard v. Ormandy is currently the only case which addresses the issue of how a court may calculate damages based on a violation of tenant utility billing statutes. Likewise, there are no cases addressing the similar manufactured housing statute for damages resulting from pass-through utility charges.[1]

Conclusion.  Shepard v. Ormandy was granted review by the Oregon Supreme Court in October 2022. It is unclear at this time how the high court will rule. Oral arguments are set for the spring of 2023. Until then, should a landlord find themselves facing a damage claim under ORS 90.582(3), it is important to argue that the penalty of one-month’s rent does not apply to each violation within the relevant period.

[1] Note that the tenant’s damages may be higher for a claim under manufactured housing statutes since they allow for twice a tenant’s actual damages plus any amount wrongfully charged. Thus, damages may be in excess of the wrongful charge.