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1. ADVERTISING. Advertising is one of the most common ways landlords find people to place in rental properties. When advertising, landlord clients should describe property attributes and/or amenities, not what they are or are not looking for in a resident. Landlords should not say "great for a young couple" as it may be considered discriminatory to families with children. Nor should landlords say "safe" or "exclusive" as this may imply they only rent to certain groups. At the end of the advertisement, landlords should use either the fair housing logo or a disclaimer such as "This community does not discriminate on the basis of race, color, religion, national origin, sex, disability or familial status." Photographs need to be carefully considered before use in advertising and only after speaking with an attorney.

2. STEERING. "Steering" occurs when a landlord attempts to direct a resident, for whatever reason, to a specific area of the property. To help avoid claims of "steering" by a prospective resident, landlords should show all available properties to prospects, let the prospect decide what to see and what to skip, and finally present only facts about the property and the community, not about other residents or neighbors. Landlords should never say "you would really like this particular apartment because it is nice and quiet with few children around", or "there are lots of other children in the same age group as your own" as both statements may be considered a violation of fair housing law. Failing to show a handicapped person the recreational areas (on the assumption the prospect would not use those facilities) may create potential liability. However, if a prospective resident expressly states they are not interested in seeing a specific area it is okay to skip that area. Even if asked, landlords should never comment on the "types" of persons who live in the community.

3. SCREENING/APPLICATIONS. Fair housing claims arise frequently as a result of the application and screening process. Landlords should have a written rental policy detailing the criteria necessary for approval to live in their property. The rental policy should include occupancy guidelines, availability policy, rental criteria (i.e. employment history/income, credit standards, etc.) with an explanation of what the criteria are, an outline of the application process and that your client adheres to all applicable fair housing laws. Questions included on the application should not ask about physical or mental disabilities, and landlords should limit questions about drug/alcohol use and lawsuits. Asking questions regarding prior evictions, prior money judgments, bankruptcy and why prospective residents are leaving their current landlord are acceptable and may provide important information. Once a written policy is created, the landlord should expect strict adherence and compliance with the written policy. Additionally, landlords need to keep good records of each applicant or inquiry. However, if an applicant requests a deviation from the written policy based on a disability, the landlord should consult you immediately before making a decision.

4. OCCUPANCY STANDARDS. In 1996 Congress enacted a law based upon a 1991 HUD memo stating that a 2-person-per-bedroom occupancy standard was acceptable in most situations. This is by no means a hard and fast rule with regard to the number of occupants for a particular residence. This figure can change depending on how the property is laid out. More occupants may be allowed if there are unusually large living spaces or bedrooms, and fewer occupants if the opposite holds true. Many fair housing experts believe that infants do not count when calculating occupancy standards.

5. APARTMENT RULES. It is absolutely acceptable for a landlord to have a set of "house rules" for all residents to live by. The house rules should be basic and non-discriminatory. Rules should be written so they are applicable to all residents and not just specific groups of residents. Rules stating "Children shall not roughhouse in the hallway" may be discriminatory. Using general terms such as "Residents or guests" should keep the rule unbiased, fair and applicable to all residents. Rules must be enforced uniformly against all residents and records regarding rule violations need to be kept. The records should include the time/date and manner of the violation, how the landlord became aware of the violation and what actions were taken to enforce the rule. As a special note, pool rules should be carefully scrutinized to insure they do not discriminate against children. A rule saying "no children under 4 in the pool area" is discriminatory, while a rule saying "children under 12 must be supervised by an adult over 18" is likely not discriminatory. As always, landlords should consult you for specific state or local laws on these issues as well.

6. REASONABLE ACCOMODATION. A reasonable accommodation is at the resident's request and when a client voluntarily makes exceptions to their standard rules/policies to accommodate the resident's disability. The requested accommodation must be reasonable and should not present an undue burden on the landlord. If the accommodation is not reasonable or if it would impose an undue hardship on the landlord, the request may be denied. If the request is denied a letter should be sent to the resident explaining the denial, the facts behind the denial, how those facts were discovered and offering to meet with the resident. Landlords should not offer to make an accommodation to a resident but should wait for a resident to request the accommodation. Offering an accommodation before it is requested may subject your client to a claim of discrimination.

7. REASONABLE MODIFICATION. This should not be confused with a reasonable accommodation. Landlords may require a resident to pay for modifications to the property and require that those modifications be removed when the resident vacates the property. If the modification were for something that federal law already requires a landlord to have in place then the landlord would be responsible for the cost of the modifications. Landlords should check with you to determine where financial responsibility for common-area modifications lay, and whether the resident would be responsible for both the installation and removal of the modifications. As with accommodations, the modifications must be reasonable.

8. RECORD KEEPING. Landlords need to keep records on all prospective residents, in addition to current/past residents. Landlords can create a system of guest cards or logs with relevant information (i.e. date/time of visit, properties shown, prospective move-in date, etc.) as well as a log of all calls made by prospective residents, even if the resident never comes to see the property. Records regarding available properties also need to be kept and updated every time there is a change in availability. Additionally, all applications should be retained, even if the applications were rejected or withdrawn. Landlords should contact you regarding how long the records should be saved in order to comply with changing requirements in federal and state law, as well as what types of records to maintain. Being able to produce consistent records showing nondiscriminatory application of written screening criteria in every case can usually successfully defend a Fair Housing claim.

9. EMPLOYEE TRAINING. Landlords need to ensure that there is a written policy to avoid claims for harassment, particularly sexual harassment. Every time a new employee joins the staff there should be a training meeting about fair housing laws and how to comply with them. The meeting should include copies of all memos regarding policies about how to comply with fair housing, what can happen to the landlord for a violation and what will happen to the employee who violates fair housing.

10. EVICTION. Landlords should not be afraid to evict a resident for legitimate reasons because of a fear of a fair housing violation claim. The rules set by the landlord apply to all residents equally. When contemplating an eviction for other than non-payment of rent advise your client to ask themselves the following two questions: (1) Has there been a serious violation of the lease agreement? (2) Do you and have you evicted other residents for the same type of problems or behavior? If the answer to these questions is yes, then an eviction would be warranted under the circumstances. Resident files should contain records of all complaints against the resident and what has been done in response to each of the complaints. HUD has historically looked for five types of documentation when dealing with fair housing claims. Landlords should document and include in resident files the following information: (1) warning letters/eviction notices, (2) written complaints by third parties, (3) written logs kept by management, (4) police records and (5) photographs. Resident file documentation needs to be consistent for all residents. This documentation may prove there was a legitimate reason, unrelated to any fair housing claims, for evicting the resident.

All information contained in this article is consistent with the Fair Housing Act (42 U.S.C.A. 3601 et seq.) Information was also obtained from the Federal Housing and Urban Development website ( http://www.hud.gov).

Kristi Bunge is a partner with the law firm of Springman, Braden, Wilson & Pontius, PC in Denver, Colorado, a firm that handles more than 500 evictions each month. Ms Bunge focuses on representing landlords in eviction and collection matters. Ms Bunge also represents property managers and Associations, advising them on Community Association issues.

Your "Screening Criteria" is another important document that should be provided to an interested applicant. This is the document that will determine where you draw the line between acceptance and denial. Your "Screening Criteria" is a written statement of the factors the landlord considers in deciding whether to accept of reject an applicant and any qualification required for acceptance. What can you have on that list? That is up to you. Here is a brief list to get you started: unsatisfactory rental references, the absence of any prior tenant history or credit history, unsatisfactory character references, criminal history, bankruptcy filed in the past two years, payment of rent problems, no social security number, and inaccurate information on the application, insufficient debt to income ratio. All of these are reasons for denial - it is up to you establish them as a basis for acceptance into you community. For example - maybe you accept applicants with felony conviction that are 20 years or older - it is up to you to include that on your screening criteria.

Remember to apply your criteria uniformly in all applications. Do not make exceptions. The question of whether you denied one person and accepted another could be tied to a potential discrimination case. Save yourself the agony of these situations - write a "screening criteria" and apply it uniformly. Used properly and consistently it can be a tool that keeps you above any suspicion of discrimination. The one limit on your screening criteria is that you cannot deny residency to anyone because of his or her race, color, sex, handicapped status, familial status, national origin or sources of income. However, you can deny tenancy to anyone - even if they are in a protected class - if they do not meet any of the minimum criteria that you establish in your screening criteria. Often potential applicants will "self screen" themselves by reading your "screening criteria" and realizing that they do not qualify, thus saving you and the potential applicant time and energy.

Screening/Admission Criteria: All applicants should be presented with a full explanation of the established basis for acceptance or rejection. This should be a written statement of any factors a landlord considers in deciding whether to accept or reject an applicant and any qualifications required for acceptance. This may include:

• Unsatisfactory rental references
• Applicant must be 18 years or older
• Provide two pieces of identification, one with each applicant's photo from a government office (i.e. Driver's License, State ID Card, Passport) and Social Security Card
• Be gainfully employed or have verifiable income from retirement, social security or periodic income.
• If the community is either an "age 55 or older" or an "age 62 or older" Community, you must provide proof that you meet the age requirements
• The absence of any prior tenant history or credit history
• Unsatisfactory credit history
• Unsatisfactory character references
• Any criminal history
• Insufficient income to reasonably meet the monthly rental and other expense obligations
• Presence of pets or the number, type or size of pets
• Evidence that the prospective tenant has provided landlord with falsified or materially misleading information on any material items
• If the prospective tenant refuses to sign a new written rental agreement or lease agreement
• The number of additional occupants
• Adverse information contained in the public record

Additional criteria that may be added to qualify could include:

• Minimum two-year verifiable references with previous landlords
• No payment of rent problems over the past two years
• Two years of verifiable employment
• No criminal convictions
• No tax liens
• Sufficient income to pay all outstanding obligations after payment of rent
• Any individual who is a current illegal substance abuser, or has been convicted of the illegal manufacture or distribution of a controlled substance will be denied tenancy
• Any individual or pet/animal whose residency would constitute a direct threat to the health or safety of other individuals.
• If pets are permitted they must meet the requirements of state and local laws, ordinances, and the Community in regards to number, size and breed. Farm animals, exotic and/or wild animals, livestock and certain breeds of dogs. You should list breeds of dogs that are not allowed in your community
• You may want to set a percentage of net-income that should be left over after meeting all financial obligations.
• Homes must be owner occupied - no subleasing

You MUST post your community's screening criteria publicly in the office and provide written copies to all prospective residents.

Remember to apply your criteria uniformly in all applications. Do not make exceptions! Once you make an exception for one of your criteria you are opening up the possibility of future problems. You will be in the awkward position of having to explain why you made the exception to one applicant and not to another applicant. The question of whether you denied one person and accepted another could be tied to a potential discrimination case. Save yourself the agony of these situations and do not make exceptions to your screening criteria. Take the time to put your screening criteria in writing to protect yourself and provide prospective residents with a copy so that they can have the necessary information upon which to make a decision.

Remember - you cannot deny residency to anyone because of his or her race, color, religion, sex, handicapped status, familial status, national origin or source of income. However, you can deny tenancy to anyone - even if they are in a protected class - if they do not meet any of the minimum criteria.

For example: If someone applies for a space in your park and reveals that they are Catholic and have a bad credit record you cannot deny tenancy based on the fact that the individual is Catholic. However, you may deny the tenancy based on the fact that the prospective tenant has bad credit so long as the minimum screening criteria have been consistently applied.

Tell the applicant that you require a certain amount of time to screen the completed application, but that they will be notified within seven days, in accordance with Oregon law. This will give you the opportunity to complete credit and criminal checks, determine the condition of the home for pre-sale or move-in requirements, check employment and personal references; and get information about current and past tenancies.

Example: Landlord/Community
Screening or Admission Criteria

General Requirements:

1. Positive Identification with photo ID
2. A complete and accurate application. Incomplete applications will not be processed.
3. Applicant must be able to enter into a legally binding contract
4. Any applicant currently using illegal drugs or reporting a conviction for the illegal manufacture or distribution of a controlled substance will be denied.
5. Any individual who may constitute a direct threat to the health and safety of an individual, complex, neighborhood, or the property of others will be denied.
6. An application insufficient in credit and rental requirements shall require an additional security deposit equal to 50% of stated rental amount, over and above any other security deposit or additional security deposit required.
7. Applicants may qualify individually, however no person may reside in the property if they do not meet the general requirements of (3), (4) and (5).
8. In order to qualify as a co-signer you must meet all the general requirements and have a monthly income of five times the stated rent.
9. Proof of ownership of the home.

Income Requirements:

1. Gross monthly household income should be equal to two and half time the monthly rent
2. A current pay stub from your employer will be required if we are unable verify income over the phone. If you are unemployed you must have income or liquid assets equal to two and half time the annual rent. Self employed individuals will be required to show the previous year tax return and employment will be verified through the state. A recorded business name or corporate filing will suffice.
3. If applicant does not earn enough income to reside in the property then a co-signor will be required.
4. Your application will be denied if we are unable to determine you earn a legal source of income.

Rental Requirements:

1. One year of rental history or mortgage history verifiable by a third party is required. Current or previous mortgage history showing late payments will require an additional deposit of one month rent.
2. Eviction free rental history is required.
3. Rental history from a non-third party will require an additional deposit of one month rent or a cosignor.
4. Rental history with past due rent or an outstanding balance will be denied.
5. If previous landlord fails to give a reference or give a negative reference application will be denied.
6. Three (3) or more 72 hour notices within a one year period will result in denial.
7. Three (3) or more NSF checks within a one year period will result in denial.
8. Rental history demonstrating disruptive complaints or neglect will result in denial.

Credit Requirements:

1. A credit history with negative reports will not be accepted. A negative report is considered an non medical item 60 days past due or greater, collections, repossessions, liens, judgments or garnishments. Negative credit will result in additional guidelines as follows
   1. A credit report containing a discharged bankruptcy will require an additional deposit of one month's rent or co-signor.
   2. 1-2 items 60 days past due or greater, collections, repossessions, liens judgments or garnishments will require an additional deposit of one month's rent or co-signor.
   3. 3-5 of the items above will require an additional one and half time security deposit.
   4. 6-8 of the items above will require an additional one and half time security deposit plus a cosignor.
   5. 9 or more will result in complete denial

Criminal:

Upon receipt of the rental application and a screening fee, Landlord will conduct a search of the public records to determine whether the applicant or any proposed tenant has been convicted of, or pled guilty to, or no contest to, any crime.

1. A conviction, guilty plea, or no-contest plea, ever for: any felony involving serious injury, kidnapping, death, arson, rape, sex crimes/ and or child sex crimes, extensive property damage, or drug related offenses (sale, manufacture, delivery, possession with intent to sell) A/ Felony burglary or class A/ Felony robbery or;
2. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last seven years for any; felony charges or;
3. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last seven years for; any misdemeanor or gross misdemeanor involving assault, intimidation, sex related, drug related (sale, manufacture, delivery or possession), property damage or weapons charges; or
4. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last three years for; any class B or C misdemeanor in any of the above categories or any misdemeanors in the above categories or any misdemeanors involving criminal trespass I, theft, dishonesty, prostitution shall be grounds for denial of the rental application. Pending charges or outstanding warrants for any of the above will result in suspension of the application process until the charges are resolved. Upon resolution, if the desired unit is available, the application process will be completed. Units will not be held awaiting resolution of pending charges.

Denial Policy:

If you applicant is being denied to adverse and negative information being reported, you should:

1. If it is credit related, contact the credit reporting agency listed in the denial letter in order to:
   1. Identify who is reporting negative information about you
   2. Request a correction if the information being reported is incorrect.

Remember - the "Ideal Resident":

1. Pays the rent on time.
2. Keeps the outside of the manufactured home and the space in a clean and well maintained manner.
3. Does not litter, damage or destroy community property.
4. Does not disturb the neighbors.

The key to identifying the "Ideal Resident" is a thorough and complete processing of the rental application and the supplemental verification forms, combined with a personal interview of the prospective tenant. "Snap judgements" or a "hurry to rent the space" must be avoided.

Used properly and consistently, the Rental Application and supplemental verification forms will prove helpful in countering charges of discrimination in renting spaces. The application should be used in conjunction with a personal interview of the entire household, which can reveal characteristics that do not come through on the written application. In order to protect yourself against claims, you must adopt and consistently follow specific guidelines and procedures by which each and every application is reviewed. The "Resident Acceptance Policy" will assist you in documenting the basis for your acceptance or rejection of each application. It is a good idea to maintain all rejected applications and supporting information for a period of at least three years. Tenant screening is a very important part of community management and it should not be done without reason and consistency. Tenant screening cannot be based on your personal feelings or emotions.

A thorough screening is your best resource for finding good residents. Current residents in surrounding home sites will feel more secure knowing their neighbors have also been screened. 

Answer:  Disclaimer: Certain folks, especially those of the regulatory bent, will likely disagree with my answer.  The reason stems, I believe, from one of four sources: (a) Rigid (some might say “stubborn” or “dogmatic”) adherence to a law or regulation, regardless of how illogical and silly it may be; (b) A belief that everyone is a victim, and deserves to pampered and coddled even in the face of obvious evidence they are gaming the system; (c) Political correctness run amok; or (d) A combination of some or all of the preceding causes.

I admit I am one of those folks who have watched in disbelief as some residents have taken the most outlandish positions in an effort to keep a pet they know full well violates the community rules.  I recently saw a situation where a new tenant, knowing that the community did not permit pets, moved in and promptly moved her large dog in to live with her, having paid to get the necessary sham certifications and paperwork online, no questions asked. 

 Here are some general rules:

• The Americans with Disabilities Act, or “ADA” does not apply to private residential housing – only public accommodations. 
• ORS 659A.143 governs the use of assistance animals in public accommodations.  The rules seem rational and reasonable, but technically do not directly apply to private housing.
• The Fair Housing Act applies to the use of assistance animals in housing.
• HUD has set out the issues to be vetted for a landlord to make a determination whether to grant a resident the right to have an assistance animal.
• Assistance, emotional support and service animals are not pets, and accordingly, pet rules do not strictly apply (such as requiring pet deposits).
• Service animals (or “assistance animals” under Oregon’s definitions) are required to be certified as such. Not so for emotional support animals. Nevertheless, all such animals are to serve the disability of the requesting resident. But getting a doctor’s letter, or that of another person in the medical profession is not that difficult.
• You do not have to accept just any animal as an assistance animal.  If it requires some additional cost to the landlord, it is not required. (See, HUD article here.)

Here is what HUD says in the above article (HUD footnotes omitted):

“For purposes of reasonable accommodation requests, neither the FHA nor Section 504[1] requires an assistance animal to be individually trained or certified.  While dogs are the most common type of assistance animal, other animals can also be assistance animals.

Housing providers are to evaluate a request for a reasonable accommodation to possess an assistance animal in a dwelling using the general principles applicable to all reasonable accommodation requests. After receiving such a request, the housing provider must consider the following:

1. Does the person seeking to use and live with the animal have a disability - i.e., a physical or mental impairment that substantially limits one or more major life activities?

1. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?

If the answer to question (l) or (2) is "no," then the FHA and Section 504 do not require a modification to a provider's "no pets" policy, and the reasonable accommodation request may be denied.

Where the answers to questions (1) and (2) are "yes," the FHA and Section 504 require the housing provider to modify or provide an exception to a "no pets" rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider's services. “(Emphasis added.)

The Fair Housing law basically requires that if one has a disability, they may request that their landlord grant them a “reasonable accommodation” – that is, an exception to the community rules, allowing the resident permission to do that which is otherwise prohibited. 

Thus, size limits don’t strictly apply. And occasionally, residents attempt to have a second pet, claiming that it isn’t a “pet,” but an assistance animal.  However, here is where the line blurs. How far does the landlord have to bend to accommodate residents, especially in those situations where the resident is gaming the system?

MHCO has forms for dealing with requests for reasonable accommodations, whether they be a non-compliant animal, or some other issue, such as an additional parking space, etc.  First and foremost, I suggest following the same protocols in all cases, from the legitimate to the illegitimate.

Secondly, I suggest following the 3-prong test (besides cost, which doesn’t really apply in most cases) as follows:  Would granting of the request endanger the Health, Safety, or Welfare of other residents or guest in the community.  If the resident, for example, asks to have a pit bull as an assistance animal, it is not altogether unreasonable, after vetting the dog’s demeanor, socialization, etc., to propose another less aggressive animal as a “reasonable accommodation.” 

Third, for such breeds with known vicious propensities, you should check with your liability insurance carrier to see if they have a short list of animals they will not insure if there is an attack.  If the carrier says that animal is on that short list, then you should propose another less aggressive animal. In discussing this with the Fair Housing Council of Oregon while drafting the reasonable accommodation request portions of MHCO’s form, they acknowledge the financial burden exception – however, suggested another step, i.e. finding an insurance carrier that would insure such aggressive animals if it was not overly expensive for the landlord to do so. I will leave extra step for discussion with your own attorney.

Then there are cases in which the request is clearly a ruse to get a pet approved as an assistance animal, when and it is clear to any reasonable person, it is a ruse.  You will have to decide on your own, or with the assistance of your attorney, how to proceed.  If, after giving the resident the MHCO form to complete, you are satisfied that it is a ruse, you are going to have to decide whether to call their bluff, or relent. If you relent, you will have done so only after requiring them to complete the necessary paperwork. However, be prepared for more copycats - pardon the pun.

1. If the tenant, in violation of the rental agreement, keeps on the premises a pet capable of causing damage to persons or property, the landlord may deliver a written notice specifying the violation and stating that the tenancy will terminate upon a date not less than 10 days after the delivery of the notice unless the tenant removes the pet from the premises prior to the termination date specified in the notice. If the pet is not removed by the date specified, the tenancy shall terminate and the landlord may take possession in the manner provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings).

1. For purposes of this section, a pet capable of causing damage to persons or property means an animal that, because of the nature, size or behavioral characteristics of that particular animal or of that breed or type of animal generally, a reasonable person might consider to be capable of causing personal injury or property damage, including but not limited to, water damage from medium or larger sized fish tanks or other personal injury or property damage arising from the environment in which the animal is kept.

1. If substantially the same act that constituted a prior noncompliance of which notice was given under subsection (1) of this section recurs within six months, the landlord may terminate the rental agreement upon at least 10 days written notice specifying the breach and the date of termination of the rental agreement.

1. This section shall not apply to any tenancy governed by ORS 90.505 (Definition for ORS 90.505 to 90.840) to 90.840 (Park purchase funds, loans). [Formerly 91.822; 1995 c.559 §28; 1999 c.603 §25]

While I suppose there is an argument that this statute doesn’t apply, since it pertains to “pets,” I believe that argument begs the question, since it is your position that these are pets disguised as “assistance animals.” If the resident believes you’re prepared to commence an eviction proceeding, perhaps they will relent.  If not, the judge can decide. Of course, be prepared for the resident to bring in some doctor, chiropractor, or therapist, to claim the resident needs the animal for some protected purpose. 

If the animal is dangerous, I strongly believe you are correct to take the issue to the mat, since doing nothing could result in injury to a resident or guest, and you can be sure you will then be accused of permitting the animal to remain when you should not have. Unfortunately, these issues can become expensive, and there is no assurance of victory in court.

It is possible for you and your attorney to develop some type of agreement which closes the loophole that is occurring at your community.  I can envisage language that with the proper recitals and provisions, would give you more protection than you now have.  However, as we know, until the matter is litigated, you’ll never know if the form is bullet-proof.  But having it in place is probably better than where you are now, and would likely make a resident think twice about trying to play the “support animal” card, if the agreement expressly says the animal is a pet and that was the sole reason for their wanting it.

The take-away here is that landlord must deal with reasonable accommodation requests on a case-by-case basis. Each set of facts are different. Not long ago I had a park client who refused a reasonable accommodation request, because it was too outlandish. A complaint was filed with BOLI, and we butted heads for a while. Eventually, BOLI relented, largely because the resident was too unreliable. Landlords must remember to pick their shots. Some principles are worth defending, and others not. In this case we believed that the issue was worth defending, to send a message to the tenant, and others who might be waiting to see the outcome, before they stepped up to test the landlord.

Lastly, there are indications that HUD may be tightening the definitions and loopholes so that landlords do not continue dealing with either gamesmanship, or accepting the risk of a dangerous breed, just to avoid a fight.

[1] Section 504 of the 1973 Rehabilitation Act was the first disability civil rights law to be enacted in the United States. It prohibits discrimination against people with disabilities in programs that receive federal financial assistance, and set the stage for enactment of the Americans with Disabilities Act. Section 504 works together with the ADA and IDEA to protect children and adults with disabilities from exclusion, and unequal treatment in schools, jobs and the community. [See link here.]

Fair Housing Testing - a tool used by enforcement officials and private fair housing organizations to ferret out unlawful housing discrimination. 

Fair housing testing involves paired testers—individuals with similar credentials but of different protected classes—who may contact your community by email, phone, your website, or by a site visit to check for differences in how they’re treated based on their race, national origin, or any other characteristics protected under federal, state, or local law.

Should you be worried that you could be targeted for fair housing testing? Not if you’re prepared—by ensuring your policies comply with fair housing law, treating all prospects fairly and consistently, thoroughly training your employees, and monitoring compliance on your own. Since it’s unlikely that you’ll know when an email, phone call, or a visit from a prospect is really from a fair housing tester, your best bet is to treat everyone contacting your community as if he or she is a fair housing tester.

In this issue, we’ll explain how fair housing testing works—and suggest seven rules to avoid problems if your community is ever subjected to fair housing testing. 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 because of race, color, religion, sex, national origin, familial status, or disability. In addition, many state and local fair housing laws ban discrimination based on source of income, sexual orientation and gender identity, and other characteristics.

HUD and the Justice Department are the federal agencies charged with enforcing the FHA; in states and local governments with fair housing laws substantially equivalent to the FHA, officials in those jurisdictions handle federal as well as state and local discrimination complaints. The law also allows individuals and private advocacy organizations to file a HUD complaint or file a lawsuit directly in federal court.

HUD continues to provide millions in funding to support a wide range of fair housing enforcement, education, and outreach activities. Earlier this year, HUD awarded $16.5 million to support dozens of fair housing organizations working to confront violations of fair housing law. These new grants are on top of the $23 million awarded by HUD to existing fair housing organizations last winter. Among other things, these grants allow the groups to provide fair housing enforcement through testing in the rental and sales markets, to file fair housing complaints to HUD, and to conduct investigations.

“HUD’s efforts to fight housing discrimination are force multiplied by local fair housing organizations across the country,” HUD Secretary Ben Carson said in a statement. “These grants allow our partners to carry out the important work of rooting out unfair policies and practices and enforcing our nation’s fair housing laws.”

Meanwhile, the Justice Department has its own fair housing testing program to identify and challenge cases involving a pattern or practice of housing discrimination. According to the department, the vast majority of lawsuits filed based on testing evidence involve allegations that individuals misrepresented the availability of rental units or offered different terms and conditions based on race, national origin, disability, or family status.

Fair housing testing may be triggered by a variety of circumstances. In complaint-based testing, it’s used to verify whether an individual who claims a particular community discriminated against him based on his race or other characteristic, has a legitimate complaint. If the results of testing support the individual’s claim, then the evidence gathered may be used in court or enforcement proceedings.

Example: In August 2019, the Fair Housing Center of Central Indiana (FHCCI) announced a settlement of a complaint alleging that a real estate management company’s occupancy policy at properties in Indiana and Illinois discriminated against families with children.

According to the complaint, it all started with a phone call by an Illinois woman looking for a two-bedroom unit at one of the company’s properties. Allegedly, a leasing agent told her that two-bedroom units were available, but upon learning that that she would be living there with her spouse and three children, the leasing agent allegedly said that a family of five couldn’t live in a two-bedroom unit and refused to even schedule an appointment for a viewing.

The woman contacted HOPE Fair Housing Center, a private fair housing organization, which launched an investigation into the community’s policies. A tester posed as a married woman seeking a two-bedroom apartment for her family of two adults and three children. Allegedly, an employee told her that the community couldn’t rent a two-bedroom unit to more than four people because of “fair housing laws.” That lead to a broader investigation involving fair housing testing at four other properties managed by the company in Illinois, allegedly yielding similar results.

During the course of its investigation, HOPE contacted the FHCCI to similarly investigate company’s properties in Indiana. Allegedly, FHCCI’s testing indicated that the company enforced the same two-person-per-bedroom policy in Indiana as the woman and HOPE encountered in Illinois.

The advocacy groups filed a HUD complaint, accusing the company of systemic discrimination against families with children by enforcing an occupancy policy of no more than two people per bedroom in each apartment, regardless of the unit’s square footage or whether that unit has a den, office, loft, or other feature that could provide an additional bedroom or living area for a child. HUD didn’t make a determination as to the validity of the allegations.

The company denied any wrongdoing but agreed to settle the case. Under the settlement, the company agreed to pay $60,000 in costs and damages, to change their occupancy policy so that the policy is no more restrictive than the applicable local occupancy code, and to train their employees and agents on fair housing laws and responsibilities, along with other terms to ensure compliance with fair housing laws.

Sometimes, testing isn’t triggered by a complaint, but conducted as part of a larger fair housing investigation. Testing may be initiated by a fair housing organization on its own or at the behest of federal, state, or local enforcement officials to check whether discriminatory policies or practices are a problem at one or more communities within a geographical area.

Example: In August 2019, a Virginia community agreed to settle a lawsuit brought by the ACLU, the ACLU of Virginia, and Housing Opportunities Made Equal of Virginia, Inc. (HOME), alleging that its criminal background screening policy discriminated against people on the basis of race.

The case dates back to 2017 when HOME conducted a series of tests to assess the types and severity of the barriers individuals with criminal histories face when seeking housing in Virginia. As part of this effort, the complaint alleged that HOME investigated the criminal records policy maintained at the community, including by reviewing application materials and conducting testing. 

According to the complaint, HOME conducted a series of tests, including phone calls and site visits involving HOME workers who posed as a potential tenant with a felony conviction applying for housing at the community. In each instance, an agent allegedly told the tester that because of the felony conviction, the tester’s application would automatically be rejected. 

Under the settlement, the community agreed to change its criminal record screening policy. The revised policy considers only specific categories of offenses, excludes misdemeanor convictions, and doesn’t treat people differently based on whether the applicant is on probation or parole. The policy also ensures individualized consideration for every applicant, allowing a prospect to share information as part of the application review process, including the facts or circumstances surrounding his criminal conduct, proof of rehabilitation efforts, and evidence of a good tenant or employment history before or after the conviction or conduct.

Also, as part of the settlement, the community agreed to train employees in fair housing and make a $15,000 donation to HOME to continue HOME’s systemic work to uncover and address housing discrimination. The community also will pay damages and attorney’s fees related to the matter.

7 RULES FOR BEING PREPARED FOR FAIR HOUSING TESTERS

Rule #1: Treat Everyone as a Possible Fair Housing Tester

On any given day, you’re likely to have many interactions with prospects, including phone calls, email inquiries, Internet communications, or visits to your community. They may be inquiries about advertised vacancies or the availability of certain types of units at the community.

Our fair housing experts warn that you may never know when one of these encounters is part of a fair housing test. That’s because enforcement agencies and fair housing organizations generally exercise caution in selecting and training fair housing testers.

In any given geographical area, local fair housing organizations may maintain a pool of trained fair housing testers, who are called upon infrequently to preserve their anonymity. In general, they’re volunteers who may receive a stipend for their time and travel. Because of the potential that they may be a party or witness in any resulting litigation, they’re likely to be screened for criminal history and any conflicts of interest. In fact, HUD enforcement officials go to great pains to safeguard the confidentiality of a tester’s identity. 

So even if you have an inkling that a particular prospect is a tester—because of the type of questions being asked, the way he carries himself, or the timing of similar contacts—you really can’t be sure if a given encounter is part of a fair housing test. Testers posing as prospects may call or email your office or visit the property to check for differences in treatment based on race, national origin, disability, familial status—or other characteristics protected under state or local laws.

So why take chances? Your best bet is to treat everyone contacting or visiting your community as if he or she were part of a fair housing test. Keep personal biases out of the leasing office and treat all prospects with professional courtesy, starting with the initial contact—whether online, in an email, on the phone, or during visits to your property.

Rule #2: Incorporate Fair Housing into Your Community’s SOP

Make compliance with fair housing an integral part of your community’s standard operating procedures. No doubt, you have numerous policies, practices, and procedures governing the marketing, leasing, maintenance, and other critical operations within your community. Many are based on business decisions, while others reflect legal requirements, such as landlord-tenant laws, health and safety codes, and other regulatory obligations.

Incorporating fair housing requirements serves both—it’s not only a legal requirement, but it’s a good business decision. Making your community available to any prospect who meets objective criteria to rent meets your legal obligations under fair housing laws. And by distinguishing your reputation as an equal housing provider, you’ll decrease the risk of being targeted for fair housing testing based on suspicions about discriminatory policies or practices.

Maintain a formal written fair housing policy, affirmatively stating that your community does not discriminate on the basis of race, color, religion, national origin, sex, disability, or familial status. Be sure to include any characteristics protected under state and local laws, such as sexual orientation, marital status, or source of income. Review your policies periodically, and revise them as necessary, to reflect changing rules or trends likely to be the subject of fair housing testing. Include your fair housing policy in your rental applications and leasing agreements, and post it in your office, alongside the fair housing poster required under HUD regulations. 

Coach’s Tip: HUD’s fair housing poster affirms that your community does business in accordance with the federal fair housing law. The poster is available on HUD’s website at https://www.hud.gov/sites/documents/FAIR_HOUSING_POSTER_ENG.PDF.

Rule #3: Watch What You Say in Your Advertising

Pay particular attention to your advertising and marketing policies to avoid triggering a fair housing investigation. Fair housing law bans discriminatory statements, including advertising, whether online or in other forms of media, so you should make sure your website, ads, brochures, and other media—whether in print or online—reflect your fair housing policy.

Fair housing organizations are actively monitoring online advertising for discriminatory statements, so you should avoid questionable phrases or buzzwords that suggest a preference for or against prospective renters based on characteristics protected under federal, state, or local law. For example, you shouldn’t use words or phrases that express a preference against members of protected groups—such as “no kids”—or a preference for others—such as “perfect for singles.” Federal fair housing law prohibits housing providers from denying or limiting housing to families with children under age 18, including refusing to negotiate, making discriminatory statements, and publishing discriminatory advertisements based on familial status.

Example: In August 2019, HUD charged the owners and manager of a Colorado condo community with refusing to rent to persons under 35 years of age in violation of the FHA, which prohibits discrimination based on familial status. According to HUD’s charge, the condo management team allegedly refused to rent a unit to a fair housing tester who claimed to have a 4-year-old child.

The case came to HUD’s attention when the Denver Metro Fair Housing Center filed a complaint alleging that the owners of the condominium complex discriminated against families with children when they posted ads in a local newspaper. HUD’s charge alleges that the ads described the complex as a “private, restricted adult … community” where renters must be 35 years or older. The charge further alleges that the condominium management team refused to rent a unit to a fair housing tester who claimed to have a 4-year-old child. The charge will be heard by a U.S. administrative law judge unless any party elects for the case to be heard in federal court.

Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children. The case came to HUD’s attention when Pine Tree Legal Assistance, Inc., filed a complaint accusing the owner and rental agent of discrimination based on familial status by refusing to negotiate with fair housing testers posing as families with children, posting discriminatory advertisements indicating that children weren’t allowed, and making discriminatory statements to fair housing testers.

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

Rule #4: Ensure Consistency in the Leasing Office

Focusing attention on the initial stages of the leasing process may also help you pass muster if your community is ever the subject of fair housing testing. At communities across the country, fair housing enforcement officials and advocacy groups are dispatching testers to check for differences in the way prospects are treated—in phone calls, emails, and site visits—based on protected class. Of course, differences don’t always mean discrimination, but it’s easy to jump to the conclusion that they do. That’s why it’s so important to avoid even the appearance of discriminatory intent in the way that prospects are treated.

Testing is often focused on differences in the information provided to prospects about the availability of units, so it’s important to ensure that leasing agents have accurate, up-to-date information about vacancies. The FHA makes it unlawful to discriminate against applicants for housing because of their race, color, national origin, religion, sex, familial status, or disability, including by providing different and false information about terms, conditions, and availability of rental properties.

Example: HUD recently approved a settlement between Housing Rights Center (HRC), a fair housing advocacy organization in Los Angeles, and a Virginia-based real estate investment trust company to resolve allegations that the company’s rental practices discriminated against applicants based on their race.

The case came to HUD’s attention when HRC filed a complaint alleging that the company, which operates numerous properties in the Los Angeles area, repeatedly provided more information about available units to white HRC fair housing testers who posed as prospective tenants than to black HRC testers. The company denied the allegations of racial discrimination but agreed to settle the case.

Under the settlement, the company agreed to pay $20,000 to the fair housing organization. In addition, its management and leasing staff who work with tenants at the subject property will attend fair housing training.

“Denying a rental application because of someone’s race not only robs them of a place to call home, it is also unlawful,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully today’s settlement will convince other housing providers of the importance of meeting their obligation to comply with the nation’s fair housing laws.”

Similarly, be sure to give prospects the same information about the terms and conditions of tenancy, such as screening criteria, rental terms, security deposits and fees, and any other relevant information. Quoting more stringent lease terms or higher rental payments to prospects based on a protected characteristic is a violation of fair housing law.

Testers also may be looking for signs of unlawful steering—that is, guiding, directing, or discouraging prospects from living in your community or certain parts of the community based on a protected characteristic. For example, it’s a violation of fair housing law to tell Hispanic prospects that they would not be happy living in your community—or showing them only units in undesirable locations.

Example: In July 2019, HUD approved a $10,000 settlement between a California fair housing group and the agents and mortgage company for a California townhome community to resolve allegations of discrimination against African-American home seekers.

The case came to HUD’s attention when the Fair Housing Council of Riverside County (FHCRC) filed a complaint alleging that fair housing tests it conducted showed that real estate agents treated testers posing as African-American home seekers less favorably than testers posing as white home seekers. Specifically, FHCRC alleged that its tests showed that African-American testers were told that there were no homes available when there were and were required to meet tougher prequalification requirements than white testers. The community and its agents denied having engaged in any discriminatory behavior.

“A person’s race should never be a factor in determining whether they have the opportunity to obtain the housing of their choice,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s settlement represents HUD’s ongoing commitment to ensuring that individuals in positions to affect access to housing meet their obligation to comply with the Fair Housing Act.”

Rule #5: Provide Fair Housing Training to All Employees

All your employees, from your leasing staff to service workers in your maintenance, housekeeping, and landscaping operations, should receive periodic fair housing training. Although most testing efforts are addressed to your leasing office, interactions with any employee who interacts with the public could lead to a discrimination complaint, which in turn could trigger a fair housing test.

The training should cover the fundamentals of fair housing, including who is protected under federal law as well as any applicable state and local laws. It should also explain your community’s policies and what employees can and can’t do under fair housing law. Reinforce the importance of keeping personal biases out of the workplace and treating everyone at the community with courtesy and professionalism. Make sure employees understand the chain of command so they know where to go for help or to report any fair housing concerns or observations.

Managers should monitor how the leasing staff, particularly new employees, interacts with prospects on the phone, in site visits, and in Internet communications. Consider an open-door policy for management staff, so managers can hear what’s going on in the office—and encourage them to periodically sit in on phone calls or meetings with prospects and to tag along on tours.

Managers should reinforce good habits in employees, so good management means checking up from time to time on sales presentations, tours, applications, and so on, to see what staff members are doing. And it’s a good idea to have all employees sign an acknowledgement saying that they agree to abide by fair housing laws and that they understand that they may be monitored and recorded for training and compliance purposes.

Coach’s Tip: Our experts warn that you shouldn’t allow new hires to interact with the public without at least a basic understanding of fair housing law. Otherwise, they may inadvertently make well-intentioned, but inappropriate comments when answering the phone or meeting prospects. For example, an inexperienced employee could be overly curious about the nature of a prospect’s disability or cultural differences reflected in the prospect’s accent or appearance—just the type of conduct that could draw the attention of fair housing testers. For more information, see the Coach’s September 2019 lesson, “Fair Housing Boot Camp: Basic Training for New Hires.”

Rule #6: Shop Your Property

Shopping yourself—either by internal means or by hiring an outside shopping service—is one of the best ways to ensure that you won’t be caught off-guard from the results of a fair housing test. It’s an effective tool to monitor whether your employees are complying with fair housing laws and to identify any weaknesses—either in an employee’s performance or in the effectiveness of your training program.

You can do it informally, by asking people you know to pose as rental prospects, but many communities hire outside shopping services to contact the leasing office to monitor sales and marketing as well as fair housing issues.

Whatever means you use, it’s important to follow up to determine the root cause of any deficiencies detected during the shop. There could be a number of reasons why a leasing consultant may respond inappropriately to a shopper’s question. If it’s because the employee truly acted improperly, you should respond with disciplinary action. If the employee simply misunderstood fair housing requirements, you’ll know that the employee needs additional training.

Alternatively, the results of a shopping test may reveal a larger problem, for example, that your policy or training on a particular issue is unclear or incorrect. If that’s the case, you’ll have an opportunity to rectify the problem on your own—rather than having to address it after the fact if it surfaces for the first time during a fair housing test.

Rule #7: Keep Good Records

Good record keeping is important so you can respond accurately to complaints if, despite your best efforts, fair housing testing raises questions about seemingly discriminatory behavior. Retain records of all contacts, even if they don’t result in the rental of a unit or follow-up on initial inquiries. Keep copies of phone logs, guest cards, unit availability records, application forms and supporting documents, screening results, and any other document related to the application process.

It’s also important to keep good records to document when and how your community keeps track of available units. There’s a risk of a discrimination claim any time a prospect is told that there are no units available within a community. And it’s hard to defend against such claims if it turns out that the information was faulty, or if a prospect is turned away on the same day as another prospect was told that a unit was available. To ensure accurate, consistent responses to inquiries about available units, establish a process to document when units become available, and make sure everyone on your staff has up-to-date information.

Coach’s Tip: Keep your written records for as long as possible, so you can use them to defend yourself if you’re sued. Fair housing complainants have up to two years after the discrimination occurs to file in federal court or up to one year to file with HUD. And some prospects or testers may have up to six years to file a civil rights lawsuit. So it’s a good idea to check with your attorney before discarding old records.

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

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, familial status, national origin, and disability. Fair housing law bans communities from denying housing to anyone—or discriminating against them in the terms, conditions, or privileges of residency—based on any of these protected characteristics.

The law doesn’t stop you from holding residents accountable for their own bad behavior, but they may accuse you of discrimination when taken to task for breaking the rules. They may claim that you’re falsely accusing them of breaking the rules—or treating them more harshly than other residents for similar infractions—because they’re members of a protected class.

Sometimes the rules themselves come under attack. Communities may enforce rules to ensure safety, prevent property damage, and protect the quiet enjoyment of the property by other residents, but it’s unlawful to do so in a way that unreasonably interferes with the right of families with children to use and enjoy the community’s common areas and amenities.

Moreover, fair housing law may exempt some residents from following the rules under certain circumstances. As part of the law’s ban on disability discrimination, it’s unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. Because a community’s policies may have a different effect on people with disabilities than on others, HUD says that treating residents with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy the premises. So you may be required to make exceptions to your rules—such as no-pet policies or parking restrictions—as a reasonable accommodation for a resident with a disability.

Fair housing law doesn’t require communities to approve all accommodation requests. For example, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable—that is, if it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. In such cases, federal guidelines say that communities should engage in an “interactive process” with the person making the request to discuss whether there’s an alternative accommodation that would effectively address his disability-related needs.

8 DOS & DON’TS FOR DEALING WITH RESIDENTS WHO BREAK THE RULES

RULE #1: 

DO Hold Residents Accountable for Rules Violations 

DON’T Be Afraid to Take Action When Necessary

You may expect all residents to abide by the lease and community rules, and you may take action against anyone who fails to do so. Fair housing law bans discrimination against members of protected classes, but it doesn’t excuse residents from following the rules, regardless of their race or any other protected characteristic.

Don’t let your fear of a fair housing claim prevent you from applying your policies fairly and consistently. If action is required, don’t fail to act because you’re afraid the resident will file a fair housing complaint against you. Just talk to your attorney first to make sure that all of your community’s actions are documented and justified.

Example: In 2013, a Washington public housing community fought off a fair housing complaint filed by a resident who was threatened with eviction for feeding pigeons and allowing them to nest on his deck. The community’s rules prohibited the feeding of stray animals and wildlife, so he received several warnings that he’d be evicted if he didn’t stop. He eventually complied and no further action was taken against him, but the resident sued the community for discriminating against him because of his race. He failed to prove that he was being falsely accused since he admitted that he allowed the pigeons to nest on his deck. And the court rejected his claim that nonminority residents fed the pigeons and were not disciplined, noting that other residents viewed the pigeons as a nuisance and were trying to get rid of them in various ways, including poison [Bahati v. Seattle Housing Authority, September 2013].

To ward off fair housing trouble, it’s a good idea to have a written policy detailing your standards of conduct so all prospects, residents, and staff members understand what behaviors constitute lease violations. Putting it down on paper heads off claims that the resident didn’t know about the rules or understand the consequences of breaking them.

Make sure that your rules conform to state and local requirements by asking your attorney for help in drafting a policy that defines what conduct is considered a lease violation. Make the rules as specific as possible—for example, by quantifying how many times an act must be committed before it’s considered a lease violation, how much time you’ll give a resident to correct his behavior, and so on. Your policy should also detail the procedures for investigating, resolving, and documenting complaints against residents for violating the lease and community rules.

Over the next couple weeks, MHCO will be posting articles that go into detail on the remaining 7 rules for dealing with residents who break the rules.

RULE #2: 

DO Apply Community Rules Fairly and Consistently

DON’T Make Exceptions for Residents Simply Because You Like Them

RULE #3:

DO Be Prepared for Reasonable Accommodation Requests

DON’T Ignore Disability-Related Requests for Exceptions to the Rules

RULE #4:

DO Consider Accommodation Requests for Assistance Animals

DON’T Refuse to Make Any Exception to Pet Policies

RULE #5: 

DO Enforce Rules to Prevent Harassment, Maintain Safety 

DON’T Ignore Accommodation Requests Related to Disruptive Conduct 

RULE #6: 

DO Enforce Rules Governing Common Areas

DON’T Unreasonably Limit Children’s Activities

RULE #7:

DO Be Prepared for Potential Retaliation Claims

DON’T Crack Down Because of a Prior Fair Housing Complaint 

RULE #8: 

DO Keep Good Records to Counter Discrimination, Retaliation Claims 

DON’T Neglect Your Paperwork 

Good evening everyone. This story just broke in "The Oregonian" this evening. We have been talking about this since the February 2016 Legislative Session. Clearly this is a brutal reality that we all will be facing in 2017. If you were not concerned - you certainly should be now. In all likelihood we will have a long, vicious legislative fight on our hands. MHCO will definitely be in the trenches and will need all of you to be involved.

By Dana Tims | The Oregonian/OregonLive 
Email the author | Follow on Twitter 
on September 13, 2016 at 12:45 PM, updated September 13, 2016 at 6:38 PM
House Speaker Tina Kotek, signaling fresh urgency for tackling Oregon's housing crisis, said she will push next year to end no-cause evictions, lift the state's ban on rent-control laws and ban all rent increases above a "reasonable" percentage for the foreseeable future. 

Kotek laid out those policy goals in an address Monday night to the Oregon Opportunity Network, a supportive advocacy group that lobbies for affordable housing and renter protections. 

But Kotek, according to a transcript of her remarks, said she fully expects the proposals will spark controversy. 

"Frankly, it means things are going to get uncomfortable," the North Portland Democrat told the gathering of housing advocates. "Discomfort and determination are necessary when dealing with a crisis. We all need to be up to the task." 


Kotek and House Democrats had considered pushing further, before deciding to wait to try policy ideas such as extending notice periods for no-cause lease terminations. 

At the time, Kotek told The Oregonian/OregonLive she was warning lawmakers, "you're coming back in 2017 and we're going to talk about no-cause notices and evictions. We need to level the playing field for tenants." 

She then, she said Monday, things have only gotten worse, both in Portland and across the state. Rents have continued to rise, even as builders add thousands of units to address a longstanding shortage of supply. Demand has further been stoked by affluent workers, some arriving from out of state, willing to pay a premium to rent in high-end buildings. 

"Whole apartment buildings are seeing rents go up by 20 percent, or 30 percent, or more," she said. "Evictions have skyrocketed as some owners make way for new tenants with bigger salaries, or evict entire buildings with plans to renovate and join the luxury apartment market." 

Kotek explicitly called for lifting Oregon's ban on letting local governments pass rent-control ordinances, calling the practice "rent stabilization." 

Rent control is a controversial tool that lets local or state governments impose a price ceiling. 

"We can no longer avoid this discussion," she added. "We need to prevent property owners from making excessive profit and protect tenants from economic eviction and displacement." 

She also promised to fight for a statewide ban on "rent increases above a reasonable percentage until the housing crisis subsides." 

"Frankly, it means things are going to get uncomfortable," House Speaker Tina Kotek said. Kotek's office said the specifics of what constitutes a "reasonable percentage" or how long such a measure might be in effect will continue to be refined between now and the January start of the 2017 legislative session. 

Some immediately took issue with Kotek's housing initiatives, arguing such steps would make it more costly for builders to meet the state's housing demand. 

"It's almost textbook that any form of rent control ultimately harms consumers, as well as landlords," said Eric Fruits, an economist and editor of Portland State University's Center for Real Estate quarterly reports. "It may benefit some in the short term, but in the longer term, there will be fewer units available to rent, which will only make matters worse." 

Instead, Fruits said, the free market should be allowed to work, with higher prices sending signals to developers that more units are needed. 

Affordable-housing advocates disagreed, saying a surge in evictions of lower-income people is serious enough to demand a policy solution. 

"We are seeing signification numbers of folks having to move farther and farther out from the metro area to find affordable housing," said Rev. Joseph Santos-Lyons, executive director of the Asian Pacific American Network of Oregon. "I talked with one member last night who can't even find a place in Gresham. Places long thought to be affordable for renters and first-time buyers are disappearing." 

Santos-Lyons said he'd like to see Kotek's call for a temporary cap on statewide rent increases made permanent. 

"The average family could certainly understand that something like a 3 percent increase would be reasonable," he said. "But as it is, what we're seeing is unfettered speculation." Katrina Holland, interim director of the Community Alliance of Tenants, said her office just learned that rents in one Southwest Portland apartment complex are scheduled to increase by 350 percent. 

"This is clearly something that we need to address," she said. "It's time to act." 
-- Dana Tims 
 

Last month the manufactured housing landlord-tenant coalition met to continue discussing issues in preparation for the 2015 Oregon Legislative session. As mentioned earlier, the coalition is a group of manufactured housing community interests - tenant organizations, landlord associations, banking interests, builders - that meet once a month to discuss industry issues. Manufactured Housing Communities of Oregon has been participating in the coalition since the 1990s.

It's the Dog Days of Summer - As 2015 Legislative Issues Get Legs

There are four issues that the coalition is discussing: 1. Back taxes owed on abandoned MHs (ORS 90.675 (14) 2. Who collects the $6 assessment on manufactured homes to fund the Manufactured Communities Resource Center (MCRC) 3. Revising ORS 90.630 regarding the cure period for ongoing versus discrete violations 4. Manufactured home sales conflicts with owner sales versus tenant sales

1. Back taxes owed on abandoned MHs (ORS 90.675 (14)

The negotiations on this statute focus on the situation where the current market value of the abandoned home is more than $8,000 and the proceeds of the sale don't cover the landlord costs and the past due taxes that have accumulated. In these cases, the financial incentive for the landlord when there is no purchaser at the abandonment sale is to destroy the home. Most community owners are not willing to pay $12,000 in taxes for a $9,000 home.

MHCO's position is to reduce this tax burden on the community owner as much as possible either by completely eliminating the tax obligation or reducing it as far as possible. The county tax assessors proposed eliminating up to $8,000 of the tax liability. MHCO's position is that the amount waived needs to be higher so that the economics of keeping abandoned homes in the community pencils out. We will be back in August negotiating this issue further, but it remains MHCO's top legislative issue.

2. Who collects the $6 assessment on manufactured homes to fund the Manufactured Communities Resource Center (MCRC)

Currently, ORS 446.525 imposes an annual $6 assessment on all manufactured homes which are taxed as personal property, meaning that they are not real estate (on land with joint ownership of the MH and the land or in a co-op or with a 20 year lease). The county assessor is responsible for collecting the assessment and forwarding the revenue to OHCS for MCRC. The concept is to collect this special assessment with the annual property taxes owed. This applies regardless of whether the MH is in a park.

MCRC estimates that the special assessment plus the $25 registration fee for all parks generated $443,051 in FY 2013 and $422,627 in FY 2014.

There are an estimated 63,000 MHs in parks; at $6 apiece, that would be $378,000/year. But the assessment is paid by non-park MHs, too.

In the past couple of years Multnomah County and some other counties have expressed a desire to get out of the business of collecting the $6 assessment. Multnomah County is drafting a bill for the 2015 Legislative Session exempting it from having to collect the $6 assessment

County tax collectors feel that, as a matter of principle, they should only collect taxes for their costs and for other local governments. This is not a tax.

Some manufactured home residents don't pay property taxes, either because of the senior tax deferral program or because of the ORS 308.250 cancellation of taxes on low-value (currently $15,500) MHs. That means the county bills those residents only for the $6. And, with the early payment 3 percent discount, the actual amount owed is only $5.82. The counties' cost to collect this amount exceeds the amount collected.

The coalition discussed increasing the assessment to $10 per manufactured home and possibly use some of the extra money to compensate the counties or MCRC to cover the cost to collect. Another proposal would expand this fee to floating homes. MHCO's position is to avoid having the community owner collecting the assessed fee from the residents and then passing the accumulated fees on to the Oregon Department of Revenue. The issue remains open to further negotiation.

3. Revising ORS 90.630 regarding the cure period for ongoing versus discrete violations

Manufactured home community residents who own and occupy their MHs and rent the space under the home in a community can only have their tenancies terminated for cause. Those causes are defined, to some degree, in ORS 90.630. The statute allows the tenant to cure the cause, within the 30 day notice period, and thereby avoid the termination. In some cases, the result of this cure right means that a tenant may continue the conduct which is the cause up until the 30th day.

Over the years, many of you have contacted the MHCO office to discuss 30 day notices of eviction and in the process expressed frustration that residents who where disturbing the peaceful enjoyment of other residents or where violating the rules and regulations in the community could continue living in the community till the end of the 30 day period after the notice had been served. As many of you have said to me on the phone, So basically they can misbehave for 30 days and we can't do a thing...."

We continue to discuss what conduct should be stopped immediately and what conduct should be allowed the full 30 days to cure. Phil Querin has suggested using the distinction that anything that materially impacts other residents should require a shorter period to cure. Some feel this is too subjective - where do you draw the line: failure to mow grass; large campaign sign for Kitzhaber; loud music; foul odors coming out of a home etc.

We will continue to discuss this issue in the months ahead. MHCO recognizes this is an important issue to both community owners/managers and residents. It remains one of our top legislative priorities.

4. Manufactured home sales conflicts with owner sales versus tenant sales

There have been some alleged abuses in situations where residents are trying to sell their homes and the community owner has other homes in the community that he/she are selling. Some residents claim that this inherent conflict results in their homes either not selling or selling at a substantially reduced price.

The State of Oregon has been investigating this through the Department of Consumer and Business Services. It is not clear what action the State wants to take - or other legislators for that matter. One of the proposals considered by the state is to prohibit issuance of any type of Manufactured Structure Dealer license to any mobile home or manufactured dwelling park owner or onsite park management representative. Other less draconian measures would be to adopt a "best practices".

Needless to say this is an issue that MHCO that will be watched closely. MHCO opposes eliminating your ability sell homes in your community. This may be an issue we will have to fight in the 2015 Oregon Legislative Session.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) makes it illegal to refuse to rent or deny a person housing because of his or her race, color, religion, sex, handicap (disability), familial status, or national origin. Although many states also ban discrimination on the basis of a person’s criminal record, this isn’t one of the protected grounds listed in the FHA.

Question:How can criminal record discrimination be illegal if the FHA doesn’t mention it?

Answer:Refusing to rent to people with a criminal record may be an indirect form of racial, national origin, and other forms of discrimination the FHA does prohibit.

Explanation: The reason for this has to do with the so-called rule of “disparate impact” discrimination that holds that policies and practices that are neutral on their face may still be illegal if they have the effect of discriminating against a group the law protects. This is true even if there was no intent to discriminate.

Example: A fire department policy bans any persons from being promoted to the position of chief unless they have at least 10 years of service in the department. On its face, this seems like a perfectly neutral, legitimate, and nondiscriminatory policy. The problem is that the department began hiring women only five years ago. Before that, it was exclusively male. As a result, the 10-years’ service policy has the effect of excluding women from being promoted to chief and is thus a form of illegal sex discrimination.

Although the potential of disparate impact liability for criminal history restrictions began as an employment principle, the U.S. Supreme Court and HUD have made it clear that it also applies to fair housing. In 2016, HUD published guidance to address the issue. Citing the widespread racial and ethnic differences in the U.S. criminal justice system and statistics showing that across the nation, African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionately higher rates than whites with respect to their share of the general population, the guidance states that barriers to housing based on criminal records are likely to have disproportionate impact on minority home seekers.

The HUD guidance also explains what owners can do to avoid disparate impact liability when carrying out criminal history screening. The eight rules below come from the guidance and later court cases applying them to actual situations.

8 RULES FOR AVOIDING DISCRIMINATION

WHEN SCREENING APPLICANTS’ CRIMINAL BACKGROUNDS

Rule #1: Continue Performing Criminal Background Checks

The starting point is to understand that nobody is saying that you must stop performing criminal background checks on applicants. On the contrary, apartment communities have every right to establish their own policies governing who may live there, as long as their standards are fair, reasonable, and nondiscriminatory—that is, that they apply equally to all applicants regardless of race, color, religion, sex, familial status, national origin, disability—or any other personal characteristic protected under state and local fair housing laws. The FHA also specifically excludes individuals who pose a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

Moreover, courts and HUD have long recognized owners’ rights to perform background screening to ensure applicants meet their legitimate rental criteria. That includes criminal background checks to the extent that they serve the owner’s legitimate business interest in:

• Protecting their property and the safety and property of their residents;
• Ensuring that applicants can pay the rent; and
• Retaining other residents who may be fearful and leave the community if a person with a criminal record is allowed to live there.

Bottom line: The liability risk stems not from performing criminal records screening but how you perform it, including not only your screening criteria but how you use the results to make decisions about applicants.

Rule #2: Don’t Do Criminal Checks Until You Determine the Applicant Is Otherwise Qualified

Don’t perform criminal background checks unless and until you complete the credit, rental history, and other necessary checks and determine the applicant is qualified. This rule is based not so much on law as practical considerations. In addition to the legal complications, criminal checks costs time, money, and administrative effort. So, saving them for the end of the process pending the results of the other checks will enable you to avoid having to do them for applicants who aren’t qualified anyway.

Example: Texas fair housing consultant Ann Sadovsky relays the story of an owner/client facing an applicant who wanted to share the apartment with an unusual and highly undesirable pet, a 500-pound hog. “The poor client was all upset about a messy fight over the community’s no-pets policy,” Sadovsky relates. “I told him not to sweat it until after the applicant got a clear credit and rental history report.” In fact, he didn’t—and the hog issue became completely moot.

“Not that I’m comparing a hog to a person with a criminal record, but the principle of not bothering to engage with an applicant on an issue until verifying that he or she’s qualified to rent from you applies to criminal background checks,” notes Sadovsky.

Rule #3: Establish Clear, Nondiscriminatory Guidelines for Criminal Record Checks

Relying on third-party screening companies to perform actual criminal record checks the way most owners do will spare you the headaches of gathering the data yourself. But it’s how you use that data that will determine your liability. Specifically, you must make consistent, reasonable, and nondiscriminatory decisions about whether to reject applicants because they have a criminal background. The remaining rules in this lesson are designed to help you create and implement rental policies enabling you to meet that crucial compliance challenge.

Let’s start with the general rules governing when denying housing opportunities to people with a criminal record runs afoul of the FHA. The HUD guidance sets out three key questions owners should ask to evaluate whether their criminal record check policies are legally sound:

1. Does the policy have a discriminatory effect? As we explained above, excluding applicants for having a criminal record may have the effect of discriminating. But in a court or HUD administrative proceeding, the person claiming discrimination has the burden of proving that the policy under question actually does cross the line.

The most common way to show discriminatory effect is by using national, state, and/or local statistics showing that African Americans, Hispanics, and other minorities have disproportionately high arrest and conviction rates, as compared to white persons. While it doesn’t necessarily prove that a particular policy had a discriminatory effect, the HUD guidance suggests that such statistical evidence is generally enough to deny an owner’s motion to dismiss and allow the case to go to trial. And that’s crucial because it changes the negotiating leverage and pressures the owner to shell out a substantial sum of money to settle the case. 

By the Numbers:

Using Statistics to Prove Discriminatory Effect

HUD cautions owners to be aware of the discrimination risks associated with rental policies that exclude applicants because they have a criminal background. The guidance cites national statistics showing that racial and ethnic minorities face disproportionately higher rates of arrest and incarceration. According to those statistics, African Americans and Hispanics are arrested at a rate of more than double and incarcerated at a rate of nearly three times their proportion of the general population. Imprisonment rates for African-American males is almost six times greater than for white males, and for Hispanic males, it’s over twice that for non-Hispanic males.

Keep in mind that these are just national statistics. State and local statistics exhibiting similar patterns may be even more compelling in demonstrating that criminal record exclusion has a disproportionate and discriminatory effect on minorities. And, of course, most devastating of all to an owner is statistical evidence showing that the particular community’s policies had the effect of excluding minorities.

2. Is the policy necessary to achieve a substantial, legitimate, and nondiscriminatory interest? The second crucial question is whether a policy of denying housing to people with a criminal record is necessary to achieve what HUD refers to as a “substantial, legitimate, and nondiscriminatory interest” (which we’ll refer to as the “substantial interest standard”). Explanation: As noted above, it’s legitimate for owners to want to keep dangerous people out of their community. But, the guidance warns, this general interest and bald assertions based on stereotypes that individuals with criminal arrests and convictions pose a greater risk than people without criminal records isn’t enough. To justify exclusion on the basis of a criminal record, the owner must be able to prove that the policy actually does assist in protecting resident safety and property. Accordingly, blanket policies won’t work, and owners must make decisions based on the particular circumstances of the case, including how long ago the crime happened and what kind of conduct it involved. We’ll delve into these crucial details below.

3. Is there a less discriminatory alternative available? Even if the owner can show that its criminal record policy meets the substantial interest standard, it may still be unlawful if the person complaining can prove that the owner could have served that interest by adopting another policy or practice that has a less discriminatory effect. As we’ll discuss in Rule #7, such alternatives may include performing an individualized assessment of applicants found to have a criminal record.

Rule #4: Don’t Impose a Blanket Ban on Applicants with a Criminal Record

Now let’s talk about the specific things you can do to ensure that your own policy meets the criteria we explained in Rule #3. First rule of thumb: Don’t implement predetermined, blanket rules, such as automatically rejecting any applicant with a criminal record.

Remember that all forms of criminal conduct won’t satisfy the substantial interest standard justifying denying a person housing because of their criminal records. Thus, blanket policies that treat all criminal conduct the same way are highly problematic. They also make you a sitting duck for a statistical analysis showing that minorities are more apt than white persons to get arrested or convicted of a crime as compared to their percentage of the general population.

Example: A New York City community rejected an African-American applicant after learning of his felony conviction. The community claimed that its policy of automatically rejecting anyone with a felony conviction was nondiscriminatory because it applied to all applicants regardless of race, etc. The applicant conceded that the policy was neutral on its face but contended that it had the effect of racial discrimination, citing “empirical evidence showing that nationally, and in New York State, blanket bans on eligibility, based on criminal history, result in the denial of housing opportunities at a disproportionate rate for African Americans and minorities.” Although the applicant would still have to prove his claim at trial, the court found that the statistical evidence was enough to warrant holding a trial and dismissed the owner’s motion to dismiss [Jackson v. Tryon Park Apartments, Inc. et al, No. 6:2018cv06238 - Document 17 (W.D.N.Y. 2019)].

Rule #5: Reject on the Basis of Criminal Convictions, Not Arrests

While you must make decisions about whether to rent to applicants with criminal records on a case-by-case basis, there are a few bright line rules. One of them is that rejection is justified only when applicants have actually been convicted of a crime; merely being arrested isn’t enough.

Explanation: As the HUD guidance explains, an arrest, on its own, is merely an accusation and doesn’t prove that the person actually did anything wrong. Under our justice system, defendants are presumed innocent. To establish guilt, the criminal prosecutor must persuade the court or jury to convict by proving the charge beyond a reasonable doubt. Many people who get arrested are acquitted; others get their charges dropped and don’t even go to trial.

The problem with arrest records is that they often don’t show how the case was decided and whether the individual was prosecuted, convicted, or acquitted of the charges. As a result, the guidance clearly states that an arrest is not a reliable basis for determining whether a particular individual poses a potential risk to safety or property in applying the substantial interest standard.

Exception: There’s some wiggle room for eviction when a criminal background screening reveals an arrest. What you can do, according to legal experts, is ask about the underlying facts of the case. And even if the arrest hasn’t yet resulted in a conviction or conclusive and final finding of guilt, you may still be able to reject the applicant if:

• The applicant admits to committing a crime; or
• The police or other witnesses provide reliable and legally admissible information showing that a crime was committed.

Rule #6: Distinguish Between Dangerous and Non-Dangerous Convictions

The mere existence of a conviction isn’t enough to get you over the substantial interest hurdle. That’s because all crimes aren’t the same. The owner’s responsibility, the guidance clarifies, is to distinguish between criminal conduct that does indicate a risk to resident safety or property, and criminal conduct that doesn’t rise to that level. The good news is that the guidance sets out clear criteria for making such determinations:

Felonies vs. misdemeanors. The crime must be serious. And while the guidance doesn’t expressly say this, the consensus is that the conviction must be for a felony rather than a misdemeanor. But, as the NYC owner learned in the Jackson v. Tryon Parks Apartments case discussed in Rule #4 above, a blanket rule excluding any person with a felony conviction doesn’t work. The owner must take other factors into consideration.

Type of felony. The next factor to consider in applying the substantial interest standard is the nature of the felony a person was convicted of committing. Although the guidance doesn’t specify the types of felonies that owners may reasonably consider as posing a danger to safety and property, legal experts and case law suggest that the list includes convictions for:

• Illegal manufacture or distribution (but not mere possession) of drugs and other specified controlled substances;
• Sexual assaults;
• Other violent crimes like homicide, assault and battery, domestic violence, robbery, and false imprisonment; and
• Arson, vandalism, and other crimes causing significant damage to property.

How long ago the person committed the felony. The other key factor is how much time has passed. The more recent the conviction, the greater the justification for considering the person who committed it as posing a risk of danger to safety and property. Based on court cases, the unofficial window is seven years. Exception: Sexual assault convictions don’t have a shelf life. In other words, they may be grounds for denying an applicant housing regardless of how long ago they occurred.

Rule #7: Assess Each Felony Conviction Case Individually

Following Rules #4, #5, and #6 should enable you to ensure that your criminal background screening policy meets the first two of the three HUD standards, namely, the discriminatory effects and substantial interest standards. But the HUD guidance says there’s one more thing you should do to meet the third standard—that is, lack of less discriminatory alternatives: Incorporate a process for assessing each case individually that takes into account mitigating factors explaining why the person has a criminal record, such as:

• The circumstances surrounding the criminal conduct;
• How old the person was when he or she engaged in the conduct;
• Evidence that the individual has maintained a good tenant history before or after the conviction or conduct; and
• Evidence of rehabilitation efforts.

Example: A Pennsylvania public housing authority rejected an African-American applicant after the criminal records check revealed that he had pleaded guilty to involuntary manslaughter under its policy calling for mandatory denial of persons convicted of homicide offenses. The applicant claimed that the policy discriminated on the basis of race, applying the same basic logic that the applicant in the Jackson v. Tryon Parks Apartments case used to beat back the owner’s motion to dismiss. But this time the argument didn’t work.

The difference: The PHA gave rejected applicants 30 days to dispute the accuracy and relevancy of the information on which a mandatory denial was based. During the hearing, the applicant clarified that the conviction was for a misdemeanor rather than a felony. As a result, the PHA reversed its decision on the criminal conviction rejection. The problem for the applicant was that the PHA had a second reason for rejecting him, namely, a judgment awarding his previous landlord $871 in unpaid rent. And since the applicant didn’t present any evidence or mitigating information about the nonpayment judgment, the court found that the PHA had a legitimate, nondiscriminatory reason to reject the applicant and tossed his discrimination claim [Hall v. Philadelphia Housing Authority, Civil Action No. 17-5753, U.S. District Court, E.D. Pennsylvania, April 5, 2019].

Rule #8: Apply Your Screening Policy Consistently

So far, we’ve been talking about unintentional discrimination on the basis of discriminatory impact. But be aware that rejecting applicants because they have a criminal record may also constitute intentional discrimination. This can happen if you apply your policy inconsistently to people with comparable criminal histories differently based on their race, national origin, etc.

Example: A federal court ordered a Tennessee community and its property management company to pay $42,250 in damages for selectively applying its policy of disqualifying people with felony convictions to minority applicants. The evidence showed that the defendants denied an African-American applicant because of his criminal record while approving the applications of two white applicants with similar, and what should have been disqualifying, felony convictions [U.S. v. Dyersburg Apartments, Ltd., (W.D. Tenn.), Aug. 13, 2019].

The guidance lists other examples of inconsistent application of criminal records policies and practices showing intentional discrimination:

• A community has a policy against renting to people with certain convictions, but makes an exception for white, but not African-American, applicants; and
• A leasing agent helps a white applicant get his application approved despite his potentially disqualifying criminal record, but doesn’t provide the same assistance to an African-American applicant.

But the proposal hasn’t received broad support in the Oregon Senate. It’s unclear that Gov. Kate Brown would call a special session to address the matter this month if lawmakers can’t agree on a plan. It’s also uncertain whether the governor would issue an executive order to extend the eviction moratorium into next year if a special session isn’t called.

“I want to see support, frankly, from Democrats and Republicans for the work that needs to be done,” Brown said during a press conference Friday, adding that she hoped to make a decision on whether to call a special session in the next few days. Her office didn’t respond to inquiries about potentially extending the moratorium.

Tenant advocates worry that thousands of Oregon renters could face eviction at the start of the New Year if lawmakers don’t act before the moratorium expires.

Data compiled by Multifamily NW, a rental industry group whose members include landlords and property managers, shows that between 12% and 15% of renters in Oregon have been unable to keep up with their rental payments during the pandemic. A survey conducted by Portland State University researchers found the situation to be considerably worse with 36% of 460 Oregon tenants surveyed reporting they owed back rent.

“Time is running out,” said Alison McIntosh, a spokesman for Neighborhood Partnerships, which runs the Oregon Housing Alliance. “With the eviction moratorium set to expire on Dec. 31, we know that renters across the state will be facing evictions very quickly, both in the middle of the worst spike in COVID cases that we’ve seen so far and the middle of winter. That is really concerning to us. We need the legislature to act to solve this problem.”

Brown extended the residential eviction ban through an executive order in September and it is possible that she could take a similar step if lawmakers don’t come to the consensus needed to warrant a special session. But the federal government’s eviction moratorium expires at the end of the year, and some observers believe that might undercut the legal standing of a new order from Brown.

Rep. Julie Fahey, D-Eugene, the chair of the work group who developed the House proposal, said a legislative solution would be better than an executive order because Oregon could pair the moratorium with financial help for landlords.

“I can’t think of a more compelling reason to come into session than to keep people housed during the pandemic,” Fahey said. “We think at least 20,000 Oregonians will be at risk of facing homelessness come Jan. 1 if we let the eviction moratorium expire without further action. There’s a real sense of urgency to take action to address this looming eviction crisis.”

Under the House proposal, renters who can show that they’ve experienced financial hardships since the start of the pandemic could not be evicted for missing rental payments through June 30, but would have to pay back any accumulated rent on July 1. The Legislature would also set aside $100 million in general fund money to go to existing rental assistance programs and a new landlord assistance fund. Landlords would be required to forgive 20% of past-due rent to access the assistance.

Still, lawmakers acknowledge that $100 million wouldn’t be close to meeting the needs of tenants and landlords. The Portland Housing Bureau estimated that Portland renters alone had missed over $120 million in rental payments by the end of September.

Deborah Imse, executive director for Multifamily NW, expressed concerns last month about the viability of the proposal if there wasn’t adequate funding to address the needs of landlords who would be asked to forgo rent for another six months.

In a letter to Brown earlier this month, Multifamily NW called on the state to allocate adequate rental assistance to make up for the losses of housing providers, create a short-term loan program for tenants who can’t pay rent and implement other relief measures for property owners, including property tax relief.

Multifamily NW is also supporting the passage of a separate proposal floated by Sen. Betsy Johnson, D-Scappoose, which would offer tax credits over a five-year period to landlords who forgive past-due rent. Landlords would be allowed to sell credits to other Oregon taxpayers.

“Rather than implementing additional confusing rules that further strain the relationship between housing providers and renters, Oregon should focus efforts on identifying budget resources to make rental assistance available,” said Michael Havlik, deputy executive director for Multifamily NW. “We think a combination of policies that improve emergency rental assistance programs coupled with tax relief measures is the right approach to resolving the state’s moratorium on evictions for nonpayment of rent.”

While Johnson’s proposal does not address the eviction moratorium, she said that landlords wouldn’t have an incentive to evict tenants with her proposal on the table because they would lose out on the opportunity to receive the tax credits.

“The landlord gets something in exchange for having provided services to the tenant without cost during the duration of the state of emergency,” Johnson said. “The tenant gets debt relief and peace of mind knowing there’s no obligation to pay back thousands of dollars of back rent or suffer having their credit destroyed or bankruptcy. Finally, the state is able to accomplish that by use of future as opposed to current revenues.”

Ron Garcia is president-elect of the Rental Housing Alliance, which represents smaller landlords. He said he is concerned Johnson’s proposed tax credits would benefit larger corporations and property management companies while doing little to help smaller landlords struggling now.

Fahey said her work group considered including tax credits in their proposal, but they felt that the credits would put a strain on the state budget down the road if they weren’t capped and they believed they could do more to help smaller landlords by getting them direct financial assistance now.

She said that Johnson’s proposal deserved consideration in the regular session, but that the state needs to address the expiring eviction ban before the end of the year.

Sen. Jeff Golden, D-Ashland, who owns several small rental properties, said it is imperative that legislators act to help both small and large landlords who have forgone rent for up to nine months and said he would consider both proposals on the table. But he also said he could only support a bill that also addressed the expiring eviction moratorium.

“I’m hoping everybody can envision the possible disaster if the moratorium isn’t extended and we can come together to find some way to get there,” Golden said.

Senate Democrats discussed options for renters during a caucus meeting Monday afternoon. Those discussions remained ongoing Tuesday morning. Still, the possibility of Brown calling a mid-month special session remained in doubt.

Shemia Fagan, D-Portland, who will be sworn in as Oregon’s next Secretary of State in January, said she delayed her resignation from the Senate in order to be available for a possible special session. She said Oregonians deserved to hear legislators debate the proposals publicly in a special session this month since any gap in the eviction moratorium and a separate foreclosure moratorium could have severe consequences for Oregon renters and homeowners.

“Oregonians facing eviction, foreclosures and possible homelessness deserve public leaders who will make a decision regarding housing during a global public health crisis,” Fagan said. “Those decisions should be made in public. People can vote how they want to vote, but Oregonians deserve a special session and a Senate caucus that will take a bill to the floor and have the courage in their convictions to vote yes or no on the Senate floor.”

2024 Fair Housing Litigation - Cases of Significance - Single Incident Must Be Egregious to Constitute Hostile Environment Harassment

(First in a series of Six Articles)

Why do landlords need a briefing on fair housing cases? The answer to that question is based on four facts:  

Fact 1: The federal Fair Housing Act (FHA) bans landlords and their agents from discriminating against rental applicants and tenants based on race, color, religion, sex, national origin, family status, or disability. 

Fact 2: The FHA and its regulations also spell out things landlords must do to ensure fair and equal housing, such as make reasonable accommodations for persons with disabilities and refrain from discriminatory advertising. 

Fact 3: Like most landlords in Oregon and America, you already know of all of this, and you train your leasing agents and staff to know it, too. 

Fact 4: Despite all of this, individuals, organizations, and government agencies file thousands of fair housing lawsuits against landlords every year. 

That housing discrimination remains a problem in America is a fact that few would deny. But the other disturbing takeaway from these facts is that even landlords who embrace and try diligently to comply with the principles of fair housing law end up as targets for litigation. Of course, many of these discrimination claims are simply unfounded. But there’s more to it than that. 

The problem is that well-meaning landlords may commit discrimination without intending to. Inadvertent discrimination is typically the product of ambiguity and uncertainty in the law. Thus, for example, the FHA requires “reasonable accommodations” for persons with disabilities but doesn’t specifically define what constitutes “reasonable.” While guidelines from the Department of Housing and Urban Development (HUD) help fill in the details, every situation is different. That leaves it for courts and tribunals to decide the issue case-by-case. Result: The only way to know for sure whether a particular requested accommodation is reasonable is to go to court and let the judge or jury decide the issue.

Obviously, that’s not a very practical strategy. The idea of compliance and managing liability risk is to take proactive action to prevent fair housing claims in the first place. But case law can play a vital role in helping you achieve this objective. That’s because the cases illustrate how the general principles of fair housing law play out in actual, real-life situations. So, reviewing court cases involving other landlords can bolster your own compliance efforts. 

HUD receives approximately 30,000 fair housing complaints each year. But there’s a big difference between a complaint and a reported court case. Most of the former get dropped, resolved, or dismissed out of hand. Only a few actually make it to court and get reported. These cases are where the rubber meets the road and, therefore, the focus of our Scorecard. 

The vast majority of cases pose the threshold question of whether a discrimination complaint should even go to trial. More precisely, most Scorecard cases aren’t the results of a trial but a ruling on a landlord’s motion for summary judgment—basically a ruling in favor of the landlord on the law on the basis of the pleadings (or complaint), without a trial. The landlord’s argument: There’s no point in holding a trial because even if everything the complaint alleges is true, we still wouldn’t be guilty of an FHA violation. 

TOP 10 REPORTED DOJ FHA SETTLEMENTS OF 2024

Although they don’t count in our Scorecard, it’s worth noting that the U.S. Department of Justice (DOJ) reported a number of significant FHA settlements in 2024. 

Top 10 FHA Consent Order Settlements Reported by DOJ in 2024 

Settlement

Amount

Case

Alleged FHA Violation(s)

1

$623,000

United States v. Donahue (W.D. Wis.)     

Landlord sexually harassed female tenants by offering to reduce rent in exchange for sex, making unwelcome sexual comments and advances, and evicting or threatening to evict tenants who refused his sexual advances

2

$600,000

United States v. Shambayati, et al. (S.D. Ga.)

Landlord sexually harassed female tenants and prospects by making unwelcome sexual comments and advances, inappropriately touching their bodies, entering their homes without permission, requesting sex in exchange for rent or other benefits, and retaliating against tenants who rejected his advances or complained about harassment

3

$460,000

United States v. Chicopee Housing Authority and Monica Blazic (D. Mass.)

Landlord made discriminatory statements to and about Black and Hispanic tenants, demanded that Spanish-speaking tenants speak English, and dragged its feet on reasonable accommodations, such as transfers to first-floor or elevator-accessible units

4

$300,000

United States v. Butters (D. Colo.)

Property manager sexually harassed a husband and wife and their two minor children

5

$250,000

United States v. Rutherford Tenants Corp., et al. (S.D.N.Y.).  

Co-op apartment building and president of its board of directors denied a disabled tenant’s request for a reasonable accommodation for an assistance animal and retaliated against her for exercising her FHA rights

6

$190,000

United States v. Hussein (E.D. Mich.)

Landlord sexually harassed actual and prospective female tenants

7

$170,000

United States v. Martin (S.D. Ohio)

Landlord sexually harassed actual and prospective female tenants

8

$137,500

United States et al. v. Teruel et al. (N.D. Cal.)

Landlord pressured a couple, who had two babies during their tenancy, to move out of their one-bedroom apartment

9

$112,500

United States v. Kailua Village Condominium Association, et al. (D. Haw.)

Homeowners’ association, board members, property managers, sellers, and selling agents refused to sell a condo unit to a man with paraplegia, subjected him to discriminatory terms and conditions, made discriminatory statements, refused to make reasonable accommodations, refused to permit reasonable modifications, and harassed him

10

$100,000

United States v. Joel Nolen et al. (E.D. Cal.)

Landlord sexually harassed multiple female tenants dating back to at least 2011

KEY LESSONS FROM 2024 FAIR HOUSING CASES (1st in a series of 6)

Lesson #1: Single Incident Must Be Egregious to Constitute Hostile Environment Harassment

In recent years, failure to make reasonable accommodations and family status discrimination have been the most commonly asserted FHA claims against landlords. This year, though, the most common allegation was landlord harassment and retaliation, figuring in over 10 percent of the Scorecard cases. In addition, six of the DOJ’s 10 biggest reported FHA settlements of 2024 involved allegations of harassment (see the table on p. above). 

Most of the harassment cases accused the landlord of creating a hostile environment on the basis of a tenant’s race, disability, or other protected characteristic. To prove this allegation, a tenant must show that a landlord’s conduct was “severe or pervasive enough to unreasonably interfere” with the tenancy, such as by forcing the tenant to move out. Although possible, this is tough to prove when the alleged harassment involved a single incident. Thus, in 2024, two different landlords successfully defended against hostile environment harassment charges by demonstrating that the complained of conduct was just an isolated incident that wasn’t severe enough to meet the harassment threshold.

Landlord Wins: A fair housing organization accused an Oklahoma landlord of harassing a disabled tenant, citing a single incident in which the landlord took photographs of the tenant’s apartment while he was moving out. “While tense conversations and being photographed in public areas might not be preferable, they do not rise to the level of unlawful harassment,” the federal court reasoned. Besides, the incident took place after the tenant had already decided to move out and thus didn’t factor into that decision [Metropolitan Fair Hous. Council of Okla., Inc. v. Feiock, 2024 U.S. Dist. LEXIS 140180, 2024 WL 3696458].

Landlord Wins: A 74-year-old Black tenant sued her landlord for racial harassment discrimination after a building security guard falsely accused her of stealing a neighbor’s jewelry and called the police. While acknowledging that this was “a distressing event,” the New York court ruled that the incident wasn’t, by itself, “extraordinarily severe" enough to constitute an “intolerable alteration of the conditions of [the tenant’s] housing environment” [Dickerson v. BPP PCV Owners LLC, 2024 U.S. Dist. LEXIS 59765, 2024 WL 1348497]. 

Compliance Takeaway: In most cases, hostile environment harassment involves a course or pattern of conduct that occurs over time. A single incident of harassment may be enough to create a hostile environment. But it must be extremely egregious to cross the line.