Search

That needs to change. 

Diversity and Inclusion is a huge topic, and it goes so much deeper then race relations. We need to acquire a greater awareness and sensitivity to all the issues that go beyond assumed categories. Diversity is the mosaic of people who bring a variety of backgrounds, styles, perspectives, values, and beliefs to the groups and organizations in which they interact. 

Let us look at the rental housing industry as an example. When I became a “rental hostess” at the age of 21, every on-site manager position was held by either an elderly or middle-aged woman. Our office staff was all female, but the Regional Managers, VP’s, and Senior Directors were men. And, they usually had never worked on site.    And they were usually white. 

Fast forward to 2020 and thankfully, this in no longer the case.  There are increasingly more men in on-site manager positions, more women in the senior level executive suite, and more minorities in our industry. I know a woman who became the Director of Maintenance at a major management company this year.   This is a perfect example of diversity and inclusion in our industry.   There are widespread initiatives to attract candidates of all colors, ages, orientations, and disabilities. Casting a wider net for recruitment willcreate a culture where people of all backgrounds can feel comfortable and included.  Inclusivity is the key to maintaining (not just creating) diversity in the workplace. 

There are numerous benefits to embracing workplace diversity and inclusion.  For starters, there will be improved understanding of those you work for, with, and around.  Your workplace will create an environment that allows everyone on the team to reach their full potential – because they are focused on the workthey are doing, not that they feel different.  Having a diverse workforce will provide multiple perspectives to problem solving – guess how?  By seeing issues and solutions through a different lens! This will ultimately increase performance outcomes as well as employee productivity. 

Employee retention is increased when the employee feels valued for their individual gifts and talents; which boosts morale; creating improved customer relations; which reduces complaints.  See the connection? Diversity and inclusion makes good business sense, and it is the right thing to do.

It is vital to your success, to the success of your company, and the success of your teams to embrace diversity and inclusion.  It starts with respect, a willingness to share, risk change, and being open to other’s differences.  We need to recognize the learning opportunities and adopt an attitude of “different is okay, or interesting”. 

 Or we can just try to look at the world through someone else’s lens….

Join me at the conference for some tips on how to promote diversity and inclusion, diversity best practices, and how you can promote diversity with your team. 

Background

Emergency Period. The Covid-19 pandemic hit Oregon in Spring, 2020; Governor Brown declared a State of Emergency and a temporary ban on evictions (FEDs) in March, 2020. The Oregon legislature then extended the eviction moratorium by enacting a series of bills, beginning with HB 4213 in June 2020 and ending with SB 282 in May of 2021.[1]

Collectively, the legislative bills created an “Emergency Period” where landlords were prohibited from terminating tenancies or evicting tenants for non-payment of rents, charges, and fees. The Emergency Period lasted from April 1, 2020 to June 30, 2021. All unpaid rents charges and fees from the Emergency Period are known as “nonpayment debt.” All tenants were required to pay their current rent beginning July 1, 2021.

Grace Period: Along with the Emergency Period, the Oregon Legislature also defined a “Grace Period,“ which was a time during which Landlords were prohibited from terminating or evicting a tenant based on the outstanding non-payment debt remaining from the Emergency Period. Tenants had from June 30, 2021 to February 28, 2022 to pay off their nonpayment debt.

Safe Harbor Period. In June and December 2021, the legislature passed SB 278 and SB 891. Together the bills provided for what is called a “Safe Harbor” for tenants who were still having difficulty paying their rent. The bill prevents Landlords from terminating tenancies or evicting tenants who are seeking rental assistance. The rental assistance programs established by Oregon can provide up to 12-month of back-rent and three months of prospective rent to tenants who qualify. The Oregon rental assistance program will close to applications on March 14, 2022. Landlords are prohibited from terminating or evicting for non-payment until they either receive notice that the tenant’s application has been denied, or June 30, 2022, whichever comes first.[2]

What Now?

Continuing Safe Harbor. While there are a number of actions that a landlord may now take to address nonpayment debt owed by tenants, they are still protected from eviction if they have applied for rental assistance. 

• If a landlord receives written proof of application for rental assistance, they may not:
  • Issue a termination notice for nonpayment; or 
  • Initiate/continue an FED action based on nonpayment. This prohibition lasts until the landlord receives notice that the application is no longer pending.
• The last day a landlord may receive notice of an application for rental assistance is June 30, 2022. 
• All Safe Harbor protections expire on October 1, 2022. 
• The Oregon Emergency Rental Assistance Program will close on March 14, 2022 at 11:59 pm. [It is uncertain if there will be additional funds offered after this date.]

Nonpayment of Rent Terminations. Termination notices for nonpayment of rents, charges, and fees accrued during the Emergency Period (April 1, 2020 to June 30, 2022) are now permitted. Landlords must still use the 10-day or 13-day nonpayment notice until October 1, 2022.[3] If the rental unit is a park-owned home, the landlord may also use a 30-day for-cause termination notice under ORS 90.392.

Termination notices no longer need to include language stating: “eviction for nonpayment of rent, charges and fees that accrued on and after April 1, 2020, and before June 30, 2021, is not allowed before February 28, 2022;” and “Information regarding tenant resources is available at www.211info.org.”

Note: Landlords must still send the Notice of Protection Against Eviction for Nonpayment form with any notice requiring payment of money to the landlord (e.g.,. notice of termination for nonpayment, and summons for a nonpayment eviction complaint). (See, MHCO Form 111)

Notices to Tenant – Balance Due. Notices to tenants regarding outstanding debt due are no longer required to state that “eviction for nonpayment of rent, charges and fees accrued from April 1, 2020 to June 30, 2021, is not allowed before February 28, 2022.”

Collection of Nonpayment Debts. Landlords may now file a civil action in court to recover the nonpayment balance accrued during the Emergency Period (April 1, 2020 to June 30, 2022). Debts may also be sent to collection agencies. [Note: Landlords are prohibited from reporting any Emergency Period debt (April 1, 2020 to July 1, 2021) to a consumer credit reporting agency.]

Application of Payments. The eviction moratorium bills temporarily changed the order in which landlords apply tenant payments. As of March 1, 2022 payments must be applied as outlined in ORS 90.220(9), unless otherwise altered by the rental agreement. The order of payments is: 

• First – outstanding rent from prior periods;

• Second – current rents; 
• Third – utility/service charges; 
• Fourth – late fees; and
• Fifth – all other fees/charges owed under the rental agreement.

Nontenant Guests. Landlords may once again enforce restrictions on nontenant guests, including assessing fees or terminating a tenancy for violations. [Note: removal of any nontenant guests who had entered into a Temporary Occupancy Agreement with the landlord is subject to the terms and expiration of that agreement.]

Statute of Limitations. Section 7 of Oregon House Bill 4212 enacted certain Covid-related tolling (i.e., “suspension”) provisions for nonpayment of rent claims under ORS 12.125 (Actions arising under rental agreement). March 1, 2022 marked the end of the tolling period. Landlords now have one year (i.e., to March 1, 2023) to recover outstanding nonpayment debt accruing during the Emergency Period.[4]

The tolling of the statute of limitations under the Eviction Moratorium bills only applies to debt generated duringthe Emergency Period. The language of the legislations specifically designates that it applies to “claims by a landlord based on a tenant’s nonpayment or nonpayment balance.” 

“Nonpayment” is a defined term in the legislation and specifically means “nonpayment of a payment that becomes due during the emergency period” and “nonpayment balance” refers to “all or a part of the net total amount of all items of nonpayment by a tenant during the emergency period.” (Italics added.)

Rents, charges or fees arising before April 1, 2020 and after July 1, 2021 do not appear to be protected by the tolling of the statute of limitations in the Eviction Moratorium Bills. However, landlords should check with their own  attorneys to verify whether the statute of limitations provisions enacted by HB 4212 may apply to actions accruing before or after the Emergency Period. 

Oregon’s State of Emergency is set to expire April 1, 2022, after which time there should be a 90-day window in which certain claims may be brought.[5]

Ongoing Tenant Screening Prohibitions. When screening prospective tenants, landlords are prohibited from considering FED actions and unpaid rents, charges and fees – including nonpayment of judgment debt and debt referred to a collection agency – that arose between April 1, 2020 and March 1, 2022. 

Tenants may also apply to have their FED judgments set aside and sealed for eviction actions arising between April 1, 2020 and March 1, 2022. These screening prohibitions and moratorium-related judgment set-asides will expire in 2028.

Landlords Receiving Federal Funding. If a landlord is receiving federal funds (affordable housing, federally backed mortgage, HUD) they must assure that they are complying with any rules set down by the proper federal agency, or other covid-related federal programs like the CARES Act. Commonly these rules require a 30-day nonpayment notice and additional federally-mandated disclosures. Check with your attorney to assure you’re in compliance with federal tenant protections, if applicable.

Partial Payments and Waivers. Acceptance of partial payments of rent during the Grace Period did not constitute waiver under the Eviction Moratorium legislation. However, that provision expired on March 1, 2022. While Oregon landlord-tenant law does address waiver (ORS 90.412 to 414) and the effect of partial acceptance of rent (ORS 90.417) it does not directly address situations created by the Covid pandemic. 

The current statutes are clear that acceptance of partial rent may, under certain circumstances, constitute a waiver of the right to terminate for nonpayment of rent. ORS 90.417(4) may provide some guidance. There are two ways to avoid acceptance as a waiver: 

• The landlord accepts partial payment before issuing a notice of termination for nonpayment because the tenant agreed to pay the balance by a set date. The tenant must then fail to pay the balance. If so, then the landlord’s notice of termination is served no earlier than if no rent had been accepted, AND the notice must provide that the tenant can cure by paying the balance by a time set by statute or by agreement of the parties; or

• The landlord accepts partial payment after issuing a notice of termination but enters into a written agreement with the tenant that acceptance does not constitute waiver. The agreement may also provide that the landlord may terminate and evict without further notice if the tenant does not pay the balance by the agreed-upon date.

Since the statutes do not specifically address situation created under the Eviction Moratorium, it is currently unclear how the courts will address the waiver issue. If the landlord is inclined to accept partial payment or create a payment plan, it is suggested that an express non-waiver provision be included. Landlords may also consider terminating for-cause. Landlords should consult with their own legal counsel before accepting past-due rent arising after the end of the Grace Period.

[1] The bills were as follows: HB 4213 (June 2020), HB 4401 (December 2020), SB 282 (May 2021).

[2] June 30, 2022 is the last day a tenant can provide proof of application for assistance. Protection under the Safe Harbor itself ends on September 30, 2022. 

[3] The 10 or 13-day notice will revert to a 72 or 144-hour notice on October 1, 2022 (SB 891, Section 8, (3))

[4] For a more detailed discussion of the effect of HB 4212’s tolling provisions, see: https://www.osbplf.org/blog/inpractice/covid-19-state-of-emergency-extended-through-december-31-2021/

[5] Section 7(1) of HB 4212 states: “If the expiration of the time to commence an action or give notice of a claim falls within the time in which any declaration of a state of emergency issued by the Governor related to COVID-19, and any extension of the declaration, is in effect, or within 90 days after the declaration and any extension is no longer in effect, the expiration of the time to commence the action or give notice of the claim is extended to a date 90 days after the declaration and any extension is no longer in effect.” (Emphasis added.) 

Excuses for Avoiding Training

I have heard all the typical excuses for avoiding training. Here are some examples and my particular spin on how to turn these negative attitudes into positive solutions.

"It's too expensive" Yes, it can be expensive. Or, it can be viewed as an investment into the future of your organization. What is the cost of defending a Fair Housing law suit? What is the cost of homes/spaces sitting vacant because your staff does not understand the concept pre-leasing? How much does your Worker's Compensation insurance increase due to injuries that could have been avoided with proper training? What is the cost of defending a sexual harassment claim, or a wrongful termination? Each one of these scenarios has the potential to cost your organization thousands and thousands of dollars. Proper staff training can save you money due to increased knowledge and professionalism; not to mention decreased staff turnover.

"We don't have time." I hear this often enough to wonder if trainers are the only ones who have time for training! Property Management has its own monthly timeline that we all understand. Training should be scheduled after rent week, not on Monday mornings, and not on the day of month end for accounting. Yes we have renewals, inspections, move outs, move ins, bills to process, resident issues to address, and turnovers to complete. But each of these tasks can be scheduled around training. Try seeking input from your front-line team to determine the best time to schedule training. It is not okay to have our teams performing below standard or being assigned tasks that they do not fully understand. Taking a little time to show them the correct procedures will make their time spent on the job much more productive and therefore saving precious time. Not making time for training could prove to be costly to your organization.

"We can't afford to have our team away from the property." Understandably, closing the office may not be realistic as no one wants to miss a potential sale/rental. There are other options to employ; such as having two sessions in one day and alternating employees so the office remains open. Or, have staff participate in an on-line course or webinar. Blended learning opportunities, (offering both live and on-line training) has proven to be very successful as employees get a global perspective of the topic.

"Why do we need training when HR or a Manager can handle some teaching?" Your in-house experts are indeed valuable to your organization and they should be involved with training company policies and procedures. But what if they have not been brought up to speed with new laws? Or what if their work load is too heavy to expand into training? Even if you have an in-house trainer, sometimes the message needs to be heard from an outsider who is not entrenched with the various personalities and histories of employees. A knowledgeable in-house trainer will know when to outsource some of the training.

"Training is a chore, and boring!" Hire the right trainer! It is difficult for rental housing professionals to relate to someone who has not actually worked in our field. The most successful trainers are those who have paid their dues in the industry and have walked the same walk as their students. The stories we tell, of both successes and failures, are the best way for students to completely understand this wonderful, crazy world of housing management.

So, To Train or Not?

Housing continues to grow in sophistication and complexity. Our team members must continue to learn how to operate our communities with the newest ideas and technology.

Remember, the success of any property is a direct result of the competency of the front line team. Training breeds competent professionals. Competence improves performance

Whether you embrace it, tolerate it, deny it, or avoid it, regular consistent training is necessary in housing management. It always has been and always will be. I am still thankful to all the leaders I have worked with for investing in my career by exposing me to great training. Bringing in the right trainer, or sending your employees to industry training, will have your employees feeling privileged and thankful too!

Angel Rogers has over 30 years of Property Management experience. She has been teaching for various Apartment Associations for 15 years and has successfully launched her own training company, S.T.A.R. -- Specialized Training by Angel Rogers. She is dedicated to providing educational sessions that are motivational and create a fun learning environment. Angel can be reached at (909)725-2700 or angel@angelrogers.com -- check out her website: www.angelrogers.com

1. Manufactured Home Set-Up

1. Include provisions limiting owner's responsibility for such conditions as soils, site preparation, foundation stability, final grading, and settling.
2. Include provision that homeowner has examined the home site and accepts the condition, "as-is."

1. Manufactured Home Removal

Include a provision notifying resident that they will be held liable for any damage to the home site or manufactured community in the event there is any damage during removal of the home.

1. Manufactured Home Standards

Include provisions addressing the following items pertaining to the manufactured home itself:

1. Description of the home and all other structures and accessories that will be sited on the home site.
2. Age, make and model of home.
3. Installation of skirting, gutters and downspouts (within prescribed period of time).
4. Awnings, decks and patios (within prescribed period of time).
5. Above ground piping.
6. Landscaping (Within prescribed period of time).
7. Will fences be allowed, and if so, what height, material and color? Who's responsibility will it be to maintain?

1. Maintenance of Home and Home Site.

1. Add provision making resident responsible for maintaining and keeping the exterior of the home clean and in good repair. Require painting or staining of all wooden structures such as decks, hand railings, storage buildings etc. to prevent their visual and/or physical deterioration.
2. Make resident responsible for maintaining all lawn areas, flowers and shrubbery within their space (e.g. regular mowing and weeding of lawns).

1. Can/should owner reserve the right to perform or have performed landscape maintenance which resident fails to perform?

1. Who owns the landscaping improvements upon termination of tenancy? Address exceptions. Have in writing.
2. Storage of personal property (e.g. firewood, toys, tools, patio furniture, garbage cans, etc.)
3. Clothes lines or clothes line poles.
4. Play equipment, its location and visibility.

1. Homeowners and Guests

1. Limit amount of rent to the persons identified in the rental agreement. Require that any additional residents must be approved by the owner prior to move-in, and an additional monthly amount paid as rent.
2. Limit the total number of permanent residents in any home (rule of thumb 2 persons/bedroom plus one).
3. Make resident responsible for the actions of other occupants of the home, its guests, licensees and invitees.
4. Will there be a limitation on conducting business out of the home?
5. Limitations on "obnoxious or offensive activities which owner believes are an annoyance or nuisance to the community."
6. How long may guests remain in community? Consider placing limit (e'g' 14 days consecutively or cumulatively) after which time they must be qualified as a resident.
7. Have prohibitions against unreasonably loud or disturbing noise through parties, radios, televisions, stereo equipment, etc. and include a time. (e.g. 10:00 p.m. until 8:00 a.m.

1. Subletting

1. Will subletting of a home be permitted or must they be owner occupied?
2. Require approval of house sitters for any extended period of time (e.g. in excess of 30 days) prior to occupancy.

1. Sale of Manufactured Home

1. Require that prospective resident-purchasers submit an application for residency and be approved by owner prior to occupancy. See ORS 90.680.
2. Size and location of "For Sale" signs.

1. Utilities

1. How are electrical, garbage, sewer and water services going to be paid?

1. ORS 90.510 permits direct pass through, but only if the rental agreement specifically provides the right to do so.
2. Problem: How do you "convert" from including utilities in base rent to direct pass-throughs?
3. Who pays for T.V. cable service? Can owner contract with provider, and add on an extra charge?

1. Pets

1. Place limits on control, sanitation, number, type and size of pets. Note ORS 90.530
2. May require that pet agreement be signed and proof of liability insurance making landlord co-insured.

1. Common Areas

1. Limit use and address owner's liability (e.g. streets shall not be used as playgrounds by resident or guests. Sidewalks are not meant for use by bicycles, skateboards, tricycles, etc.)
2. Require resident to assume liability for their guests and invitees.
3. If there are recreation facilities, describe them and place limitations on their use.

1. If there is a clubhouse, describe how it may be used. Consider requiring pre-registration for use; strictly limit or prohibit the use of alcohol; limit use of guests without resident present.
2. Note: can require reasonable cleaning deposit; cannot require bond or insurance; cannot prohibit tenant association meetings there.

1. Automobiles and Motorized Vehicles

1. Strictly limit the dumping of motor oils and other caustic or non-biodegradable substance in street drains, sewer systems or the grounds within the community.
2. Place limitations on car repair and storage of inoperable cars.
3. Limit the number of vehicles and location of parking. Be careful about towing violators.
4. Place limits on the parking of commercial vehicles in the community.
5. Limit overnight parking on streets by guests or homeowners
6. Limit speed and vehicle noise within the community.
7. Limit storage of motor homes, campers, trailers, boats, snowmobiles, etc. on residents' space.
8. Limit use of motorcycles and ATV's within the community.

1. Occupancy Guidelines (ORS 90.510(7))

1. Statute provides that "if adopted, an occupancy guideline in a facility shall be based upon reasonable factors and shall not be more restrictive than limiting occupancy to two people per bedroom.
2. Reasonable factors are defined to include (but not necessarily be limited to):

1. The size of the dwelling.
2. The size of the rented space.
3. Any discriminatory impact for reasons identified.
4. Limitation placed on water or sewage disposal.

1. Dispute resolution (ORS 90.610)

1. What is dispute resolution?

It is an alternative to court litigation and most frequently includes mediation and arbitration.

1. Mediation - non binding dispute resolution
2. Arbitration - binding dispute resolution
3. ORS 90.610(1) states that resident and owner '_shall provide for a process establishing informal dispute resolution of disputes that may arise concerning the rental agreement for a manufactured dwelling."
4. Parties to dispute resolution - Resident vs. owner disputes (not resident vs. resident disputes).
5. Types of disputes:

1. Should be limited to rules violations (as opposed to rental agreement issues such as rent).
2. Exceptions:

1. Statutory (Facility closure, facility sale, rent including but not limited to amount, increase and nonpayment) ORS 90.610(7).
2. Charges and fees due under the rental agreement.
3. Matters for which a non-curable notice could be issued (e.g. 24-hour notice; 3-strikes notice; 20-day repeat violation notice).
4. Approval of new residents purchasing home in park.
5. Lease renewal.

1. Query: What about claims (generally arising against the landlord) such as tort claims (e.g. personal injury, trespass, fraud, misrepresentation, Unlawful Trade Practice claims, Fair Housing claims, etc.)? Any such clause must be in writing and signed.

1. Miscellaneous

1. Address the services and facilities you do not provide.

1. For example, security patrol or security systems - encourage residents to exercise reasonable diligence and caution in securing their homes. Ask that if they observe any suspicious or illegal acts to notify the manager and/or the police department.
2. If there are dimly lighted and/or dark areas within the community, say so, and ask that the resident agree to carry a portable light source when walking at night.

1. Include a non discrimination provision.

1. For example, a recital that the owner will not discriminate on the basis of race, color, sex, marital status, familial status, religion, national origin, or handicap, etc.

HB 3443 adds “bias crime” as defined by ORS 147.380, ORS 166.155, and ORS 166.165 to a number of different statutes in the ORLTA. The term “bias crime” is added to all statutes that previously addressed tenant-impacts of domestic violence, sexual assault and stalking. Terminations for domestic violence, sexual assault, bias crime, and stalking are extremely detailed. Landlord should consult their attorney before taking any termination action regarding allegations of the aforementioned criminal acts.

ORS 90.100 – The term “bias crime” is added to the ORLTA definitions section. A bias crime is defined as the commission, attempted commission, or alleged commission, of an offense as described below:

ORS 166.155 (1) A person commits a bias crime in the second degree if the person:

(a)  Tampers or interferes with property, having no right to do so nor reasonable ground to believe that the person has such right, with the intent to cause substantial inconvenience to another person because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin;

(b) Intentionally subjects another person to offensive physical contact because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin; or

(c)  Intentionally, because of the person’s perception of race, color, religion, gender identity, sexual orientation, disability or national origin of another person or of a member of the other person’s family, subjects the other person to alarm by threatening:

(A) To inflict serious physical injury upon or to commit a felony affecting the other person, or a member of the other person’s family; or

(B) To cause substantial damage to the property of the other person or of a member of the other person’s family.

ORS 166.165 (1) A person commits a bias crime in the first degree if the person:

(a)  Intentionally, knowingly or recklessly causes physical injury to another person because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin;

(b) With criminal negligence causes physical injury to another person by means of a deadly weapon because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin; or

(c)  Intentionally, because of the person’s perception of another person’s race, color, religion, gender identity, sexual orientation, disability or national origin, places another person in fear of imminent serious physical injury.

ORS 90.325 is amended to clarify that tenants may not be held responsible for damages to the premises caused by the perpetrator of a bias crime. To avoid liability for damage the tenant may be required to provide verification that the tenant or a member of the tenant’s household was a victim of a bias crime.

ORS 90.445 is amended to clarify that perpetration of a bias crime against a household member who is also a tenant is grounds for 24-hour termination notice. The landlord may evict the perpetrator while still leaving other tenants on the lease. If the perpetrator of the bias crime does not leave the premises, the landlord may seek a court order to remove them under ORS 105.128 without terminating the other tenants in the unit.

ORS 90.449 is amended to state that a landlord may not terminate or fail to renew a tenancy, serve a notice to terminate a tenancy, bring or threaten to bring an action for possession, increase rent, decrease services or refuse to enter into a rental agreement with:

• A person who is or has been a victim of a bias crime;
• A person who has violated the rental agreement or the provisions of ORS 90.449 because they have been the victim of a bias crime;
• Because of criminal activity or emergency response related to a situation in which the tenant or applicant is a victim of a bias crime.

Additionally, a landlord may not impose different rules, conditions or standards or selectively enforce rules, conditions or standards against a tenant or applicant on the basis that the tenant or applicant is or has been a victim a bias crime.

However, landlords may terminate the tenancy of a victim of a bias crime if the landlord has previously given the tenant a warning about the behavior of the perpetrator and:

• the tenant has allowed the perpetrator to remain on the premises while an imminent or actual threat to others; or
• the perpetrator is an unauthorized occupant, and the tenant has allowed them to remain on the premises without the permission of the landlord.

If a tenant mounts a successful defense to an eviction action under ORS 90.449 the tenant will not be entitled to a prevailing party fee and/or attorney fees costs or disbursements if it the landlord can demonstrate

• that at the time the action was initiated the landlord did not know, or have reason to know, that the action was based on a bias crime incident; and
• upon discovering that the action was based on a bias crime incident, the landlord promptly removed all others except the perpetrator from the action.

ORS 90.453 is amended to:

• add “bias crime” to the definition of non-perpetrating immediate family members of a crime victim;
• add the phrase “employee of the Department of Justice division providing victim and survivor services” to the definition of a “qualified third party;”
• include the phrase “a copy of a federal agency or state, local or tribal police report regarding [a] bias crime” to the definition of “verification;”
• expand the definition of “victim service providers” to include nonprofit agencies that address bias crimes; and
• provide that a tenant who wishes to terminate their own lease due to being the victim of a bias crime needs to provide either a valid order of protection or verification of a bias crime committed against the tenant within 90 days of the self-termination notice.

The Qualified Third-Party Verification Form under ORS 90.453(3) has also been amended to add “bias crime” to the list of harms against a tenant or member of their household.

ORS 90.456 specifies that the tenancy will continue for any tenants who have not been removed for perpetrating a bias crime or have not been released from the lease due to being a victim. Fees, deposits, and prepaid rent for victims and perpetrators are to be accounted for at the time the tenants surrender possession.

ORS 90.459 adds “bias crime” to the list of harms for which a tenant may provide actual notice and request a change of locks. Verification is not required. If the perpetrator is also a tenant the landlord must see a court order removing the perpetrator before changing the locks.

ORS 90.767 is amended to specify that unless specified in a mediation policy created under this statute, or agreed to by all parties, no one, except the victim, may initiate mediation of a dispute regarding allegations of a bias crime.

Earlier this week the 2015 Oregon Legislative Session adjourned.    This session was notable for two reasons - the first for passing MHCO's long awaited changes eliminating past due taxes on abandoned homes and the second for the tenacity of rent control to raise it's head in floor debates, a legislative work group proposal and amendments. 

The increase in the cost of housing  particularly in many of Oregon's urban areas manifested itself in a drive to bring forward rent control in various forms.  This will not be the last we hear of rent control as we head into 2016.  Considering that in many cases MHCO was able to defeat rent control by just one vote in committee raises concerns as we set our sights on the February 2016 Oregon Legislative Session and especially the 2017 Oregon Legislative Session if elections continue to go as badly as they have for the business community over the past four years. 

In the end, MHCO is thrilled with what we were able to accomplish in the 2015 Legislative Session - one of the best pieces of pro-landlord legislation in the last decade, but we have serious reservations where the Legislature is headed on issues that are of great concern to landlords and business owners. 

MHCO will be providing extensive information on the new tax rules for abandoned homes later this year at the MHCO Annual Conference as well as information on other issues in the 2015 Landlord Tenant Coalition Bill that passed in this Legislative Session.  The new laws do not go into effect until January 1, 2016.  New forms will be necessary - MHCO will have those available to members on-line later this year as well.

Finally, here is a summary of some of the legislation that MHCO worked to defeat this session.  Other than the Coalition Bill (HB 3016) there were no other bills that MHCO supported - that in itself is a sad commentary on this legislative session considering the thousands of bills introduced.

MHCO Legislative Summary - MHCO Defeated Proposed Legislation

HB 2564 - (Inclusionary Zoning) Permits local governments to impose conditions on approved permits that effectively establish sales price for up to 30 percent of residential development or limit purchase to class or group of purchasers in exchange for one or more developer incentives.

This bill was the source of a lot of angst this session - with rent control advocates mentioning the need for rent control during the House Floor debate on this bill.  In the Senate rent control advocate drafted a rent control amendment (dash 5) - amendment defeated by just one vote in committee.

HB 2573 - Authorizes residential tenant to install on premises and use electric vehicle charging station for personal, noncommercial use.  Likely to be re-visited in Feb 2016.

HB 3494 - Prohibits landlord from requiring applicant or tenant to declaw or devocalize animal otherwise allowed on premises or to advertise in manner that discourages application from potential applicant with otherwise allowed animal that has not been declawed or devocalized.  Fine up to $1,000.

HB 3076A - Requires Oregon Health Authority to analyze ground water contaminant data and provide education in problem areas.  Would have increased reporting requirements for manufactured home communities operating wells.  Likely to be re-visited in Feb 2016.

HB 3081 - Directs Department of Consumer and Business Services to adopt by rule standards to address conflicts of interest of manufactured structure dealers that are also residential landlords.

HB 3129 - Authorizes tenant to whom real estate has been leased by landlord to install and use electric vehicle charging station for personal, noncommercial use.

SB 592 - Repeals law that prevents local governments from imposing conditions on approved permits that effectively establish sales price for residential development or limit purchase to class or group of purchasers. 

This bill became the vehicle for a proposed Legislative Work Group on Manufactured Housing.  This amendment was defeated in committee by one vote. 

Wage and Hour Basics

The federal Fair Labor Standards Act (FLSA) and Oregon law impose different requirements on employers. To add to the confusion, employers must comply with both sets of rules for covered employees. For "non-exempt" employees, this means paying employees at least the applicable minimum wage (currently $7.25 under the FLSA and between $10.00 and $11.25 under Oregon law, depending on location). Employers are also responsible for paying overtime to non-exempt employees for hours worked in excess of 40 hours in a week at no less than one and one half times the employee's regular rate.

Fortunately, Oregon law provides a minimum wage and overtime exemption for resident mobile home park employees engaged in management and maintenance. ORS 653.020(18). As a consequence, mobile home park managers, assistant managers, and maintenance employees residing on the employer's premises generally are exempt from the Oregon minimum wage and overtime requirements. The troublesome issue for Oregon employers is that the FLSA does not provide a similar exemption. The impact is that unless an employee qualifies as a salaried, exempt "white collar" employee under the FLSA, the employee will be entitled to the federal minimum wage and overtime.

Housing under the FLSA

Assuming an employee is non-exempt under the FLSA, is it legal for an employer to credit employer-paid housing toward satisfying an employee's minimum wage? In other words, may an employee pay less than $7.25 an hour in cash, if it also provides free housing to the employee? The answer is a qualified "yes." Under the FLSA, an employer may count as wages the reasonable cost to the employer of furnishing an employee with board, lodging, and other facilities under qualifying circumstances. However, there are strict requirements for counting the housing costs toward the FLSA minimum wage.

According to the U.S. Department of Labor (DOL), in order to take credit for housing as "wages," an employer must satisfy all of the following factors: (1) the lodging is regularly provided by the employer or similar employers; (2) the employee voluntarily accepts the lodging; (3) the lodging is furnished in compliance with applicable law; (4) the lodging is provided primarily for the benefit of the employee rather than the employer; and (5) the employer maintains accurate records of the costs incurred in furnishing the lodging. An employer counting on housing to substitute for part or all of an employee's federal minimum wage will have the burden of establishing all of these factors, if challenged. Satisfying the tests, particularly where an employer requires the employee to live on the employer's premises is a challenging proposition.

If an employer does satisfy the DOL test, the employer may be able to count the cost of the housing toward the federal minimum wage requirement. Thus, if the employer provides housing that reasonably costs it $300 per week, and the employee works 40 hours a week, the employer has satisfied the federal minimum wage without the payment of additional cash wages: $300 is greater than $290 (40 x $7.25 = $290) Note that "cost" of the housing is not the same as "fair market value," and may not include any amount of employer profit. Thus, if an employer provides an employee with a mobile home that typically rents for $1000 per month, the possible cost that the employer may count toward the minimum wage would be less than $1000 per month.

Employers taking credit for housing costs and paying less than the federal minimum wage in cash wages must keep accurate and detailed records establishing the employer cost of the housing provided to employees. Failure to do so will result in the denial of the offset and potential liability for any unpaid minimum wages, liquidated damages, and attorneys' fees.

Is it Worth the Effort?

As discussed above, qualifying for and establishing a minimum wage offset for housing is a rigorous ordeal. Fortunately, there is a risk-free alternative: assuming the employee is a resident manager, assistant manager, or maintenance employee exempt under Oregon minimum wage requirements, simply pay the employee at least the federal minimum wage of $7.25 for all hours worked. That eliminates the federal minimum wage issue, the recordkeeping requirements, and the risks of an expensive DOL audit or lawsuit.

This article does not constitute legal advice. If you'd like more information, feel free to contact me at kpearson@bullardlaw.com or (503) 248-1134.

Answer: I doubt the park rules contain anything about privacy rights or the use of video cameras. As to laws being broken by the use of the camera, I don't believe there are any. Thus, I don't seen any management responsibility at this point. In other words, if the rental agreement, rules, or laws are not being broken, there would be no basis for management to treat the use of the camera as something for which the tenancy can be terminated, say, under a 30-day notice pursuant to ORS 90.630.

ORS 90.740 enumerates several duties of residents in manufactured housing communities. Subsection (4)(j) provides they must: "Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors." Video taping from a stationary location, does not, in my opinion, appear to violate this law. If one resident followed the other around with a camera throughout the park, that would be another issue.

Let's call the resident with the camera, "Resident A", and the one with the late-night visitors, "Resident B". Your question did not say whether Resident B was aware of the video camera or that it was trained at his front door. Nor did you indicate whether the video camera also had audio capability, such that it could pick up Resident B's outdoor conversations with his late night guests.

In Oregon, ORS 165.540(1)(c) forbids a person from obtaining or attempting to obtain "the whole or any part of a conversation by means of any device, contrivance, machine, or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained." Note that informing the participants is required, but consent from them is not. Subsection (3) of the statute provides that the above prohibitions do not apply to conversations that occur inside a homeowner's residence, - even though the guests and visitors are not informed.

Although audio recordings are addressed by the above Oregon statute, video recordings are not. Nonetheless, the general rule, at least from a civil law standpoint, is whether the (e.g. Resident B) has a reasonable expectation of privacy. Doing drug deals outside is most likely an activity Resident B and his guests have no reasonable basis to expect privacy.

Certainly, Resident A can use the cameras on his own property and the streets, sidewalks, and any other public and quasi-public areas. Can the camera be trained on the front door of Resident B, as he admits his late night visitors? I cannot render a legal opinion on this, but would speculate that since it is outdoors, albeit on Tenant A's own property, video recording should be OK (not audio recording, however). But even if it's not OK, is this a fight management wants to take up? This is not as if Resident A is screaming at Resident B's late night guests, or is otherwise causing any disruption in the park. If Resident B knows of the video surveillance, consent would seem to be a moot issue. It would be prudent for Resident A to let Resident B know he has installed a security system that includes video surveillance. The manager should encourage Resident A to do so, or authorize him (the manager) to do so. Once informed, the entire expectation of privacy analysis becomes moot.

Lastly, I'm curious is Resident B's activity is bothering anyone else? If so, it may be time to take action. I have always maintained that with residents whose late night activities smack of drug dealing, with all the typical indicators such as multiple visitors, noise, and short-term visits, etc., a 30-day curable notice under ORS 90.630 is a much easier tool to use as the basis of an eviction, than to try to "prove" a violation of ORS 90.396 (1)(f)(B), which allows the issuance of a non-curable 24-hour notice for the manufacture, delivery, or possession of a controlled substance as defined by various Oregon statutes.

Answer: In a guest blog dated March 13, 2015, Jo Becker, Educational/Outreach Specialist for the Fair Housing Council of Oregon (“FHCO”) posted an article for the Willamette Valley MLS titled: “Screening without Social Security Numbers: There are Options!”  The post is set out in full at this link.

What I’ve set forth below is a summary of Ms. Becker’s points, with some editorial comment of my own.  First and foremost, this is not to be used as legal advice, as everyone’s factual situation is different.

Mr. Obama’s controversial (my word, not hers) amnesty program will result in approximately 4 million U.S. residents who are undocumented, coming into the United States.  Although they will have an opportunity to apply for work permits and social security numbers, many may still not have SSNs when seeking housing.

In pointing  out that “…the Fair Housing Act and Oregon law apply to everyone present in the US, regardless of immigration status” Ms. Becker suggests that there are alternatives to screening other than requiring proof of a SSN.  Though she recognizes the “importance of thorough tenant screening,” she states that:

 “…criminal history information can be acquired without an SSN and, of course, current and past landlords can provide rental history and references. Applicants may be able to provide other information such as proof of “x” number of recent months’ paid utility bills, rent, or other regular monthly bills that can show a pattern of timely payment.”

However, regardless of a landlord or manager’s willingness to rent or lease space to all who qualify, the litmus in screening is really what the screening company requires.  Ms. Becker suggests that rather than issuing a “flat no,” landlords and managers say to the applicant “show me what you can.”[1]   She states that:

“…your screening company should be able to give you an informed estimate about how much time and money an evaluation could cost.  Costs may vary so shop your screening company.  Once you have a cost estimate, inform the consumer and, if you wish and do so consistently, you may then pass this cost on to them if they want to continue with the application.”

This suggestion makes the following assumptions: (a) That the applicant actually has some reliable identifying information sufficient to permit the a company to complete the screening process; (b) The company is capable of completing the screening process – even for an increased fee – that does not rely upon a SSN; and (c) That the screening report will provide equally reliable information as if the applicant had tendered a SSN. 

Ms. Becker notes that an alternative to a SSN is an ITIN (Individual Taxpayer Identification Number). Here is what the IRS says about ITINs:

• ITINs are for federal tax reporting only, and are not intended to serve any other purpose. IRS issues ITINs to help individuals comply with the U.S. tax laws, and to provide a means to efficiently process and account for tax returns and payments for those not eligible for Social Security Numbers (SSNs). 
• If you do not have a SSN and are not eligible to obtain a SSN, but you have a requirement to furnish a federal tax identification number or file a federal income tax return, you must apply for an ITIN.
• By law, an alien individual cannot have both an ITIN and a SSN.
• For more information, go to link here.

Based upon the above, this leads me to believe – or at least suspect – that the use of an ITIN is really only appropriate if the individual has a federal income tax reporting obligation and is unable to obtain a SSN.  So the question landlords and managers should ask their screening company is whether it can even use the ITIN for purposes of tenant screening.  If the company can do so, and the background check can be accomplished with a comparable level of accuracy as with a SSN, then the following rules should apply:

1. If applicants do not have a SSN, but do have an ITIN, their application should be processed.
2. Make sure that the use of the ITIN in lieu of the SSN is applied evenly and consistently to ALL applicants.

If your screening company does not use the ITIN for tenant screening, are you legally required to find one that does?  I will leave that question to your own attorney.  As for me, if I could pass on the added cost, if any, to the applicant [as Ms. Becker’s article suggests], and the company can provide equally reliable and prompt service, I would personally consider doing so.  

However, Ms. Becker notes in her article that:

“After having consulted with screening companies and the credit bureaus, it does not appear that this will allow a credit report to be pulled in the same way that an SSN does.”  [Underscore mine.]

That statement does not sound like a ringing endorsement by Ms. Backer of her own suggestion that landlords use an ITIN in lieu of the SSN.  In any event, it’s worth a try.

So setting the ITIN issue aside, the FHCO’s position is that:

“…a refusal to review alternative documentation when a SSN is not available will have a negative and disparate impact on individuals whose national origin is not the US, thereby having a disparate impact on that protected class.  Therefore, a policy or practice of not accepting applicants because they do not have a SSN is not appropriate.  That said, we feel that passing on actual additional costs of screening in a situation like this as a legitimate business expense that could be passed on to the applicant. [Underscore mine.]

Here is where Ms. Becker and I part company.  What she is saying is that: (a) Since members ostensibly of a protected class [e.g. Mr. Obama’s four million invitees - who will be given an opportunity to apply for SSNs] will be adversely affected; (b) By insisting exclusively on the SSN as the sole screening tool, it indirectly singles them out, and that’s discriminatory.  That is what she means when she says it creates a “disparate impact.”  So even if a manager or landlord has no intent to discriminate – i.e. they are applying the SSN requirement to ALL applicants, it is the FHCO’s position that such a screening practice is a violation of the Federal and State Fair Housing Laws.

There is one problem with the above quote: Disparate impact theory has never been validated by the U.S. Supreme Court.  There are many legal scholars who maintain that the Fair Housing Act (“FHA”) was only intend to be applied to prevent intentional discrimination. 

After several false starts, on January 21 of this year, the case of Texas Dept. of Housing vs. The Inclusive Communities Project, was heard by the Supreme Court. In a Forbes article (“Disparate-Impact Theory Finally Gets Its Test At Supreme Court“) published the following oral argument on the day of the hearing, writer Daniel Fisher, stated that the case:

“…represents a long-awaited test of disparate impact, which critics say allows the federal government — or allied non-profit groups like Inclusive Communities — to sue businesses and housing authorities for committing racial discrimination not because an identified person discriminated but because the racial outcome was skewed one way or another.”

In other words, the issue finally before the Court is whether the FHA can be used to produce racial outcomes when there is no proof of intent to discriminate. [2]   

Conclusion. Although I disagree that landlords and managers are today engaging in illegal discrimination via disparate impact, when they rely exclusively upon SSNs as a screening tool, there are some take-aways from the Becker article I do endorse:

• The FHCO believes that landlords and managers should review “alternative documentation” protocols, rather than just saying “No” whenever an applicant seeks to rent or lease a space without a SSN.  I have no problem with that, and suggest park owners develop such protocols. 
• However, the protocols must produce a reasonably equivalent [i.e. timely and reliable], result as when using a SSN. 
• If there are companies out there that can produce such results without SSNs– even if more costly – they should be seriously vetted. According to Ms. Becker, the cost, as of today, can be passed on to the applicant, should he or she choose to proceed. 
• Note that Ms. Becker is not saying that park owners and managers must use alternative procedures, even if they are bad or unreliable.  She is only saying that, if available, alternatives should be considered. I repeat: Landlords and managers should not initially “screen” [i.e. reject] all tenant applicants based solely on the fact they do not have a SSN.[3] You want to see if there is an alternative screening protocol.
• If (a) valid alternative screening tools exist, and (b) they are equally applied, there should be no legal basis for a claim of discrimination if the tenant applicant does not pass that screening protocol.
• Whether screening out all tenant applicants based upon their not having a SSN would result in a “disparate impact” against members of a protected class and therefor violate the FHA, will have to wait until the U. S. Supreme Court issues its decision.

In the meantime, landlords and managers may want to investigate various screening companies today, to learn whether there are other suitable substitutes to using the SSN as a screening tool.  If there are, and they prove reliable, these alternatives should be included on a written list and provided to tenant applicants preferably upon first face-to-face contact.[4]  Remember to be consistent and apply this approach across the board to ALL tenant applicants. To be absolutely safe, I would even go so far as to say that the list – if one can be developed – should be given to all applicants with the rest of the park’s paperwork. In other words, don’t ask the applicant if they have a SSN, and if they do not, then refuse to give them an application. If there are comparable alternatives that a screening company will accept, then you may use one of them.    

[1] I respectfully submit that “show me what you can” is an insufficient and slightly misleading approach to the issue, as it is too open-ended.  It implies that the applicant need only produce what they can.  I suggest that the proper approach is to ask:  “Show me the best documentation you have of your identity.” If the applicant produces a valid birth certificate or a valid driver’s license, it may suffice for the screening company. If he or she produces a library card as the “best evidence,” there may be some difficulty in its suitability for use by the screening company.

[2] I wrote a blog post explaining disparate impact late last year, before the case was argued. It can be found here.

[3] There is a slightly comparable analogy with medical marijuana. As long as it is a federally “controlled substance” landlords may – in my opinion – have a policy against its on-site use, cultivation, manufacture, or sale; they do not have to allow its on-site use as a “reasonable accommodation.”  But having a no-medical marijuana policy does not mean landlords may “screen” tenant applicants, based upon whether they simply have a medical marijuana card.  

[4] I say “face-to-face contact”, as I don’t recommend engaging in a discussion of screening issues with applicants over the phone. There is too much chance there is a tester on the other end of the line. You want to be consistent in giving all applicants the same paperwork when they arrive.

Answer: In a guest blog dated March 13, 2015, Jo Becker, Educational/Outreach Specialist for the Fair Housing Council of Oregon ("FHCO") posted an article for the Willamette Valley MLS titled: "Screening without Social Security Numbers: There are Options!" The post is set out in full at this link.

What I've set forth below is a summary of Ms. Becker's points, with some editorial comment of my own. First and foremost, this is not to be used as legal advice, as everyone's factual situation is different.

Mr. Obama's controversial (my word, not hers) amnesty program will result in approximately 4 million U.S. residents who are undocumented, coming into the United States. Although they will have an opportunity to apply for work permits and social security numbers, many may still not have SSNs when seeking housing.

In pointing out that '_the Fair Housing Act and Oregon law apply to everyone present in the US, regardless of immigration status" Ms. Becker suggests that there are alternatives to screening other than requiring proof of a SSN. Though she recognizes the "importance of thorough tenant screening," she states that:

'_criminal history information can be acquired without an SSN and, of course, current and past landlords can provide rental history and references. Applicants may be able to provide other information such as proof of "x" number of recent months' paid utility bills, rent, or other regular monthly bills that can show a pattern of timely payment."

However, regardless of a landlord or manager's willingness to rent or lease space to all who qualify, the litmus test in tenant screening is really what the screening company requires. Ms. Becker suggests that rather than issuing a "flat no," landlords and managers say to the applicant "show me what you can." She states that:

'_your screening company should be able to give you an informed estimate about how much time and money an evaluation could cost. Costs may vary so shop your screening company. Once you have a cost estimate, inform the consumer and, if you wish and do so consistently, you may then pass this cost on to them if they want to continue with the application."

This suggestion makes the following assumptions: (a) That the applicant actually has some reliable identifying information sufficient to permit the a company to complete the screening process; (b) The screening company is capable of completing the screening process - even for an increased fee - if it does not rely upon a SSN; and (c) That the screening report will provide equally reliable information as if the applicant had tendered a SSN.

Ms. Becker notes that an alternative to a SSN is an ITIN (Individual Taxpayer Identification Number). Here is what the IRS says about ITINs:

• ITINs are for federal tax reporting only, and are not intended to serve any other purpose. IRS issues ITINs to help individuals comply with the U.S. tax laws, and to provide a means to efficiently process and account for tax returns and payments for those not eligible for Social Security Numbers (SSNs).
• If you do not have a SSN and are not eligible to obtain a SSN, but you have a requirement to furnish a federal tax identification number or file a federal income tax return, you must apply for an ITIN.
• By law, an alien individual cannot have both an ITIN and a SSN.
• For more information, go to link here.

Based upon the above, this leads me to believe - or at least suspect - that the use of an ITIN is really only appropriate if the individual has a federal income tax reporting obligation and is unable to obtain a SSN. So the question landlords and managers should ask their screening company is whether it can even use the ITIN for purposes of tenant screening. If the company can do so, and the background check can be accomplished with a comparable level of accuracy as with a SSN, then the following rules should apply:

• If applicants do not have a SSN, but do have an ITIN, their application should be processed.
• Make sure that the use of the ITIN in lieu of the SSN is applied evenly and consistently to ALL applicants.

If your screening company does not use the ITIN for tenant screening, are you legally required to find one that does? I will leave that question to your own attorney. As for me, if I could pass on the added cost, if any, to the applicant [as Ms. Becker's article suggests], and the company can provide equally reliable and prompt service, I would personally consider doing so.

However, Ms. Becker notes in her article that:

"After having consulted with screening companies and the credit bureaus, it does not appear that this will allow a credit report to be pulled in the same way that an SSN does." [Underscore mine.]

That statement does not sound like a ringing endorsement by Ms. Backer of her own suggestion that landlords use an ITIN in lieu of the SSN. In any event, it's worth a try.

Setting the ITIN issue aside, the FHCO's position is that:

'_a refusal to review alternative documentation when a SSN is not available will have a negative and disparate impact on individuals whose national origin is not the US, thereby having a disparate impact on that protected class. Therefore, a policy or practice of not accepting applicants because they do not have a SSN is not appropriate. That said, we feel that passing on actual additional costs of screening in a situation like this as a legitimate business expense that could be passed on to the applicant. [Underscore mine.]

Here is where Ms. Becker and I part company. What she is saying is that: (a) Since members of the protected class [i.e. Mr. Obama's four million invitees - who will be given an opportunity to apply for SSNs] will be adversely affected; (b) By insisting exclusively on the SSN as the sole screening tool, it indirectly singles them out, and that's discriminatory. That is what she means when she says it creates a "disparate impact." So even if a manager or landlord has no intent to discriminate - i.e. they are applying the SSN requirement to ALL applicants, it is the FHCO's position that such a screening practice is a violation of the Federal and State Fair Housing Laws.

"Disparate impact" is a controversial theory, and only recently was addressed by U.S. Supreme Court. On June 25, 2015, the United States Supreme Court, in Texas Dept. of Housing vs. Inclusive Communities, ruled that under certain circumstances, disparate impact theory can provide the basis for liability in matters pertaining to the sale and rental of housing. While the holding was disappointing, Anthony M. Kennedy, who wrote for the Majority, did state that claims based solely upon mere statistical outcomes are insufficient. He wrote:

"In a similar vein, a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity. A robust causality requirement ensures that "[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate impact" and thus protects defendants from being held liable for racial disparities they did not create.

***

Courts must therefore examine with care whether a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases is important. A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact.

***

It must be noted further that, even when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that "arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e]." Ibid. If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means."

Conclusion. Thus, in recognition of the Inclusive Communities holding, I believe it could be risky to blindly adhere to an application policy that requires proof of a social security card, if a suitably reliable substitute can be found at a reasonable cost. Here are some take-aways:

• The FHCO believes that landlords and managers should review "alternative documentation" protocols, rather than just saying "No" whenever an applicant seeks to rent or lease a space without a SSN. I have no problem with that, and suggest park owners develop such protocols.
• However, the protocols must produce a reasonably equivalent [i.e. timely and reliable], result as when using a SSN.
• If there are companies out there that can produce such results without SSNs - even if more costly - they should be seriously vetted. According to Ms. Becker, the cost, as of today, can be passed on to the applicant, should he or she choose to proceed.
• Note that Ms. Becker is not saying that park owners and managers must use alternative procedures, even if they are bad or unreliable. She is only saying that, if available, alternatives should be considered. I repeat: Landlords and managers should not initially "screen" [i.e. reject] all tenant applicants based solely on whether or not they have a SSN.
• If (a) valid alternative screening tools exist, and (b) they are equally applied, there should be no legal basis for a claim of discrimination if the tenant applicant does not pass the screening protocol.

In the meantime, landlords and managers may want to investigate various screening companies today, to learn whether there are other suitable substitutes to using the SSN as a screening tool. If there are, and they prove reliable, these alternatives should be included on a written list and provided to tenant applicants preferably upon the first face-to-face contact. Remember to be consistent and apply this approach across the board to ALL tenant applicants. To be absolutely safe, I would even go so far as to say that the list - if one can be developed - should be given to all applicants with the rest of the park's paperwork. In other words, don't ask the applicant if they have a SSN, and if they do not, then refuse to give them an application. If there are comparable alternatives that a screening company will accept, then you may use one of them.

As to the question whether not requiring SSNs as part of the application process could open a community up to liability from the other residents, I'm not sure that is an issue. Criminal background checks can be conducted without a SSN. You always want a criminal background check, and the absence of a SSN should not prevent your doing so.

For more information go to the following links:

• https://www.landlordology.com/do-landlords-need-social-security-numbers/
• http://www.american-apartment-owners-association.org/property-managemen…
• https://www.biggerpockets.com/forums/52/topics/183099-background-checks…
• http://www.nolo.com/legal-encyclopedia/how-screen-select-tenants-faq-29…