Search

Phil Querin Q&A: Tree Liability

Phil Querin

Trees, Limbs and Roots – Liability Issues

 

Question:  .  What is the landlord’s responsibility when it comes to trees falling on a tenant’s house. Does it make a difference if it is a hazard tree vs. not a hazard tree? What about roots crossing over a space and causing damage to the home on the tenant’s space or the neighbor’s space? What about tree damage that is weather related?

 

Answer: First, it must be noted that since tenants are not “owners,” and therefore, the caselaw and statutes that might apply to the latter do not necessarily apply to tenants in manufactured housing communities where the Spaces are rented.

Since landlords are the “owners” of the community, so they should maintain good liability insurance coverage because even if maintenance of a non-hazard tree may be the tenant’s responsibility based on the park rules or rental agreement, (a) he or she may not have sufficient assets or insurance to cover the damage caused – especially if it involves personal injury, and (b) even if they do have coverage, there is a good chance the tenant or the insurance carrier, may try to pass the liability on to the landlord either for indemnity or contribution.

It is also important that landlords have good rules in place that are consistently enforced. Setting aside the hazard tree issue, which are mandated by statute, park rules should be clear in addressing each resident’s duties regarding maintenance responsibilities for non-hazard trees, especially in dealing with low hanging limbs over the resident’s home or that cross over onto another resident’s space. This is especially important where limbs are over a home, patio, driveway, and play areas.

Oregon law allows landlords to require that tenants carry liability insurance not exceeding $100,000.[1] The rental agreement may be unilaterally amended to impose the insurance, subject to 30-days’ notice.[2]

Before we address liability, we must first address duties. Is the tree a “hazard tree” – which is generally the landlord’s duty unless assumed by the tenant as discussed below. If it is not a hazard tree, who has responsibility? That depends upon what the rules and rental agreement say. If the issue is not addressed in those documents, it is – in my opinion - almost certain the landlord will be held responsible if any damages occur. ORS 90.740 governing tenant duties, does not deal with maintenance of trees, except for watering and removal of fallen limbs. ORS 90.730, governing landlord responsibilities, does not address maintenance of trees on the tenant’s space. For common areas, the landlord is liable for maintenance of all trees.

This means that if the issue is entirely ignored in the rules or rental agreement, it will fall to the landlord.

Definitions. The hazard tree statute, ORS 90.727, provides the following definitions:

Maintenance.  “Maintaining a tree” means removing or trimming it for the purpose of eliminating features of the tree that cause it to be hazardous or may cause it to become hazardous in the near future. The term “hazardous” is discussed below.
Removal. “Removing a tree” includes both felling and removing it and also grinding or removing the stump.


Hazard Trees. ORS 90.100(20) defines them as trees located in a manufactured housing community measuring at least eight inches DBH[3] and “…considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 (Issuance of license) and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.” (Emphasis added.)

Landlord Duties. The following hazard tree rules apply under the statute:

Landlord must maintain a tree that is a hazard tree (i.e., that was not planted by the current tenant) on the Space if “…the landlord knows or should know that the tree is a hazard tree.”
Landlord may maintain a tree on the Space to prevent the tree from becoming a hazard tree. Prefacing the statute with “may” means it is not mandatory. But if the issue is not covered in the rules or rental agreement, guess what? If the tenant does not maintain the tree voluntarily, it could ultimately become a “hazard tree” thereby removing any doubt about who has the duty to maintain.
Landlords have discretion in deciding whether the appropriate maintenance is removal or trimming of the hazard tree.
 Landlords are not responsible for (a) maintaining a tree that is not a hazard tree or (b) for maintaining any tree for aesthetic purposes.
ORS 90.725 is the general access statute for all landlords and tenants. It is lengthy and detailed. But ORS 90.727(4) requires that the reasonable notice be given to inspect a tree and “…except as necessary to avoid an imminent and serious harm to persons or property, a reasonable opportunity for the tenant to maintain the tree. The notice must specify any tree that the landlord intends to remove.”


Tenant Duties.  Except as provided above, the tenant is responsible – at their expense - for maintaining the trees on their Space. (Notwithstanding this provision, I believe it is good practice to include the responsibility in the rules or rental agreement.) Tenants may retain certain qualified arborists[4] to inspect a tree on their Space, and if the arborist determines that the tree is a hazard, the tenant may either (a) require the landlord to maintain the hazard tree, or (b) maintain the tree at the tenant’s expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist’s report.

Whether it is the tenant’s duty or the landlord’s based upon the above rules, maintenance of any tree with a DBH of eight inches or more requires engaging the services of a landscape construction professional with a valid license issued pursuant to ORS 671.560.

Tree Interfering With Removal Home. If a tenant’s home cannot be removed without first removing or trimming a tree on the Space, the owner of the home may remove or trim the tree at the tenant’s expense, after giving reasonable written notice to the landlord.

General Liability Issues. What follows are my opinions only, and not legal advice. In addressing these issues, I am following general real estate laws.

Who is responsible if a non-hazard tree – or limbs, falls on the resident’s home or injures a resident or guest?
Under ORS 90.727(5), it is the tenant’s responsibility. If the tenant has their home insured, it would be submitted to the insurance carrier. Otherwise, it’s absorbed by the tenant. If they have health insurance, the injury should be covered.
Who is responsible if a non-hazard tree – or limbs, fall on the neighbor’s home or injures the resident or a guest?
 Does the tenant on whose space the tree grows, have liability insurance? If a claim is brought by the neighbor against that tenant, the liability carrier will likely cover it.
If the neighbor whose home was damaged had property damage insurance, that carrier would pay, and if the tenant was responsible for tree maintenance by virtue of ORS 90.727(5) the carrier might bring a subrogated[5] claim against the tenant if he/she has assets or liability insurance.
If the neighbor was injured and had health insurance, the same rules would apply as above.
Who is responsible if the roots of a non-hazard tree protrude under the resident’s home, or onto the neighbor’s Space and cause that home to become out of level or otherwise damaged?
ORS 90.730(3)(g) provides that “…Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy.” (Emphasis added.)
This suggests that the root system from the non-hazard tree is going to be the landlord’s problem if safety becomes an issue as the tree remains there.
For this reason, landlords should be attentive to the problem, especially upon the change of ownership of the home, i.e., before the offending root system causes more damage.
What if a non-hazard tree is blown over in a storm or struck by lightning, and cause damages or injuries to tenants or their property?
This is well beyond my real estate legal skill set, except to say that “Acts of God” e.g., weather, forest fires, earthquakes, etc. would not normally create liability to the tenant unless the risk was foreseeable and/or the result of an intentional or grossly negligence act of the tenant – e.g., the tenant damaged the tree affecting its stability, but allowed it to remain on the Space. Certainly, the damage or injuries resulting from the non-hazardous tree would be covered by health or property damage insurance, if the affected resident carried it.


Lastly, notwithstanding the ORS 90.727(5) imposes non-hazard tree maintenance responsibility on the tenant, management must be careful to assure that they are safe. The cost of trimming to prevent a tree from becoming a hazard tree could be significant, and beyond the tenant’s financial capacity. For that reason, among others, it is my belief management must be vigilant about the safety of all trees on the residents’ spaces.

[1] See, ORS 90.222. This statute is quite detailed. It must be reviewed carefully before a landlord attempts to require it of the residents.

[2] Interestingly, the 30-day notice only applies to month-to-month tenants; it is therefore doubtful that a fixed term lease can be unilaterally amended. Landlords using leases for new residents should consider requiring it in the lease from the start.

[3] The width of a standing tree at four and one-half feet above the ground on the uphill side. Don’t tell the Woke Police, but “DBH” stands for “Diameter at breast height.”

[4] Details in ORS 90.727(5).

[5] Subrogation is a concept that permits an insurance company to pay their insured’s claim and then recover the amount paid from the party ultimately liable for the damage or injury.

Phil Querin Q&A: Trees, Limbs and Roots – Liability Issues

Phil Querin

Question:  .  What is the landlord’s responsibility when it comes to trees falling on a tenant’s house. Does it make a difference if it is a hazard tree vs. not a hazard tree? What about roots crossing over a space and causing damage to the home on the tenant’s space or the neighbor’s space?

 

Answer: First, it must be noted that since tenants are not “owners,” and therefore, the caselaw and statutes that might apply to the latter do not necessarily apply to tenants in manufactured housing communities where the Spaces are rented.

 

Since landlords are the “owners” of the community, so they should maintain good liability insurance coverage because even if maintenance of a non-hazard tree may be the tenant’s responsibility based on the park rules or rental agreement, (a) he or she may not have sufficient assets or insurance to cover the damage caused – especially if it involves personal injury, and (b) even if they do have coverage, there is a good chance the tenant or the insurance carrier, may try to pass the liability on to the landlord either for indemnity or contribution.

 

It is also important that landlords have good rules in place that are consistently enforced. Setting aside the hazard tree issue, which are mandated by statute, park rules should be clear in addressing each resident’s duties regarding maintenance responsibilities for non-hazard trees, especially in dealing with low hanging limbs over the resident’s home or that cross over onto another resident’s space. This is especially important where limbs are over a home, patio, driveway, and play areas.

 

Oregon law allows landlords to require that tenants carry liability insurance not exceeding $100,000.[1] The rental agreement may be unilaterally amended to impose the insurance, subject to 30-days’ notice.[2]

 

Before we address liability, we must first address duties. Is the tree a “hazard tree” – which is generally the landlord’s duty unless assumed by the tenant as discussed below. If it is not a hazard tree, who has responsibility? That depends upon what the rules and rental agreement say. If the issue is not addressed in those documents, it is – in my opinion - almost certain the landlord will be held responsible if any damages occur. ORS 90.740 governing tenant duties, does not deal with maintenance of trees, except for watering and removal of fallen limbs. ORS 90.730, governing landlord responsibilities, does not address maintenance of trees on the tenant’s space. For common areas, the landlord is liable for maintenance of all trees.

 

This means that if the issue is entirely ignored in the rules or rental agreement, it will fall to the landlord.

 

Definitions. The hazard tree statute, ORS 90.727, provides the following definitions:

  • Maintenance“Maintaining a tree” means removing or trimming it for the purpose of eliminating features of the tree that cause it to be hazardous or may cause it to become hazardous in the near future. The term “hazardous” is discussed below.
  • Removal. “Removing a tree” includes both felling and removing it and also grinding or removing the stump.

 

Hazard Trees. ORS 90.100(20) defines them as trees located in a manufactured housing community measuring at least eight inches DBH[3] and “…considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 (Issuance of license) and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.” (Emphasis added.)

 

Landlord Duties. The following hazard tree rules apply under the statute:

  • Landlord must maintain a tree that is a hazard tree (i.e., that was not planted by the current tenant) on the Space if “…the landlord knows or should know that the tree is a hazard tree.”
  • Landlord may maintain a tree on the Space to prevent the tree from becoming a hazard tree. Prefacing the statute with “may” means it is not mandatory. But if the issue is not covered in the rules or rental agreement, guess what? If the tenant does not maintain the tree voluntarily, it could ultimately become a “hazard tree” thereby removing any doubt about who has the duty to maintain.
  • Landlords have discretion in deciding whether the appropriate maintenance is removalor trimming of the hazard tree.
  •  Landlords are not responsible for (a) maintaining a tree that is not a hazard tree or (b) for maintaining any tree for aesthetic purposes.
  • ORS 90.725 is the general access statute for all landlords and tenants. It is lengthy and detailed. But ORS 90.727(4) requires that the reasonable notice be given to inspect a tree and “…except as necessary to avoid an imminent and serious harm to persons or property, a reasonable opportunity for the tenant to maintain the tree. The notice must specify any tree that the landlord intends to remove.”

 

Tenant Duties.  Except as provided above, the tenant is responsible – at their expense - for maintaining the trees on their Space. (Notwithstanding this provision, I believe it is good practice to include the responsibility in the rules or rental agreement.) Tenants may retain certain qualified arborists[4] to inspect a tree on their Space, and if the arborist determines that the tree is a hazard, the tenant may either (a) require the landlord to maintain the hazard tree, or (b) maintain the tree at the tenant’s expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist’s report.

 

Whether it is the tenant’s duty or the landlord’s based upon the above rules, maintenance of any tree with a DBH of eight inches or more requires engaging the services of a landscape construction professional with a valid license issued pursuant to ORS 671.560.

 

Tree Interfering With Removal Home. If a tenant’s home cannot be removed without first removing or trimming a tree on the Space, the owner of the home may remove or trim the tree at the tenant’s expense, after giving reasonable written notice to the landlord.

 

General Liability Issues. What follows are my opinions only, and not legal advice. In addressing these issues, I am following general real estate laws.

 

  • Who is responsible if a non-hazard tree – or limbs, falls on the resident’s home or injures a resident or guest?
    • Under ORS 90.727(5), it is the tenant’s responsibility. If the tenant has their home insured, it would be submitted to the insurance carrier. Otherwise, it’s absorbed by the tenant. If they have health insurance, the injury should be covered.
  • Who is responsible if a non-hazard tree – or limbs, fall on the neighbor’s home or injures the resident or a guest?
    •  Does the tenant on whose space the tree grows, have liability insurance? If a claim is brought by the neighbor against that tenant, the liability carrier will likely cover it.
    • If the neighbor whose home was damaged had property damage insurance, that carrier would pay, and if the tenant was responsible for tree maintenance by virtue of ORS 90.727(5) the carrier might bring a subrogated[5] claim against the tenant if he/she has assets or liability insurance.
    • If the neighbor was injured and had health insurance, the same rules would apply as above.
  • Who is responsible if the roots of a non-hazard tree protrude under the resident’s home, or onto the neighbor’s Space and cause that home to become out of level or otherwise damaged?
    • ORS 90.730(3)(g) provides that “…Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy.” (Emphasis added.)
    • This suggests that the root system from the non-hazard tree is going to be the landlord’s problem if safety becomes an issue as the tree remains there.
    • For this reason, landlords should be attentive to the problem, especially upon the change of ownership of the home, i.e., before the offending root system causes more damage.
  • What if a non-hazard tree is blown over in a storm or struck by lightning, and cause damages or injuries to tenants or their property?
    • This is well beyond my real estate legal skill set, except to say that “Acts of God” e.g., weather, forest fires, earthquakes, etc. would not normally create liability to the tenant unless the risk was foreseeable and/or the result of an intentional or grossly negligence act of the tenant – e.g., the tenant damaged the tree affecting its stability, but allowed it to remain on the Space. Certainly, the damage or injuries resulting from the non-hazardous tree would be covered by health or property damage insurance, if the affected resident carried it.

 

Lastly, notwithstanding the ORS 90.727(5) imposes non-hazard tree maintenance responsibility on the tenant, management must be careful to assure that they are safe. The cost of trimming to prevent a tree from becoming a hazard tree could be significant, and beyond the tenant’s financial capacity. For that reason, among others, it is my belief management must be vigilant about the safety of all trees on th

 

[1] See, ORS 90.222. This statute is quite detailed. It must be reviewed carefully before a landlord attempts to require it of the residents.

[2] Interestingly, the 30-day notice only applies to month-to-month tenants; it is therefore doubtful that a fixed term lease can be unilaterally amended. Landlords using leases for new residents should consider requiring it in the lease from the start.

[3] The width of a standing tree at four and one-half feet above the ground on the uphill side. Don’t tell the Woke Police, but “DBH” stands for “Diameter at breast height.”

[4] Details in ORS 90.727(5).

[5] Subrogation is a concept that permits an insurance company to pay their insured’s claim and then recover the amount paid from the party ultimately liable for the damage or injury.

Phil Querin Q and A - Oregon's Joint Venture (Legalization of Marijuana) - How Will It Affect Community Owners? What you need to know about POT Legalization and Your Community.

Phil Querin

 

Measure 91 – High Times for Oregonians.  According to OregonLive.com, here, there are 23 states that currently have medical marijuana laws on the books. Oregon was one of them. On November 4, 2014, Oregon joined a smaller group of pot-friendly states (Washington, Colorado, Alaska, and the District of Columbia), to permit the recreational use of cannabis.[1]  I will leave it to the wordsmiths to explain how the term “recreational use” found its way into our lexicon when discussing the use of marijuana.  “Recreation” is the last thing one thinks about when taking a toke – or so I’m told….  

 

State and Federal Laws. The Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., says that marijuana is illegal to grow, process, distribute, and possess, even when state law authorizes its use. Furthermore, federal law supersedes state law where there is a direct conflict between them.  That would seem to suggest that federal law, being more restrictive, would trump Oregon law.  However, this is not the case.

 

HUD and the Oregon Bureau of Labor and Industries, both of whom enforce fair housing violations, including discrimination based upon disabilities, have taken a laissez faire, or “hands off” approach, i.e. they are not enforcing the laws at the current time.  Accordingly, it is my belief that on both a state and federal level, landlords may properly prohibit growing, processing, distribution and possession of marijuana, even though the user holds a valid medical marijuana card. This opinion was extensively covered in my two articles, here and here.

 

How Are Landlords Affected by Measure 91?  Now that Oregon has legalized recreational use of pot, how does this change the equation for community owners?  The short answer is that it does not change the issues.  If anything, dealing with the use of recreational pot is the easy part.  The substance can be controlled, should an owner so desire, by a rule change, prohibiting the cultivation, processing, sale or use of marijuana within the community. 

 

The issues surrounding the legal use of medical marijuana, i.e. by card-carrying tenants, remains the same, i.e. can a park owner prohibit it?  I believe the answer is “Yes.”  But before explaining how, let’s look at the new law that everyone is toking talking about.

 

Oregon’s New Marijuana Law. An interesting article gleaned from a website called “The Daily Chronic” contains and interesting, though not exactly unbiased, analysis of Measure 91, here.  What follows is a short summary taken from the longer article:

·      It passed by 57% to 43%;

·      Public consumption of pot is prohibited;

·      The Measure does not go into effect until July 1, 2015;

·      Until that time, possession of less than one ounce of marijuana remains a misdemeanor and is subject to a fine of up to $650;

·      You must be 21 or older to possess marijuana;

·      Homemade cannabis extracts (when made with solvents)[2] are prohibited, i.e. one may not produce, process, keep, or store them;

·      Up to 1 ounce of cannabis extracts are permitted, but only if they are obtained through a licensed retailer;

·      Cultivation of up to four plants per household is permitted,[3] but they may not be visible from a public space;[4]

·      The Oregon Liquor Control Commission (“OLCC”) is in charge of regulating commercial cannabis cultivation, processing and retail sales;

·      Of course, there is a tax levied on sales. It is paid by the producers;

·      There are four types of businesses Measure 91 will license:

o   Producers, who will cultivate the pot;

o   Processors, who purchase it from the producers and convert it into assorted products with names, colors, flavors, and scents, reminiscent of the UC Berkley campus circa 1968;

o   Wholesalers, who purchase the pot and pot products for sale to retailers; and

o   Retailers, who will sell directly to consumers.

Sample Policy.  As mentioned above, I believe that community owners may both prohibit the cultivation, processing, retailing, selling and use of pot, inside the community, regardless of whether the user has a lawfully issued marijuana card.  This can be done prospectively, by including the prohibition in the Statement of Policy, the rules, and/or the rental agreement.  It can also be done by a rule change that affects the residents already in the community.  However, I do not believe it may or should be done retroactively to those legal card holders already in the community. Here is a sample policy:

Sample Cannabis Policy For A Rules Change

[To be enacted pursuant to ORS 90.610(3)]

 

Background. Under the Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., it is illegal to manufacture, distribute, and possess marijuana, even when state law authorizes its use. In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342.  Federal law supersedes state law where there is a direct conflict of laws.  The Federal Fair Housing Amendments Act provides that a disability does not allow the illegal use of a controlled substance under the Controlled Substances Act.

 

Our Policy. All Residents, their guests, invitees, contractors, employees, and others coming to the resident’s home, space, or common areas in the Community, are subject to the following rules regarding the manufacture, processing, distribution, sale or use of cannabis, or  for any purpose, including medical purposes.

 

Prohibition.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.

 

Reasonable Accommodation.  This Community will not agree to make a reasonable accommodation for this prohibition, including medical purposes, to any residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Laws.

 

Violation. Violation of this policy shall constitute a breach of the terms of Resident’s right of occupancy, and entitle Management to issue Resident a thirty (30) day curable notice of violation under ORS 90.630(1).  A repeat violation will result in a twenty (20) day non-curable notice of violation under ORS 90.630(4).  Resident is responsible for informing their guests, invitees, contactors, employees or others coming to Resident’s home, space or common area guests of this Policy and for ensuring compliance.  Notwithstanding the preceding, Management reserves the right, upon its sole discretion, to issue Resident a non-curable 24-hour notice of violation under ORS 90.396 if Resident’s violation of this policy could reasonably result in danger to the health, safety or welfare of others in the Community. 

 

Effective DateThis Policy shall apply from and after _______________________ (“Effective Date”), until modified or amended.  It shall not be applied retroactively to any current Resident whose legal use of cannabis, or cannabis products or extracts for medical purposes, preceded the Effective Date.

 

The above sample policy can be added as an Addendum to Rental or Lease Agreements and given to prospective tenants, as well. It is sufficient to insert into the Statement of Policy, the following:

 

Marijuana.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.  This Community will not agree to make a reasonable accommodation for this prohibition, including for medical purposes, to any Residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Act.

 

 

[1] The World Health Organization defines cannabis here, as follows: Cannabis is a generic term used to denote the several psychoactive preparations of the plant Cannabis sativa. The major psychoactive constituent in cannabis is ∆-9 tetrahydrocannabinol (THC). Compounds which are structurally similar to THC are referred to as cannabinoids. In addition, a number of recently identified compounds that differ structurally from cannabinoids nevertheless share many of their pharmacological properties. The Mexican term 'marijuana' is frequently used in referring to cannabis leaves or other crude plant material in many countries. The unpollinated female plants are called hashish. Cannabis oil (hashish oil) is a concentrate of cannabinoids obtained by solvent extraction of the crude plant material or of the resin.

[2] For those truly interested in the extraction process using solvents, go to the following link, here.

[3] In other words, a four member household (all 21 or over) would not qualify for 16 plants.  The same rule applies to the right to possess up to one ounce of extracts. There is no multiplier effect.

[4]  I suspect that in community where the backyards are fenced, growing would be permitted so long as they were obscured from the streets and sidewalks.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cleaning Up to Clean Up - Good Resident Relations

Joanne Stevens

Eleanor sat down after making a presentation for adding fifty additional mobile home sites to the Whispering Maples Mobile Home Community she managed. Several people in the city council chambers stood up and applauded. As Eleanor waited for the roll call vote of the city council members, she thought back to all the city staff, county board of supervisors, state legislators, and city council members that had visited Whispering Maples in the recent months. The Whispering Maples residents played an important role in getting to this critical point with the city council. If the residents had not been timely in their rent and conscientious about the appearance of their mobile homes and yards… Eleanor realized that if the city council approved the 50-site addition, it will have been because of her efforts combined with the residents.           

 

 Two states away, Kimberly, a park owner, and her park manager were driving through her park, Maple Creek, and pulled over to stop and pick up a coke can. It was unusual to have to stop and do this. But that was due to the consistent actions of residents being held accountable for keeping their homesites and home exteriors clean and in good repair. It had taken over two years to get the 400 residents onboard, but now the community swelled with pride of ownership.

            What do Eleanor’s Whispering Maples and Kimberly’s Maple Creek communities have in common? Maples! No, that’s not it. One key common thread is good resident relations. Another common trait is the owners’ and managers’ mission of having the cleanest communities and best residents in the market. What does this have to do with profitability? The answer is pretty much everything. 

            How did the owners and managers get to a high level of compliance in rent collections and home appearance? Eleanor and Kimberly understood that to attract and retain the best residents, they needed to start with their websites. For prospective residents, the pictures, testimonials, and ease of finding information made these parks stack up well against other housing options. Prospective residents want to feel good about telling friends, family and co-workers, about where they will be living. Existing tenants liked the resident section of the website where they could find answers to their questions, copies of the leases and rules, and even a payment portal. They also like the compliments about their community they received from family and friends looking at pictures from the website. 

            The secret of the website was the number of prospects that came from and were directed from ads on Facebook and other social media, as well as, print media that directed prospects to the website for more information and online applications. These ads increased traffic to the website which increased the number of applicants. This increased applicant pool allowed the managers to pick the best possible tenants from the ever-increasing pool of prospects, thus making the best rental decisions possible. You can guess (and accurately, too) that making the best possible rental decisions helped fill vacant sites and vacant homes quickly, and with quality tenants. It was a win/win. 

            The mindset of these owners is that of abundance; there are plenty of credit worthy, conscientious, pride-of-home-appearance-having prospects (whether it’s a home buyer or renter). It is essential, though, to increase the applicant pool. How did they do this? One tactic was lots of quality community pictures of the homes (ones actually in the park, not just stock images), the signage, landscaping, and even the residents. They realized most people are visual. More pictures, not less, especially of the homes, is key.

            A tactic of Julio Jaramillo, founder and CEO of Evergreen Communities with 4,000 sites in 8 states, is for every community manager to talk to three park residents every day. Because Julio’s managers are compensated for home sales and home rentals, this practice makes the residents feel acknowledged and listened to. As a result, Julio’s managers sell and lease more homes. The managers are also very aware of any issues in the community and can get ahead of issues before something even becomes a problem – such as moving tenants.

            Successful community owners and managers find it helpful to have a vision. Helen Keller was asked, “Can you think of anything worse than being blind?” “Yes” she said, “Being able to see but having no vision.”

 Getting Real:

            There probably are some community owners and managers that are just naturally happy people. They wake up in the morning and can’t wait to get to the community. Statistically, this number might be as high as 20%. Like Warren Buffet, they tap dance into work each day.  For most people, it takes some concentration, mental gymnastics, and a pot of coffee, to keep their eyes on the prize. 

Building a Resident Relations Vision:

1. Owners and managers need to have an ‘abundance’ mindset. Today, because apartment rents and house prices have appreciated so much, many prospective community residents and current residents don’t qualify to buy a site-built house or rent a newly built apartment. The MH Community business has plenty of people that want what your park has to offer.

2. Current residents that consistently pay late, or have to be filed on, may have to find other housing. In our communities, we offer a free listing service. It’s available to all but it is meant to help the residents, who won’t comply with timely rent or home & lot rules, relocate as painlessly as possible. Al, an owner of 2,000 sites, offers a cash for keys program for residents that won’t comply. The last thing anyone wants or needs is an eviction on their record.

Arty is a park manager at Green Meadows, a medium sized park. He felt exhausted and annoyed with the park residents and their homes. “And it’s only 11 am on Monday” he laments. A whole week lay in front of Arty, of grinding it out – collecting rents, confronting non-payers, “Noticing” ungovernable residents, mowing and trimming their homes, since “they wouldn’t just do it”. Arty wondered if he should quit and look for another job, maybe a greeter at Wally World.

The Benefits of Resident Relations:

  • Resident Relations keeps managers and owners energized, focused on achieving initiatives. Whether it’s 100% rent collections, pet policy enforcement, home compliance, 100% occupancy or park expansion, they (to quote Walt Disney) “Keep moving forward.”
  • Resident Relations involves proper marketing, tenant selection, and ongoing manager training. Resident Relations should never be at the bottom of the to-do list; it NEEDS to be a daily habit of every manager and owner.
  • Resident Relations is a measurable quality. It is quantifiable in terms of:
      • Profitability
      • Return of Investment (ROI)
      • Home Compliance Rate
      • Increased Applicant Pool
      • Increased Rental Rates and Home Sale Prices

You can see it. There even is a waiting list of prospective residents. There are no rundown POH’s nor abandoned homes that need to be removed. Let’s stop calling these ‘handyman specials” and allowing them to sit there month after month. We all know that the odds are slim that an actual handyman is coming along to buy, fix up and move into one of these homes.

  • Mission-oriented managers and owners are players, not victims. Properly trained owners and managers understand the vital role housing plays in the lives of their residents. They care about being accountable to the mission and initiatives of their parks. They are players, strategizing for the best outcomes for maximizing the bottom line. “Victim” owners and managers can’t grasp why the residents don’t pay on time, and why their yards are not mowed. They blame the tenants, the city, the economy… As time goes on there are more homes out of compliance and more late payers. 
  • Let’s play a game… (this is a spin on the Florida man birthday Google search game) You type in affordable housing, your birthday (affordable housing, January 15th) in Google then click the news tab. How many articles did you get? Most towns and cities have weekly newspapers articles and TV news reports on the lack of affordable housing. It’s a key topic of discussion for local, state, and national elections. Mobile home parks can be an important part of the solution for affordable housing, but not if the political candidate or their staff drive through a park and see unsightly abandoned homes, tires stacked in yards, or weeds three feet high. Resident Relations are the face of mobile home parks.

Three Things Owners and Managers Can Start Doing to Have the Fastest Resident Relations Outcomes:

1. Review your mission, initiatives, and goals for the year. It is not too late to get going on the things that have fallen through the cracks. Your mission, initiatives and goals need to be in writing, and you need to look at them every morning.

2. Contact three residents every day. This means if you have a 200-site park, you have called each resident at least once in the past three months. (21 workdays per month, times 3= 189)

3. Every resident, prospective resident, local official, political candidate, journalist ought to be able to look at your website (your virtual front door) or drive the community and have a favorable impression. If the homes in your community are in compliance, what might the prospective tenants think when they drive through? Guaranteed, they just drove through a competing park, where the rules have not been enforced.

 

The good news is that mobile home parks are filling up. This is the time to be selective in renting and selling homes. Check out the tenants’ budget. Can they afford to live in your community? Ideally 30% or so of their gross income is their budgeted housing cost. If the homes in your community are out of that price range, don’t rent to them. Being selective with your prospects and keeping your homes in compliance is good for your park’s image and for your stress level!

Joanne Stevens is a national Mobile Home Park broker.  Sign up for her free industry E-newsletter at www.joannemstevens.com  To request a mailed copy of her newsletter, contact Joanne at: joannestevens@iowarealty.com M: 319-310-0641 / O: 319-378-6786 

 

Generic Community Rules and Regulations

Please Note: This form is general in nature, and some provision may not be necessary or appropriate for your community. MHCO recommends that you and your legalcounsel determine which provisions may be appropriate. User acknowledges that MHCO, it's officers, directors, and legal counsel are not providing this form as legal advice. All users should have their own legal counsel review each form used in their community.RULES AND REGULATIONSTABLE OF CONTENTSSUBJECT SECTIONGENERAL 1MANUFACTURED HOME SET UP 2MANUFACTURED HOME STANDARDS 3 MANUFACTURED HOME AND LOT MAINTENANCE 4 HOMEOWNERS AND GUESTS 5SUBLETTING 6 SALE OF MANUFACTURED HOMES 7UTILITIES 8 PETS 9COMMON AREAS 10RECREATION FACILITIES 11VEHICLES 12FIREARMS AND FIREWORKS 13 TERMINATION OF LEASE/RENTAL AGREEMENT 14REMOVAL OF MANUFACTURED HOME 15ENFORCEMENT AND DISPUTE RESOLUTION 16MEDIATION/ARBITRATION 17PARTIAL INVALIDITY 18AMENDMENT OF RULES 19IMPORTANT: Violation of the Rules and Regulations can result in the termination of your tenancy. Section 1 GENERAL1.1 These rules and regulations apply to the manufactured housing COMMUNITY known as _____________, which is referred to in these rules and regulations as "COMMUNITY".1.2 The owner and operator for COMMUNITY will be referred to in these rules and regulations as "OWNER".1.3 The owner of an individual manufactured home or dwelling who is also a park resident or tenant and who rents or leases a lot in the COMMUNITY from OWNER will be referred to in these rules and regulations as "HOMEOWNER" or "HOMEOWNERS".1.4 The manufactured homes or manufactured housing structures which HOMEOWNERS place on lots they lease/rent from OWNER in COMMUNITY will be referred to in these rules and regulations as "manufactured homes" (or singularly).1.5 The individual manufactured home spaces in COMMUNITY leased to HOMEOWNERS by OWNER will be referred to in these rules and regulations as "lots".1.6 The site/lot rental agreement entered into between OWNER and HOMEOWNER, of which these rules and regulations form an integral part, is referred to in these rules and regulations as "lot rental agreement" or "agreement".1.7 Any action required to be taken by OWNER pursuant to these rules and regulations may, unless otherwise specified, be taken by the property manager appointed by OWNER to act as its representative in connection with COMMUNITY.1.8 Any approval, consent, or waiver which these rules and regulations require to be obtained from OWNER or COMMUNITY must be obtained in writing, signed by an authorized representative of OWNER or COMMUNITY, and obtained prior to doing the act for which approval, consent, or waiver is to be obtained, particularly prior to the initiation of any construction.1.9 Any actions with which these rules and regulations deal must be taken in accordance with federal and state law and regulations, and in accordance with local ordinances, in addition to meeting the requirements of these rules and regulations.1.10 Any alterations to HOMEOWNER'S manufactured home or improvements (including fencing, painting, color scheme changes, name signs and the like) constructed on HOMEOWNER'S lot must have the prior written approval of OWNER, whether those alterations or improvements are required by the lot rental agreement or these rules and regulations or whether they are voluntarily proposed by HOMEOWNER. Improvements or alterations will usually be required to be made with factory-manufactured material.1.11 OWNER may waive one or more requirements of these rules and regulations on a showing by HOMEOWNER that special circumstances exist which distinguish its situation from that of other HOMEOWNERS. Any HOMEOWNER'S request for a waiver must be in writing and addressed to the property manager appointed by OWNER for COMMUNITY. All decisions to waive any such requirements shall be in OWNER'S sole discretion, and agreement to waive a requirement shall not constitute a waiver of OWNER'S later decision not to waive a requirement for the same or a different HOMEOWNER. OWNER may condition any waiver on HOMEOWNER'S payment of an amount to offset expenses associated with the waiver or may impose other reasonable conditions.1.12 If HOMEOWNER fails to complete improvements, do maintenance, or otherwise take some action required by these rules and regulations, OWNER has the option of taking that action for HOMEOWNER. If HOMEOWNER takes some action not in compliance with these rules and regulations (such as constructing an improvement without approval), OWNER has the option of undoing what HOMEOWNER has done. If OWNER exercises this option, HOMEOWNER shall be responsible to OWNER for OWNER'S expenses in doing the work, together with a supervisions/management fee of an additional twenty percent (20%).1.13 OWNER will not discriminate on the basis of race, color, sex, marital status, familial status, religion, national origin, or handicap in violation of any city, state, or federal law. In determining how to meet this promise, OWNER will follow precedent under appropriate city, state, and federal statutes.1.14 COMMUNITY OWNER does not provide a security patrol or security systems. Residents are encouraged to exercise reasonable diligence and caution in securing their homes and personal property at all times. Residents observing any suspicious or illegal acts are requested to notify the police department and/or the COMMUNITY manager.1.15 Failure of COMMUNITY at any time to require performance of any Rule or Regulation contained herein shall not limit the right of COMMUNITY to enforce the Rule or Regulation, nor shall any waiver of any breach of any Rule or Regulation be a waiver of any succeeding breach of that Rule or Regulation or a waiver of that Rule or Regulation itself or any other Rule or Regulation.Section 2 MANUFACTURED HOME SET-UP2.1 OWNER is not responsible for top soil, lot preparation, foundation stability, final grading, settling, drainage, gravel or relocation of any utilities unless agreed to in writing by OWNER.2.2 HOMEOWNER agrees that HOMEOWNER has examined the condition of the lot and is aware of its condition and accepts said lot "as is" and "with all faults". HOMEOWNER further states that HOMEOWNER has not relied on OWNER/COMMUNITY for advice concerning the installation of the manufactured home and has relied and discussed such installation with a manufactured home dealer or contractor and is relying on the skill, experience and judgement of the manufactured home dealer or contractor.2.3 HOMEOWNER will give OWNER 72 hours notice before bringing their manufactured home into COMMUNITY for set-up. On arrival, OWNER will instruct HOMEOWNER and HOMEOWNER'S driver on where to park the manufactured home pending set-up.2.4 Prior to siting any manufactured home in COMMUNITY, the HOMEOWNER shall be responsible for coordinating with the COMMUNITY manager to specifically locate the position of the manufactured home on the lot. Corner stakes will be set on the lot to locate the proper position of the home relative to the street and lot corners. The HOMEOWNER will be responsible for coordinating with the manufactured home dealer and/or transportation company that moves the manufactured home to ensure that the manufactured home is properly positioned on the lot. All HOMEOWNERS with mortgaged, manufactured homes who are purchasing their home on a contract shall furnish to the Manager, the name and address of the lienholder or mortgagee prior to moving the home into the Community.2.5 On arrival at COMMUNITY for set-up, HOMEOWNER will register with OWNER the license number of the vehicle which is towing their manufactured home and the license number of the manufactured home, if required to be licensed. If the manufactured home is not required to be licensed, HOMEOWNER will register with OWNER the manufactured home's color, make, model and dimensions.2.6 All aspects of manufactured home siting and set-up, including electrical, gas, telephone, sewer, water, and cable television hook-ups, as well as provision of required foundation or footings, and any other necessary blocking, are the sole responsibility of HOMEOWNER.2.7 As a part of hooking-up to COMMUNITY'S water system, HOMEOWNER will install a back flow device at HOMEOWNER'S expense.2.8 HOMEOWNER is responsible for any damage caused to their lot, other lots, streets, or any portion of COMMUNITY during the siting or removal of their manufactured home and shall reimburse OWNER or other HOMEOWNERS, as appropriate, for any loss suffered.2.9 HOMEOWNER is responsible for connecting the manufactured home to the sewer line with rigid pipe. The manufactured home must be placed on the lot so as to cover or enclose sewer and water connections, as required by law.2.10 HOMEOWNER must remove any towing hitch within thirty (30) days after the manufactured home is placed on the lot.2.11 Temporary steps must be removed within thirty (30) days of set-up and replaced with permanent steps.2.12 HOMEOWNER will not be entitled to move into their manufactured home until siting and set-up have been approved by OWNER.Section 3 MANUFACTURED HOME STANDARD3.1 Prior to siting any manufactured home in COMMUNITY, the HOMEOWNER shall be responsible for providing the manager and/or OWNER a copy of the manufactured home purchase agreement (if the home is new) or accurate description of the manufactured home that confirms that the purchase agreement includes all required improvements as set forth in Section 3 of the COMMUNITY rules and regulations. Specifically including skirting, decking, awnings, and storage building. In those cases where a HOMEOWNER is moving a qualifying manufactured home into COMMUNITY that is not a new purchase, the HOMEOWNER shall be responsible for providing a photograph together with complete descriptive information identifying the size and materials of all improvements including storage structures that will be sited in the COMMUNITY. All home roofs must have composition asphalt shingles or the equivalent with a gable profile.3.2 No permanent alterations are to be made to the manufactured home, or manufactured home lot without the prior written permission of OWNER (including fencing, painting, color scheme changes, etc.). The OWNER reserves the right to approve any exterior accessory or structure added to the manufactured home or placed on the manufactured home lot prior to its installation. All structures must be of factory-manufactured material or specifically approved in writing by the OWNER prior to construction and/or installation. The OWNER reserves the right to request that all permanent structures erected by a HOMEOWNER be removed at the HOMEOWNER'S expense when the HOMEOWNER moves from the COMMUNITY.3.3 All homes, accessories, and/or alterations/additions shall comply with applicable federal, state and local statutes and ordinances as to their construction, installation and maintenance.3.4 No manufactured home, accessory structure or addition, including awnings, decks, etc., may be placed closer than permitted by county/city set back requirements to any lot boundary line. No manufactured home, accessory structure and/or addition to include decks, awnings, porches, etc., may be placed closer than 8' from any electrical transformer.3.5 All homes must have a window of not less than 12 square feet on the side of the home facing the street; example: 3'6" wide by 3'6" high. A smaller window may be allowed with the prior written approval of OWNER on the condition that the HOMEOWNER install landscaping acceptable to OWNER across the front of the home to visually compensate for the lack of a window(s). The window(s) facing the street must have wood trim painted a complementary color.3.6 Homes moving into COMMUNITY must be a minimum of 24' wide (unless a lesser width is approved by OWNER pursuant to paragraph 1.11), and must be approved by COMMUNITY management prior to move-in. A home will normally not be accepted if it is more than five years old as of the date of move-in. Management reserves the right to refuse admission to any home that does not meet COMMUNITY standards or the condition and/or appearance of the manufactured home is misrepresented.3.7 All homes are required to have wood, vinyl or aluminum lap siding. Skirting must be of a similar material as the siding on the home and painted/stained to match the siding or trim color. Wood skirting must have a 2" X 6" pressure treated base plate adjacent to the ground and be made of pre-treated/weatherized material that is compatible in design to the exterior of the home. Brick, rock or ornamental skirting is also acceptable. Skirting must be continuous; any noticeable cracks or seams between the skirting panels must be caulked within thirty (30) days following set-up. Corrugated metal or fiberglass skirting is NOT allowed. All skirting must have an access panel (minimum dimensions 18' X 24") that does not require tools for opening or closing and is located so that fuel, electric and water and sewer connections are readily accessible for inspection and repair.3.8 Within thirty (30) days of set-up, each HOMEOWNER shall be responsible for installing the lot number of their home on the front side of the home approximately 5' above ground level.3.9 HOMEOWNER is responsible for installing or constructing the following within thirty (30) days of set-up of its manufactured home:a) Pre-treated wood skirting compatible with the manufactured home and painted to match it, or some other suitable siding approved by OWNER pursuant to paragraph 1.11. b) Pre-painted continuous aluminum or galvanized metal gutters and down spouts connected by underground 3" rigid or corrugated pipe to the curb, gutters must be of continuous metal fabrication;c) Two above ground hosebibs, one on each side of the manufactured home;d) A storage building which:1) is not smaller than 6' X 8' or larger than 15' X 10';2) is constructed as part of the carport using wood or pre-treated wood siding (whether or not prefabricated) painted to match the manufactured home; and3) is roofed with asphalt shingles compatible with the color and style of the manufactured home; 4) pre-fabricated wood or metal storage sheds are allowed subject to prior written authorization from COMMUNITY management.3.10 All manufactured homes must have awnings and decks not smaller than specified below unless otherwise approved by OWNER. Exceptions to minimum size requirements may be approved by OWNER if HOMEOWNER'S lot will not accommodate structures of the stated dimensions. All plans for decks and awnings must be approved by OWNER prior to installation and construction. OWNER may agree to elimination of the front door awning, but such agreement must be in writing at the time of move-in. Any deck area shall total no more than 500 square feet. Minimum deck sizes shall be as follows:* Patio Side: Deck - 4' X 6' or 24 square feet of continuous deck.* Awning - 4' X 6' or 24 square feet of continuous aluminum factory/manufactured or wood frame awning.* Carport Side: Deck 3' X 6' (including steps)Awning - 12' X 26' or 312 square feet of wood or wood frame carport. Homes within COMMUNITY that have installed a deck and/or awning prior to the issuance of these Rules and Regulations shall be exempt from this requirement. Corrugated metal or fiberglass awnings are not allowed.3.11 Decks and porches must be skirted with either manufactured skirting of a similar style and color as the skirting used to skirt the manufactured home or fully enclosed with pre-treated wood so as to be compatible with the design of the porch and deck. All skirting must be continuous and have an access panel (with minimum dimensions of 18" by 24"), and the access panel shall not require tools for opening or closing. All decks, porches and steps must have hand rails. Vertical slats/railings made of 2" X 2" material on 4" centers must be installed between the top of the railing and the deck and step treads. Decks must be constructed of 2" X 4" or 2" X 6" pressure treated/weatherized wood.Awnings and decks must be installed within thirty (30) days following set-up of the manufactured home unless other arrangements have been made in writing with OWNER.Any wood frame patio awning or carport awning must have a composition roof, be designed and painted to match the manufactured home and be approved by OWNER in writing prior to its construction. The carport awning must be a minimum of 12 feet wide unless the terrain or the lot size or shape limit the awning size to a narrower width. Garages may be constructed in lieu of a carport but must be the same color as and compatible with the manufactured home and shall be constructed only with OWNER'S prior written approval.3.12 All above-ground piping must be protected from freezing with adequate heat tape and wrapped with insulation. All above-ground plumbing must be connected to an underground shut off/gate valve that is accessible and maintained in good working order at all times. HOMEOWNERS are responsible for bleeding outside water lines prior to subfreezing weather conditions. Any damage or expense caused by freezing pipes will be borne by the HOMEOWNER.3.13 Each HOMEOWNER shall receive a Lot LANDSCAPING WORKSHEET at the time HOMEOWNER makes application for residency. The worksheet will outline a general landscaping plan which shall be used as a model for preparing the HOMEOWNER'S landscape plan. Prior to siting of the manufactured home, HOMEOWNER must submit a lot landscaping plan to OWNER for review and approval. No home will be allowed to move into COMMUNITY until the lot landscaping plan has been approved by OWNER. Not later than ninety (90) days following move-in, each new HOMEOWNER shall be required to install sufficient landscaping so as to meet the minimum landscape standards set forth below.A. Landscape Plan with Front Yard Lawn: If the HOMEOWNER elects to install a lawn in the front, side or rear yard areas of their lot, the lawn must be mowed regularly and kept weed free. In those cases where a HOMEOWNER elects to install a front yard lawn, a minimum 24" wide planting bed must be installed across the front of the HOMEOWNER'S home. A minimum of ten evergreen shrubs, measuring 18"-21" or alternately, in 3 gallon containers must be installed in the front yard planting bed.B. Landscape Plan without Front Yard Lawn: If a HOMEOWNER elects not to install a lawn in their front yard, acceptable alternatives include weed barrier fabric covered with decorative rock or bark mulch together with a minimum of not less than ten evergreen shrubs, measuring either 18"-20" in size or in 3-5 gallon containers plus not less than five additional shrubs or plants of a size not smaller than 1-gallon in size. All yard areas that are covered with decorative rock or bark must be kept weed free at all times.C. All HOMEOWNERS are required to landscape and maintain the yard area next to their driveway that lies within the boundary of their lot. HOMEOWNERS are encouraged to install landscaping on their neighbor's lot or may make arrangements with their neighbor to allow the neighbor to improve and/or maintain the landscaping in this area if both parties agree.3.14 Prior to moving into COMMUNITY and as a deposit to insure HOMEOWNER'S landscaping is completed, HOMEOWNER shall provide to OWNER a signed promissory note, payable to OWNER, in the amount of $1,000.00. OWNER shall have the right to recover from the promissory note, such sums expended by OWNER in correcting and/or completing HOMEOWNER'S landscaping. The promissory note (or any funds remaining if landscaping was done by OWNER) shall be returned to HOMEOWNER on completion of all required landscaping work.3.15 HOMEOWNER shall install an in-ground sprinkler system with an automatic timer within ninety (90) days of siting the home. HOMEOWNER is required to repair and maintain the system in good working order at all times. 3.16 OWNER reserves the right to make reasonable modifications to the manufactured home standards identified herein to accommodate special circumstances which may be dictated herein by the terrain of the COMMUNITY or individual lots.3.17 No excavation of any kind shall take place until and unless the park has been notified due to the existence of underground utilities.Section 4 MANUFACTURED HOME AND LOT MAINTENANCE4.1 HOMEOWNER is responsible for maintaining and keeping clean and in good repair the exterior of their manufactured home, as well as all appurtenant structures such as decks, steps, storage building(s) and fences at all times. All wooden structures such as decks, hand railings, storage buildings, etc., shall be painted or stained as necessary to prevent their visual and/or physical deterioration. The exterior finish of the home must be maintained to the satisfaction of the Owner/Community, which may require painting as needed with a color pre-approved by Owner.4.2 HOMEOWNER is responsible for maintaining all lawn areas, flowers, shrubbery and trees within the boundaries of their lot. Lawns must be mowed on a regular basis during the spring/summer/fall growing season, edged, kept free of weeds and watered as necessary. All slopes must be planted with erosion deterrent plants.If the landscaping is not properly maintained, OWNER may, but is not required to, perform or have performed whatever landscape maintenance may be required and charge the HOMEOWNER directly. If the HOMEOWNER consistently fails to maintain the space, OWNER reserves the right to evict the HOMEOWNER. If HOMEOWNER wastes water and allows water to run into the street, OWNER may impose a charge each time the HOMEOWNER wastes water. 4.3 All landscaping improvements made to the manufactured home lot as provided by this Agreement shall, upon termination of tenancy, by either the HOMEOWNER or COMMUNITY management/ owner become the property of OWNER except as provided herein below. The HOMEOWNER may remove and those landscape improvements that OWNER AND HOMEOWNER have agreed upon in writing and signed by all parties.4.4 HOMEOWNERS absent for an extended period of time - two weeks or more (14 consecutive days) shall be responsible for arranging for the care and maintenance of their lot during their absence.4.5 Fences over 48" high are not permitted. Chain link fences and cedar fences are allowed and may be installed only in the rear yard area of the manufactured home lot. Chain link fences require metal fence posts set in concrete and stretched fencing fabric. All cedar fences shall be 36" in height with a 12" lattice top rail and be constructed as per applicable building code regulations. All fences, including color of paint or stain, must be approved in writing by OWNER prior to installation. HOMEOWNER is responsible for maintaining any fence located on HOMEOWNER'S property.4.6 If HOMEOWNER constructs a rear yard fence, as outlined in paragraph 4.5, HOMEOWNER will be responsible for a twelve inch mowing strip along the outside of the fence, whether or not that strip is HOMEOWNER'S lot or COMMUNITY property.4.7 Common areas, driveways, streets and HOMEOWNER'S lots, including porches and decks, are to be kept clean and free from trash and litter at all times. Personal property of HOMEOWNER'S or HOMEOWNER'S guests shall not be permitted to be left in the streets, other HOMEOWNER'S lots, or the common areas. Garbage cans, gardening tools and equipment, etc., must be stored inside the HOMEOWNER'S storage shed.4.8 Furniture left outside a home shall be limited to items commonly accepted as outdoor or patio furniture. Storage of any type beneath the mobile home including material of explosive nature is prohibited (Oregon State Law). Standard patio furniture and a park approved storage cabinet will be permitted to present a clean and neat external appearance. Any household appliance, exercise equipment or upholstered furniture cannot be placed outside the mobile home. Boats, travel trailers, unmounted campers or unsightly objects are not to be stored on HOMEOWNER lots or parking areas. Special storage problems should be coordinated with Management in advance.4.9 Stacking or storage of firewood is limited to one cord. Firewood must be stored behind the manufactured home or in an approved storage shed. All wood and pellet burning stoves that do not contain a seal of certification by the Oregon DEQ or federal VA are not allowed in COMMUNITY, and must be removed upon sale of the home. Any tarps used to cover firewood must blend with the surroundings and/or be compatible in color 4.10 Clothes lines or clothes line poles are not allowed. Clothing, linens, rugs, etc., are not to be draped over deck or porch railings or otherwise left outside the HOMEOWNER'S manufactured home.4.11 HOMEOWNER may erect play/exercise equipment in HOMEOWNER?S backyard with OWNER'S prior written permission. All play/exercise equipment must be located behind the manufactured home and within the designated boundaries of the HOMEOWNER'S yard. HOMEOWNER assumes responsibility for maintaining all such equipment in serviceable condition and agrees to remove the equipment when the tenancy is terminated. Permission to have play/exercise equipment on the lot is subject to revocation at any time if OWNER determines that the equipment is dangerous, inherently unsafe, being used by HOMEOWNER or HOMEOWNER'S guests in an inappropriate, abusive or disruptive or noisy manner or in need of repair. As a condition to granting consent to install such play/exercise equipment, OWNER shall have the right to require the HOMEOWNER provides proof of liability insurance of not less than $250,000 naming the OWNER and COMMUNITY as co-insureds. All such decisions by OWNER shall be in OWNER'S sole discretion and shall be final. Above ground pools (wading pools, hot tubs/spas, etc.) are permitted only with written permission from OWNER. HOMEOWNER agrees to defend and hold the OWNER and OWNER'S Agents harmless from any and all claims, suits, damages and actions resulting from play/exercise equipment and/or above ground pools (wading pools, hot tubs/spas, etc.). Wading pools are to be emptied after each use and hot tubs/spas are to be covered after each use.4.12 HOMEOWNERS must remove (take down) any holiday decorations from their manufactured home, yard and/or space within thirty (30) days after the celebrated holiday.4.13 Backboards may not be installed on carports, awnings, or other structures located on the HOMEOWNER'S lot. Portable backboards/stands are allowed with the prior written approval of OWNER.4.14 HOMEOWNER is responsible for installing, maintaining, and keeping clean and in good repair approved window coverings which may include curtains, drapes, shutters or blinds, etc., in all windows of the home. Unapproved window coverings include, but are not limited to, sheets, blankets, table cloths, and plastics, etc.4.15 Exterior window blinds are allowed with the prior written permission of OWNER. Bamboo or reed exterior blinds are NOT allowed. Exterior blinds must be of a color that matches the exterior siding or trim color and must be maintained by the HOMEOWNER in a serviceable condition at all times.4.16 Signs, Posters, Decals, Prints, Pictures, etc., are not to be displayed in windows or on the home at any time. Political yard signs are permitted during an election campaign however must be removed within forty eight hours after Election Day. No sign shall be larger than 18" X 24" or 432 square inches. Section 5 HOMEOWNERS AND GUESTS5.1 The tenancy agreed on in the rental agreement is based on occupancy of the manufactured home by the persons identified in the agreement. Any additional occupants must be approved by OWNER prior to move-in.5.2 In accordance with Oregon law, the total number of permanent residents in any manufactured home shall not be greater than two per bedroom in the manufactured home.5.3 HOMEOWNER is responsible for the actions of other occupants of manufactured home, guests, licensees and invitees. No trespassing by HOMEOWNER or HOMEOWNER'S' guests on other spaces is allowed. 5.4 No commercial trade or business nor gratuitous baby-sitting may be conducted out of HOMEOWNER'S manufactured home or on its lot in COMMUNITY.5.5 No one will carry on any obnoxious or offensive activity which OWNER believes is or may become a danger or annoyance or nuisance to COMMUNITY or other HOMEOWNERS.5.6 Guests of HOMEOWNER may not remain in COMMUNITY for more than fourteen (14) days in any year (whether consecutively or cumulatively) unless written authorization is received from OWNER. HOMEOWNERS are responsible for their guest's actions. Guests desiring to become residents of the manufactured home, must apply for residency, and shall be subject to Owner's approval. Such application shall be made during the fourteen (14) period. Requests for residency by HOMEOWNER'S guests that are submitted after expiration of the fourteen (14) day period are discouraged and may not be approved due to the late submission. Under such circumstances, the criteria used by Owner for screening the guest's application for tenancy are as follows: 1) prior rental references, 2) credit references, 3) employment status, 4) ability to pay rent and other expenses arising under the rental agreement with the park, 5) criminal records (including indictments and convictions), 6) the availability of information required under the parks application for tenancy, 7) the guest's willingness to enter into a rental agreement with the park, and the timeliness (i.e.. during the fourteen (14) day period).5.7 HOMEOWNER, will respect the peace of COMMUNITY and see that guests do the same. Neither HOMEOWNER nor guests shall cause unreasonably loud or disturbing noise through parties, radios, televisions, stereo equipment, musical instruments, chain saws, motorcycles, automobiles, pets, etc. There is a noise abatement curfew from 10:00 p.m. until 7:00 a.m.5.8 HOMEOWNER will provide OWNER with the name of a person to be contacted in the event of HOMEOWNER'S death.5.9 HOMEOWNER will provide OWNER with proof of ownership for the manufactured home occupied by HOMEOWNER consisting of a) copy of the bill of sale for manufactured home prior to move-in and/or occupancy, and b) copy of the title and vehicle I.D. information from Oregon Building Codes Division within sixty (60) days after move-in.5.10 HOMEOWNER will, upon request of OWNER, provide OWNER with proof of insurance and proof of good standing with the county showing that the personal property taxes have been paid for the manufactured home for the current personal property tax year.5.11 HOMEOWNER is responsible for registering the manufactured home registration plate (X-plate) with Owner prior to move-in and/or occupancy.5.12 Two annual COMMUNITY garage sales will be permitted for all HOMEOWNERS in the COMMUNITY on two predetermined weekends in the spring and fall. HOMEOWNERS are responsible for coordinating which two weekends each year the garage sales will take place. Each garage sale is not to last more than one weekend (three days). Prior approval must be obtained from OWNER as to which weekends and times each COMMUNITY garage sale is scheduled to prevent interference with other COMMUNITY projects. NO INDIVIDUAL GARAGE SALES ARE ALLOWED.5.13 Tampering with mail addressed to others is a federal offense and is a basis for eviction.Section 6 SUBLETTING6.1 No rental or subletting of a manufactured home is permitted. Manufactured homes must be owner-occupied.6.2 Any person occupying a manufactured home to care for it (i.e., a "house-sitter") during an absence by HOMEOWNER in excess of 30 days must be approved by OWNER prior to occupying the manufactured home. OWNER reserves the right to require the same background check for such person as for an occupant requesting residency at Section 5.6 above.6.3 Under exceptional circumstances, the OWNER and/or COMMUNITY Manager may approve the use of a manufactured home by other than the owner; however, prior written permission must be obtained in advance from OWNER.Section 7 SALE OF MANUFACTURED HOMES7.1 Prospective purchasers of a manufa

Fair Housing: How to Steer Clear of Illegal Steering

MHCO

Contrary to popular belief, housing segregation remains alive and well not just in specific regions of the U.S. but across America. So concluded HUD upon completing its most recent review of the state of fair housing in the U.S. “Real estate agents and rental housing providers recommend and show fewer available homes and apartments to minority families, thereby increasing their costs and restricting their housing options,” concludes the 2013 report.

 

 

 

HUD also found that the problem exists in both the home buying and rental markets. Specifically, the report found that, as compared to white renters who contact a rental agent:

  • African Americans are told about 11 percent fewer units and shown 4 percent fewer units;
  • Latinos/Hispanics are told about 12 percent fewer units and shown 7 percent fewer units; and
  • Asian Americans are told about 10 percent fewer units and shown 7 percent fewer units.

Surprised? How can this continue to happen in a country where housing discrimination and segregation have been illegal since 1968, you may wonder.

Part of the answer is that while overt discrimination has become relatively rare, more subtle forms of discrimination continue to thrive. And as they continue over time, they perpetuate institutional segregation. Of course, these subtle forms of discrimination are every bit as illegal as the overt kind. The problem is that they’re also much harder to detect and root out. And because these forms of discrimination are so subtle, it’s easy for property owners, managers, and leasing agents who are otherwise committed to equal housing principles to engage in them unintentionally and inadvertently.  

This month’s lesson deals with one of the most widespread and pernicious forms of subtle discrimination: steering. First, we’ll explain what steering is and how it occurs. And then we’ll set out seven rules to ensure that your leasing agents don’t engage in conduct that constitutes steering. We’ll finish up the lesson with the Coach’s Quiz so you can see how well you learned the material.   

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans discrimination on the basis of race, color, religion, sex, handicap (disability), familial status, or national origin. (To avoid having to list these traits over and over again, we’ll refer to them collectively as “protected characteristics”). Also keep in mind that federal FHA requirements are minimum standards and that many states have adopted their own fair housing laws that extend protections to other protected characteristics, which may include:

  • Sexual orientation;
  • Gender identity;
  • Source of income;
  • Criminal record;
  • Political belief;
  • Creed; and/or
  • Military status.

Forms of unlawful discrimination include, among other things:

  • Refusing to sell, rent, or negotiate for the sale or rental of, or otherwise make available, or deny housing to a person on the basis of protected characteristics [FHA, Section 3604(a)];  
  • Offering different and less favorable terms, conditions, or privileges of the sale or rental of housing due to a person’s protected characteristics [FHA, Section 3604(b)];
  • Making notices and statements or engaging in advertising for the sale or rental of housing that indicate a preference on the basis of protected characteristics [FHA, Section 3604(c)]; and
  • Making discriminatory misrepresentations about the availability of housing [FHA, Section 3604(d)].

Steering may run afoul of any one or combination of Sections 3604(a), (b), (c), and/or (d), depending on the situation. It occurs when a landlord tries to influence rental prospects’ choice in housing based on their protected characteristics. Steering is illegal because it limits prospects’ choices and denies them the opportunity to buy or rent the housing they choose. Practiced on a wider basis, steering also maintains or creates segregation across apartment communities, neighborhoods, towns, cities, and wider communities.

Part of what makes steering so widespread is how easy it is to conceal. And those very same qualities make it easy to commit accidentally. Nobody would object to the principle that housing providers refrain from trying to influence a person’s housing choices on the basis of protected characteristics. But applying this no-influence principle to real-life situations is very tricky. After all, aren’t leasing agents supposed to provide prospects with information about the apartment so they can decide whether it’s suitable for them?

Steering is all about balancing these competing dynamics. Nobody is suggesting that leasing agents be banned from providing information and answering questions about a property so that prospects can decide whether renting it is right for them. The key to avoiding steering is ensuring that leasing agents don’t carry out these information-sharing responsibilities in a way that influences the prospect’s decision on the basis of his or her particular race, color, etc. And that’s easier said than done. The seven lessons below will enable you to help your leasing agents steer clear of steering.   

7 RULES FOR HELPING LEASING AGENTS AVOID STEERING

Rule #1: Don’t Tell Prospects Where to Rent Based on Protected Characteristics

Steering isn’t always subtle. Sometimes it’s as obvious as a punch in the face. The two most common forms of overt steering:

  • Making verbal remarks like “we don’t lease to Black people” or “we don’t have anything suitable for kids or people with disabilities”; and
  • Displaying apartments on the basis of protected characteristics such as not showing any units on “adults-only” floors to prospects with young kids.

While these things are enough to make any fair-minded landlord cringe, regrettably, they still happen. And rest assured that if any of your leasing agents were to engage in that kind of conduct, fair housing testers will eventually catch them. At that point, you’ll be looking at not just liability but also potential punitive damages running into six- or even seven figures.

Example: An Atlanta real estate firm and its leading agent had to pay $160,000 to settle steering charges for showing white testers homes in predominately white neighborhoods and Black testers homes in Black neighborhoods. The smoking gun: The agent allegedly told one tester, “I wasn’t sure where to take you because I couldn’t tell over the phone whether you were white or Black.”

Rule #2: Don’t Try to Influence Prospects’ Choices Based on Protected Characteristics

A more common form of steering is to say things to discourage prospects from renting from you (or where in the building to rent from you) or encouraging them to rent from somebody else on the basis of their protected characteristics. Examples of things leasing agents should never say (all of which come from actual HUD cases where landlords were found guilty of steering):

  • “I think there are other apartment communities in town that cater more to kids”;
  • “We have a few apartments in the back of the building for people with wheelchairs”; and
  • “I wouldn’t be comfortable renting in this neighborhood if I were a young single woman.”

Rule #3: Don’t Tell Prospects Where They’d Be “Comfortable”

Notice the word “comfortable” in the last bulleted example above. One of the most common forms of steering is seeking to influence prospects’ choices based on where they’d be most comfortable. The problem is what the word “comfortable” implies.

The critical assumption that’s dangerous to make and even more poisonous to act upon is that people are more “comfortable” and “compatible” with people of their own race, color, etc. Accordingly, telling prospects that they’d be uncomfortable in your community or more comfortable somewhere else suggests that you’re trying to influence them on the basis of their protected characteristics. This conduct constitutes illegal steering even when leasing agents genuinely believe they’re acting in the prospects’ best interests.

Another variation on the theme is seeking to protect residents from discriminatory neighbors, for example, by deliberately not telling a Jewish family about an otherwise suitable vacancy to protect them from the virulently antisemitic neighbor next door. Giving bigots, racists, anti-Semites, and the like veto power over who can lease from you makes you a co-conspirator in discrimination.  

Rule #4: Don’t Answer Discriminatory Questions or Heed Discriminatory Demands

In some cases, the impetus for steering comes not from the leasing agent but the prospect considering the property. One form of this is when a prospect asks questions about, say, the race or color of residents in the community—for example, where a white prospect asks, “Are there any Black people living here?” A more subtle way to pose the question is for prospects to ask a leasing agent, “Do you think I’d be comfortable (there’s that word again) in this community?”

Prospects who ask these kinds of questions are probably either: (1) testers sent to monitor your community’s compliance with the FHA; or (2) genuine racists or bigots. In either case, make sure that leasing agents don’t take the bait. Specifically, make sure they understand that discussing the protected characteristics of other residents with a prospect is a form of illegal steering, even when the prospect brings up the topic.

Note that the same principles apply when a prospect makes discriminatory demands, such as insisting on being shown only units on floors where none of the residents are of a particular race, color, etc.

The best practice for these situations is to have the leasing agent politely decline to answer the discriminatory question or heed the discriminatory demand and tell the prospect of your community’s commitment to fair housing and refraining from discrimination. It’s also a best practice to script the leasing agent’s “we-don’t-discriminate” reply. Language to consider:

“I’m sorry but I’m afraid I can’t answer that question. Please understand that ABC Community is an equal housing opportunity provider committed to complying with all federal, state, and local fair housing laws. ABC does not discriminate against any person because of race, color, religion, national origin, sex, familial status, disability, or [other personal characteristics protected by state or local fair housing law].”

In some cases, the leasing agent may even be able to explain why the prospect’s question or demand is discriminatory and persuade him or her to rephrase or retract it.   

If instead of a direct question about a protected class, prospects ask whether they’d be comfortable renting from you, instruct leasing agents to turn the question around and ask the prospect what he or she means by “comfortable.” If the prospect’s response is nondiscriminatory and not based on the characteristics of the people in the community or neighborhood, the leasing agent can proceed to answer the question. But if the prospect’s response suggests any discriminatory biases, such as, “I’m comfortable with young people” or “I’m uncomfortable around kids,” they should refuse to answer and recite the above statement.  

Rule #5: Don’t Limit Prospects’ Choices Based on Their Kids’ Safety

Leasing agents must understand that it’s not their responsibility to try to talk prospects out of making unsound decisions about where to rent. This instinct of leasing agents to want to protect prospects against themselves is most likely to manifest itself when prospects want to rent apartments that would be unsafe for their young children—for example, units located on an upper floor or right next to a pool with no lifeguard.

A 1992 in-house legal memorandum from HUD’s Fair Housing Division clearly states that denying or trying to discourage families with children housing on the basis of safety is illegal steering. According to the memo, the FHA requires “housing providers to make all units, including units on upper floors and units with balconies, available to families with children.” It also bans the practice of making families with children sign waivers of liability not required of other residents.

Example: In 2017, the U.S. Department of Justice (DOJ) accused the owner and operator of a New Hampshire community of using the safety argument to steer the mother of an infant child away. According to the complaint, the community had a safety policy of placing families with children under the age of 10 in first-floor units only. And since no first-floor units were available, they turned the mother away rather than showing units that were available on the upper floors. Rather than risk a trial, the owner and operator agreed to shell out $25,000 to settle the case.

While ruling out the practice of not showing apartments to families with children on the basis of safety, the HUD memo goes on to say that it’s okay for housing providers to make “factual statements about perceived hazards of their property,” as long as:

  • Those statements are “truthful and not misleading”;
  • The statements don’t indicate a “preference, limitation, or discrimination” based on familial status; and
  • An “ordinary listener” wouldn’t interpret the statements as discouraging families with children from deciding to live in the apartment community or building.

Coach’s Tip: The 1992 HUD memo also clarifies that the FHA doesn’t ban housing providers from imposing “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” such as requiring adult supervision of young children using a swimming pool without a lifeguard.

DEEP DIVE

Steering & Schools

While it might seem like the most natural and innocent thing in the world, discussing neighborhood schools with rental prospects can be a steering liability minefield. That’s because phrases such as “a school with low test scores” or “communities with declining schools” have become code words for racial and other differences to the extent there’s a correlation between the quality of the schools and the racial or ethnic composition of the neighborhood. Similarly, praising the schools in one neighborhood while discretely saying nothing about the schools in another may have the same steering effect.

With this in mind, the National Association of Realtors (NAR) has devised best practices for avoiding steering when discussing schools. And while the recommendations are targeted to real estate brokers, many of them also work for leasing agents on how to avoid steering when talking to prospects about the quality of schools in the neighborhood, including:

  • Offer facts, not opinions or personal judgments;
  • Keep a list of websites and other sources of objective information about the schools in your area to which you can refer prospects so they can make their own judgments; and
  • Ask prospects to clarify their criteria; for example, if they ask whether the schools are “good,” have them describe the standards they believe makes a school good so you can point them to appropriate sources of information.

Rule #6: Don’t Exaggerate a Property’s Drawbacks

Another common way to exert improper influence is to draw attention to or exaggerate the drawbacks or flaws of your property. Such behavior, which runs contrary to the leasing agent’s mission to make your community look good, is powerful evidence of a motive not to rent to the prospect. And when that prospect has one or more protected characteristics, it strongly suggests that discrimination is the driving force behind that motive.

Example: The owner of an Arizona community is determined to maintain a peaceful and quiet “adult” community to attract retirees. Recognizing that categorically refusing to rent to prospects with children is illegal, the owner comes up with a plan to discourage them from doing so by creating a list of all the things that make the property unsuitable for young children. It then instructs leasing agents to go through the list with all prospects that have young kids. Result: The owner—and leasing agents who actually implement the plan—have committed illegal steering.  

Rule #7: Don’t Direct Prospects to Particular Buildings or Areas Based on Protected Characteristics

One particularly egregious, institutional, and still common form of steering is to assign prospects or residents to a particular section of a community or floor of a building because of a protected characteristic. Examples can range from limiting all residents with wheelchairs and/or families with children under a particular age to the ground floor to actual segregation and maintaining separate buildings for Black and white residents. If you don’t believe these things actually happen nowadays, we can cite literally dozens of cases to persuade you otherwise. Here are just a couple of recent examples:

Example: In May 2020, the DOJ filed a lawsuit against a Georgia management company for allegedly steering elderly and disabled African-American rental prospects away from Cedarwood Village, a predominantly white housing complex for elderly persons and persons with disabilities, and to Cedartown Commons, a predominantly Black general occupancy complex.

Example: In January 2021, the DOJ charged a Massachusetts housing authority of steering African-American prospects away from three overwhelmingly white properties that it manages and steering white applicants from two of its disproportionately Black properties in an effort to keep all of these communities racially segregated [United States v. J & R Associates (D. Mass.)].

TIME OUT!

Give Your Marketing Materials an FHA Audit

You may be engaging in steering without realizing it by including language or images in your marketing materials that indicate preferences on the basis of protected characteristics. Statements like “No Children” or “Singles Only” are obvious examples. However, indications of discriminatory preference may be far more subtle, such as characterizing a property located in a predominately white area as being “traditional” or even noting that it’s located next to a particular church. Here’s a list of marketing Do’s and Don’ts that comes straight out of HUD guidelines:

Steer Clear of Discriminatory Marketing

DO 

DON’T

*Describe the property using factual and objective terms like:

  • Two bedrooms
  • Walk-in closets
  • Spectacular views

*Describe the amenities:

  • On-site fitness facilities
  • Community pool
  • Basement storage

*Include a disclaimer noting that you don’t discriminate on the basis of race, color, religion, sex, familial status, disability, national origin, and any additional personal characteristics protected under the fair housing laws of your state

*Use the fair housing logo

*Describe what you’re looking for in a renter, such as:

  • Great for young couple
  • Single adults preferred

*Describe the people in the neighborhood:

  • Catholic neighborhood
  • Large Hispanic community

*Describe the neighborhood in terms of churches, synagogues, or other landmarks that could suggest a preference for or against people with a protected characteristic

*Include an explicit preference or limitation based on a protected characteristic, such as:

  • No children
  • Christians only