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MHCO Editor's Note:  This summary is extensive with a lot of information.  A PDF copy of the same summary as below is attached above (the attached pdf version may be a more appropriate format) along with five new or revised MHCO forms that will be necessary for your to use for non payment of rent evictions.  These forms are not 'fillable' and can only be found on this web site attached to this article.  As we move through the COVID-19 crisis MHCO will likely be updating and revising these forms - please use the forms on the MHCO web site for the most current.  Thank you for your patience.

 

By Phillip C. Querin, MHCO Legal Counsel

Background. HB 4401 was signed by the Governor on December 23, 2020. It was the product of the Oregon Legislatures Third Special Session. 

 

Ostensibly, this was to be an extension of the current eviction moratorium that was scheduled to expire on Jan. 1. The new moratorium will now expire on July 1, 2021. However, if an extension was all the legislators sought to accomplish, they exceeded their own stated expectations. Actually, they had to deal also with HB 4213, which was the product of 2020’s First Special Session. 

In response to Covid-19 related financial hardships, the Oregon government passed HB 4213 in mid-2020. The bill prohibited evictions for nonpayment of rents, charges, and fees and no-cause evictions throughout a defined “Emergency Period.” The Emergency Period originally ran from April 1, 2020 to September 30, 2020. 

 

HB 4213 further established an additional six-month elective “Grace Period” during which the tenant could arrange to pay back their accrued rent arrearages. The tenant was required to pay back their outstanding rents, charges, and fees at the end of the Emergency Period unlessthey notified their landlord that they intended to use the additional six months.  The Grace Period originally began at the end of the Emergency Period and ran until March 31, 2020. Landlords were prohibited from filing nonpayment and no-cause evictions based on unpaid rent accrued during the Emergency Period. 

 

All rents, charges, and fees accruing outside of the Emergency Period still must be paid as agreed under the rental or lease agreements. For-cause evictions were always still available to landlords.

 

On September 28, 2020, in recognition that Covid-19 hardships were still continuing, Governor Brown issued Executive Order 20-56 which extended the Emergency Period and corresponding prohibition on no-cause and nonpayment residential evictions to December 31, 2020. The executive order did notextend the Grace Period – all back rents, charges and fees accrued between April 1, 2020 and December 31, 2020 were still due on or before March 31, 2020.

 

Unfortunately, what occurs when (a) drafters are rushed, and (b) their work product is not subject to any review or amendment, as was the case with HB 4401, the result is a bill that creates more questions than answers. While it purports to provide funding for landlords who have suffered as a result of the many Executive Orders and makeshift legislation such as HB 4312, the reality is not promising. Why? Because the success of the bill still requires the Oregon Legislature to put some money where its mouthlegislation is – the program must still be funded, and HB 4401 did nothing to address that issue.  

 

 

Oregon House Bill 4401.This bill was passed December 21, 2020, and signed by the Governor on December 23, 2020. It accomplished two major objectives[1]:

1) Directing the Oregon Housing and Community Services Department to implement a program for direct aid to landlords reimbursing a percentage of outstanding rents; and 

2) Modifying the Emergency Period and Grace Period created under HB 4213 for tenants who claim financial hardship. 

 

The Program.  HB 4401 authorizes the Oregon Housing and Community Services Department (“OHCS”) to pay residential landlords 80% of unpaid rents due after April 1, 2020 and up to the date of the application, for certain qualified tenants. 

 

Landlords,[2]or their designees, must apply to OHCS to qualify for distributions for tenants who: 

1. Have not paid rent, and
2. Have submitted a signed Hardship Declaration Form. (OHCS is directed to expedite implementation of the landlord compensation fund but the exact look and function of the program is unknown as of the writing of this summary.)

 

OHCS will develop an online application system to handle reimbursement requests. The application and related forms will be available in English, and translated for non-English speakers as well.[3]The program will also have more than one application period to assure broader reach and eligibility. It is unclear at this time how many application periods will be available. Landlords should be eligible to apply more than once, state funds allowing, if unpaid rents and fees continue to accumulate after the first application and distribution. 

 

Landlord application. It will require, at a minimum:

1. A copy of the tenants’ Hardship Declaration Forms;
2. A description of the unpaid rent for all current tenants;
3. An agreement to forgive the remaining 20% of unpaid rent for  tenants accrued between April 1, 2020 and the date of the application;
4. An agreement that, should the landlord receive from the tenant, or on the tenant’s behalf, any portion of the unpaid rent (forgiven or paid through the distribution) within a certain window specified by OHCS, that they will repay OHCS;;
5. An agreement that the landlord is not seeking reimbursement for rents due from immediate family members;[4]
6. An agreement that while the application for reimbursement is pending, the Landlord will not terminate[5]a tenant without cause or for non-payment;[6]
7. Any other information or requested by OHCS in the application;

 

In order to reach landlords who are struggling the most (i.e. fewer rentable units or a higher percentage of outstanding rents) OHCS may establish qualifications, priorities, restrictions or limits on distributions, which may include:

1. Limits per tenant, per landlord, or per time period; 
2. The number of units a landlord must own; or 
3. The percentage of total rent unpaid.

 

OHCS may coordinate with the local housing authority to administer the rules and distribute the reimbursement funds. Either OHCS or the appropriate housing authority will notify tenants of the distribution to the landlord on their behalf and the agreed-upon amount of forgiveness to which they are entitled. OHCS may also conduct outreach to landlords and tenants, including non-English speaking parties.

 

Eviction Moratorium Extension. The Landlord distribution program provisions are set to automatically repeal on January 2, 2023. 

Forms.

 

Emergency Period and Grace Period Extensions.  For all renters, the Emergency Period (until December 31, 2020)[7]and Grace Period (through March 31, 2021) as defined in HB 4213 remain unchanged, unless:

 

1. The landlord fails to provide a Notice of Eviction Protection (see MHCO Form 111 below); and
2. The landlord fails to provide tenant with a Tenant’s Hardship Declaration Form (see  MHCO Form 110 below); together with
   1. AnynoticegivenunderSection3(5)(c),chapter13,OregonLaws2020(firstspecial session) (Enrolled House Bill4213);[8]and
   2. Everyterminationnoticefornonpayment of rentdeliveredbeforeJune30,2021;and

c. Anysummonsforevictionbasedonaterminationnoticefornonpayment  delivered before June 30, 2021;

 

---OR---

3. Tenant fills out and returns the Hardship Declaration Form asserting financial hardship.

 

Afteratenantdeliversacopyofthe Hardship Declarationto the Landlord,theEmergencyPeriodandendoftheGracePeriodareextendedtoJune 30,2021. During that time, the landlordmaynot takeorattempttotakeanyactiontointerferewithatenant’spossession.

 

The Hardship Declaration Form. It may be submitted to the landlord at any time, up to and including the first appearance in an action to recover possession. Delivery of the Hardship Declaration Form may result in dismissal of no-cause or nonpayment eviction proceedings during the Emergency Period and Grace Period.

 

Landlords may not: 

1. Challenge the accuracy of a tenant’s Hardship Declaration in an eviction proceeding;
2. Require additional information beyond what is required by the Hardship Declaration Form; 
3. Demand more than one copy of the Hardship Declaration per household or tenancy; 
4. Prohibit the tenant from submitting a Hardship Declaration in a language other than English if the tenant is using an approved translated form from the courts; 
5. Prohibit the tenant from submitting the Hardship Declaration to the landlord in any manner, format or means available, including but not limited to, a photograph of the document submitted by email or text message.

 

Evictions During the Emergency and Grace Periods.  Only the following landlord evictions are permitted during either of these two periods:

1. Evictions for violation of a rental agreement, other than non-payment may continue;
2. Evictions for nonpayment occurring before April 1, 2020 may also continue;
3.  “Landlord-cause” evictions[9]are allowed after the first year of occupancy. Landlord cause evictions include:

1. Demolition or converting dwelling unit to non-residential use;
2. Intent to make repairs/renovations to the dwelling unit within a reasonable time, and the building is unsafe/unfit or occupancy or will be unsafe/unfit for occupancy during the repair/renovation period; 
3. Landlord intends for immediate family member to occupy dwelling unit as a primary residence and no comparable units at the same location are available; or 
4. Landlord has accepted an offer to purchase the dwelling unit; purchaser will use unit as a primary residence.[10]

 

Important Changes to Landlord Nonpayment of Rent Notices.  The 72-hour nonpayment of rent notice under ORS 90.394 is now a 10-day notice ending at 11:59 pm. The 144-hour nonpayment of rent notice is now a 13-day notice ending at 11:59 pm. These changes expire July 1, 2021.[11]

 

Tenant Relief for Landlord Violations.  Any violation of the above rules may result in the tenant being granted an injunction to recover possession or address any other violations, and the award of the equivalent of three-months rent on top of any actual damages. Landlord’s violation of the above rules will also give the tenant a defense to an eviction. In addition, tenant will be entitled to prevailing party fees, attorney fees or costs and disbursements unlessthe landlord can demonstrate:

1. That they delivered the required Notice of Eviction Protection and Hardship Declaration Form;
2. That they did not know or have reason to know at the time they filed the action that the Hardship Declaration Form had been completed and returned; and
3. That they promptly dismissed the action upon learning of the existence of the completed forms.

Summons and Complaint Forms: Note: Changes resulting from the Eviction Moratorium laws, and HB 4401’s changes to Landlord-Tenant statutory language are reflected in the  Summons and Complaint forms for residential evictions.[12]Summons and Complaint revert to the standard language on July 1, 2021.

 

Expiration. Under the terms of HB 4401 the provisions related to the eviction moratorium will automatically repeal on July 1, 2021.

 

Miscellaneous Provisions and Changes to HB 4213. 

1. A landlord may apply a last month’s rent or security deposit to the Nonpayment Balance if a tenancy terminates prior to the end of the relevant Grace Period;
2. Tenants with a Nonpayment of Rent Balance who are still within their Grace Period are not considered to be in default;
3. A landlord may accept partial payment of rents, charges and fees during the Grace Period. It does not constitute a waiver of the landlord’s right to terminate a tenancy for cause; nor to terminate a tenancy for nonpayment after the expiration of the relevant Grace Period;
4. Amendments to HB 4213 expire on September 1, 2021;
5. For all  Nonpayment evictions, the statute of limitations is tolled and does not begin to run against the Nonpayment claim until July 1, 2021. 

 

Unanswered questions.  In no particular order, here are some questions about HB 4401 that are sure to arise:

• What happens if landlord sends the Hardship Declaration to a tenant, who does not respond?
• Since landlords need the tenant’s Hardship Declaration to complete their application for 80% of their unpaid rent, is the landlord stymied?
• While the landlord will be able to file for eviction after the Grace Period ends under the old law (March 31, 2021), HB 4401 is clear that the tenant can submit the Hardship Declaration as late as the first appearance at the FED, and bring the proceeding to a halt.
• So it’s a bit of a guessing game what tenants will do; ignore the landlord’s Notice of Eviction Protection until an FED is filed, or cooperate with the landlord and sign and return the Declaration? What incentive do tenants have to cooperate, if they can wait until the last minute to submit the Hardship Declaration?  
• In any event, no action can be taken against the tenant who does not cooperate until after March 31, 2021 at the earliest. 
• Since the Legislature has no landlord reimbursement program in place yet, one has to wonder when, and if, it will be of any help now.
• There is no question that the landlord funding will eventually be exhausted, and some will be left out. 
• So, the take-away right now is that landlords should immediatelyreach out to their tenants in arrears, get their Hardship Declarations signed, so the application for reimbursement can be processed as soon as possible. 80% of unpaid rent is better than nothing - which is what could occur if the application is delayed. 

Ø Tenants do benefit by their cooperation, since when the moratorium is extended, they are not at risk of any eviction action until after July 1, 2021.  This is the message landlords need to get out to their tenants.

• Otherwise, a landlord may bring an evictionfornonpaymentofrent,chargesandfeesaccruedfrom April1,2020,toDecember31,2020 immediately after March31,2021. Perhaps this also should be part of the landlord’s message.

 

[1]The bill also made a few additional changes to Oregon Landlord-Tenant statutes which will be addressed below

[2]“Landlord,” for the purposes HB 4401, includes a manufactured dwelling park nonprofit cooperative.

[3]The bill does not specify which non-English languages OHCS must provide, but specifies later that the Oregon Judicial Department provide translated forms (including the Hardship Declaration Form) in Spanish, Korean, Russian, Vietnamese, and Chinese.

[4]Landlord may not seek reimbursement for any tenants that are immediate family members. For the purposes of this law “immediate family” means: a) an adult person related to the landlord by blood, adoption, marriage or domestic partnership; b)an unmarried parent of a joint child; c) a child, grandchild, foster child, ward or guardian of the landlord; or d) child, grandchild, foster child, ward or guardian of any person listed in (a) or (b). (“immediate family” definition from ORS 90.427)

[5]“Termination notice without cause” means a notice delivered by a landlord under ORS 90.427 (3)(b), (4)(b) or (c), (5)(a) to (c), or (8)(a)(B) or (b)(B) (HB 4213)

[6]“Nonpayment” means the nonpayment of a payment that becomes due during the Emergency Period to a landlord, including a payment of rent, late charges, utility or service charges or any other charge or fee as described in the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560, or 90.630. (HB 4213)

[7]Emergency Period Extended to December 31, 2020 by Executive Order 20-56; confirmed in HB 4401 Section 8 (Amendment to Section 3, Chapter 13, Oregon Laws 2020 (first special session )(Enrolled House Bill 4213))

[8]Under the original version of HB 4213, there is no Section3(5)(c). To find the required contents of the voluntary notice referred to in 2) a., one must look to the new HB 4401 Section 8 and follow the amended language. 

[9]See, ORS 90.427(5)(a)-(d).

[10]Note: This does not include listing or marketing the home for sale. Seller/landlord would have to have a pre-arranged buyer who was willing to buy without inspections, etc., or a tenant who was willing to permit the same with 24-hour notice. Of course, seller/landlord could always make financial arrangements with tenant for concessions.

[11]Amendments to 90.394 (2)(a) and (b). These changes from hour-notices to day-notices affect several other statutes that refer to 90.394. Changes revert to original language on July 1, 2021.

[12]For summons language: see ORS 105.113 (as amended by HB 4401 Section 13); for complaint form: ORS 105.124 (as amended by HB 4401 Section 15)

 

 

In this article, MHCO tackles a challenging problem: resident hoarding. In multifamily housing communities, extreme cases of hoarding can pose serious health and safety hazards—not only to anyone living in the affected unit, but also to neighbors who may share walls, ceilings, floors, hallways, and even HVAC systems. Potential problems include fire hazards, mold and other environmental dangers, pests and vermin, foul odors, and even structural damage. 

Unfortunately, it’s often difficult to detect because people with a hoarding problem rarely seek help on their own. Conditions inside the unit may not come to light until an emergency crops up—or conditions inside seep out into neighboring units or common areas. By the time it’s discovered, the problem may be so out of hand that your first impulse is to order the resident to clean up immediately or move out.

But that approach could land you in fair housing trouble. Hoarding disorder is a recognized mental health impairment, so the resident would probably qualify as an individual with a disability under fair housing law, triggering your responsibility to try to work out a reasonable accommodation to allow him to continue to live there. There are limits to your obligations toward the resident, but you’ll have to tread carefully—and document your efforts to work out a resolution—to prevent or defend a potential fair housing complaint.

In this lesson, we’ll explain how fair housing law may protect residents engaged in hoarding behavior, as well as the limits to those protections. Then, we’ll offer seven rules to help you comply with fair housing laws when dealing with a hoarding problem. 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans discrimination against individuals with disabilities. The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activities. The law applies to individuals who have a disability, as well as those who are “regarded as” or have a “record of” having a disability—even though they may not in fact have a qualifying disability under fair housing law.

Hoarding is more than simply having too much clutter. It’s a recognized mental health disorder, characterized by saving things that others may view as worthless, and persistent difficulty in getting rid of or parting with possessions, which leads to clutter that disrupts an individual’s ability to use their living space, according to the American Psychiatric Association (APA). At some point, it’s likely that you’ll be confronted with a hoarding problem, which may affect 2 to 6 percent of the U.S. adult population, according to the APA.

TIME OUT!

What Is Hoarding Disorder?

In 2013, the APA recognized hoarding disorder as an official psychiatric diagnosis in its Diagnostic Statistical Manual V (DSM-V). Specific symptoms for a hoarding diagnosis include:

• Lasting problems with throwing out or giving away possessions, regardless of their actual value.
• The problems are due to a perceived need to save the items and distress linked to parting with them.
• Items fill, block, and clutter active living spaces so they cannot be used, or use is hampered by the large number of items (if living spaces are clear it is due to help from others).

Hoarding causes major distress or problems in social, work, or other important areas of functioning (including maintaining a safe environment for self and others). Many people with hoarding disorder also experience other mental disorders, including depression, anxiety disorders, attention deficit/hyperactivity disorder, or alcohol use disorder.

Source: APA

The inclusion of hoarding as an official psychiatric disorder in the DSM-V confirms that hoarding is a mental disability, says fair housing attorney Lynn Dover. Federal and state fair housing laws protect people with mental disabilities from discrimination and require housing providers to make reasonable accommodations when necessary to afford a resident with a disability an equal opportunity to use and enjoy her housing, she says.

In hoarding cases, for example, the community may be asked to hold off on eviction proceedings to allow enough time for the resident to remedy the health and safety issues. Assuming it’s safe to do so, the community may have to grant the request—made by or on behalf of the resident—because there’s an identifiable relationship between the requested accommodation and the resident’s disability.

Nevertheless, there are limits to your obligations to grant reasonable accommodations even if a resident qualifies under the disability provisions. For one thing, the FHA doesn’t protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation.

Furthermore, the law doesn’t require you to grant an accommodation request if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. But tread carefully: Even if the resident’s request is unreasonable, communities are required to engage in an “interactive process” with the resident to try to work out an alternative accommodation that would meet his disability-related needs without posing an undue burden on the community or require a fundamental alteration of its operations.

7 RULES FOR RESPONDING TO A HOARDING PROBLEM

Rule #1: Watch for Signs of Hoarding

Train your staff to be vigilant for any signs of hoarding behavior by your residents. Residents engaged in hoarding behavior rarely come forward on their own, so you may not be aware of a hoarding problem until its effects seep outside the resident’s unit and into hallways or neighboring units.

The observations of staff members are crucial to detect hoarding problems. During their routine duties, your leasing, maintenance, housekeeping, or security staff may notice excess clutter or noxious odors in hallways and common areas that seem be emanating from a particular unit. Train staff to report such problems immediately, so that you’ll be able to address the issue at the earliest stage possible.

For the same reason, pay attention to similar complaints from neighbors, particularly when the source of the problem seems to be next door or on the floors above and below a particular unit. Hoarding isn’t limited to common possessions, such as clothing, newspapers, or plastic bags; some people hoard garbage and rotting food—even animals or human waste products. Any and all can lead to serious health and safety problems involving fire hazards, impaired air quality, mold growth, pest infestation, and structural damage, which can spread rapidly and lead to serious injury or disease without prompt attention. 

Rule #2: Investigate Potential Hoarding Problems

As soon as potential hoarding problems come to your attention, inspect common areas and inside the units of residents who have lodged complaints. Make an effort to determine whether complaints all seem to be pointing to a particular unit.

The next step is to contact the resident whose unit appears to be the source of the problem. Your right to enter and inspect a resident’s unit depends on a variety of factors, including the seriousness of the reported problem, state and local sanitary codes and landlord-tenant laws, the provisions of the lease, and other legal requirements.

In general, communities may enter the units of residents only with reasonable advance notice and during normal business hours, except in cases of emergency. Be sure to document that you have complied with applicable requirements, which will be particularly important if the resident in fact has a hoarding problem and denies you entry.

Once inside, document the conditions, particularly focusing on any violations of lease provisions and applicable health and safety codes. Make notes about the nature and cause of any noxious smells, pest infestations, and other problems that have spread outside the unit. Attempt to take photos since descriptions of hoarding conditions can go only so far to show the seriousness of a hoarding problem. However, if the resident is adamant about not having photos taken, it’s best not to push the issue since the goal is to gain the resident’s cooperation in remedying the unit’s condition.

Whatever you find inside the unit, be sure to treat the resident with dignity and respect. That may be challenging if confronted with the telltale signs of hoarding: an accumulation of large amounts of clothing, papers, bags, newspapers, blocked exits, rotting food, signs of rodent or pest infestation, large numbers of animals, or human or animal waste. Unless you maintain a neutral, nonjudgmental demeanor, you could inadvertently make matters worse by exacerbating the resident’s distrust and resistance to change.

Here’s what you shouldn’t do: Take matters into your own hands to clear away the resident’s possessions. You might believe that you’re helping the resident to conquer a problem that she’s been promising to rectify for years, but that approach can backfire unless the resident gives you the authority to do so, warns F. Willis Caruso, Esq., Clinical Professor Emeritus of the John Marshall Law School Fair Housing Legal Support Center and Clinic.

Rule #3: Listen for Reasonable Accommodation Requests

When resident hoarding comes to light, follow your standard policies and procedures for addressing safety and health problems. Comply with notice requirements dictated by the lease and applicable law if conditions inside the unit are bad enough to rise to the level of a direct threat that can’t be eliminated or sufficiently mitigated by a reasonable accommodation.

Before taking legal action against a resident with a hoarding problem, determine whether the resident qualifies as an individual with a disability under fair housing law. Obvious signs of unsafe and unsanitary hoarding are usually enough to suggest that the resident has hoarding disorder—a recognized mental impairment. As a result, fair housing law may require you to grant a reasonable accommodation that would give the resident time to clean out the unit to preserve her residency.

Dover says it’s rare for residents with hoarding issues to specifically ask the owner or management for an accommodation. Nevertheless, you should listen for reasonable accommodation requests, which may be framed as something the resident “needs” or “wants” because of a disability. In hoarding cases, it may be a request from the resident, a family member, or an advocate to delay legal action against the resident to give him more time to clean out the unit.

In most cases, that’s enough to qualify as a reasonable accommodation request since the FHA doesn’t require that the request be made in a particular manner or at a particular time. According to federal guidelines, a resident or applicant makes a reasonable accommodation request whenever he makes it clear to the housing provider that he’s requesting an exception, change, or adjustment to a rule, policy, practice, or rule because of a disability.

Caruso emphasizes the need to train staff on how to respond to reasonable accommodation requests. It’s a good idea to have a standard form for detailing requests for reasonable accommodations, but you could get into trouble if the staff isn’t trained on how to use it. Training should also cover what to do with the request, including when to go up the chain of command when dealing with hoarding and other challenging issues, he says.

Rule #4: Evaluate Reasonable Accommodations to Remedy Hoarding Problems

Follow your community’s policies and procedures if a resident or someone on his behalf requests a reasonable accommodation to address hoarding problems within a unit. Depending on the seriousness of the health and safety risks involved, you may not have to grant the request—but you do have to take it seriously by responding formally and promptly. Under HUD guidelines, an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation.

Fair housing advocates take the position that before trying to evict a resident whose mental disability is causing him to violate the terms of his lease or community rules, good faith efforts must be made to accommodate his disability even if he hasn’t specifically asked for an accommodation, according to Dover. This generally requires the resident be given opportunities to come into compliance so he can retain the residency.

Dover offers these examples of potential accommodations:

• Meeting with the resident to identify health and safety issues that need to be addressed in the unit;
• Establishing goals and timelines with the resident to address the health and safety issues;
• Setting periodic dates for follow-up visits to the unit to monitor compliance;
• Memorializing the goals, timelines, and re-inspections in a written agreement that the resident signs;
• Providing the resident with a list of community resources that can assist persons with hoarding issues;
• Working with a fair housing and/or mental health advocacy group or attorney assisting the resident to develop a plan to bring the unit into compliance;
• Extending time for compliance with a legal notice that has been served or entering into a stipulation in an eviction that gives the resident a final opportunity to address the health and safety issues and retain the tenancy.

When dealing with a hoarding situation, the focus should only be on solving legitimate health and safety issues rather than on trying to achieve ideal housekeeping habits, says Dover. Even if the resident meets minimum health and safety standards, you should recognize that the unit may not meet your expectations of an “optimal condition.” It’s also important to realize that residents with hoarding issues may not recognize they have the problem (or the severity of the problem) or be equipped to resolve the hoarding problem on their own, she says.

If health and safety issues are initially resolved, you should be aware that, even with treatment, hoarding disorder has a high rate of recidivism, says Dover. This means that a resident with hoarding issues may “slip” and re-hoard again in the future. Therefore, any written agreement made with the resident should include language that provides for periodic unit “check-ins” to monitor ongoing compliance after the health and safety issues have been remedied and a specified time period for correction of any future health and safety issues.

Rule #5: Engage in an Interactive Process to Resolve Hoarding Problems

Even when a resident qualifies as an individual with a disability, a request for an extended period to clean the unit may be unreasonable if conditions inside pose immediate or serious health and safety risks.

Fair housing law doesn’t require communities to grant accommodation requests that are unreasonable. Dover says that accommodation may not be required, and termination of the tenancy may be possible, if:

• The person is a clear, direct, and immediate threat to the health and safety of other residents or the property and there’s no accommodation that will eliminate or sufficiently mitigate the health and safety issues;
• There are serious health and safety issues that can’t be mitigated through accommodation;
• The resident has caused serious monetary damage to the unit and won’t reimburse the landlord for the cost to repair the unit; or
• The resident won’t engage in the accommodation process or cooperate to bring the unit back into compliance.

Nevertheless, tread carefully before rejecting a requested accommodation on the grounds that it’s unreasonable. HUD says you should discuss with the resident whether there’s an alternative accommodation that would effectively address his disability-related needs without posing an undue burden on the community.

For example, you may work out a plan with time frames for resolving lease violations, but you may have to be flexible if the resident fails to remove enough belongings to remedy valid safety and health concerns. It may take multiple attempts, extended deadlines, or outside help to alleviate problems inside the unit. And you may have to be satisfied with less than “broom clean” conditions; if the resident remedies health and safety problems, it may be unreasonable to impose overly stringent standards.

To keep things on track, the plan should allow for periodic unit visits during the accommodation process—as often as once a month, if warranted. Hoarding is notoriously difficult to treat, and recurrences are common, so periodic unit visits to monitor compliance may help ward off future problems. But it’s important to make sure that the frequency of these visits isn’t overly intrusive. In most situations, the visits after the resident has remedied the unit shouldn’t be more frequent than quarterly at most. The agreement should also spell out consequences for failing to maintain the unit as agreed—for example, by giving you the right to serve a new legal notice or reinstate eviction proceedings if the resident doesn’t live up to her agreement to maintain the premises.

Rule #6: Proceed with Eviction if Interactive Process Fails

If the resident ignores warnings about lease violations or otherwise fails to address hoarding problems, you may initiate proceedings to recover possession of the unit. Be sure to document your compliance with notice provisions and other legal requirements imposed by state and local law. It’s also important to have documentation of the condition of the premises, including photos, if available; descriptions; and witness testimony.

Even after legal proceedings have commenced, however, you should be prepared for an 11th-hour request to delay eviction proceedings to allow the resident more time to clean up the premises. Because people with hoarding disorder are resistant to parting with their possessions, it often takes official legal proceedings that threaten their continued residency to prompt them to do something to remedy the problem.

Nevertheless, there are limits on your obligation to accommodate residents whose hoarding behavior poses ongoing safety and health hazards to other residents. Fair housing law doesn’t protect anyone, with or without a disability, who poses a direct threat to the health and safety of others or whose behavior would result in substantial physical damage to the property of others, if the threat can’t be substantially reduced or eliminated with a reasonable accommodation.

To determine whether a resident with a hoarding problem poses a direct threat, the community must make an individualized assessment based on reliable, objective evidence, such as current conduct or recent history of overt acts. HUD says that the assessment must consider:

• The nature, duration, and severity of the risk of injury;
• The probability that injury will occur; and
• Whether there are reasonable accommodations that will eliminate the direct threat.

Because of these and other requirements, Dover says it’s a good idea to seek legal advice before taking any action to terminate a tenancy if hoarding issues may be involved. No two hoarding situations are alike, so each situation involving a resident with hoarding issues requires analysis based on the facts of the particular case. If not handled appropriately, it could result in a fair housing complaint being filed against you, the property, and the company, she warns.

Rule #7: Recognize that Residents May Get Multiple Chances to Remedy Hoarding Problems

Even when you’ve proven that the resident’s hoarding justifies eviction, you should be prepared for further delays under certain circumstances. No matter how patient you’ve been with efforts to address hoarding problems, the courts may be willing to put an eviction on hold to allow more time to remedy the situation.

Example: In November 2019, a court ruled that a New York cooperative community proved that hoarding conditions in a resident’s unit justified her eviction but put the matter on hold to give her guardian more time to clean it up or move her to another residence.

The resident was an elderly woman who had lived at the community for 10 years. In 2017, the landlord issued a termination notice and later initiated eviction proceedings because conditions in her unit amounted to a nuisance. The landlord claimed that the resident violated the lease by keeping her unit in poor condition by amassing clutter in the form of garbage, books, and newspapers, resulting in infestation, unreasonable odors, and an increased risk of fire.

Nearly a year later, a court appointed a guardian with authority to access her unit, arrange for a heavy-duty cleaning, and if necessary, remove the resident from the premises to complete the cleaning. The court later expanded the guardian’s authority to defend the resident in housing court proceedings and arrange for heavy-duty cleanings and home care services.

After multiple attempts to resolve the matter, the case went to trial in 2019. An employee of the management company testified that strong odors of urine and garbage continued to emanate from the resident’s unit as recently as the day before the hearing. Although a cleaning had occurred in 2018, the employee said that it alleviated the odors for only a few weeks.

A maintenance worker also testified that he was in the resident’s unit twice that year to inspect her air conditioning units. He said he observed piles of garbage, clothing, papers, and other debris that made navigating the unit difficult and that there were extreme odors of urine and feces. He produced photos, which showed garbage and clutter strewn throughout her unit.

The resident’s next-door neighbor also testified about pungent odors emanating from the resident’s unit and that he was concerned that the smell could cause health problems or diminish the value of his apartment.

The court ruled that the landlord proved that the resident breached the lease by maintaining a nuisance, which interfered with other residents’ use and enjoyment of their homes. It was clear that the resident’s failure to keep her unit free from clutter and in a sanitary condition over the course of at least two years represented a continuity and recurrence of objectionable conduct.

Although the landlord was entitled to final judgment of possession and warrant of eviction, the court had broad discretion to determine whether a resident with a disability should be given an opportunity to cure the condition or be allowed additional time to relocate. In this case, the court said that the resident, an elderly woman who had lived in the current unit for 10 years, would be likely to suffer extreme hardship if a stay weren’t granted. Furthermore, the guardian was making good faith efforts to secure a safe, affordable dwelling for the resident and that it was reasonable to afford the guardian more time to do so. In the meantime, the resident had allowed the landlord to have access to her unit and had cooperated with the guardian’s efforts to keep the unit clean and free of clutter.

The court granted a stay of execution for 90 days to allow the guardian time to sell her unit and relocate her to a suitable environment, or in the alternative, to allow the guardian an opportunity to cure the nuisance condition, without prejudice to seek a further stay upon the showing of good cause [140 W. End Ave. Owners Corp. v. Dinah L., New York, November 2019].

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

For people with previous experience in the industry, this lesson offers a refresher—and a way for management to ensure that everyone is on the same page when it comes to your community’s commitment to treating everyone fairly, regardless of race, color, or any other characteristic protected under federal, state, or local fair housing law.

In this lesson, we’ll start with an overview of fair housing law: what it says and who it covers. Then, we’ll offer seven rules so that everyone understands how to recognize—and avoid—the pitfalls that can lead to fair housing trouble. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

7 RULES FOR COMPLYING WITH FAIR HOUSING LAW

Rule #1: Get to Know Fair Housing Law

The Fair Housing Act (FHA) is a federal law that bans housing discrimination nationwide based race, color, religion, national origin, sex, disability, and familial status. These seven factors are also known as “protected classes.” Most are self-explanatory, but the law defines some of these terms in ways that make it more complicated than what it seems.

Race and color: The FHA bans discrimination based on both race and color, two separate but closely related characteristics. In general, race refers to a person’s physical appearance, while color refers to a characteristic of a person’s race. It’s possible to bring a discrimination claim based on race, color, or both, but in practice, fair housing claims based on color alone are rare.

National origin: The FHA bans discrimination based on national origin, which generally refers to the country where people or their ancestors were born. This broad category protects people from discrimination because they or their ancestors came from another country, because they have a name or accent associated with an ethnic group, because they don’t speak English, or because they are married to or associated with people from a particular country. In some cases, discrimination claims based on national origin are closely tied to claims based on race or color. For example, a community that shows a preference for members of a certain ethnic group, such as Korean people, could be accused of discrimination based on race, color, and national origin.

Religion: The FHA prohibits discrimination based on religion, which generally means that communities may not discriminate against members of a particular faith or belief system. It’s unlawful to treat people differently because they are members of a religious group or because they do—or do not—attend religious services. Though it clearly applies to members of established religions, the law may be broad enough to protect people who are not affiliated with a particular religion or don’t ascribe to particular religious beliefs.

Sex: The FHA bans discrimination based on sex, which generally means that communities may not exclude or otherwise discriminate against anyone based on that person’s gender. Traditionally, the ban on sex discrimination didn’t apply to discrimination claims based on sexual orientation, though advocates have been pressing for that to change.

Sexual harassment is a form of discrimination based on sex, and involves two types of unwanted sexual conduct:

• “Quid pro quo” (which means “this for that”) discrimination occurs when a resident is pressured to succumb to unwelcome sexual advances in exchange for either positive or negative treatment (such as getting a discounted rent or avoiding eviction for late rent payments).
• Hostile housing environment discrimination occurs when a resident is subjected to severe and pervasive sexual harassment that unreasonably interferes with the use and enjoyment of the premises.

Familial status: The FHA bans discrimination based on familial status, including families with minor children, though the law is broader than that. Under the FHA, the ban on discrimination based on familial status applies to households with one or more children under 18 years of age, where the child is living with:

• A parent;
• A person who has legal custody (such as a guardian); or
• Someone who has the written permission of the parent or legal custodian to care for the child.

The familial status provisions also apply to pregnant women and anyone in the process of securing legal custody of a child under 18.

There is an exception, which allows certain types of senior housing communities to lawfully exclude children. But the exception applies only if the community meets strict technical standards to qualify as “housing for older persons.” Unless they do so, communities may not simply declare themselves as “adult communities” or exclude families with children under 18 from living there.

Disability: Technically, the FHA bans discrimination based on “handicap,” but the term “disability” is now more commonly used. Under the FHA, “disability” generally means a physical or mental impairment that substantially limits one or more major life activity.

That applies to a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In general, it’s unlawful to discriminate against anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

How does the law ban housing discrimination? The FHA bans housing discrimination by outlawing a broad range of discriminatory practices based on race, color, religion, national origin, sex, disability, or familial status. Discriminatory practices include:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification standards or rental approval procedures;
• Applying different terms or conditions, such rental charges or security deposits;
• 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 bans discriminatory statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. And the law also 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.

Additional requirements related to disability. Compliance with fair housing law requires more than merely refraining from discrimination against individuals with disabilities. The law goes further to protect individuals with disabilities by making it unlawful to:

• Refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for the individual with a disability to fully use and enjoy the housing;
• Refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing; or
• Fail to meet the following accessibility requirements in the design and construction of rental housing with four or more units that were first occupied after March 13, 1991:

• Accessible entrance on an accessible route;
• Accessible common and public use areas;
• Doors sufficiently wide to accommodate wheelchairs;
• Accessible routes into and through each dwelling;
• Light switches, electrical outlets, and thermostats in accessible locations;
• Reinforcements in bathroom walls to accommodate grab bar installations; and
• Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.

Rule #2: Learn Applicable State and Local Fair Housing Laws

The FHA applies nationwide, but rental housing communities also must comply with applicable state or local fair housing laws. About half mirror federal requirements, but many go further to ban discrimination based on:

Marital status: Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed.

Age: Many state and local laws ban discrimination based on age, though there are significant differences in how the laws apply because of the way they define “age.”

Sexual orientation and gender identity: Many state and local fair housing laws ban discrimination based on sexual orientation; many, but not all, also cover gender identity or transgender status.

Source of income: Many state and local fair housing laws also cover lawful source of income to ban discrimination against people based on where they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance. Many, but not all, also cover housing subsidies, most notably Section 8 housing vouchers.

Military status: Some state and local laws offer some form of fair housing protection for military status. The laws generally prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

Other protected classes: Some state and local laws ban discrimination based other factors, such as status as a survivor of domestic violence, genetic information, HIV status, lawful occupation, political beliefs or affiliation, student status, alienage or citizenship, personal appearance, or arbitrary personal characteristics.

Coach’s Tip: For more information on state and local fair housing laws, see the April 2019 lesson, “Complying with State and Local Fair Housing Laws,” available on our website.

Rule #3: Watch What You Say

What you say could come back to haunt you. Under the FHA, it’s unlawful to make statements that suggest a preference for—or against—anyone based on race, color, religion, national origin, sex, disability, or familial status. The rules apply to any statements—spoken or written—so you must be careful about what you say on the phone, in person, and any other form of communication with prospects, applicants, or residents.

You have to be careful about what you say because the rules don’t require proof of discriminatory intent. Statements are taken at face value to determine whether they suggest a preference for—or against—anyone based on race or any other protected characteristic. Unless you’re careful, you could face a fair housing complaint based on what you say, or write, or post—even if you didn’t mean to express a discriminatory preference.

Avoid making any stray remarks or asking questions that could get you into fair housing trouble. You might simply be curious—or trying to be friendly—but people can be easily offended if they think you’ve crossed the line by saying or asking something that you shouldn’t. Steer clear of comments or questions about how prospects look, what they wear, what their name is, or how they speak, because they all—in one way or another—touch on protected characteristics.

When meeting people from foreign countries or different cultures, for example, Sadovsky warns that you shouldn’t ask questions about their accent or clothing, even if you’re genuinely interested in knowing more about where they come from. Even though your intentions are good, the prospect may suspect that you have discriminatory reasons for asking questions related to her national origin.

Example: In 2014, a Massachusetts real estate broker was found liable for violating fair housing law by casually asking a prospect about her national origin. It happened during a meeting with a married couple when the broker—whose wife was Brazilian—asked the wife where she was from. Even though his question had no discriminatory intent and didn’t result in discrimination against the couple, the question itself violated fair housing law [Linder v. Boston Fair Housing Commission, February 2014].

Don’t ask people about their disabilities—even if you’re just trying to be helpful. With only limited exceptions, it’s unlawful to ask prospects questions about whether they or anyone associated with them has a disability, or about the nature or severity of a disability. When you’re talking with someone in a wheelchair, for example, Sadovsky says that you shouldn’t make any comments—or ask if their disability is permanent or what happened to them.

The same goes for anyone using a service animal or other disability-related assistive device. The law allows disability-related inquiries when necessary to respond to a reasonable accommodation request, but you must wait to be asked—you shouldn’t offer an accommodation if the prospect hasn’t asked for one.

Coach’s Tip: Find out what you should say if a prospect initiates a conversation about the personal attributes about the community’s residents or those living in neighboring units. You don’t want to inadvertently fall into the trap of discussing the type of people who live in your community during what seems like a casual conversation.

Rule #4: Watch Your Tone

It’s not only what you say, but how you say it that’s important when interacting with prospects, applicants, residents, and the general public. Of course, you have to abide by fair housing law, but there’s more to it than that.

It may seem simple, but you’re expected to act courteously and professionally when dealing with people—no matter what your job. All too often, simple “people skills” are overlooked during employee training, says Sadovsky. That’s too bad, she says, because more people file complaints because of the way they’re spoken to or treated than they do as a result of actual discrimination.

Sadovsky says that a lot of fair housing complaints could be softened—or avoided altogether based on how you handle problems. “The words you use and the behavior you choose can either lessen the complaint or pour gas on an already burning fire,” she says. 

It starts with baseline civility, like standing up to greet someone when she comes into your office. All too often, people don’t look up with they’re on the phone or their computer. Sadovsky says it can be a big problem in a busy office, where you might be with customers, or on the phone, or doing paperwork. But no matter how busy you are, you should always acknowledge people when they walk through the door. At the very least, you can look up and smile, so they know you see them and know that they’re there.

Don’t let personal beliefs, opinions, and judgments affect the way you treat people, particularly in initial encounters with prospects since you don’t know much about each other at that point. Of course, we all have the right to own own personal beliefs and opinions, so there’s nothing unlawful about judging people based on outward appearances. Nevertheless, you’ve got to be careful—even if you don’t say anything, your facial expressions or body language may give you away, triggering the perception of discrimination. That’s why you should be prepared to put on your “game face” when you get to work, so that you greet all prospects, applicants, and residents with the same cordial professional attitude, no matter who they are or what they look like.

Rule #5: Get Up to Speed ASAP

It’ll take time to learn your community’s standard policies and procedures, but it’s important to get up to speed quickly. Understanding the rules—and applying them consistently—helps reduce the likelihood that the community will be accused of acting in a discriminatory or arbitrary manner while dealing with prospects, applicants, or residents.

Let’s say your job is to answer the phones. Usually, the calls are from prospects who are responding to an ad or gathering information about the community. But a call could be a fair housing “tester,” who’s like a secret shopper, checking to see how your community treats people based on their race, national origin, or other protected class.

Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children.

The case came to HUD’s attention when a private fair housing organization filed a complaint accusing the owner and rental agent of discrimination based on familial status by refusing to negotiate with fair housing testers posing as families with children, posting discriminatory advertisements indicating that children weren’t allowed, and making discriminatory statements to fair housing testers.

Federal fair housing law prohibits housing providers from denying or limiting housing to families with children under age 18, including refusing to negotiate, making discriminatory statements, and publishing discriminatory advertisements based on familial status.

“It’s hard enough for families to find places to live that meet their needs without being denied suitable housing because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to working to ensure that housing providers comply with their Fair Housing Act obligation to treat all applicants the same, including families with children.”

It’s important to answer calls in the same professional manner—and to provide the same information—because testers often check for differences in the quality and quality of information provided. Testers also look for differences in response times, but that doesn’t mean that every failed or delayed response is because of discrimination. It may be a simple oversight, but that’s not how it will look to a prospect—or a fair housing tester posing as a prospect.

Even without seeing a prospect, you could face a fair housing complaint if you treat people differently based on the way they speak. If you fail to return calls or give incorrect information about the availability of units because the caller sounds like he’s African American or has a foreign accent, you could trigger a discrimination complaint based on race or national origin.

Rule #6: Learn About Disability Rules

Applying standard rules and procedures is important, but there’s a catch: Fair housing law requires rental housing communities to make exceptions for individuals with disabilities under certain circumstances. Under the FHA, housing providers must consider requests for reasonable accommodations in policies, procedures, and services when necessary to enable an individual with a disability to fully use and enjoy the property.

For example, let’s say you’re answering the phone at a community that doesn’t allow pets. You must be careful how you answer if a caller asks about living there with an assistance animal. It would be a mistake to say no, the community doesn’t allow pets of any kind. Even if the community has a “no pets” policy, the community must consider a request for an exception to the policy as a reasonable accommodation when necessary to allow an individual with a disability to use and enjoy the home. 

Example: In 2017, a court upheld a ruling that the owner of an Oregon community had to pay a $9,000 civil penalty, along with nearly $170,000 in attorney’s fees and costs, for unlawfully denying reasonable accommodation requests for assistance animals.

The lawsuit was based on an investigation by a local advocacy group, which arranged for testers to call the community posing as prospective residents. The phone was answered by a friend of the community’s owner, who was covering the front desk in exchange for being allowed to live there. When the testers asked about living there with “therapy animals” or “assistance animals,” the friend initially said he’d have to check with the owner, but he later told them that the owner wouldn’t allow pets. After a series of proceedings, a court found the community liable for disability discrimination under federal and state fair housing law.

On appeal, the court affirmed, ruling that there was proof that the community denied the reasonable accommodation requests. The community, via the friend, heard that the callers wanted to keep assistance animals and immediately denied them a reasonable accommodation [Avakina v. Chandler Apartments LLC, July 2017].

Rule #7: When in Doubt, Ask for Help

It’ll take time to master all the policies and procedures that guide community operations, but in the meantime, don’t be afraid to ask questions if you’re unsure about how to deal with a given situation. Doing so just might save the community from a discrimination complaint.

Guessing what to do—or just winging it—because you don’t want to acknowledge that you don’t know what to do is a mistake. You should ask for guidance if you’re are unsure about how to handle a particular situation—and know who you can ask for help. For example, find out whether your community has a fair housing coordinator, a staff member who acts as the community’s in-house expert on fair housing matters. In most cases, the fair housing coordinator should be able to answer many questions—or know where to go to get the answers.

Coach’s Tip: You’ve got a lot on your plate getting up to speed, but be sure to follow the rules when it comes to the paperwork. In some ways, good recordkeeping is like a good insurance policy: It’s there to protect the community if, despite your best efforts to be careful and obey the rules, you run into a problem. Under the law, people have quite a long time to file to file a fair housing complaint. A complaint could come in months—or years—after the alleged discrimination occurred. Without the paperwork, how can you be expected to remember just what happened? Even if you do, it’s not as good as documentation created at the time of the events in question. Memories fade—stories change—so it gives the other side a leg up if the community can’t produce the records to back up your side of the story.

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