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Answer. Welcome to the Nanny State! I agree this is a frustrating situation for landlords.  I believe rule No. 1 is to pick your shots. By that I mean, you want to look at this in the same way a judge or jury would.  Does it pass the “smell test”?  – pun intended. 

To me it does not. This sounds like a case in which you’ve got a pretty good paper trail. But someone has to blink.  If you fold on this, bad precedent is set. Here she’s asking for two extraservice animals. By this rationale, the two pet policy means nothing, and she could gather another six animals and make the same claim.  I believe you should consult your attorney to find out what he/she recommends.   

From where I sit, I think you could take at least one more step, without this going nuclear.  You may want to consider issuing a 30-day notice to vacate, citing the rule and what she needs to remedy it, i.e. remove two of the pets.  

At that time, the issue will come to a head. Will she go to some advocacy attorney group who says they will fight you for free? Will she fold? Will she try to compromise?  There is a Roman saying that if you want peace, prepare for war.  In other words, if you show her you mean business, she may take a more realistic look at her position. Until there is a show of force, she has the upper hand.  If she backs off, there may be an opportunity to find a solution, e.g. and agreement to re-home the pets with a relative. Any solution that is reached should be in writing, and you should have your attorney prepare it.

If she pushes back, and has some legal group threating a fight, you can then decide whether to hold ‘em or fold em’.  Remember, litigation doesn’t happen overnight. You will, at worst, get a threatening letter or two, before something happens. If you don’t want the fight, then walk away.  Good luck!  By the way, during this dispute, if you intend to issue a 30-day letter, you should not also be accepting rent.

Answer: The answer is found in ORS 90.302 (Fees allowed for certain landlord expenses). What follows is a brief summary: (1) A landlord may not charge a fee at the beginning of the tenancy for an anticipated expense (i.e. one that has not actually occurred). (2) A landlord may not require the payment of any fee except as provided in this statute. (3) The specific fee must be described in a written rental agreement. (4) The following list are the fees a landlord may charge: a. A late rent payment, pursuant to ORS 90.260. b. A dishonored check, pursuant to ORS 30.701 (5). [Note that the amount of the fee may not exceed the amount described in ORS 30.701 (5) plus any amount that a bank has charged the landlord for processing the dishonored check.] c. Removal or tampering with a properly functioning smoke alarm, smoke detector or carbon monoxide alarm, as provided in ORS 90.325 (2). d. The violation of a written pet agreement or rule relating to pets in a facility, pursuant to ORS 90.530. e. The abandonment or relinquishment of a home during a fixed term tenancy without cause. [Note that the fee may not exceed one and one-half times the monthly rent. A landlord may not assess a fee under this section if the abandonment or relinquishment is pursuant to ORS 90.453 (2) (Termination of tenant who is victim of domestic violence), ORS 90.472 (Termination of tenant who is called to active state service) or ORS 90.475. (Termination of tenant sue to service with Armed Forces)] f. If the landlord assesses a fee under (e) above: i. The landlord may not recover unpaid rent for any period of the fixed term tenancy beyond the date that the landlord knew or reasonably should have known of the abandonment or relinquishment; ii. The landlord may not recover damages related to the cost of renting the dwelling unit to a new tenant; and iii. ORS 90.410 (3) (Effect of tenant failure to give notice of absence) does not apply to the abandonment or relinquishment. (5) Noncompliance with written rules or policies. [Note that the fee may not exceed $50.] (6) A fee may be assessed under paragraph (5), above, only for the following types of noncompliance: a. The late payment of a utility or service charge that the tenant owes the landlord as described in ORS 90.315. b. Failure to clean up pet waste from the tenant’s space other than the home itself. c. Failure to clean up garbage, rubbish and other waste from the tenant’s space other than the home itself. d. Parking violations. e. The improper use of vehicles within the premises. (7) A landlord is not required to account to a tenant for, or return to, the tenant any fee. (8) Except where the tenant abandons or relinquishes the space during a fixed term tenancy [see (4) e above], a landlord may not charge a tenant any form of liquidated damages, however designated. (9) Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent - but is grounds for termination of a rental agreement for cause. (10) The above laws regarding fines do not apply to: a. Attorney fees; b. Applicant screening charges; or c. Charges for improvements or other actions that are requested by the tenant and are not required of the landlord by the rental agreement or by law.

ADA

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

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

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

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

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

FHAA

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

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

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

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

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

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

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

2 28 C.F.R. _ 36.104

3 DOJ, Frequently Asked Questions about Service Animals and

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

4 Ibid.

5 Ibid.

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

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

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

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

9 HUD Notice.

A 55 plus Community has been in existence for fifteen (15) years. During that time two sets of on-site managers have managed the property. Each management team has allowed a few families to move in believing the community was well within the 20% margin allowed by Federal Fair Housing regulations. Unfortunately, a few of the original residents have had a death in the family leaving the youngest (younger than 55) resident remaining as the head of household. An annual age survey of the residents has not been maintained by either of the on-site management teams. A prospective resident (younger than 55) has now been denied as a new tenant and is challenging the 55 plus status of the Community. Without an accurate age survey of the existing residents how is the Community/Owner going to prove the Community satisfies the Federal Fair Housing requirements of a 55 plus Community ? This Community/Owner in all probability will face costly litigation while attempting to collect the necessary data and the Community may even lose its 55 plus status. If the on-site manager/owner had completed an annual age survey of the residents this costly experience could have been avoided. Does your 55 plus community have a current "age survey"?

MHCO has a number of forms for 55 and Older Communities:

• MHCO Form 71A: Addendum to the Rental/Lease Agreement for Age 55 & Older Communities
• MHCO Form 71B: 55 & Older Community Occupancy Determination and Age Verification
• MHCO Form 71C: HUD Verification of Occupancy Survey

Another example of ongoing record keeping includes updated copies of any insurance certificates naming the Community/Owner as an additional insured. If the Community requires pet owners to name the Community/Owner as an additional insured on their homeowners insurance policy an annual review of the certificates of insurance is necessary. If a resident's pet bites another resident and the insurance certificate has lapsed or the Community has been dropped as and additional insured the Community/Owner will not be afforded any protection. When is the last time you reviewed the certificates of insurance which name the community/owner as an additional insured ?

Either one of the above examples can potentially have a devastating effect on your Community's profitability. Protect you investment's profitability by making records management an integral part of your office activities.

Answer. If the test of a good or bad form is whether it works, I would say there was nothing wrong with the old form. To my knowledge, we heard of no complaints or claims arising due to problems with the form. However, over time, we hear of more and more issues concerning the use - and abuse - of the service animal designation. In an effort to better assist members, we thought it would be a good idea to review this form, the current rules and regulations, and make changes where appropriate.

As I explained in last week's article, there are several designations that first need to be clarified. A "service animal" under the federal Americans with Disabilities Act ("ADA") is limited solely to dogs that have been individually trained to work or perform tasks for a person with a disability, e.g. guiding people who are blind, alerting people who are deaf, or protecting a person who is having a seizure. The ADA does require that landlords make reasonable accommodations for residents with disabilities requesting to have a service animal. Note that the term "disability" under the ADA is very, very, broad.[1]

Although service animals must be on leash or harness, they may also be controlled through voice commands or hand signals. Service animals are not "pets." This means, among other things, that certain park rules for pets, such as requiring residents sign a Pet Agreement, cannot be required if it is a service animal. Dogs whose only purpose is to provide comfort or emotional support to a resident do not qualify under the ADA.

Under the Fair Housing Act, as amended, housing providers, including manufactured housing communities, must make also "reasonable accommodations" for persons with disabilities requesting to have an assistance animal for emotional support, or to provide other forms of help.

Similar to service animals, assistance animals are not regarded as "pets," and residents cannot be required to sign a Pet Agreement for them. However, assistance animals are not limited to dogs that have been specially trained. They can include any animal that assists and performs tasks for the benefit of a person with a disability, including emotional support that alleviates one or more identified symptoms or effects of a person's disability.

Lastly, the label "companion animal" is more of a generic term, and the role it serves is what determines which laws will apply.

What follows is a summary of the main issues addressed in MHCO's new Assistance Animal Agreement. Without implying that the Fair Housing Council of Oregon has "endorsed" or "approved" the form, I did consult with them, and their suggestions were very helpful and insightful in developing what you see today.[2]

1. We note in the form that the landlord reserves the right to refuse to permit an animal becoming an assistance animal if:
   1. It has previously caused verifiable and significant damage or injury to persons or property in the Community;
   2. The landlord's insurance carrier would cancel, substantially increase premiums, or adversely change policy terms because of the presence of a certain breed of dog or a certain animal and it would impose an undue financial and administrative burden for Landlord to secure a substitute carrier which would provide coverage for the Animal.[3]
   3. Note, however, that prior to such refusal, a Landlord should secure written verification substantiating the undue financial and administrative burden.

1. The resident with the assistance animal is responsible to see that it conforms to all of the community's rules and regulations, such as being on leash; responsibility for removal of all feces, droppings, etc.; being left unattended outside the home or space.
   1. Consistent with the conduct of all animals and pets in the Community, the assistance animal may not cause any substantial damage (to persons or property), engage in threating behavior, or cause any disturbance to other residents, their guests, or any other third parties in the community.
   2. We confirm in the form that by signing below, the resident confirms that he/she has reviewed the community rules and regulations as they apply to all other animals and pets in the Community. If the resident believes that one or more of the community rules and regulations should not be applied to their assistance animal, the resident is instructed to immediately notify the landlord.

1. Consistent with the community's policy regarding all animals and pets, the resident shall be liable for any losses, damages, claims, and expenses, including attorney fees, directly or indirectly caused by their assistance animal while in the community.

1. In the event of breach of the assistance animal agreement, the landlord reserves the right to terminate it and demand removal within ten days of written notice. A "breach" is defined in the form to mean the occurrence of any event that would constitute a material violation of the agreement or ORS 90.396, as it pertains to their assistance animal. The resident's failure to remove the animal upon demand entitles Landlord to issue a curable Notice of Termination to Resident under ORS 90.630.

1. Given the fact that one never knows for sure if some court might, in the future strike down a provision in our form, we have inserted what is known as a "savings clause." It reads:

"If any portion of this Agreement shall be deemed to be in violation of Federal and/or State Fair Housing Laws, it shall be deemed null and void, and the balance thereof shall remain in full force and effect."

1. The form advises residents that if they believe they have a disability that requires their use of an assistance animal, they may request that an accommodation be made. This is MHCO's Reasonable Accommodation Request Form No. 15. A landlord is entitled to obtain reasonable information in order to assist in determining whether the requested accommodation is reasonably necessary because of the disability. However, if a person's disability is obvious, or otherwise known to the landlord, and if the need for the requested accommodation is readily apparent or known, then the landlord may not seek any additional information about that disability or the disability-related need for the accommodation.

1. Lastly, the form reminds the parties that the Assistance Animal Agreement must be signed before the animal will be permitted to occupy the Home/Space as an assistance animal.

[1] An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.

See, http://www.ada.gov/cguide.htm

[2] This is to say that their suggestions pointed out to me where the mines in the minefield were located.

[3] Note that this "burden" must be both "financial" and "administrative." These are legal terms of art, and before getting into a battle you can't win, I suggest you consult with your attorney to understand the application of these two terms as they relate to your particular situation.

Answer. ORS 90.545(Fixed Term Tenancies) provides that unless you take action not less than 60 days prior to the end of the term, the lease becomes a month-to-month tenancy on the same conditions as the original lease. 

The only exception to this is for the landlord to submit a proposed new lease to the tenant at least 60 days prior to the ending date of the term. Any provisions that are new, i.e. not in the prior lease, are to be summarized in a written statement; the same applies if the landlord is going to create new community rules. Remember, however, that if there are substantive changes to either or both of these two sets of park documents, you may also have to issue a new Statement of Policy under ORS 90.510,[1]which is a summary explanation of certain park policies provided to new and existing residents.

If you introduce new lease terms or new rules, they must “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or are the same as those offered to new or prospective tenants in the community.”

Note, however, that the new lease terms or rules cannot relate to the “…age, size, style, construction material or year of construction of the manufactured dwelling” *** and cannot “…require an alteration of the manufactured dwelling *** or new construction of an accessory building or structure.

The tenant must accept or reject the proposed new lease at least 30 days prior to the ending of the term by giving written notice to the landlord.

So, your choice on expiring leases under ORS 90.545 is: (a) To do nothing, in which case the lease morphs into a month-to-month tenancy on the same terms as the earlier lease, or (b) Introduce a new lease and/or rules that “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or are the same as those offered to new or prospective tenants in the community.”

You do not have an option to notnon-renew the tenant at the end of a lease term.  This is not to say that you are limited in termination  for cause under: ORS 86.782(6)(c) (foreclosure trustee sale),90.380(5) (dwelling posted asunsafe by gov’t),90.392 (termination for cause),90.394 (termination forfailure to pay rent),90.396 (termination on 24-hour notice),90.398(termination drugs, alcohol),90.405 (termination, unpermitted pet),90.440(termination in group recovery facility)or90.445 (termination for criminalact).  

As to the summary, the statute simply says that “(t)he landlord shall include with the proposed agreement a written statement that summarizesany new or revised terms, conditions, rules or regulations.” (Emphasis added.)

However, since you will have many changes to the new lease, you ask about two possible alternatives: Either to send the new lease to the tenant: (a) and inform him/her it has numerous updates and they should read it as if it were a completely new edition; or (b) “…offer a redline version which they wouldn’t be able to read.”

ORS 90.130 provides:

Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.”

I read that to mean that good faith compliance is satisfactory in this case. Since ORS 90.545 does not elaborate about the written summary, I would opt for an approach that gives you more coverage rather than less. Both of your alternatives, especially (a) standing alone, could be attacked by residents as insufficient since it really doesn’t comply – if the goal is to inform and educate residents about the new changes. Alternative (a) is too little, and (b) is too much.

My view is that you don’t have to detail every single change, just the material ones that aid in understanding the nature and scope of the new provisions. Stylistic changes that do not alter the substance of the new text don’t need to be addressed. As to material changes, they should be summarized.

I would give the new lease to the residents together with a marked redline showing the material changes.[2]I would then include a distillation of the material changes in the new lease into categories and short summaries.

For example:

• Rule No. ___, Late Fees: they are going to increase from X$ to $Y;
• Rule No. ___, Pets: There will be a fine for pet violations;
• Rule No. ___, Mediation: Adds mediation rules under the recently enacted SB 586 Sec. 7 et seq. (2019) and provides that Landlord has the duty to mediate if requested by Tenant. See,https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/SB586;
• Rule No. ___, Occupants: Tenants must now notify manager within X days of the person coming into the park and obtain a Temporary Occupancy Agreement.

Be sure the notice invites residents to contact the park manager if they have any questions. I believe this approach meets the spirit and intent of ORS 90.545, and is in good faith compliance with the law.  

Lastly, before sending out the notice, enlist the help of someone who is not privy to the changes, and ask them to read your summary. If they understand it (without your coaching), then send. If not, I would re-work the language until it is clear. The goal is to avoid ambiguity in the summary; but if reasonable minds can differ as to the meaning of the new summary, it is, per se’ambiguous, and needs to be clarified before sending.

Meanwhile, veterans with disabilities are covered under current federal law. Among other things, fair housing law requires communities to respond properly to reasonable requests for accommodations or modifications that are necessary to meet the disability-related needs of veterans and returning servicemembers.

In this month’s lesson, we’ll explain how fair housing and other civil rights laws protect military servicemembers and returning veterans from discrimination and offer six rules to help you comply with your legal obligations. 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing based on race, color, religion, national origin, sex, disability, and familial status.

Veterans with disabilities are covered under the FHA’s ban on disability discrimination. Under the FHA, it’s unlawful to exclude or otherwise discriminate against prospects, applicants, and residents because they, or someone associated with them, has a disability.

The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activity. According to HUD regulations, “physical or mental impairment” includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more specified body systems. So the definition covers both physical injuries—such as loss of a limb, traumatic brain injury (TBI), burns, and hearing loss—as well as mental or psychological disorders—such as post-traumatic stress disorder (PTSD) and depression.

The disability protections may apply even if the veteran doesn’t now have—or hasn’t ever had—a physical or mental impairment that substantially limits a life activity. The FHA’s definition of disability protects individuals who are “regarded as” having such an impairment. So a community could trigger a fair housing complaint for denying housing to a veteran based on preconceived notions about emotional problems faced by some veterans transitioning from military service to civilian life.

The FHA goes further to protect individuals with disabilities from discrimination by imposing affirmative duties to provide reasonable accommodations and modifications as necessary to allow veterans with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.

Reasonable accommodations. The law requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. HUD defines “reasonable accommodation” as a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking space in a community that doesn’t have assigned parking.

Reasonable modifications. The law requires owners to permit applicants or residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises. Under the FHA, a “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, to afford that person full enjoyment of the premises. Communities must consider requests for reasonable modification not only to the interior of a unit, but also to lobbies, main entrances, and other public and common use areas of buildings. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for people in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area.

6 RULES TO COMPLY WITH LAWS PROTECTING

VETERANS AND MILITARY SERVICEMEMBERS

Rule #1: Comply with Applicable State and Local Law

Check whether your community is subject to state and local laws that prohibit housing discrimination against military servicemembers or veterans.

Currently, eight states have adopted some form of fair housing protections based on military status, though the laws vary in the language used and whom they cover. In New York, the law prohibits discrimination based on military status, while in Massachusetts, the law prohibits housing discrimination against an individual because “such person is a veteran or member of the armed forces.” In general, these laws prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

In some states, fair housing protections for veterans are tied to the nature of their discharge. In Illinois, the list of protected characteristics under the state’s human rights law includes military status as well as “unfavorable discharge from military service,” which generally applies to individuals who have been separated from the service with less than an honorable discharge, but it excludes those with a dishonorable discharge. In contrast, Washington’s fair housing law protects military status, but only honorably discharged veterans. The law in Rhode Island bans discrimination based on “military status as a veteran with an honorable discharge or an honorable or general administrative discharge,” or “servicemember in the armed forces.”

In the absence of statewide protections, there may be local laws protecting military status. Though Texas doesn’t list military status as a protected class, the law in San Antonio bans discrimination based an individual’s veteran’s status.

If subject to state or local laws banning discrimination based on military or veteran status, then you’ll need to review your policies and procedures to ensure compliance with legal requirements. It’s a good idea to ask your attorney about the specifics of the laws in your state and local area because of variations in the language used.

Coach’s Tip: Stay on top of proposed changes to antidiscrimination laws on the state and local level. In California, for example, the state legislators have approved a bill to ban housing discrimination based on veteran or military status; the measure was sent to the governor on Sept. 20, 2019. You should be able to get updates on what’s happening on the state and local level from your attorney or your local apartment association.

States with Laws Banning Discrimination Based on Military or Veteran Status

•      Connecticut
•      Illinois
•      Massachusetts
•      New Jersey
•      New York
•      Ohio
•      Rhode Island
•      Washington

Rule #2: Recognize Fair Housing Protections for Veterans with Disabilities

Regardless of whether military status is protected under applicable state or local law, federal fair housing law bans discrimination against veterans with disabilities. Under the FHA, disability means a physical or mental impairment that substantially limits one or more major life activities. In sum, the law protects 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.

Recent veterans report high rates of service-connected disabilities (that is, disabilities that were incurred in, or aggravated during, military service), according to the Equal Employment Opportunity Commission. About 29 percent of recent veterans report having a service-connected disability, as compared to about 13 percent of all veterans. Common injuries incurred by these veterans include missing limbs, burns, spinal cord injuries, PTSD, hearing loss, traumatic brain injuries, and other impairments. Other veterans leave service due to injuries or conditions that aren’t considered service connected.

Nevertheless, fair housing law doesn’t prevent communities from responding to actual incidents of dangerous or violent behavior by a resident, even if he has a disability. According to federal guidelines, the FHA doesn’t protect an individual whose tenancy would constitute a direct threat to the health and safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation.

TIME OUT!

What Is Traumatic Brain Injury?

Traumatic brain injury (TBI) is a significant health issue that affects servicemembers and veterans during times of both peace and war. The high rate of TBI and blast-related concussion events resulting from current combat operations directly affects the health and safety of individual servicemembers and subsequently the level of unit readiness and troop retention. The impacts of TBI are felt within each branch of the service and throughout both the Department of Defense (DoD) and the Department of Veterans Affairs (VA) health care systems.

In the VA, TBI has become a major focus, second only to recognition of the need for increased resources to provide health care and vocational retraining for individuals with a diagnosis of TBI, as they transition to veteran status. Veterans may suffer TBIs throughout their lifespan, with the largest increase as the veterans enter into their 70s and 80s; these injuries are often caused by falls and result in high levels of disability.

Active duty and reserve servicemembers are at increased risk for suffering a TBI compared to their civilian peers. This is a result of several factors, including the specific demographics of the military; in general, young men between the ages of 18 to 24 are at greatest risk for TBI. Many operational and training activities, which are routine in the military, are physically demanding and even potentially dangerous. Military servicemembers are increasingly deployed to areas where they’re at risk for experiencing blast exposures from improvised explosive devices (IEDs), suicide bombers, land mines, mortar rounds and rocket-propelled grenades. These and other combat-related activities put our military servicemembers at increased risk for suffering a TBI.

Source: Defense and Veterans Brain Injury Center (DVBIC)

Rule #3: Consider Reasonable Modification Requests by Veterans with Disabilities

Carefully consider requests by veterans with disabilities for reasonable modifications. Under the FHA, it’s unlawful to refuse to permit, at the expense of a person with a disability, reasonable modifications of existing premises as necessary to afford him or her full enjoyment of the premises.

The law requires you to consider modification requests by a current or prospective resident to make structural changes to the interior or exterior of units and to common and public use areas when there’s an identifiable relationship between the requested modification and the individual’s disability. For example, it would be unlawful to refuse to permit the installation of a ramp by a veteran who uses a wheelchair due to loss of a limb or other mobility impairment.

Before granting a request for a reasonable modification, you may require a description of the proposed modifications. You may also require the resident to obtain any building permits and that the work be performed in a workmanlike manner. You may not insist that a particular contractor perform the work.

Rule #4: Consider Reasonable Accommodation Requests by Veterans with Disabilities

If a veteran qualifies as an individual with a disability, then you may be required to grant a request for a reasonable accommodation in rules, policies, practices, or services as necessary to allow him an equal opportunity to fully enjoy his dwelling.

Requests for reasonable accommodations often involve assistance animals or parking, but communities may face a wide range of disability-related accommodation requests for exceptions to rules and policies. Examples include requests for live-in aides, transfers to different units, early lease termination, and allowing a cosigner on the lease. In general, communities are responsible for paying the costs associated with a reasonable accommodation as long as it doesn’t pose an undue financial and administrative burden.

It may be challenging to handle accommodation requests when the disability isn’t obvious. If the nature of the disability isn’t apparent, federal guidelines permit you to ask for reliable disability-related information to verify that the person meets the FHA’s definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities. Likewise, you’re allowed to ask for more information if there’s no identifiable disability-related need for the requested accommodation.

You can’t reject an accommodation request simply because it imposes some financial costs on the community. Before rejecting a request because you think it’s too costly, you should compare the cost of the requested accommodation and your financial resources against the benefits to the disabled resident, and whether there are other, less expensive alternative accommodations that would effectively meet the resident’s disability-related needs.

Example: In 2015, a court ordered a California community to transfer a veteran with disabilities and his family to a more expensive unit—and to let them stay there until the end of the lease—as a reasonable accommodation for his disability.

The resident was an Army combat veteran who was diagnosed with PTSD. Due to ongoing construction near his unit, the veteran asked the community to transfer his family to another unit away from the noise as a reasonable accommodation due to his disability. According to the veteran, the construction noise triggered nightmares, anxiety, and other symptoms because it reminded him of gunfire, explosions, and screaming, making him feel as if he were in a war zone.

Allegedly, the community didn't dispute that he had a disability-related need to be relocated during the construction, but the parties disagreed whether he could pay his current rent to live in a more expensive available unit. The community offered to move the family to another unit at his current rent but wanted them to move back when the construction was completed.

The resident rejected the offer, asking for a court order to let them stay until their lease ended five months later. He argued that the construction noise had already caused significant distress, so letting them stay until their lease ended would offer a reprieve from his PTSD triggered by the construction.

The court granted his request, ruling that the cost of moving the family to the more expensive unit during the construction was a reasonable accommodation that wouldn’t cause an undue financial burden on the community. And the increased financial burden to let them stay there through the end of their lease was minimal [Holland v. The Related Companies, July 2015].

Rule #5: Don’t Reject Disability-Related Requests for Assistance Animals

Pay particular attention to reasonable accommodation requests for an exception to your pet policies to allow a veteran to keep an assistance animal because of a disability.

Fair housing law doesn’t prevent you from having a pet policy—as long as you don’t use it to keep out assistance animals. Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, pet deposits, or additional rent charges. Whatever your policy on pets, it’s unlawful to deny an exception for an assistance animal needed by an individual with a disability to fully use and enjoy the community.

Example: In July 2019, HUD charged a Maine community and one of its agents with discrimination for denying a veteran with disabilities the right to keep his assistance animal. In his HUD complaint, the veteran alleged that he called the community in response to an ad on Craigslist. When he told the agent that he had a disability-related need to live with his assistance dog, according to the veteran, the agent allegedly responded, “absolutely not,” and said she regretted allowing a prior tenant to live with his assistance dog because other tenants then wanted to get pet dogs.

“No person with a disability should be denied the accommodation they need, especially individuals who served in the Armed Forces to defend our freedom,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work to ensure that housing providers meet their obligation to comply with this nation’s fair housing laws.”

Rule #6: Comply with Other Federal Laws Protecting Military Servicemembers and Veterans

Apart from your obligations under fair housing law, communities should know about—and comply with—two important federal laws protecting military servicemembers and returning veterans:

Servicemembers Civil Relief Act. The Servicemembers Civil Relief Act (SCRA), formerly known as the Soldiers’ and Sailors’ Civil Relief Act, is a federal law that provides protections for military members as they enter active duty. It covers issues such as rental agreements, security deposits, prepaid rent, eviction, installment contracts, credit card interest rates, mortgage interest rates, mortgage foreclosure, civil judicial proceedings, automobile leases, life insurance, health insurance, and income tax payments.

Among other things, the SCRA allows servicemembers to terminate, without penalty, leases and rental agreements before or during active military service under certain circumstances. The SCRA also bars communities from evicting military members or their dependents from their principal residence during the period of their active military service without a court order. Complying with the SCRA should be at the top of community concerns when it comes to dealing with military servicemembers. Failure to do so can lead to civil penalties or damages—even criminal liability.

Example: In March 2019, a Virginia-based property management company and related entities agreed to pay up to $1.59 million to resolve allegations that they violated the SCRA by obtaining unlawful court judgments against military residents and by charging improper lease termination fees, according to the Justice Department. The settlement is the largest ever obtained by the department against a landlord or property management company for violations of the SCRA.

The complaint alleged that from 2006 to 2017, the company obtained at least 152 default judgments against 127 SCRA-protected servicemembers by failing to disclose their military service to the court or by falsely stating that they weren’t in the military.

Under the SCRA, if a landlord files a civil lawsuit against a tenant and the tenant doesn’t appear, the landlord must file an affidavit with the court stating whether the tenant is in the military before seeking a judgment. If the tenant is in military service, the court typically can’t enter judgment until it appoints an attorney to represent the tenant, and the court must postpone the proceedings for at least 90 days. Landlords and lenders can verify an individual’s military status by searching the Defense Manpower Data Center’s free publicly available website or by reviewing their files to see if there are applications, military leave and earnings statements, or military orders indicating military status.

The complaint also alleged that the company imposed unlawful charges against servicemembers who attempted to terminate their leases early in order to comply with military orders. The SCRA allows military tenants to terminate a residential lease early if the servicemember receives deployment or permanent change of station orders or enters military service during the term of the lease. If a tenant terminates a lease pursuant to the SCRA, the landlord may not impose any early termination fee.

The Uniformed Services Employment and Reemployment Rights Act of 1994. In their role as employers, communities must comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits employment practices that discriminate because of an individual's past, current, or future military status, service, or obligation.

In general, USERRA seeks to ensure that servicemembers are entitled to return to their civilian employment upon completion of their military service. Servicemembers should be reinstated with the seniority, status, and rate of pay that they would have obtained had they remained continuously employed by their civilian employer. In addition, USERRA provides protection for veterans with disabilities, requiring employers to make reasonable efforts to accommodate the disability.

• Fair Housing Act: 42 USC §3601 et seq.
• Servicemembers Civil Relief Act of 2003: 50 USC App. §501 et seq.
• Uniformed Services Employment and Reemployment Rights Act of 1994: 38 USC §4301 et seq.

Answer. Welcome to the Nanny State! I agree this is a frustrating situation for landlords. I believe rule No. 1 is to pick your shots. By that I mean, you want to look at this in the same way a judge or jury would. Does it pass the "smell test"? - pun intended.

To me it does not. This sounds like a case in which you've got a pretty good paper trail. But someone has to blink. If you fold on this, bad precedent is set. Here she's asking for two extra service animals. By this rationale, the two pet policy means nothing, and she could gather another six animals and make the same claim. I believe you should consult your attorney to find out what he/she recommends.

From where I sit, I think you could take at least one more step, without this going nuclear. You may want to consider issuing a 30-day notice to vacate, citing the rule and what she needs to remedy it, i.e. remove two of the pets.

At that time, the issue will come to a head. Will she go to some advocacy attorney group who says they will fight you for free? Will she fold? Will she try to compromise? There is a Roman saying that if you want peace, prepare for war. In other words, if you show her you mean business, she may take a more realistic look at her position. Until there is a show of force, she has the upper hand. If she backs off, there may be an opportunity to find a solution, e.g. and agreement to re-home the pets with a relative. Any solution that is reached should be in writing, and you should have your attorney prepare it.

If she pushes back, and has some legal group threatening a fight, you can then decide whether to hold 'em or fold em'. Remember, litigation doesn'thappen overnight. You will, at worst, get a threatening letter or two, before something happens. If you don't want the fight, then walk away. Good luck! By the way, during this dispute, if you intend to issue a 30-day letter, you

Once you have determined that an individual is qualified to live in the community and all the proper documentation has been explained and signed, you should consider a meeting with the new resident. Use the Park Rules & Regulations as a briefing tool. The conversation should not be a "laying down of the law", but rather an open discussion of what is expected of both the new resident and community management. New residents may not know their responsibilities (despite signing numerous documents outlining their rights/responsibilities), thus it is your responsibility to clarify and remind them of their responsibilities. Be sure your new resident understands such things as:

1. Rent is due on the first of each month:
   1. If rent is paid after the 5th day, the residents will be faced with a late fee.
   2. If not paid by the 8th day, the resident will receive a 72-hour notice.
   3. Residents must give 30 days written notice to vacate space or they intend to sell their manufactured home.
2. Help your new resident be a good neighbor. Be sure that he/she is informed about:
   1. Quiet hours
   2. Pet Control
   3. Laundry room/Recreation room hours
   4. Swimming pool hours
   5. Review Rules and Regulation and remind the new resident that they are strictly enforced.