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Phil Querin Q&A - Late Fees

Phil Querin

Answer: Here is a summary of ORS 90.260, the late fee statute. It answers the questions posed above.

 

(1) A landlord may impose a late charge or fee, however designated, only if:

 

  • The rent payment is not received by the fourth day of the period for which rent is payable; and
  • There exists a written rental agreement that specifies:
    • The tenant's obligation to pay a late charge;
    • The type and amount of the late charge; and
    • The date on which rent payments are due, and the date on which late charges become due.

 

(2) The amount of any late charge may not exceed:

  • A reasonable flat amount, charged once per rental period. "Reasonable amount" means the customary amount charged by landlords for that rental market;
  • A reasonable amount, charged on a per-day basis, beginning on the fifth day of the rental period for which rent is delinquent. This daily charge may accrue every day thereafter until the rent (not including any late charge), is paid in full, through that rental period only. The per-day charge may not exceed six percent of the amount of the "reasonable lat amount", described above; or
  • Five percent of the periodic rent payment amount, charged once for each succeeding five-day period, or portion thereof, for which the rent payment is delinquent, beginning on the fifth day of that rental period and continuing until that rent payment (not including any late charge), is paid in full, through that rental period only.

 

(3) In periodic tenancies (e.g. month-to-month), a landlord may change the type or amount of late charge by giving 30 days' written notice to the tenant.

 

 

(4) A landlord may not deduct a previously imposed late charge from a current or subsequent rental period rent payment in order to make the rent payment short so as to issue a 72-hour notice of nonpayment.

 

 

(5) A landlord may charge simple interest on an unpaid late charge at the rate allowed for judgments (9.00%) and accruing from the date the late charge is imposed.

 

 

(6) Nonpayment of a late charge alone is not grounds for termination of a rental agreement for nonpayment of rent, but is grounds for termination of a rental agreement for cause by using a curable 30-day written notice of termination. [Note: The landlord may identify the late charge on the 72-hour notice of nonpayment of rent, so long as it makes clear that the tenant may cure the nonpayment notice by paying only the delinquent rent, not including any late charge.]

 

Phil Querin Q&A: Air Conditioners

Phil Querin

Answer: I can find nothing in the state statutes specifically regulating the installation of air conditioning units in park homes or privately-owned homes. It is correct that some landlords forbid them to be installed in rental homes, presumably because of potential damage to the interior or exterior during installation; plus, there is the risk of a poorly installed unit falling on someone.

 

However, if you own your own home, I see no problems. I've never seen anything in any rules placing limitations on the installation of AC window units, and don't expect to. Subject to reasonable limitations on installation, andcompliance with applicable building and electrical codes, I don't see any issues.

 

 

Placing such limitations on residents would probably trigger an onslaught of "reasonable accommodation" requests, since many older people who are home-bound or in need of air conditioning during hot spells - even in Oregon - and for obvious health reasons, should be able to have it.

 

 

The only landlord issue I can see with window-installed ACs is appearance from the outside. If a unit is inoperable it should be removed before it becomes an eyesore. Subject to a landlord's reasonable limitations on placement (like satellite dishes), there are no other limitations that I'm aware of regarding installation of these units. I do suggest, however, before installing one, check with the manager just to make sure there are not issues you may have overlooked - especially concerning proper installation.

 

MHCO Forms Changes For Pets

Phil Querin

Introduction: MHCO has several forms that deal directly and indirectly with pets. In July, 2024, several changes/updates were made to them. Below is a summary:

 

 

  1. Form 21 Pet Agreement. The form now includes a “Notice of Rights Under ORS 90.530” which summarizes management’s rights and restrictions. It is contained at the top of the first page so it can’t be missed. Generally, it informs residents about the landlord’s right to control pet activities, the maximum of $50 on fines, and liability insurance.

 

Several years ago it appears that the fair housing advocates “discouraged” limitations on breeds based upon fair housing issues. I have retained the restriction for obvious reasons[1] but limited it to the following which I believe will provided a good level of protection: If (a) your liability insurance carrier will not insure the Park against claims arising from injuries based upon a dog’s breed; and (b) you are unable to obtain financially reasonable substitute coverage elsewhere, you should retain the restriction. [2]

 

The Agreement further clarifies that service and assistance animals are not “pets” under the Park rules and regulations. Pets fees are not permitted. This is not to say they may be allowed to run free without safety and sanitation restrictions. Activity restrictions are still appropriate.  

 

The Agreement also addresses the “reasonable accommodation” provisions under the Fair Housing and Americans with Disability laws.[3]

 

  1. Form 43 Notice to Vacate for Continuing Violation. The revised form addresses and clarifies that violations under the Pet Agreement may also constitute violations of Oregon’s Landlord-Tenant law.

 

  1. Form 43A Notice to Vacate for Distinct Act. The revised form addresses and clarifies that violations under the Pet Agreement may also constitute violations of Oregon’s Landlord-Tenant law.

 

  1. Form 48 Pet Violation Notice. The revised form clarifies that violation of the Pet Agreement can only result in a fine, but that Management reserves the right to alternatively issue a notice of termination under Oregon’s Landlord-Tenant law.

 

Members with questions or concerns on the changes should direct them to MHCO.

 

[1] All one needs to do is read the occasional newspaper articles on dog maulings to appreciate the risk. Putting this in perspective, which liability would you sooner face: (a) A multi-million-dollar damage claim after a child has been permanently disfigured from being mauled, or (b) a nasty letter from the Oregon Fair Housing Council?

[2] This is my opinion only. It is not “legal advice.” Landlords should rely upon their own legal counsel’s advice.

[3] See MHCO Q&A article: “Assistance” Animals – When Do They become A Ruse?”

Phil Querin Article: Application of Portland's New Tenant Ordinances to Manufactued Housing Communities

APPLICATION OF PORTLAND’S NEW TENANT ORDINANCES

TO MANUFACTURED HOUSING COMMUNITIES

By

Phillip C. Querin, MHCO Legal Counsel

July 1, 2019

 

Discussion: The Portland Ordinance, 30.01.085 (“Portland Renter Additional Protections”) here, has identified the occurrence of certain events that now require landlords to pay Relocation Assistance (“RA”) to tenants. 

 

[Reference below to the “Ordinance” will refer to 30.01.085; references to the state law, ORS Chapter 90, will be referred to as the “Act”; and references to the new state law governing rent increases, will be referred to as “SB 680”.]  

 

The Ordinance applies to all rented Dwelling Units[1]within Portland’s city limits, whether they are managed by an owner, a sublessor, or property management company.  However, not all properties that list Portland as their mailing address are located within the city limits. 

 

Portland Maps”is the official city site used to determine properties subject to the RA policy. See, https://www.portlandmaps.com/. To verify the location of a rental property, click on the Portland Maps link and enter the property address. Once it appears, there are related several links, one of which is “Jurisdiction”. If the Jurisdiction link states "Portland," the rental property is subject to the mandatory RA policy, unless otherwise exempted, as discussed below.

 

EVENTS TRIGGERING RELOCATION ASSISTANCE

  1. No-Cause Eviction
    1. Landlord must pay Relocation Assistance (“RA”) to Tenant at least 45 days before termination of the tenancy
  2. Increase of 10% or more in Rent or “Associated Housing Costs”[2]
    1. Tenant must give written notification to Landlord requesting RA within 45 days of Rent Increase Notice
      1. Landlord must pay RA within 31 days of Tenant’s request for RA
  3. Substantial Change of Lease Terms
    1. Tenant must give written notification to Landlord requesting RA within 45 days of substantial change
      1. Landlord must pay RA within 31 days of Tenant’s request for RA
  4. Non-Renewal of Lease
    1. Landlord must pay RA to Tenant at least 45 days before termination of the tenancy

Note:  With the exception of No. 2 (Rent increases of 10% or more) and No. 3 (Substantial Change of Lease Terms) the two remaining events do notrequire the tenant to make a written request for RA. Payment is simply expected to occur within the required time from the triggering event. 

 

AMOUNT OF RELOCATION ASSISTANCE

  1. $2,900 for a studio or single room occupancy (“SRO”) Dwelling Unit
  2. $3,300 for a one-bedroom Dwelling Unit
  3. $4,200 for a two-bedroom Dwelling Unit 
  4. $4,500 for a three-bedroom or larger Dwelling Unit. 

Note:The only time RA will be payable by a landlord in a manufactured housing community is if they are the owner of (a)a manufactured home or (b)an RV that is being rented out. Presumably, the amount of the RA would be based upon whether it is an SRO or a 1, 2, or 3-bedroom unit. 

Note:  If a Landlord is paying RA required under the Act, and Relocation Assistance is alsorequired by the Ordinance for the same Termination Notice, the Relocation Assistance required by the Ordinance may be reduced by the relocation assistance required by the Act if both payments are paid at the same time and as a single payment.[3]

 

 

 

TENANT’S RECEIPT OF RELOCATION ASSISTANCE AFTER RENT INCREASE OF 10% OR MORE

  1. Following receipt of the RA, the tenant has 6 monthsfrom the date of the increase to either: 
    1. Pay it back, and thereafter become obligated to pay the increased rent in accordance with notice of increase; or 
    2. Provide the landlord with a notice to terminate the rental agreement in accordance with the Act.  
  1. In the event the tenant fails to pay the RA back to the landlord or provided the landlord with the termination notice on or before the expiration of the six-month relocation period, the tenant will be in violation of the ordinance.

Note:A violation of any law or ordinance is also breach under the MHCO rental agreement or lease, for which landlord may issue a 30-day curable notice under ORS 90.630. Accordingly, it appears this would be one method of commencing recovery of the RA should the tenant fail to terminate and repay the RA. The other would be to file a claim in the county Small Claims Court.

Note:The other three triggering events for RA assume the tenancy is terminated, so tenant has no option to accept or reject the landlord’s action - therefore no repayment issue. However, in the event of a substantial change in the lease terms, it would seem possible that the landlord and tenant might  reach agreement to continue the lease under the amended terms, in which case, the tenant would be required to return the RA, just the same as a rent increase of 10% or more.

 

EXEMPTIONS FROM PAYING RELOCATION ASSISTANCE

Relocation Assistance does not apply to the following, so long as the Landlord has submitted a required exemption application form to Portland Housing Bureau for which it has issued an exemption acknowledgement letter, a copy of which the Landlord must be provided to the Tenant:

  1. Rental agreement for week-to-week tenancies; 
  2. Tenants that occupy the same dwelling unit[4]as the landlord;
  3. Tenants that occupy one dwelling unit in a Duplex where the Landlord’s principal residence is the second Dwelling Unit in the same Duplex;
  4. Tenants that occupy an Accessory Dwelling Unit that is subject to the Act in the City of Portland so long as the owner of the Accessory Dwelling Unit lives on the site;
  5. A Landlord who temporarily rents out their principal residence during an absence of not more than 3 years;
  6. A Landlord who temporarily rents out their principal residence during the Landlord’s absence due to active duty military service;
  7. A Dwelling Unit where the Landlord is terminating the Rental Agreement in order for an Immediate Family member[5]to occupy the Dwelling Unit;

8.    A Dwelling Unit regulated or certified as affordable housing by federal, state or local government is exempt from paying Relocation Assistance for a Rent increase of 10 percent or more within a rolling 12-month period:
a. so long as such increase does not increase a Tenant’s portion of the Rent payment by 10 percent or more within a rolling 12-month period; or 
b. in Lease Agreements where the Rent or eligibility is periodically calculated based on the Tenant’s income or other program eligibility requirements and a Rent increase is necessary due to program eligibility requirements or a change in the Tenant’s income.
This exemption does not apply to private market-rate Dwelling Units with a Tenant who is the recipient of a federal, state, or local government voucher;
Note:This exemption applies to Rent Increases and does not apply to Termination Notices;

  1. A Dwelling Unit subject to the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;
  2. A Dwelling Unit rendered immediately uninhabitable not due to the action or inaction of a Landlord or Tenant; 
  3. A Dwelling Unit rented for less than 6 months with appropriate verification of the submission of a demolition permit prior to the Tenant renting the unit;
  4. A Dwelling Unit where the Landlord has provided a Fixed Term Tenancy and notified the Tenant prior to occupancy, of the Landlords intent to sell or permanently convert the Dwelling Unit to a use other thanas a Dwelling Unit subject to the Act.

Note:Remember that before being entitled to an exemption, the landlord needs to provide a copy of the Portland Housing Bureau’s acknowledgment letter to the Tenant.

 

LANDLORD DUTIES FOLLOWING PAYMENT OF RELOCATION ASSISTANCE

  1. Landlord must include a Notice of Tenant’s Rights and Obligations (the “Notice”) and the eligible amount of Relocation Assistance with issuance of the following:
    1. Termination Notice;
    2. AnyRent Increase Notice;
    3. Relocation Assistance payment.

Note:MHCO has developed a form for the Notice.

  1.  Landlord must notify the Portland Housing Bureau of all payments to tenants of Relocation Assistance within 30 days of making such payments.  

 

ADDITIONAL LANDLORD LIABILITY FOR VIOLATION OF ORDINANCE

  1. Any Tenant claiming to be aggrieved by a Landlord's noncompliance with the above regulations in the Ordinance, “has a cause of action in any court of competent jurisdiction for Damages and such other remedies as may be appropriate.”
  2. Damages include the following:
    1. An amount up to 3 times the monthly Rent; 
    2. Actual damages; 
    3. Relocation Assistance; and
    4. Reasonable attorney fees and costs. 

______________________________________________________

 

 

TENANT SCREENING

 

Discussion: Effective March 1, 2020, the City of Portland’s new screening ordinance (30.01.088 Screening Criteria for Applicants for DwellingUnits) – hereinafter the “Code” – will become law. The administrative rules have not yet been written. The latest draft from the office of Commissioner Eudaly is date February 20, 2019. It is set out below. The Housing Bureau was unable to give me a copy of the final draft. Below is a summary of the February 20, 2019 draft; it is believed that some of the more draconian provisions of the Ordinance were either deleted or softened. 

 

Note: I have said repeatedly that when screening applicants, a criminal history should be the very last reason to deny an applicant. For example, if the applicant could be denied for financial incapacity, prior references, evictions, etc. it becomes irrelevant whether they have a criminal record. Only use the criminal history as a last resort. 

 

  1. Procedures.In addition to the protections set forth in the Act and Sections 30.01.085 and30.01.087 of the Code, the following procedures and guidelines apply to Landlords when screening an Applicant for residential tenancy in a Dwelling Unit (as defined in theAct).
  2. Definitions. For purposes of this Ordinance, unless otherwise defined herein, capitalized terms have the meaning set forth in theAct.
    1. Applicant: An applicant for a Dwelling Unit covered by theAct.
    2. Supplemental Evidence: Any written information in addition to the application, that the Applicant believes to be relevant to the Applicant’s predicted performance as atenant.
    3. Head(s) of Household: Person or persons listed on a lease as the party or parties responsible for paying theRent.
    4. ADACompliant:
    5. OccupancyAgreement:
      1. Applications,Generally.
    6. First-come,First-served
    7. Completed applications must be received and processed on a first-come,first-servedbasis.
    8. All completed applications must be time-stampedto indicate the date and time that an Applicant submitted the application (the “SubmissionDate”).
    9. For applications received during an advertised open application period, a Landlord must provide an Applicant with a written or electronic receipt within one (1) business day of the Submission Date that accurately reflects the Submission Date and assigns the Applicant a queuenumber.
    10. A Landlord is exempt from the requirements of this subsection whenevera lottery system or coordinated access system is used to lease up new residential buildings with rent regulations of 80% AMI orlower.
    11. A Landlord must include the following with everyapplication:
    12. Notice to Applicants of the right to request a reasonable accommodation at any point before, during or after the applicationprocess;
    13. Notice that a Landlord may not deny an application solely because ofa reasonable accommodation request or because of the nature of the accommodationrequested.
    14. Notice to Applicants of their rights under this Section 30.01.088 by including a link to Portland Housing Bureau’s (“PBH”) website and a printed copy of the noticethat PHBcreates.
    15. A complete description of the applicable screeningcriteria.
    16. An opportunity on the application for an Applicant to indicate their disabilitystatus.
    17. A Landlord may only screen Head(s) of Household. Co-applicants that are not responsible for paying the Rent may be screened for criminal history and rental history (only for violation notices issued to the household for conduct of the co- applicant within the last year that demonstrates they created a hostile, unsafe,or harassing environment for other tenants or engaged in discriminatory conduct), pursuant to procedures and guidelines in this Section30.01.088.
    18. May require co-applicants not responsible for paying the Rent to signan Occupancy Agreement if the household application isapproved.
    19. A Landlord that owns less than fifty (50) Dwelling Units within the City of Portland, may refuse acceptance of a completed application only if the Applicant has a verifiable pattern of Rental Agreement violations with the Landlord and the mostrecent of such Rental Agreement violations occurred within the last 365 days.
    20. Any Applicant that self-identifies as mobility challenged on an applicationwithin the first 8 hours of an open application period must be given first priority for any vacant Dwelling Unit that is advertised as ADACompliant.
    21. Any application received earlier than the advertised open application period will be put in the queue immediately following the first 8 hours. If the Dwelling Unit is advertised as ADA Compliant, and the Applicant indicates as mobility challenged, they will still receive placement preference immediately following any other preference application received during the advertised open application period.
  3. Advertisement of DwellingUnits.
    1. When publicly advertising for specific vacant Dwelling Units, a Landlord must specify an opening date and time when applications will be accepted and cannot accept applications for those specific units outside of the advertisedperiod.
    2. Except as otherwise prevented from complying due to the format requirements of an advertising service, screening criteria required by a Landlord, or a website address to the criteria, must be included in any public advertisement for available Dwelling Units as well as included on theapplication.
    3. Except as otherwise prevented from complying due to the format requirements of an advertising service, all public advertisements must also include if the Dwelling Unit is ADACompliant.
    4. When advertising newly vacant Dwelling Units, the open application period must be published at least 72 hours prior to the start of the open applicationperiod.
  4. Identification.
    1. A Landlord must accept any of the following as forms of identification, or combination thereof, that verify the full name, date of birth, and picture of the applicant:
    2. Valid Social Security Number (SSNCard);
    3. Valid Permanent Resident Alien Registrations ReceiptCard;
    4. ImmigrantVisa;
    5. Individual Taxpayer Identification Number(ITIN);
    6. Non-ImmigrantVisa;
    7. Any other government-issued identification;or
    8. Any other non-government document or combination of documents that would allow verification ofidentity.
    9. A Landlord may not reject an application as incomplete due to the lack of aSocial Security Number(SSN).
    10. A Landlord may not inquire about the immigration status of an Applicantor require that any Applicant provecitizenship.
    11. Income.
    12. A Landlord may not require an income greater than two times the amount ofRent for the Dwelling Unit when costs for utilities are part of theRent.
    13. A Landlord may not require an income greater than two and a half times the amount of the Rent for the Dwelling Unit when costs for at least three essential utilities (such as garbage, sewer, water, or heat) are required to be paid separately by aTenant.
    14. Calculation of the income to rent ratio under thissection:
    15. Must include all sources of an Applicant’s income, including, but not limited to, wages, rent assistance (non-governmental only),verifiable family or friend assistance for at least three months of tenancy, and monetary publicbenefits;
    16. Must subtract from the Rent amount any portion of Rent covered byan Applicant’s local, state, or federal government rent voucher or housing subsidy before calculating the rent ratio;and
    17. Must apply cumulatively among Heads of Household when more thanone adult applies as a group.
    18. A Landlord may include a requirement for a guarantor (family member, friend, non-profit, or government agency as identified by the Applicant) or an Additional Deposit as described in Section 30.01.087 when the Applicant’s income ratio as calculated in the section above falls at or below two times the amount of theRent.
    19. To the extent that a Landlord requires a guarantor or Additional Deposit, the Landlord must allow the Applicant to choose between the twooptions.
    20. A Landlord may not require family or friend guarantor to have income greater than three times the current Rent but can require verifiable employment,verifiable residence within the United States, and no active collections activity for delinquent property or utilitydebt.
    21. A Landlord may not require a guarantor to sign a contract longer than thelength of the initiallease.
    22. ThresholdCriteria.
    23. A Landlord may forgo the mandatory individualized assessment as described in Section H if they adopt a screening-criteria that meets, or is more permissivethan, the thresholds described in the followingsection:
    24. Applicants will not be denied for the followingconditions:
    25. Criminalhistory:
    26. Any arrest that did not result in conviction, unless the resulting charge is pending at the time that theApplicant submits theapplication;
    27. Participation in or completion of a diversion or a deferralof judgmentprogram;
    28. Any conviction that has been judicially dismissed, expunged, voided orinvalidated;
    29. Any conviction for a crime that is no longer illegal in the state ofOregon;
    30. Any conviction or any other determination or adjudication in the juvenile justicesystem;
    31. Any criminal conviction for misdemeanor offenses where the dates of sentencing are older than threeyears;
    32. Any criminal conviction for felony offenses where the dates of sentencing are older than sevenyears;
    33. Credithistory:
    34. Credit score at least500;
    35. Lack of credit history, unless the applicant in bad faith withholds credit history information that mightotherwise form the basis fordenial;
    36. Adverse accounts under$1000;
    37. Property debt from damages in previous tenancyunder

$500;

  • Bankruptcy filed by the applicant isclosed;
  • Bankruptcy for Chapter 13 filed by the applicant is in an active repaymentplan;
  • Medical or education/vocational trainingdebt.
  • Rentalhistory:
    • An action to recover possession pursuant to ORS 105.105 to 105.168 if theaction:
      • Was dismissed or resulted in a general judgment for the Applicant before the applicant submits the application;
      • Resulted in a general judgment against the Applicant that was entered three or moreyears before the Applicant submits theapplication;
      • Resulted in a general judgment against the Applicant that was entered fewer than threeyears before the Applicant submits the applicationif:
        • The termination of tenancy upon which the action was based was without cause (no-cause eviction) pursuant to ORS 90.427(Termination of Periodic Tenancies);or
        • The judgment against the Applicant was a default judgment due to a failure toappear, if the Applicant presents credible evidence to the Landlord that the Applicant had already vacated the unit upon which the action was based at the time that notice of the action wasserved.
        • Any information that the Landlord obtains from a verbalor written rental reference with the exception of defaults in Rent, three or more material violations of a Rental Agreement within the last year that resulted in notices issued to the Tenant, outstanding balance due to the Landlord, or lease violations that resulted in a termination with cause.;or
        • Lack of rental history, unless the Applicant in bad faith withholds rental history information that mightotherwise form the basis fordenial.
  • If an Applicant provides any Supplemental Evidence regarding criminal historyat the time, they submit their completed application, then the Landlord has to doan

individualized assessment as described in Section H if they intend to deny the application based on criminal history.

  1. IndividualizedAssessment.
    1. A Landlord that chooses not to adopt the threshold criteria as set forth above, must conduct an individualized assessment before denying an Applicant for any criteria they haveestablished.
    2. Any Applicant that believes that they may have barriers to any advertised screening criteria shall be allowed to provide, at the time of application submission, all Supplemental Evidence they believe provides a positive offset to thebarriers.
    3. A Landlord has an obligation to consider any such SupplementalEvidence submitted by the Applicant including, but not limited to, thefollowing:
      1. Six or more consecutive months of job or incomestability;
      2. Completion of secondary education or job trainingprograms;
      3. Current enrollment in secondary education of job trainingsprograms;
      4. Current probation or paroleoversight;
      5. Certificate of GoodStanding;
      6. Current payment plan towards creditdebt;
      7. Completion of Rent Well or another tenant educationprogram;
      8. Six or more consecutive months of positive rental payments within thelast year;
      9. Completion of creditcounseling;
      10. Current participation in creditcounseling;
      11. Current participation with a legal or non-profit advocate to clearpast collections;
      12. Legitimate explanation of lack of verifiable credithistory.
      13. The presence of domestic violence as contributing factor to rental issues of concern;
      14. Current payment plan toward outstanding debts owed previouslandlord;
      15. Current case management or peer support services;or
      16. Any other evidence that the Applicant believes has a tangible impact to the specific barriers identified in an Applicant’shistory.
    4. If a Landlord receives the following types of Supplemental Evidence, a Landlord should assume that the presentation of such Supplemental Evidence is a request for a reasonable accommodation under the Fair Housing Act. An applicant reserves the right to use the following information as a request for Individualized Assessment aswell:
      1. Completion of drug or alcoholtreatment;
      2. Current enrollment in a drug or alcohol treatmentprogram;
      3. Completion of psychologicalcounseling;
      4. Current participation in psychological counseling;or
      5. Current case management or peer support services related to disabilityor mentalhealth.
    5. In addition, a Landlord must consider the information from the individualized assessment and Supplemental Evidence in light of the following before denying anApplicant:
      1. The nature and severity of thebarriers;
      2. The number and type of thebarriers;
      3. The time that has elapsed since the date the barriers occurred;and
      4. The age of the individual at the time the barrieroccurred.
  2. Appeals.
    1. An Applicant that is denied for residential tenancy by a Landlord using the threshold criteria as described in Section G must have the opportunity toappeal that denial directly to the Landlord basedon:
      1. Incomplete or inaccurate information identified during thescreening process,or
      2. Additional supplementalevidence.
    2. An Applicant must be allowed 30 days, from the date the denial was issued, to request an appeal and submit all evidence related to theappeal.
    3. A Landlord is not required to hold the Dwelling Unit for the Applicant duringthe pendency of the appealprocess.
    4. If the appeal results in the denial being overturned, a Landlord must give the Applicant preference for future vacancies on the same property (with similar screening criteria and similar income ratio) if they apply within the first 4 hoursof an open application period, for up to 3 months from the date of the original appeal determination.
      1. If a denial is successfully appealed, a Landlord must provide a datedletter, signed by the Landlord, documenting the successful appeal that includes specifics about which properties qualify for thepreference.
      2. An Applicant who receives a letter of a successful appeal must attachthat letter to future applications with the same Landlord to receive preference, for up to 3 months from the date of the original appealdetermination.
      3. An Applicant who successfully appeals a denial cannot be charged a screening fee for future applications with the same Landlord, for up to3 months from the date of the original appealdetermination.
      4. If more than one Applicant provides a letter of a successful appeal during an open application period, the Applicants will receive preference inorder of the dates on the letter, with oldest date getting firstpreference.
      5. If there is a conflict between an appeals preference and an accessible unit preference, the accessible unit preference is first, only superseded by an Applicant with both an accessible unit preference and an appealspreference.
      6. If an Applicant applies with an appeal preference, the Landlord may require the Applicant to self-certify that no conditions have changedsince their originalapplication.
    5. A Landlord has the discretion to also maintain a wait list and contact preference applicants (in the order their appeal letter is dated), before advertising a vacant Dwelling Unit to the generalpublic.
  3. Denials-General.
    1. An application can be denied without a Landlord first conducting an individualized assessment when an Applicant does not meet basic criteria requirements such as incomplete application, identification, income, or an Applicant has purposefully withheld or misrepresented requiredinformation.
    2. If an Applicant applies as part of a family or group, a Dwelling Unit can be denied to that Applicant individually but not the family or group as a wholeunless they no longer qualify for the income ratio or occupancystandards.
  4. Denials-ThresholdCriteria.
    1. When denying an application based on Threshold Criteria, above, a Landlord must provide a written “Notice of Adverse Action” compliant with the Act, the Applicant within two weeks of thedenial.
    2. A Notice of Adverse Action can be provided to the Applicant by either a Landlord or a screeningcompany.
    3. A second denial after an appeal as described in Section I can be written ina manner at the discretion of theLandlord.
  5. Denials-IndividualizedAssessment.
    1. When denying an application after performing an Individualized Assessment, a Landlord must provide a written “Notice of Denial” to the Applicant within two weeks of the denial thatincludes:
      1. The specific adverse information that matches the screening criteria information as provided with the application, including detailed information received from a rental reference if it is the basis of thedenial;
      2. The Supplemental Evidence, if any, that the Landlord considered and whether it influenced the decision of the Landlord to deny theapplication;
      3. An explanation of the legitimate, non-discriminatory business interestof the Landlord that justify denial of the application, and how the Supplemental Evidence provided did not address theinterest.
    2. A Notice of Denial can only be issued to the Applicant by theLandlord.
  6. AdditionalDeposit.
    1. A Landlord may request an additional security deposit as set forth inOrdinance Section

30.01.087 as an alternative to issuing a Notice of Adverse Action or a Notice of Denial.

  1. To request an additional security deposit, a Landlord must provide a written “Notice of Conditional Approval” to the Applicant that contains the same information as required in a Notice of Adverse Action or a Notice of Denial (depending on the screening process used) and additionally contains thespecific amount being requested as well as the ability for an Applicant to choose a payment plan as set forth in Section30.01.087.
  2. If a Landlord requests an Additional Deposit as a condition of offsetting a low-income ratio, the Landlord does not need to issue a Notice of Conditional Approval but must follow the code as set forth in Section30.01.087.
  3. ScreeningFees.
    1. A Landlord must return a screening fee, or communicate approval or denial of residential tenancy, to an Applicant within two weeks of the final determination of theapplication.
    2. If using a professional screening company exclusively, the screening feecharged by the Landlord cannot be more than what is charged by the screeningcompany.
    3. If using a professional screening company in addition to screening work by the Landlord, fees cannot exceed 25% above what is charged by the screening company.
    4. If a Landlord screens independently without the use of a professional screening company, fees cannot exceed 10% above what is charged by the average professional screening company in the Portland-Metroarea.
  4. ModificationRequests.
    1. An Applicant that experiences disabilities cannot be denied housing based ona denial of reasonable modificationalone.
    2. If an Applicant’s modification request is denied, the Applicant must be allowed 24 hours to request an alternative modification that meets theirneeds.
    3. If the second modification request is denied, the Applicant must be allowed another 24 hours to request an alternative modification that meets theirneeds.
    4. If no reasonable modification can be made in the Dwelling Unit the Applicant applied for, then the Applicant may still accept the Dwelling Unit if they meet the eligibilitycriteria.
  1. Exemptions.
    1. Any Dwelling Unit that is subject to a partnership or referral agreement betweena Landlord and a non-profit service provider or government agency working to place low income or vulnerable tenants into housing is exempted from this Section.
    2. Any Dwelling Unit not rented or advertised to the general public,(including online platforms with or without a fee), are exempted from thisSection.
    3. Any Dwelling Unit otherwise complying with state or federal loan or funding requirements is exempted from the parts of this Section in conflict with theloan or fundingrequirements.
    4. Any Dwelling Unit shared with a Landlord or sub-leaser as their primary residence is exempted from thisSection.
  2.   Damages. Any Applicant claiming to be aggrieved by a Landlord’s noncompliance with the foregoing has a cause of action in any court of competent jurisdiction for Damages and any such other remedies as may beappropriate.
  3.  

 

 

SECURITY DEPOSITS

 

Discussion: A new set of draft rules on security deposits (Ordinance No. 30.10.087) was marked as “Exhibit A” to the February 20, 2019 draft of the screening ordinance (Ordinance No. 30.10.088). It is also believed that the administrative rules for this Ordinance have not been written yet, as they have not been posted on the City’s website. Below is a summary of these rules, that are offered with the proviso that the final draft may be different. 

  1. Additional Protections. The following additional protections regarding security deposits apply to Tenants that have a Rental Agreement or a Dwelling Unit covered by theAct.
  2. Last Month’s Rent. If a Landlord requires, as a condition of tenancy, last month’s Rent, a Landlord may not collect more than an amount equal to one-half of a month’s Rent as a security deposit. 
    1. If a Landlord does not require last month’s Rent, a Landlord may not collect more than an amount equal to one month’s Rent as a security deposit. 
    2. If an Applicant receives a Conditional Approval asdefinedinSection30.01.088,aLandlordmayrequestanamountequaltoone-halfofamonth’s Rent as a security deposit in addition to the other amounts previously listed in this subsection. 
    3. A Landlord must allow a Tenant to pay such additional security deposit in installments over a 2-6-month period and in amounts as requested by theTenant.
  3. Security Deposit.To the extent that a Landlord withholds an amount from a security deposit to repair damages to the premises beyond ordinary wear and tear, “ordinary wear and tear” shall mean deterioration that occurs without deliberate or negligent destruction, damage, or removal of any part of the premises, equipment, furnishings or appliances by the Tenant, a member of the Tenant household or other persons on the premises with the Tenant’s consent.

4.    Carpet Damage. To charge for carpets, a Landlord must take into consideration the cost only of the contiguous area where the carpet is required to be replaced due to damage and may not take into consideration the original expense of the carpet for the entire Dwelling Unit. 

a.   A Landlord may not chargeforinteriorpaintingofaresidence,exceptwhatisnecessarytorepairspecificdamagemade to a wall beyond ordinary wear and tear and to repaint walls that were painted by the Tenant without permission. 

b.   Basic cleaning is presumed to be ordinary wear andtear and nothing in this Subsection shall be construed to mean that a Landlord may charge for cleaning costs that do not address damage or filth beyond ordinary wear andtear.

5.    Landlord’s Movable Property.For purposes of determining the amount reasonably necessary to repair damaged, movable property in the Dwelling Unit, such movable property is presumed to depreciate at a rate of 3.6% per annum over a period of 27 years. 

a.   A Landlord may provide documentation demonstrating why a different calculation is justified for determining a reasonable amount necessary to repair an item of damaged, movable property. 

b.   Before executing the Rental Agreement, a Landlord must provide the Tenant with a list of movable property in the Dwelling Unit along with the depreciated value of each item at the time of move-in (the “Commencement Date”).

  1. Condition Report.Within one week of the Commencement Date, a Tenant may complete and submit to the Landlord, a condition report (on a form provided by the Landlord) noting any and all damage in the Dwelling Unit (the “Condition Report”). 
    1. If the Tenant submits a Condition Report to the Landlord within one week of the Commencement Date, such Condition Report shall be the proof of the condition of the Dwelling Unit on the Commencement Date in order to assess damage beyond reasonable wear and tear at move out (the “Termination Date”). 
    2. If, after the first week, the Tenant has not completed a Condition Report, a Landlord must complete a Condition Report and provide a copy to the Tenant. 
    3. Any damages noted in the Condition Report completed by the Landlord upon move-in must also be documented in photographs and provided to the Tenant. 
    4. IfanydamagenotedintheConditionReportissubsequentlyrepaired,theLandlordmustrevisethe Condition Report to reflect such repair, have it initialed by the Tenant, and provide a copy of the revisedConditionReport.
    5. IfeitherpartydisagreeswithanydamagenotedontheConditionReport, they must write the nature of their disagreement on the Condition Report, initial, and provide a copy to the otherparty.

7.    Final Inspection.Within one week of the Termination Date of which the Landlord had notice, the Landlord shallconductawalk-throughoftheDwellingUnittodocumentanydamagebeyondordinarywear andtearnotnotedontheConditionReport(the“FinalInspection”).

a.   ATenant,and/ortheTenant’s representative, has the right to be present for the Final Inspection, but may choose not to participate. The Landlord must give notice of the date and time of the Final Inspection at least 24hours in advance to theTenant.

8.    Damage Withheld From Security Deposit.Any damage for which a Landlord intends to withhold a portion of a Tenant’s security deposit must be documented in writing and include proof of depreciated value for movable property in the Dwelling Unit including, but not limited to, original receipts or demonstration of a similar make and model, and visual damage must be documented in photographs and provided to the Tenant at the same time as the written accounting required under ORS 90.300 (12)(Security Deposits). 

a.   To the extent that a Landlord seeks to charge labor costs greater than $200 to a Tenant, the Landlord must provide documentation demonstrating that the labor costs are reasonable and consistent with the typical hourly rates in the metropolitan region. 

b.   A Landlord may not charge for damage noted on the ConditionReport.

  1. Deposit of Security Deposit.Within 2 weeks of receipt of a security deposit, a Landlord must deposit the money in a separate checking, savings, money market, or client trust account and provide the bank institution name and account number in writing to the Tenant. If the account bears interest, the Landlord is required to pay such interest in full, minus an optional 5% deduction for administrative costs, to the Tenant unless it is used to cover any claims for damage. 
    1. For interest bearing accounts, the Landlord must provide a receipt of the account and any interest earned at the Tenant’s request, no more than once per year. 
    2. A Landlord may pool multiple security deposits in a single account so long as the account is separate from the Landlord’s personal funds, is not accessed except to deposit and withdraw Tenant deposits, and Landlord can provide an individual accounting of each Tenant deposit and the interest earned thereon. 
    3. A landlord shall have six (6) months from the effective date of this Subsection to comply with the above requirements.
  2. Notice of Rights.Contemporaneously with the delivery of the written accounting required by ORS 90.300 (12)(Security Deposits), the Landlord must also deliver to the Tenant a written notice of rights regarding security deposits (“Notice of Rights”). 
    1. Such Notice of Rights must specify all of Tenant’s right to damages under this Section. 
    2. The requirement in this Section may be met by delivering a copyof this Section to the Tenant along with contact information for the nearest Legal Aid Services of Oregon office or the Oregon StateBar.
  3. Written Account of Tenant Rent Payment History.Within 5 business days of receiving or giving a notice of any kind that terminates a tenancy, a Landlord must provide a written accounting of the Tenant’s Rent payment historythat covers the tenancy for the term or the prior two years, whichever islonger.

12. Rental History Form.Within 5 business days of receiving or giving a notice of any kind that terminates a tenancy, a Landlord must provide a completed Rental History Form as provided by Portland Housing Bureau.

  1. Violation of Ordinance.A Landlord that fails to comply with any of the requirements set forth in this Ordinance No. 30.01.87 shall be liable to the Tenant for the security deposit, a penalty in the amount equal to two times the security deposit, as well as attorney fees and costs (collectively, “Damages”).
    1. Any Tenant claiming to be aggrieved by a Landlord’s noncompliance with the foregoing has a cause of action in any court of competent jurisdiction for Damages and any such other remedies as may beappropriate.

 

_________________________________________________________

 

 

[1]ORS 90.100(12) provides that a “Dwelling unit” regarding a person who rents a space for a manufactured dwelling or recreational vehicle or regarding a person who rents moorage space for a floating home as defined in ORS 830.700, but does not rent the home, means the space rented and not the manufactured dwelling, recreational vehicle or floating home itself.

[2]  "Associated Housing Costs.include, but are not limited to, fees or utility or service charges, means the compensation or fees paid or charged, usually periodically, for the use of any property, land, buildings, or equipment. For purposes of Portland’s rent increase ordinances, housing costs include the basic rent charge and any periodic or monthly fees for other services paid to the Landlord by the Tenant, but do not include utility charges that are based on usage and that the Tenant has agreed in the Rental Agreement to pay, unless the obligation to pay those charges is itself a change in the terms of the Rental Agreement. [See, https://www.portlandoregon.gov/citycode/28481#cid_708924]

[3]Note: Charges to a landlord for exceeding the Oregonrent cap laws, or for other violations under the recently enacted SB 608, are notidentified as “relocation assistance”. That law provides at Section 1: “(9)(a) If a landlord terminates a tenancy in violation of subsection (3)(c)(B), (4)(c), (5),(6) or(7)ofthissection: (A)Thelandlordshallbeliabletothetenantinanamountequaltothreemonths’rent inadditiontoactualdamagessustainedbythetenantasaresultofthetenancytermination; and (B)Thetenanthasadefensetoanactionforpossessionbythelandlord. (b)Atenantisentitledtorecoveryunderparagraph(a)ofthissubsectionifthetenant commencesanactionassertingtheclaimwithinoneyearafterthetenantkneworshould haveknownthatthelandlordterminatedthetenancyinviolationofthissection.”

 

[4]Under Portland City Code 33.910 a “Dwelling Unit” is abuilding, or a portion of a building, that has independent living facilities including provisions for sleeping, cooking, and sanitation, and that is designed for residential occupancy by a group of people. Kitchen facilities for cooking are described in Section 29.30.160 of Title 29, Property and Maintenance Regulations. Buildings with more than one set of cooking facilities are considered to contain multiple dwelling units unless the additional cooking facilities are clearly accessory, such as an outdoorgrill. Under ORS 90.100(12), which is used elsewhere in the Portland City Code, a “Dwelling Unit” “…means the space rented and not the manufactured dwelling, recreational vehicle or floating home itself. 

[5]Per the City’s Administrative Rules, the term “Immediate Family” means “…parent, foster parent, step parent, parent in law, sibling, foster sibling, step sibling, sibling in law, grandparent, grandparent in law, child, step child, foster child, grandchild,aunt, uncle, niece, or nephew.An Immediate Family member cannot be an Ownerof the Dwelling Unit, their spouse, or their domestic partner. The Immediate Familymember must have reached the age of majority (18)or be a legally recognized emancipated minor.”

 

Fair Housing Pit Fall: Adult Supervision

MHCO

 

Adult supervision requirements are the leading source of pool-related family discrimination complaints. The safety rationale for such rules is clear. After all, swimming without adult supervision is the leading cause of drowning deaths for young children.

Spot the Discrimination Mistake

The precise rule: “Children ages 18 and younger may not use the swimming pool unless they are supervised by a parent.”

Pitfall: As HUD acknowledges in a 1992 Memo, “requiring a responsible adult to supervise young children and provide written designation of an adult supervisor are policies which appear more tailored to protect legitimate health and safety interests and appear less problematic” than a total or partial ban on children’s use. However, the legality of adult supervision rules depends on how they’re framed. Basic Rule: You can require adult supervision as long as the rule is narrow and no more restrictive than it has to be to accomplish the purpose.

While it’s true that many young kids can’t swim, lots of adults also lack proficiency in swimming. The danger of swimming unsupervised, in other words, is based not on a person’s age but the fact that they can’t swim. Once you introduce age and family relationship into the equation, you take the supervision rule to places it shouldn’t go. 

Example: The parents of three young children sued their California landlord for adopting a rule stating that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.” Too restrictive, said the federal court. A “prohibition on unsupervised swimming which would prevent even a 17-year-old certified lifeguard from swimming unaccompanied is overly restrictive.” While recognizing “the inherent dangers of unsupervised swimming,” the court concluded that requiring that a parent or legal guardian to supervise “transforms this rule” from a legitimate safety precaution to an unjustified restriction on children and their families” [Iniestra v. Cliff Warren Investments, Inc., C.D. Cal. 2012, 886 F.Supp.2d 1161].

Solution: The least restrictive and most nondiscriminatory way to accomplish the safety objective of the adult supervision rule is to frame the rule in terms of swimming proficiency and the ability to supervise responsibly. Options:

  • Require supervision of not just children of certain ages but any person who can’t swim;
  • Require all would-be pool users—and not just children—to pass a swimming proficiency test administered by a competent lifeguard or swim instructor; and
  • Rather than a “parent” or “adult guardian,” require non-proficient swimmers to be supervised by a proficient swimmer.

Revised Pool Rule: In the interest of safety and in accordance with local laws, individuals who are not proficient swimmers may not use the community pool unless they are supervised by a person who is a proficient swimmer.

How to Avoid Religious Discrimination Claims During the Holidays

MHCO

In this lesson, we focus on avoiding discrimination claims based on religion during the holidays—and all throughout the year.

You don’t have to be a “Grinch” to comply with fair housing law. The key is to celebrate the general festivity of the season without promoting a particular religion or particular religious holiday. That way, you’ll satisfy fair housing concerns by showing that your community welcomes everyone—regardless of anyone’s religious practices or beliefs.

    Don’t relax your focus once the holidays are over—religious discrimination claims could arise at any time of year. Fair housing law makes it unlawful to exclude or otherwise discriminate against applicants or residents because of their religion. If you explicitly or implicitly suggest that you have a preference for—or against—members of certain religious groups in the way you advertise, market, or operate your housing community, you could be accused of violating fair housing law.

    This month, we’ll review the law and suggest eight rules to follow to help you avoid claims of religious discrimination during the holidays—and all year long. Then, you can take the Coach’s Quiz to see how much you’ve learned.

    WHAT DOES THE LAW SAY?

    The Fair Housing Act (FHA) prohibits discrimination in housing based on a number of characteristics, including religion. Among other things, it’s unlawful to:

    • Deny housing to anyone because of his religion;
    • Steer or discourage anyone from living in your community because of his religion;
    • Impose different terms or conditions because of his religion;
    • Harass or retaliate against anyone because of his religion; or
    • Make statements—oral or written—that indicate a preference for or against anyone because of his religion.

    Taken together, these provisions prohibit communities from treating people differently based on their religious beliefs or practices. For example, you can’t show favoritism toward people who share your religious beliefs—or bias against those of other religious faiths.

    Furthermore, you could run afoul of fair housing law by treating people differently simply because they do—or do not—attend religious services or identify with a religious faith. The FHA doesn’t define “religion,” but fair housing experts believe it’s broad enough to prohibit discrimination against individuals who are not affiliated with a particular religion or do not ascribe to particular religious beliefs.

    Coach’s Tip: The FHA includes a narrow exemption that allows religious organizations, which own or operate housing for noncommercial purposes, to limit occupancy or give preferential treatment to members of the same religion, as long as membership in the religion is not restricted on account of race, color, or national origin.

    FOLLOW 8 RULES FOR AVOIDING

    RELIGIOUS DISCRIMINATION CLAIMS

    Rule #1: Make Everyone Feel Welcome at Your Community

    At the holidays—and all throughout the year—it’s important to make all prospects, applicants, and residents feel welcome, regardless of their religious beliefs or practices.

    As communities have become more religiously and culturally diverse, your residents may celebrate a variety of religious holidays. Many celebrate Christmas or Hanukkah, while others may observe religious holidays that may be unfamiliar to you. Some celebrate cultural or spiritual occasions, such as Kwanzaa or the winter solstice, while others don’t celebrate any holidays at all. Regardless of whether or how they celebrate the holidays, all are protected from discrimination under the FHA—and can’t be treated differently because of their beliefs or practices.

    Rule #2: Leave Religion Out of the Leasing Process 

    Take a close look at your application policies and procedures to ensure that your community doesn’t exclude or otherwise discriminate against applicants based on their religious affiliation or beliefs.

    Example: In July 2019, the Justice Department announced a settlement in a fair housing case alleging that a Michigan community discriminated on the basis of religion by prohibiting non-Christians from owning homes at the summer resort community.

    In its complaint, the Justice Department alleged that a nonprofit municipal association owned the community’s land and leased lots to members who owned the cottages built on those lots. Specifically, the complaint alleged that from 1986 to 2018, the association’s bylaws required that in order to become a member of the association and thus eligible to own a cottage, an individual must, among other things, be “of Christian persuasion” and obtain a letter of recommendation from the pastor (or designated leader) of the church the individual attends.

    Under the settlement, the association agreed to amend its bylaws, articles of association, and membership application materials to eliminate the religious restriction on membership [U.S. v. The Bay View Association of the United Methodist Church, Michigan, July 2019].

    Rule #3: Make Sure Advertising and Marketing Practices Don’t Suggest Religious Preference

    Check to ensure that your advertising and marketing practices and materials don’t suggest a preference for or against anyone based on her religion.

    Under the FHA, it’s unlawful to make, print, or publish any notice, statement, or advertisement that indicates any preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, or national origin. According to federal regulations, you may not use “words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of…religion.” According to HUD, that means that advertisements may not include explicit preferences—such as “Christian community”—or limitations—such as “No Jews.” It’s also unlawful under the FHA to advertise that you prefer only those who are members of an organized religion.

    Don’t forget: Fair housing law doesn’t require proof of discriminatory intent to establish liability for making discriminatory statements. Instead, the focus is on whether the statement would suggest an unlawful preference to an “ordinary reader or listener.” Even if you don’t intend to discriminate against applicants or residents based on their religion, you could unintentionally suggest you have such a preference for members of one religion over another. Though unlikely, by itself, to lead to a fair housing complaint, evidence of an implied preference could be used against you if there is other evidence of religious discrimination.

    For example, HUD has said that advertisements of descriptions of the housing community, such as “apartment complex with chapel,” or services, such as “kosher meals available,” do not on their face state a preference for persons likely to make use of those facilities and are not violations of the FHA. But that doesn’t mean that you should emphasize religious amenities, such as your community’s proximity to a particular church or other house of worship, according to fair housing experts, who warn that they may suggest a preference for members of that faith. 

    HUD observes that in some cases, the name of the housing community—such as the “Roselawn Catholic Home”—or use of a religious symbol—such as a cross—in an advertisement could indicate a religious preference. Nevertheless, HUD says that it won’t be considered a fair housing violation if the ad includes a disclaimer to indicate that the housing community doesn’t discriminate on the basis of race, religion, and other protected characteristics. In most cases, however, fair housing experts caution against use of religious symbols in your advertising or marketing materials unless there are special circumstances such as, for example, when it’s part of a registered trademark or logo.

    Rule #4: Aim for Inclusiveness During the Holiday Season

    This time of year, many communities put up decorations, send greetings, or host festivities to promote good cheer. There’s nothing wrong with decorations and festivities to mark the holiday season, as long as they don’t appear to be promoting a particular religion or religious holiday. It’s unlawful to express a preference for—or against—anyone based on religion, so celebrating only one religious holiday—to the exclusion of others—could lead to a fair housing problem.

    You can’t go wrong with secular messages, such as “Seasons Greetings” or “Happy Holidays,” and seasonal displays featuring lights, evergreens, icicles, and snowflakes. You can even include pictures of Santa Claus and signs that say, “Merry Christmas,” which have been recognized by HUD as secularized terms and symbols that don’t violate fair housing law.

    When it comes to decorating common areas, it’s sometimes hard to know where to draw the line between religious and secular and symbols. Our experts warn against putting up nativity scenes, but opinions were mixed with respect to menorahs and Christmas trees. Some experts say that communities should avoid using them and any other decorations with religious connotations when decorating common areas. Others suggest calling it a “Holiday tree” and decorating it with seasonal, nonreligious lights and ornaments. Still others say menorahs and Christmas trees have become secularized—like “Merry Christmas” and Santa Claus—so it’s fine for communities to include them among other holiday decorations with other nonreligious, seasonal themes.

    Coach’s Tip: Many communities hold parties and other special events during the holidays. While such events are a great amenity for your residents, make sure that the events are not religious or used to promote a particular holiday. Fair housing experts warn against calling it a Christmas party or playing Christmas carols with religious themes. Instead, keep the celebration neutral by calling it a holiday party or winter celebration and playing music celebrating winter themes. Invite all residents, regardless of their religious affiliations. Make sure residents know all are welcome but avoid any impression that they must attend holiday events.

    Rule #5: Allow Residents to Display Religious Decorations Inside Their Units

    Most of our fair housing experts warn against allowing residents to decorate lobbies, hallways, and other common areas since it’s up to the community to maintain them in a religiously neutral manner. Inside their units, however, residents should be allowed to display holiday decorations, including personal religious items, as long as they are in keeping with community rules.

    It can get more complicated when dealing with holiday decorations on the unit’s front door, and unit interiors that are visible from outside, such as windows, patios, and balconies. As a general rule, communities have the right to enforce rules related to the appearance of those areas, but the rules must apply consistently to religious and secular objects alike. Some communities allow residents to hang religious decorations on their front doors and windows, while others have rules banning decorations of any kind in outdoor areas.

    But be careful: Taking a hard line against outside decorations whatsoever may be effective, but it could trigger a complaint that the community is interfering with a resident’s religious rights.

    Example: Earlier this year, a court overturned a jury verdict in a dispute between an Idaho couple and a homeowners association involving their Christmas display. The dispute dates back to 2015, when the couple notified the HOA that they intended to buy a home in the subdivision and needed a quick answer about whether the board would oppose use of the property for their Christmas program. The homeowners’ stated reason for hosting the Christmas program was to support various charities and engage in ministry.

    In response, the HOA indicated that the program would violate certain community rules and pointed out that some residents were non-Christians or of other faiths. The HOA said it didn’t intend to discourage the couple from becoming part of the community, but it didn’t want to become entwined in expensive litigation to enforce longstanding rules and fill the neighborhood with hundreds of people and possible “undesirables.”

    The couple bought the home and in 2015, and in 2016 they hosted the Christmas program, which involved decorating the exterior of the home with 200,000 lights, a nativity scene with a live camel, and characters in costume. Commercial busses were used to transport people to and from the program; the busses were parked in front of their home and adjacent properties. Many other people drove to the event and parked throughout the neighborhood. Hundreds of people attended the program on a nightly basis; in total, thousands attended over each five-day period.

    Facing opposition from neighbors, the homeowners sued the HOA, accusing the community of discrimination and harassment against them because they were Christian. After a series of proceedings, the case went to a jury, which sided with the homeowners and awarded them $75,000 in compensatory and punitive damages.

    In the latest ruling, the court overturned the verdict, ruling that the jury was unfairly prejudiced by evidence of alleged threats made by neighbors because of the Christmas program. The ruling is pending an appeal [Morris v. W. Hayden Estates First Addition Homeowners Association, Inc., Idaho, April 2019].

    Coach’s Tip: As an alternative to a blanket rule banning any outside decorations, some communities permit residents to put up decorations related to holidays and other occasions—both religious and secular—on the doors and windows of their units, or on outdoor patios and decks, subject to size and space limitations. If you go that route, it’s a good idea to impose time limits to require removal of the items within a certain period after the related event.

    Rule #6: Treat Residents Consistently—Regardless of Religion

    Adopt policies and practices to ensure that your community doesn’t treat residents differently based on their religious affiliation or beliefs. The FHA bars communities from discrimination in the terms, conditions, or privileges of rental of a dwelling—such as higher fees or more onerous lease terms—or the provision of services or facilities at the housing community—such as withholding or delaying maintenance services—on the basis of religion. The law also prohibits communities from steering applicants to certain areas within the community because of their religion. Make sure that your entire staff understands that they may not give preferential treatment to members of their religion or less favorable treatment to members of other faiths.

    It’s also unlawful to hold residents to different standards of conduct just because they are members of a particular religion. In the aftermath of the 9/11 attacks, for example, HUD warned that a housing community could be accused of religious discrimination if it acts improperly in response to complaints from neighbors about Muslim residents. While communities must be responsive to complaints from residents, HUD says that you should take action against residents only when based on legitimate property management concerns. As an example, HUD cites a neighbor’s complaint about a Muslim resident’s weekly meeting of Muslim men, whom the neighbor says appear to be “unfriendly” and might be “up to something.” If the visitors don’t disturb other residents in their peaceful enjoyment of the premises, HUD says that the housing provider could face a discrimination complaint if it asks the resident to refrain from having Muslim guests without evidence of any violation of established community rules.

    Rule #7: Allow Equal Access to Your Common Areas

    Allow your residents equal access to the community’s common areas, including amenities, without regard to religion and other protected characteristics. HUD regulations state that it’s unlawful to limit use of the privileges, services, or facilities associated with a dwelling based on race, color, religion, sex, disability, familial status, or national origin.

    For example, some communities allow residents to use the community’s common room for family parties and similar functions. If you allow residents to reserve the room for various types of activities, then you must make it available to residents regardless of whether they want to use it for secular or religious purposes. It’s unlawful for communities to allow residents to reserve the room for card games and other social events, but to deny it to a resident who wants to use the room for a prayer meeting, according to the Justice Department.

    And all residents must have equal opportunity to use amenities, regardless of their religious or cultural background. If you permit a resident to hold a Christmas party in the room, then you must allow a Jewish resident to use the room for a Hanukkah party.

    On the other hand, be careful that any religious accommodations don’t infringe on the rights of others to use and enjoy your common areas. You could face a discrimination claim if you restrict access to your amenities to accommodate religious practices of a majority of your residents in a way that denies equal access to other residents.

    Example: In April 2019, an appeals court ruled that a New Jersey condo community’s pool schedule discriminated against women in violation of fair housing law. Roughly two-thirds of the residents of the 55-plus community were Orthodox Jews. To accommodate Orthodox principles regarding modesty, the community adopted rules for pool use designating certain hours when only members of a single sex were allowed to swim. Though the number of hours for each sex was roughly the same, the large majority of hours in the evening were reserved for men.

    The court concluded that the pool schedule discriminated in its allotment of different times to mem and women in addition to using sex as its criterion. The schedule allowed women to swim less than four hours after 5 p.m. on weeknights, compared with more than 16 hours for men. Women with regular-hour jobs had little access to the pool during the work week, and the schedule appeared to reflect particular assumptions about the roles of men and women [Curto v. A Country Place Condo. Assoc., Inc., New Jersey, April 2019].

    Rule #8: Enforce Rules to Prevent Harassment By or Against Residents

    Take steps to enforce rules to prevent religious harassment or other misconduct by or against residents. You shouldn’t be expected to police the behavior of your residents, but you should make it clear that bullying or any other forms of harassment based on protected characteristics won’t be tolerated.

    If you receive a complaint from a resident about religious harassment by a neighbor, then it’s important to investigate and act swiftly to resolve the problem. Unless you take such complaints seriously, you could be accused of tolerating religious discrimination at your community. That could lead to a fair housing complaint and, depending on the circumstances, potential liability if a court finds that you knew about the neighbor’s religious harassment but didn’t do enough to stop it.

    Example: Earlier this year, the Supreme Court let stand a ruling reinstating fair housing claims against an Illinois retirement community for harassment and retaliation. In her complaint, the resident alleged that she endured months of physical and verbal abuse by other residents because of her sexual orientation, and that despite her complaints, the community did nothing to stop it and in fact, retaliated against her because of her complaints. Further proceedings were needed to determine whether management had actual knowledge of the alleged harassment and whether they were deliberately indifferent to it [Wetzel v. Glen St. Andrew Living Community, Illinois, August 2018].

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

    Increasing Late Fees

    Question: A landlord currently charges a $25 late fee. She wants to increase it to $50. Can she do that and if so, what kind of notice should she give? Also, can she change the late fee from a flat amount to a percentage (e.g. 10%) of rent? Answer: Here is a summary of ORS 90.260, the late fee statute. It answers the questions posed above. (1) A landlord may impose a late charge or fee, however designated, only if: • The rent payment is not received by the fourth day of the period for which rent is payable; and • There exists a written rental agreement that specifies: o The tenant’s obligation to pay a late charge; o The type and amount of the late charge; and o The date on which rent payments are due, and the date on which late charges become due. (2) The amount of any late charge may not exceed: • A reasonable flat amount, charged once per rental period. “Reasonable amount” means the customary amount charged by landlords for that rental market; • A reasonable amount, charged on a per-day basis, beginning on the fifth day of the rental period for which rent is delinquent. This daily charge may accrue every day thereafter until the rent (not including any late charge), is paid in full, through that rental period only. The per-day charge may not exceed six percent of the amount of the “reasonable lat amount”, described above; or • Five percent of the periodic rent payment amount, charged once for each succeeding five-day period, or portion thereof, for which the rent payment is delinquent, beginning on the fifth day of that rental period and continuing until that rent payment (not including any late charge), is paid in full, through that rental period only. (3) In periodic tenancies (e.g. month-to-month), a landlord may change the type or amount of late charge by giving 30 days’ written notice to the tenant. (4) A landlord may not deduct a previously imposed late charge from a current or subsequent rental period rent payment in order to make the rent payment short so as to issue a 72-hour notice of nonpayment. (5) A landlord may charge simple interest on an unpaid late charge at the rate allowed for judgments (9.00%) and accruing from the date the late charge is imposed. (6) Nonpayment of a late charge alone is not grounds for termination of a rental agreement for nonpayment of rent, but is grounds for termination of a rental agreement for cause by using a curable 30-day written notice of termination.

    Mark Busch RV Question and Answer: RV Tenants and Rent Nonpayment

    Mark L. Busch

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

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

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

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

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

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

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

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

     

    How to Fulfill Your Duty to Prevent Race Discrimination (Article 5) -Take a Hard Line Against Racial Harassment

    Manufactured Housing Communities of Oregon

     

    Given today’s volatile political climate, it’s more important than ever to be vigilant for any signs of racially motivated harassment, discrimination, or violence directed against anyone at your community. 

    Fair housing law bans not only sexual harassment, but also harassment based on race or color, and other protected characteristics. As a general rule, community owners may be liable for illegal harassment by managers or employees, when they knew or should have known about it but failed to do enough to stop it. Moreover, the FHA makes it unlawful to intimidate, threaten, or interfere with anyone exercising his fair housing rights.

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

    Example: In November 2019, HUD announced that it reached a $80,000 settlement to resolve allegations that the owners and manager of a Georgia community ignored complaints by African-American residents of repeated racial harassment by white neighbors.

    Three African-American residents filed the HUD complaint, alleging that the community refused to investigate and address their claims that their white neighbors subjected them to racial harassment and verbal and physical assaults, including attacks by dogs. The community denied the allegations but agreed to the settlement requiring payment of $20,000 to each of the three residents and to create a $20,000 fund to compensate other residents who may have been subjected to racial harassment.

    “No one should ever have to face threats or be subjected to physical violence in the place they call home because of their race,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “The agreement we’re announcing today is a reminder to housing providers everywhere that HUD is committed to ensuring that they meet their obligation to comply with the nation’s fair housing laws.”

    UPDATE:

    Tenant-on-Tenant Harassment

    In the January 2020 lesson, Fair Housing Coach highlighted an appeals court ruling that a New York community could face liability under the FHA for failure to stop an alleged campaign of racial harassment against an African-American resident by his neighbor. In recent action, the appeals court agreed to a rehearing in the case; oral arguments are scheduled for September 2020.

    In his complaint, the resident alleged that his next-door neighbor engaged in a months-long campaign of racial harassment, abuse, and threats against him. According to the resident, he contacted police and notified management about the neighbor’s abuse at least three times, but management failed to intervene. Ultimately, the neighbor was arrested and pleaded guilty to aggravated harassment.

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

    After a series of proceedings, a panel of the appeals court reversed, ruling that the resident could pursue his claims against the community for intentional discrimination under the FHA by failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment [Francis v. Kings Park Manor, Inc., New York, December 2019].

    Phil Querin Q&A: Billing Back Sewer Charges to Residents

    Phil Querin

    Answer: Sewer changes are considered a utility. ORS 90.532 ("Billing methods for utility or service charges") provides that, subject to certain exceptions, landlords may provide for utilities or services to tenants by one or more of several alternative billing methods, depending upon the billing "relationship" between landlord and tenant: 1. A relationship between the tenant and the utility or service provider in which the utility provider provides the utility or service directly to the tenant's space, including any utility or service line, and bills the tenant directly; and the landlord does not act as a provider. 2. A relationship between the landlord, tenant and utility or service provider in which the utility provider provides the utility or service to the landlord; the landlord provides the utility or service directly to the tenant's space (or to a common area); and (a) the landlord: includes the cost of the utility or service in the tenant's rent; or (b) bills the tenant for the utility or service charge separately from the rent in an amount determined by apportioning on a pro rata basis the provider's charge to the landlord as measured by a master meter. 3. And lastly, a relationship between the landlord, tenant and utility or service provider in which the utility provider provides the utility or service to the landlord, the landlord provides the utility or service directly to the tenant's space; and the landlord uses a submeter to measure the utility or service actually provided to the space and bills the tenant for a utility or service charge for the amount provided. It appears that No. 2(a) above may currently apply to your situation. In order to "charge back" the residents, I assume you mean charge them directly (outside the base rent) for the cost of the sewer service. Thus, what I understand you to be asking, is whether you can "convert" from 2(a) to 2(b). If your current sewer service is measured by water consumption, and your intent is to separately charge residents a pro rata basis calculated by a master water meter, then ORS 90.532(2(c) applies, which provides that a landlord may not use a separately charged pro rata apportionment billing method for sewer service, if sewer service is measured by consumption of water and the rental agreement was entered into on or after January 1, 2010, unless the landlord was using a separately charged pro rata apportionment billing method for all tenants in the facility immediately before January 1, 2010. By your question, it appears that sewer and water are both included in base rent, at present. Thus, the prorata method (i.e. direct billing for sewer charges outside of base rent) would only be allowed if you already had it in place for all residents prior to January 1, 2010. Unfortunately, it appears that unless you begin submetering your water, you will be unable to separately charge for sewer on a prorata basis outside of your base rent.