Search

On July 26, 1990, President Bush signed into law the Americans with Disabilities Act ("ADA"), The Americans with Disabilities Act Accessibility Guidelines (the "1991 Regulations") were shortly thereafter developed to guide new construction and alterations undertaken by covered entities and established the minimum requirements for "accessibility" for disabled persons in buildings and facilities and in transportation vehicles. After more than twenty years, the Department of Justice implemented new regulations, which became mandatory in 2012 (the "2012 Regulations.") Your state may have passed parallel laws, which could increase the protection of individuals with disabilities, e.g., the Unruh Act in California. However, this article focuses on Federal ADA compliance. Keep in mind that the ADA is a civil rights law, which addresses a number of subjects, but this article focuses on ac- cessibility (no longer called "handicap") issues only.

A mobile home park owner might ask, "How about my pre-exist- ing park, does it need to comply with ADA issues?" Answer: "It de- pends." If your mobile home park pre-dates the ADA statute, and the Park has not gone through any significant renovations (deter- mined on a case-by-case basis), then the park may be "grandfathered in" in most cases. However, there can still be considerations of "reasonable accommodation" and "readily achievable barrier removal" under the ADA that could require a park owner to make modifications to existing structures and to make existing buildings "accessible" to the disabled. There may be no "grandfathering in" under these provisions of the ADA. In addition, if the park has undergone sub- stantial alterations/renovations, this could also trigger ADA com- pliance. A mobile home park owner might also ask "If my park needs to comply with ADA issues, then does the park have to comply with the 1991 Regulations or the 2012 Regulations?" Once again, the answer is "it depends." There is a broad "grandfather" clause that exempts all building elements constructed in compliance with the 1991 Regulations until those elements are subject to a planned alteration.

So--is a mobile home park a "place of public accommodation" or not? The ADA defines a "public accommodation" to be "a private entity that owns, leases (or leases to), or operates a place of public accommodation." Examples of places of "public accommodation" include places of lodging; establishments serving food or drink; places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments; stations used for public transportation; places of public display or collection; places of public recreation; places of public education; social service center establishments; and places of exercise or recreation. Does a mobile home park fit within these descriptions? Based on discussions with ADA experts,the typical mobile home park does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the park's facilities are only open for the sole use and enjoyment of the park's residents, rather than the "general public." In some cases, however, a park's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the pub- lic." In addition, the park's office is necessarily "opened to the pub- lic" as persons, not otherwise residents of the park, are allowed in and, in fact, are invited in to inquire about available spaces and/or mobile homes in the park. One issue which has been "rearing its ugly head" recently in connection with what are referred to as "drive-by" ADA lawsuits is the inadvertent conversion of a "non-public" ac- commodation to a "public" accommodation. For example, if the park clubhouse is not open to the general public, but the park allows the clubhouse to be used as a polling station for elections, or for classes for the local college, or for swimming lessons in the pool, the park may have inadvertently converted the area to a "public" accommodation and will be required to comply with the ADA for the impacted area, e.g., pool or clubhouse. Even the "innocent" re- quest by one person to use the "private" restroom at the management office could trigger thousands of dollars in improvements to make the restroom "accessible".

If the park has "public accommodations" which have "barriers" to "access," then the next consideration is whether the "removal of the barrier" is "readily achievable." Remember that these barriers apply to all sorts of disabilities, including sight and hearing, and not just accessibility for wheel chairs. The ADA generally defines "readily achievable" as easily accomplished and able to be carried out with- out much difficulty or expense. 42 U.S.C.S. _ 12181(9). Federal courts have developed several factors in determining what is "readily achievable": (1) nature and cost of the removal; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and re- sources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including com- position, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relation- ship of the facility or facilities in question to the covered entity. Col- orado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The park however will bear the ultimate burden to prove that the barrier removal is not readily achievable. This will be determined on a case- by-case basis for each individual park. The 1991 Regulations pro- vide examples of steps that may be "readily achievable" according to the Department of Justice.

So, how do you lessen the chance of your park becoming a "tar- get" of an ADA lawsuit? There are no "bright lines" as to whether a park has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent park owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the park has any ADA issues and how they should or could be addressed. California has implemented a Certified Access Specialist ("CASp") training and licensing program, which provides incentives (i.e., some protections from lawsuits) for property owners who conduct a CASP inspection. Another, and more conservative approach would be to simply make sure that all of the park facilities are "ADA compliant," even if, technically and legally, you may not be required to do so. Little things can make a big difference in your park. Examples of ADA compliance include: levers on the entrance doors; levers on bathroom doors and fixtures; bathroom fixtures at proper height; proper bathroom accessories; doorways that accept wheelchair access; bathrooms that accept wheelchair access; counters at correct height for wheelchairs users; alternatives (ramps/elevators) to steps into the clubhouse and office; acceptable transitions (no lips) at doorways (interior and exterior); accessible parking and van access spaces; acceptable transitions (commonly referred to as "curb cuts") to sidewalks at street junctions and accessible parking; and acceptable inclines from parking areas to the park's "public accommodations," to name a few.

Your ADA consultant can walk your park and let you know what facilities do and do not comply with ADA. Making the necessary improvements will be money well spent, and potentially "ward off' ex- pensive litigation, which litigation, in all probability, will not be covered by your general liability insurance policy. You might also want to turn this into a "PR plus" for your park - i.e., tell your res- idents about the improvements after they are done! However, such actions may not be right for every park. The park owner should first discuss ADA considerations with its legal counsel to determine what the right course of action is under the particular circumstances.

In addition, insurance is playing an ever more important role in protection against ADA claims. More and more often, ADA plain- tiff lawyers are adding causes of action for negligence and alleging bodily injury to trigger the potential for coverage under the park owners CGL policies. Our recommendation is to tender any ADA claims to your carrier immediately. In addition, some insurers now offer what is known as "tenant discrimination" insurance, which may pro- tect the park owner in the event of an ADA claim since the ADA claim is a civil rights claim. We suggest all park owners speak with their industry insurance broker about possible insurance protection.

John Pentecost is a partner with Hart, King & Coldren, a law firm located in Santa Ana, California. His practice focuses on representation of mobilehome parks and recreational vehicle parks, as well as park owners, throughout the State of California. He can be reached at jpentecost@hk-claw.com

Reprinted with permission from "The Journal", August 2013

It is fairly common in litigation or disputes involving mobile home tenancies for title to a home to change hands, whether pursuant to a "warehouse lien" authorized by statute after an unlawful detainer (evictions) judgment is obtained against a defaulting tenant, or by reason of a settlement between the parties or a surrender of a home to the park by heirs of a deceased tenant. A park should always ensure that title is properly transferred from a current or former owner to the park pursuant to all applicable laws (e.g., Department of Housing and Community Development requirements in California). Failing to do so runs the risk of problems occurring later. For example, if the park places a new tenant in the newly purchased home, thinking that the park owns the unit but later finds out that it does not have title to the unit significant legal issues can arise. For example, would the park have authority or standing to evict without title? In a scenario where a home has not been transferred properly the park can ordinarily obtain good title by way of an Abandonment Petition (in California at least) if the home is unoccupied. However, by placing a tenant in a recently purchased home, the park could be denied this avenue of transferring title and may have to pay to relocate the new resident. In addition, there is no guarantee that the tenant will cooperate. At the very least a tenant will be very unhappy. Following through and making sure that the park has proper title can save this and other unforeseen headaches. Indeed, as just noted, an eviction might be impaired without proper title documents.

Mobile home residents are often unaware (or uncaring) of the legal problems they can cause a park owner by selling their mobile home without notifying or getting the approval of the park (as most parks require). Such individuals are also likely to fail to transfer title properly. When the new owner defaults on payment of the rent, the failure to transfer title properly can cause an eviction nightmare for the park. One example is having an individual, whose identity is wholly unknown to the park, insert himself or herself as a defendant in an unlawful detainer or (eviction) case even after the case is essentially completed and lockout is scheduled. This individual can claim that he or she is the owner of the mobile home (though not on title) and that park management knew or should have known that he or she was living there and that he or she should have been served with the notice to pay rent or quit. This happens notwithstanding that all legal documents were served on the unit itself, some addressed to "all occupants." If a judge allows this new "stranger" into the eviction lawsuit, further legal fees will be expended to resolve the situation.

Many parks have recreational vehicles (and other "motor vehicles" including boats and dune buggies) in addition to mobile homes, either as residences, for short term stays, or for long term storage. Parks should require and obtain all title and registration information before such vehicles are allowed to stay in the park. Some of these vehicles, for one reason or another, will be abandoned in the park. The law usually does not allow the park to simply discard these vehicles when they are thought to be abandoned. Obtaining court authority or other legal authority to discard or sell abandoned vehicles usually requires pieces of information about them such as the make, model, vehicle identification number and registered owner that are not readily apparent by physical inspection. Getting this kind of information up front can save all sorts of time and expense down the line, including trips to the Department of Motor Vehicles to obtain information. The sooner the park can rid itself of abandoned vehicles, the sooner the park can get back to the business of renting that space in exchange for rent.

The above situations illustrate just a few of the benefits of paying attention to the issue of title and registration. Park owners may not want to be in the business of concerning themselves with title to personal property within the park, but paying attention to title issues can save the park considerable time (and legal fees) in the future.

Bill Dahlin is a partner with the Southern California law firm of Hart King and a leader in the firm's Manufactured Housing Industry Practice Group. He can be reached at (714) 432-8700, (714) 619-7084 (direct dial) or bdahlin@hartkinglaw.com. This article is for general information purposes and is not intended to be and should not be taken as legal advice for any reader.

On July 26, 1990, President Bush signed into law the Americans with Disabilities Act ("ADA"), The Americans with Disabilities Act Accessibility Guidelines (the “1991 Regulations") were shortly thereafter developed to guide new construction and alterations undertaken by covered entities and established the minimum requirements for "accessibility" for disabled persons in buildings and facilities and in transportation vehicles. After more than twenty years, the Department of Justice implemented new regulations, which became mandatory in 2012 (the “2012 Regulations.”) Your state may have passed parallel laws, which could increase the protection of individuals with disabilities, e.g., the Unruh Act in California. However, this article focuses on Federal ADA compliance. Keep in mind that the ADA is a civil rights law, which addresses a number of subjects, but this article focuses on ac- cessibility (no longer called “handicap”) issues only.

A mobile home park owner might ask, "How about my pre-exist- ing park, does it need to comply with ADA issues?" Answer: "It de- pends." If your mobile home park pre-dates the ADA statute, and the Park has not gone through any significant renovations (deter- mined on a case-by-case basis), then the park may be "grandfathered in" in most cases. However, there can still be considerations of "reasonable accommodation" and "readily achievable barrier removal" under the ADA that could require a park owner to make modifications to existing structures and to make existing buildings "accessible" to the disabled. There may be no "grandfathering in" under these provisions of the ADA. In addition, if the park has undergone sub- stantial alterations/renovations, this could also trigger ADA com- pliance. A mobile home park owner might also ask “If my park needs to comply with ADA issues, then does the park have to comply with the 1991 Regulations or the 2012 Regulations?” Once again, the answer is “it depends.” There is a broad “grandfather” clause that exempts all building elements constructed in compliance with the 1991 Regulations until those elements are subject to a planned alteration.

So--is a mobile home park a "place of public accommodation" or not? The ADA defines a "public accommodation" to be "a private entity that owns, leases (or leases to), or operates a place of public accommodation." Examples of places of "public accommodation" include places of lodging; establishments serving food or drink; places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments; stations used for public transportation; places of public display or collection; places of public recreation; places of public education; social service center establishments; and places of exercise or recreation. Does a mobile home park fit within these descriptions? Based on discussions with ADA experts,the typical mobile home park does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the park's facilities are only open for the sole use and enjoyment of the park's residents, rather than the "general public." In some cases, however, a park's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the pub- lic." In addition, the park's office is necessarily "opened to the pub- lic" as persons, not otherwise residents of the park, are allowed in and, in fact, are invited in to inquire about available spaces and/or mobile homes in the park. One issue which has been “rearing its ugly head” recently in connection with what are referred to as “drive-by” ADA lawsuits is the inadvertent conversion of a “non-public” ac- commodation to a “public” accommodation. For example, if the park clubhouse is not open to the general public, but the park allows the clubhouse to be used as a polling station for elections, or for classes for the local college, or for swimming lessons in the pool, the park may have inadvertently converted the area to a “public” accommodation and will be required to comply with the ADA for the impacted area, e.g., pool or clubhouse. Even the “innocent” re- quest by one person to use the “private” restroom at the management office could trigger thousands of dollars in improvements to make the restroom “accessible”.

If the park has "public accommodations" which have "barriers" to "access," then the next consideration is whether the "removal of the barrier" is "readily achievable." Remember that these barriers apply to all sorts of disabilities, including sight and hearing, and not just accessibility for wheel chairs. The ADA generally defines "readily achievable" as easily accomplished and able to be carried out with- out much difficulty or expense. 42 U.S.C.S. § 12181(9). Federal courts have developed several factors in determining what is "readily achievable": (1) nature and cost of the removal; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and re- sources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including com- position, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relation- ship of the facility or facilities in question to the covered entity. Col- orado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The park however will bear the ultimate burden to prove that the barrier removal is not readily achievable. This will be determined on a case- by-case basis for each individual park. The 1991 Regulations pro- vide examples of steps that may be “readily achievable” according to the Department of Justice.

So, how do you lessen the chance of your park becoming a "tar- get" of an ADA lawsuit? There are no "bright lines" as to whether a park has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent park owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the park has any ADA issues and how they should or could be addressed. California has implemented a Certified Access Specialist (“CASp”) training and licensing program, which provides incentives (i.e., some protections from lawsuits) for property owners who conduct a CASP inspection. Another, and more conservative approach would be to simply make sure that all of the park facilities are "ADA compliant," even if, technically and legally, you may not be required to do so. Little things can make a big difference in your park. Examples of ADA compliance include: levers on the entrance doors; levers on bathroom doors and fixtures; bathroom fixtures at proper height; proper bathroom accessories; doorways that accept wheelchair access; bathrooms that accept wheelchair access; counters at correct height for wheelchairs users; alternatives (ramps/elevators) to steps into the clubhouse and office; acceptable transitions (no lips) at doorways (interior and exterior); accessible parking and van access spaces; acceptable transitions (commonly referred to as "curb cuts") to sidewalks at street junctions and accessible parking; and acceptable inclines from parking areas to the park’s “public accommodations,” to name a few.

Your ADA consultant can walk your park and let you know what facilities do and do not comply with ADA. Making the necessary improvements will be money well spent, and potentially "ward off' ex- pensive litigation, which litigation, in all probability, will not be covered by your general liability insurance policy. You might also want to turn this into a "PR plus" for your park - i.e., tell your res- idents about the improvements after they are done! However, such actions may not be right for every park. The park owner should first discuss ADA considerations with its legal counsel to determine what the right course of action is under the particular circumstances.

In addition, insurance is playing an ever more important role in protection against ADA claims. More and more often, ADA plain- tiff lawyers are adding causes of action for negligence and alleging bodily injury to trigger the potential for coverage under the park owners CGL policies. Our recommendation is to tender any ADA claims to your carrier immediately. In addition, some insurers now offer what is known as “tenant discrimination” insurance, which may pro- tect the park owner in the event of an ADA claim since the ADA claim is a civil rights claim. We suggest all park owners speak with their industry insurance broker about possible insurance protection.

John Pentecost is a partner with Hart, King & Coldren, a law firm located in Santa Ana, California. His practice focuses on representation of mobilehome parks and recreational vehicle parks, as well as park owners, throughout the State of California. He can be reached at jpentecost@hk-claw.com

Reprinted with permission from “The Journal”, August 2013

Answer: In a word - No. Or, to be more precise, as discussed below, if you do not renew the lease, it will automatically become a month-to-month tenancy on the same terms as the lease. In other words, your non-renewal will not result in forcing the tenant to vacate the space.

When this law was first being discussed, this issue was addressed. Prior to enactment, there was an open question whether fixed term tenancies [i.e. leases - those with definite start and ending dates] were even legal. From the tenants' perspective, under the manufactured housing landlord-tenant laws, since a landlord cannot terminate a tenancy "without cause," a lease that expires without renewal is the same thing i.e. termination without cause. Accordingly, ORS 90.545 was enacted, which provided protections to tenants against the possibility of unilateral nonrenewal.

Is this unfair to a landlord, such as yourself, when an applicant is approved, ostensibly based upon a satisfactory application, who then becomes the "Tenant From Hell?" Some would say that the landlord's best protection is at the front end of the business relationship, since he/she is given a full and complete opportunity to set out all screening criteria and performing a thorough vetting of the applicant's financial, rental, and criminal background. But once the landlord approves the applicant - presumably because he/she passed the vetting process - they have the right to remain at the space, so long as they don't commit certain material violations, such as nonpayment of rent, breach the rules, rental agreement, state law, or commit certain actions outrageous in the extreme.

Here is how the fixed term tenancy law, found at ORS 90.545 and 90.550, works:

• At least 60 days prior to the ending date of the lease term the landlord must provide to the tenant a proposed new lease, together with a written statement that summarizes any new or revised terms, conditions, rules or regulations.
• The new rental agreement may include new or revised terms, conditions, rules or regulations, if:
• They fairly implement a statute or ordinance adopted after the creation of the pre-existing lease; or
• They are the same as those offered to new or prospective tenants at the time the new proposed lease is submitted to the tenant and for the preceding six-months prior to submission period;
• If there have been no new or prospective tenants during the six-month period, the new lease terms must be same as are customary for the rental market; and
• They are consistent with the rights and remedies provided to tenants under ORS Chapter 90; and
• Do not relate to the age, size, style, construction material or year of construction of the manufactured dwelling [or floating home] contrary to ORS 90.632 (2) (Footnote 1); and
• Do not require an alteration of the manufactured dwelling [or floating home] or alteration or new construction of an accessory building or structure.
• The tenant may accept or reject a landlord's proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.
• Note that if a landlord fails to submit a proposed new rental agreement as allowed, the tenancy renews as a month-to-month tenancy under the same terms as the prior lease, except that the landlord has the right to increase the rent unilaterally, pursuant to ORS 90.600.
• If the tenant fails to accept or unreasonably rejects a landlord's proposed new rental agreement, the fixed term tenancy terminates on the ending date without further notice and the landlord may take possession through the eviction process, assuming the tenant does not vacate the space and remove the home.
• However, if the tenant surrenders possession of the space prior to the filing an eviction, he/she has the right to enter into a written storage agreement with the landlord, and then has the same rights and responsibilities of a lienholder during an abandonment, i.e. pay storage fees, maintain the space, and sell the home within six months [rather than 12 for lienholders]. See, ORS 90.675 (19).

Conclusion. My suggestion is that if your tenant is continually causing problems, paper your file thoroughly, showing the efforts you've made to work with that person. If there are complaints from other residents, document them. Eventually, the tenant will slip up - doing something that gives you the basis for an eviction. If he is a chronic late payer, consider using the three strikes law, found in ORS 90.630(8). Then find a good landlord attorney and discuss the best method to evict the tenant. You will then be armed with good evidence for the judge or jury to show that you walked the extra mile with this person, but they simply refused to cooperate. And remember that although there are restrictions on the contents of the new lease you offer, it may contain provisions that will give you a better foundation for the eviction. Good luck!

Footnote 1: This specific protection was important to the tenant lobby, since until it was enacted, there was an open question as to whether landlords could impose as a condition upon accepting an applicant who was purchasing an older home, that it must be removed upon subsequent resale. In addition, ORS 90.632 was enacted which permits landlords to expressly require that homes be repaired due to damage or deterioration.

Answer:  In a word – No.  Or, to be more precise, as discussed below, if you do not renew the lease, it will automatically become a month-to-month tenancy on the same terms as the lease.  In other words, your non-renewal will not result in forcing the tenant to vacate the space.

When this law was first being discussed, this issue was addressed.  Prior to enactment, there was an open question whether fixed term tenancies [i.e. leases - those with definite start and ending dates] were even legal.  From the tenants’ perspective, under the manufactured housing landlord-tenant laws, since a landlord cannot terminate a tenancy “without cause,” a lease that expires without renewal is the same thing i.e. termination without cause.  Accordingly, ORS 90.545was enacted, which provided protections to tenants against the possibility of unilateral nonrenewal.

Is this unfair to a landlord, such as yourself, when an applicant is approved, ostensibly based upon a satisfactory application, who then becomes the “Tenant From Hell?”  Some would say that the landlord’s best protection is at the front end of the business relationship, since he/she is given a full and complete opportunity to set out all screening criteria and performing a thorough vetting of the applicant’s financial, rental, and criminal background. But once the landlord approves the applicant – presumably because he/she passed the vetting process - they have the right to remain at the space, so long as they don’t commit certain material violations, such as nonpayment of rent, breach the rules, rental agreement, state law, or commit certain actions outrageous in the extreme.   

Here is how the fixed term tenancy law, found at ORS 90.545 and 90.550, works:

• At least 60 days prior to the ending date of the lease term the landlord must provide to the tenant a proposed new lease, together with a written statement that summarizes any new or revised terms, conditions, rules or regulations.
  •  The new rental agreement may include new or revised terms, conditions, rules or regulations, if:
    • They fairly implement a statute or ordinance adopted after the creation of the pre-existing lease; or
    • They are the same as those offered to new or prospective tenants at the time the new proposed lease is submitted to the tenant and for the preceding six-months prior to submission period;
    • If there have been no new or prospective tenants during the six-month period, the new lease terms must be same as are customary for the rental market; and
    • They are consistent with the rights and remedies provided to tenants under ORS Chapter 90; and
    • Do not relate to the age, size, style, construction material or year of construction of the manufactured dwelling [or floating home] contrary to ORS 90.632 (2);[1] and
    • Do not require an alteration of the manufactured dwelling [or floating home] or alteration or new construction of an accessory building or structure.
• The tenant may accept or reject a landlord’s proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.
• Note that if a landlord fails to submit a proposed new rental agreement as allowed, the tenancy renews as a month-to-month tenancy under the same terms as the prior lease, except that the landlord has the right to increase the rent unilaterally, pursuant to ORS 90.600.
• If the tenant fails to accept or unreasonably rejects a landlord’s proposed new rental agreement, the fixed term tenancy terminates on the ending date without further notice and the landlord may take possession through the eviction process, assuming the tenant does not vacate the space and remove the home.
  • However, if the tenant surrenders possession of the space prior to the filing an eviction, he/she has the right to enter into a written storage agreement with the landlord, and then has the same rights and responsibilities of a lienholder during an abandonment, i.e. pay storage fees, maintain the space, and sell the home within six months [rather than 12 for lienholders].  See, ORS 90.675 (19).

Conclusion.  My suggestion is that if your tenant is continually causing problems, paper your file thoroughly, showing the efforts you’ve made to work with that person. If there are complaints from other residents, document them. Eventually, the tenant will slip up – doing something that gives you the basis for an eviction.  If he is a chronic late payer, consider using the three strikes law, found in ORS 90.630(8). Then find a good landlord attorney and discuss the best method to evict the tenant.  You will then be armed with good evidence for the judge or jury to show that you walked the extra mile with this person, but they simply refused to cooperate.  And remember that although there are restrictions on the contents of the new lease you offer, it may contain provisions that will give you a better foundation for the eviction.  Good luck!

[1] This specific protection was important to the tenant lobby, since until it was enacted, there was an open question as to whether landlords could impose as a condition upon accepting an applicant who was purchasing an older home, that it must be removed upon subsequent resale. In addition, ORS 90.632 was enacted which permits landlords to expressly require that homes be repaired due to damage or deterioration.

Answer: Under the Fair Housing Act ("the Act") housing providers including landlords, are required to make reasonable accommodations to the rented facilities and common areas, if requested by a handicapped tenant or their legal occupant ('the requestor").

Landlords are entitled to obtain reasonable information from the requestor in order to assist in determining whether the requested accommodation is reasonably necessary because of the disability. 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 the requestor's disability or the disability-related need for the accommodation. This law also applies to the use of assistance animals.

A "reasonable accommodation" is a reasonable change, exception or adjustment to a rule, policy practice or service that will enable a handicapped person to have an equal opportunity to use and enjoy the rented facilities and common areas. There must be an identifiable relationship between the requested accommodation and the person's disability. Landlords are not required to make requested accommodations if doing so would impose an undue financial or administrative burden upon them or fundamentally alter the nature of the landlord's operations. With respect to a person, a "handicap" means: (a) one with a physical or mental impairment which substantially limits one or more major life activities; (b) one with a record of such impairment; or (c) one who is regarded as having such an impairment. [Juvenile offenders, sex offenders, persons who illegally use controlled substances and those with a disability whose tenancy would constitute a direct threat to others, or result in substantial physical damage to the property of others, are generally not protected under the Act.]

If a landlord refuses a requested accommodation, the requestor is encouraged to have a discussion with the landlord concerning an alternative accommodation. This is a summary only and not intended to constitute legal advice. For more information, landlords, tenants and legal occupants of tenants are encouraged to consult with their attorney or a Fair Housing expert if they have any questions regarding their rights and responsibilities.

My first reaction is that what the resident is requesting is not appropriate for several reasons [and not simply because other residents do not have computers and cannot access Facebook]. Here is a sampling:

• He is asking for information that goes to business/management issues that may not be appropriate for sharing with residents, either because it is not available, it is subject to change, it may not be known, etc. Even if it is appropriate for discussion at the general meetings, I can see this forum moving in the direction of demanding more and more information than management is willing to share. The test for content is, I suppose, whether it would be a topic of discussion at open meetings.
• There should be one time and place for these meetings, and if you are not going to give up open meetings at scheduled times, then the Facebook approach is not only duplicative, but risks creating two lines of communication, one at the public meetings and the other over the Internet. You should limit the meetings to the open forum.
• Anonymity is a dangerous format for questions, since he could simply begin making up his own questions, turning the Facebook forum into an opportunity for his own private inquisition.
• I don't think I would like to see my residents' questions spread across the Internet, for business reasons. Resident meetings are not open to the public, as far as I know. Why would you do so with an Internet forum?
• Clearly, what he wants is not what the other residents want - his request for the accommodation ignores their wishes and your needs as a manager. In other words, it is administratively impossible.
• I'm sure with time I could come up with a host of other objections.

You should, of course, take this request seriously. While you want to briefly explain why you are unwilling to participate in this process, you don't want this to get into a lengthy dialogue on the matter. For example, what if you gave three reasons for declining his request? Then he files a Fair Housing claim, and you then give five reasons? It appears that you just made up two new ones. Accordingly, anything you say should be couched in "Here are some - but not necessarily all - of the reasons I cannot grant your request. The shorter the better. No need to get into a lengthy letter writing campaign.

You should definitely make a counter-proposal for the kind of accommodation you can grant - e.g. have someone take minutes of the open meetings (not recordings). He and everyone else can have the minutes for review. If anyone wants to raise a question or comment about the minutes, they may do so at the following meeting. He can select a proxy - i.e. another resident - to relay his questions and concerns at the meetings he does not want to attend.

Lastly, it appears that the rest of the residents want you present - his demand seems to want to subordinate everyone's needs to his. That is not the concept behind a "reasonable accommodation." It comes from the landlord to the requestor - not from the residents. Granting him what he wants/needs by taking minutes and allowing the proxy, reaches a far better balance for everyone involved. The residents have open meetings and he has access through the minutes and his proxy.

Q: If I am thinking of selling my park, when do I have to send notice to my tenants?
 

A: ORS 90.842 requires an owner to give written notice of the owner's interest in selling the park before an owner markets a park for sale or when the owner receives an offer to purchase that the owner intends to consider, whichever occurs first. If possible, I advise my clients to send the notice before entering into a listing agreement and certainly before actively listing the property. 

This requirement has been in place since 2015 and HB 2364 did not modify it. In the last few years, my experience has been that the statute is triggered mostly when an owner receives an offer to purchase that it intends to consider.

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

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

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

My practice, since 2015 has been to still send the notice to all tenants, even if an owner is aware of a tenants’ committee. This requirement was not changed with HB 2364. The statute did add that the requirement to send the notice to the Housing and Community Services Department must be done “in the manner prescribed by the department by rule.”  At the time of publication, I do not believe this rule has been promulgated; however, at this time, I would send a copy of the notice to the Manufactured Communities Resource Center.

Q: What does the notice have to include?

A: (1) The owner is selling the park; (2) The tenants, through a tenants committee, have an opportunity to purchase the park; (3) In order to compete to purchase the park, within 15 days after delivery of the notice, the tenants must form (or identify) a single tenants committee for the purpose of purchasing the park and notify the owner in writing of: (a) the tenants' interest in competing to purchase the park; and (b) the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase; (4) The representative of the tenants committee may request financial information described in section 2(2) of the statute within the 15 day period; and (5) information about purchasing a park is available from the Housing and Community Services Department.

HB 2364 increased the time from 10 days to 15 days to allow the tenants to respond.

Q: Does 15 days really mean 15 days?

A: The law discusses "delivery of the notice." I advise my clients that all notices should be sent by first class mail and 3 days should be allowed for mailing just as if you were sending a 30-day notice or a 72-hour notice. Certificates of Mailing (Not certified mail!!) for each notice are strongly encouraged. By way of example, if you send the notice on June 1, then the "15 days" would run on June 18.

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

A: If the tenants are interested in competing to purchase the park, within the 15 days, the tenants must notify the owner in writing of their interest in competing to purchase the park, the formation or identification of a single tenants committee formed for the purpose of purchasing the park and the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

In practice, a non-profit entity, like CASA of Oregon, will notify you or your legal counsel of the tenants’ interest in competing to purchase your park. I have found CASA of Oregon to be professional and reasonable with both the manner of delivery of notices and information (electronic mail is preferred). In most cases, you (or your legal counsel) will not be dealing with the tenants’ committee but will be primarily communicating with CASA and their professional advisors.

Q: Do I have to give the tenants my tax returns, SSN and Mother’s Maiden Name?

A: No. But, during the 15 days of delivery of the notice, and in order to perform a due diligence evaluation of the opportunity to compete to purchase, your tenants (through CASA or another non-profit), may request specific financial information which may include: the asking price, if any (this provision contemplates that you may not yet know your asking price when you send your notice); the total income collected from the park and related profit centers, including storage and laundry, in the calendar year before delivery of the notice; the total operating expenses for the facility paid by the owner or landlord in the calendar year before delivery of the notice; the cost of all utilities for the park that were paid by the owner in calendar year before delivery of the notice; the annual cost of all insurance policies paid by the owner as shown by the most recent premium; the number of homes in the park owned by the owner; and the number of vacant spaces and homes in the park. Please note that I have seen requests that ask for additional information; providing information outside of what is outlined above is discretionary. The owner has 14 days to deliver the information to the tenants.

The changes above are three-fold: First, the owner has been given an additional 7 days to pull this information together. In practice, a well-organized owner should have this information all pulled together prior to sending the initial notice so there is no delay.  Second, the statute used to call for the information in the 12 months prior to sending the notice, now it is the calendar year. Figuring out this information across calendar years can be challenging. In practice, an owner may want to give information from the previous calendar year together with a year-to-date snapshot of the income and expenses. CASA may ask for 2-3 years’ worth of information; you are not required to give it, but there is nothing stopping you. Finally, “total operating expenses” were added. My practice has been to provide a P&L or pro forma that you would give to any other seller. Such information would likely exceed your obligations. 

Q:  Is the information protected from disclosure?

A: Yes. The statute allows an owner to designate all, or part of the financial information, as confidential. If the owner designates the financial information as confidential, the parties may establish a list of who can see the information and with whom the information can be shared. In practice, CASA has modified their confidentiality agreement to only allow members of CASA (and their legal and accounting professionals) to see the confidential information. If the confidentiality agreement is breached by the tenants, the owner may recover actual damages from the tenant or tenants.

What happens after I disclose the financial information?

A: Within 45 days after delivery of the financial information (or 45 days after the end of the 15 day period in the unlikely event the tenants do not request financial information), and if the tenants choose to compete to purchase the park, the tenants must: (1) form a corporate entity that is legally capable of purchasing property or associate with a nonprofit corporation or housing authority that is legally capable of purchasing real property or that is advising the tenants about purchasing the park in which the tenants reside; and (2) submit a written offer to purchase the park, in the form of a proposed purchase and sale agreement, and either a copy of the articles of incorporation of the newly formed entity .

The increase to 45 days is a substantial change to the statute. It used to be 15 days. While a bit more onerous, it is less than what was originally being proposed. 

Q: Do I have to accept the offer?

A: No. You may accept, reject, or submit a counteroffer. You should view the tenants (and negotiate with them) as you would any potential third-party purchaser. If the offer is far off or not commercially reasonable, you can reject the offer outright. While not required, I usually advise my clients to explain why it's not doable (e.g., unreasonable financing terms, not enough cash, long closing date, too much many contingencies). If the offer is close to the mark, you may want to counter with terms. In my opinion, the key is to deal with the tenants committee as you would any bona fide purchaser. don't treat them differently just because they are tenants.

Nothing in HB 2364 changed this, although a “good faith and fair dealing” requirement was added in the consideration and negotiation with the tenants group.  (See below).

Q: What if I just don’t want to sell to my tenants because they’re tenants?

A: In my opinion, this was the behavior that the Legislature was trying to address by adding in the “good faith and fair dealing” requirement. One of the problems with “good faith and fair dealing” is that it is not a specific action that can be measured, but an action that a future judge or jury will likely “know it when they see it.” There is no doubt that if an owner decided not to give a group of tenants an opportunity to compete to purchase or decided not to sell to the tenants when the terms were otherwise commercially reasonable (and better than other offers), just because they are tenants, that behavior would violate the statute. The penalty is severe. The owner could be facing a judgment equal to 10% of the purchase price of the facility plus attorney fees.

As you can imagine, as MHCO was attempting to understand what this would mean for owners, we wanted to understand what the intent of the language was. We were able to work with Chair Julie Fahey (now Majority Leader Fahey) to place some helpful language in the legislative record that would assist future owners (and their attorneys) in understanding what was (and was not) “good faith”. 

Chair Fahey’s comments, together with the examples of what is good faith will help any future owner navigate an offer from their tenants.
 

During consideration in the Committee, Chair Fahey was clear in stating that the purpose of the good faith language was not intended to give the tenants a “right of first refusal” nor to give tenants any special advantage over another third-party purchaser in negotiation; rather, the purpose is to strengthen the requirement that facility owners give a fair chance to their tenants to compete to purchase a facility. 

Furthermore, Chair Fahey stated that, “good faith on the part of the parties, both the tenants and any facility owner, is presumed.” A tenant or group of tenants would have to prove that that a facility owner was unwilling to consider an offer from tenants, to negotiate with tenants, or to sell to tenants solely because they are tenants (and no other commercially reasonable factors exists), would violate the statute, as amended.

Additionally, Chair Fahey shared some specific examples of what was acting or negotiating in good faith:

1. After giving the notice required by ORS 90.842, the facility owner enters into a non-binding letter of intent with a separate third-party potential purchaser. That non-binding letter of intent references the facility owner’s duty to consider, in good faith, any offer the tenants may make (this is a common practice, and one I advise my clients on as it allows an owner to move on two tracks). It is very important that the third-party purchaser be aware of and respect an owner’s obligation to consider the tenants’ offer;

2. After receiving an offer from the tenants, the landlord rejects the offer because the material terms of the offer are outside of what the facility owner would consider.  Material terms could include (but are not limited to): price; date of closing, amounts and timing of earnest money deposits; dates of due diligence and contingences and possible effect on date of closing; and whether earnest money is “hard”, or whether the earnest money will go hard; details of contingencies (including financing contingencies);

3. After receiving an offer from the tenants, the landlord rejects the offer because of other extenuating circumstances. Other extenuating circumstances could include (but are not limited to): the potential sale of a facility that would include other consideration besides cash (i.e. stock or property trades);
4. A landlord rejects an offer from the tenants and the landlord provides a rationale for the rejection that is true (please note that the rationale is not necessary, but providing a truthful rationale, is in of itself good faith); and

5. After receiving an offer from the tenants, the landlord makes a counteroffer that is commercially reasonable.

This is not an exhaustive list but provides good guidance on how an owner should consider any potential offer. Again, you should work with your legal professional as you navigate this issue.

Q: What happens if the tenants don't respond within the 15 days or don't respond within the 45 days of me providing financial information?

A: You have no further duties under the statute.

Q: What do I do if I think this process is only being invoked to harass me?

A: Call your lawyer. The parties (including the tenants) are required to act in a commercially reasonable manner. Depending on the conduct (and the ability to establish the conduct and motive) your attorney should be able to develop a strategy to combat poor behavior.

Q: I've entered into a purchase and sale agreement with a separate buyer, and I haven't followed the process. What should I do?

A: Call your lawyer – today.  It may be fixable but failing to follow this process allows affected tenants to obtain injunctive relief to prevent a sale to a third-party purchaser (which could cause you to be in breach with that third party purchaser) and to recover significant penalties. Bottom line is to be aware of your responsibilities and follow the statute.
 

Q: What do I do after I've completed the process?

A: You must file an affidavit certifying that you've complied with the process and that you have not entered a contract for the sale or transfer of the park to an entity formed by or associated with the tenants. The purpose of this affidavit is to preserve the marketability of title to parks. Additionally, there is a requirement that you notify the Housing and Community Services Department who the new owner is.

Q:  Are there exceptions to this statute?

A: Yes. The exceptions are listed in ORS 90.848. The most common exception is any sale or transfer in which the facility satisfies the purchaser’s requirement to make a like-kind exchange under section 1031 of the Internal Revenue Code. In other words, if you receive an unsolicited offer from a potential purchaser who is attempting to satisfy a 1031 exchange you are not required to give your tenants an opportunity to compete to purchase.

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

Question 1:  An applicant and his pregnant wife want to rent an available one-bedroom unit. You’re concerned about potential noise complaints about a crying baby, but you could be accused of discrimination based on familial status if you tell them that the unit is no longer available. True or false?

a.            True.

b.            False.

Answer 1:A

Reason: 

DO Make Housing Available to Families with Children

DON’T Deny Housing Because There’s a Child in the Household

DO Be Careful About Applying Occupancy Standards When a Child Joins a Household

DON’T Penalize Residents for Having a Baby

You could trigger a fair housing complaint for denying housing to the couple by misrepresenting the availability of the unit because they’re expecting a child. The law banning discrimination based on familial status protects pregnant women in addition to families with children under 18.

Question 2:  A couple with twin toddlers asks about available two-bedroom units. There are three available—two on the ground floor and one on the fourth floor. There’s an obvious danger of children falling from balconies, so it’s okay to tell them only about the two ground-floor units. True or false?

a.            True.

b.            False.

Answer 2:  B

Reason: 

DO Tell Prospects About All Units that Fit Their Needs

DON’T Engage in Unlawful Steering Based on Familial Status

Even if acting out of good intentions, you could be accused of violating fair housing law if you tell them about only the ground-floor units. To avoid accusations of unlawful steering, you should tell them about all available units and let them decide where they’d prefer to live.

Question 3:  Most of your residents have lived at the community for many years. Since most are over 55, you are justified under the senior housing exemption to restrict occupancy to adults and to advertise the building as an “adult” community. True or false?

a.            True.

b.            False.

Answer 3:  B

Reason: 

DO Follow the Rules to Qualify for the Senior Housing Exemption

DON’T Adopt or Enforce Adults-Only Policy

DO Focus Advertising on Property, Not People

DON’T Suggest that Children Aren’t Welcome at Your Community

Even if most of your residents are 55 and older, your community would not qualify for the senior housing exemption unless you comply with all of the law’s technical requirements. Otherwise, your community could be accused of denying housing and discriminatory advertising based on familial status.

Question 4:  A community may not be found liable for housing discrimination for applying occupancy standards limiting all units to two people per bedroom. True or false?

a.            True.

b.            False.

Answer: B

Reason: 

DO Be Prepared to Justify Reasonableness of Occupancy Standards

DON’T Apply Unreasonably Restrictive Occupancy Standards

HUD’s two-person-per-bedroom standard is only a general guideline to determine whether a community’s occupancy standards are reasonable under federal fair housing law. Communities may have to allow more than two people per bedroom based on applicable state or local occupancy standards, the size or configuration of the unit, and other factors. According to federal guidelines, an occupancy policy limiting the number of children per unit is less likely to be reasonable than one that limits the number of people per unit.

Example: In September 2019, HUD charged the owners of a Georgia apartment building with violating fair housing law by refusing to rent to, imposing different rental terms and conditions on, and making discriminatory statements about families with children. In their HUD complaints, fair housing advocates and the mother of two minor children alleged that the owners applied a policy limiting the number of children who could reside in their apartments. Allegedly, the owners’ business voicemail recording announced the policy to persons who phoned looking for housing, and their policy allowed only one child in a two-bedroom unit and two children in a three-bedroom unit.

By Angel Rogers, ARM, CCRM – 

                and Presenter at the MHCO Conference.

I am quite certain that I am not the only one who thinks that our industry is changing and evolving at a rapid pace.  Most change is good and supports the basic premise of housing people in a decent environment. Other changes make us out to be the bad guys who sit in our offices gleefully counting our money while preparing eviction notices.   The politics and social media exposure have created confusion for both residents and owners.  How do we continue to provide habitable homes with amazing customer care?  How do we keep up with all the laws and trends? We need to start from within our own organizations. How? By attending the MHCO Annual Conference on October 28th and 29th for a full schedule of learning opportunities.

Continuing education for your employees is one of the most cost effective and morale boosting activities you can provide for them.  Additional training can also be your best defense if you are named in a lawsuit.  For example,  there are no specific sexual harassment training requirements for the state of Oregon.  However, we still recommend sexual harassment training for your Oregon employees. In the wake of the “Me Too ”movement,  numerous states now have mandated harassment training.   We have the added responsibility of complying with the Fair Housing Act.  Keep in mind that Fair Housing bans housing discrimination based on sex.  While the basic rules prevent you from giving preferential treatment to either men or women because of  their gender, the law has evolved to outlaw a broad range of discriminatory practices based on sex. Among them is sexual harassment, a form of sex discrimination which can cost thousands – and in some cases millions- in settlements or court awards, penalties attorney’s fees, not to mention the lasting damage to the reputation of the community, ownership, and management. 

The Fair Housing Act prohibits discrimination in housing based on race, color, religion, sex, national origin, familial status, or disability.  The FHA does not define “sex” but the law coves sex in two ways. The first is the most basic: male vs. female.  In general, it means that you could face a sex discrimination claim for showing a preference for  - or against- either me or women because of their sex. The other, less obvious is about behaviors regarding gender. For example, you could face a sex discrimination claim for rejecting applicants whose behavior doesn’t conform to traditional sex-based stereotypes about how they are supposed to act. And, the FHA’s ban on sex discrimination may apply to some claims for discrimination based on sexual orientation or gender identity.  

This topic is extremely important and relevant to housing professionals as this does not simply apply to employment relationships.  There is an increased national awareness of sexual harassment and there is a significant exposure in rental housing.  Housing providers have a responsibility to prevent sexual harassment.  MHCO is offering a 2-hour session at the Annual Conference on Tuesday the 29th.  We will cover the FHA and the Protected Class of Sex, Define Harassment, Understanding our Unique Customer Relationships, and The Five Major Rules to Follow.

As I stated before, we need to stay ahead of the curve by starting from within our own organizations. We cannot afford to not provide education for our managers.  For example, have you received a complaint from a resident that your manager is rude, demeaning, or uncaring?  Or, have you heard from your managers that the residents are difficult, rude, or demanding?  Or, what about your behavior? All these scenarios may be true, but let’s not forget that at the end of the day, we are expected to act professionally.  Conflict is a part of management.  Conflict is not a bad thing; in fact, it can be a truly positive tool in your professional toolkit if you let it. By taking hard conversations, feedback, and discomfort and transforming it with mediation and compassion you can grow in ways you never imagined. Most people don't like conflict and those who do like it are often overly combative. But what if you could face conflict without fear or aggression?   As leaders we cannot avoid conflict all together, it is a natural part of life and business. Join us on Tuesday the 29th for this informative session.  This session will go hand in hand with “Managing the Managers” on the 28th. 

Speaking of managing managers, how many of you are working with a multigenerational work force? Have you ever rolled your eyes while muttering the word “millennial”, or “boomer” under your breath? Are you perplexed why people of ages other than yours simply do not understand you? You are not alone! Understanding differences between the generations is fundamental in building a successful multigenerational workplace. Each generation has particular experiences that have molded their beliefs, expectations, and work style.  Since good business is based on understanding others, it may be time to be open and  embrace our differences. Join us on Monday for an hour of fast-paced and humorous examples of how we can all just get along!  

I will forever be an advocate for continuous education for our industry.  I  am proud to be a part of the MHCO Annual Conference as this gathering of industry professionals offers opportunities to further our knowledge, network, and make a positive impact in the communities we serve. See you on the 28th!