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

Landlords are entitled to obtain reasonable information from the requestor in order to assist in determining whether the requested accommodation is reasonably necessary because of the disability. If a person(s) disability is obvious, or otherwise known to the landlord, and if the need for the requested accommodation is readily apparent or known, then the landlord may not seek any additional information about the requestor's disability or the disability-related need for the accommodation. This law also applies to the use of assistance animals.

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

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

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

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

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

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

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

Just over a year ago a story broke on the Sunday front page of 'The Eugene Register Guard' about several elderly residents in a Eugene park who claimed to have been swindled by one or more persons affiliated with the park management.  The community became the topic of discussion in legislative circles and the landlord-tenant coalition.  Several legislative proposals were drafted for the 2019 Oregon Legislative Session.  Legislative hearings were held last summer and into the autumn on the issue as the legislature geared up for action.  MHCO spent a considerable amount of time opposing the proposed legislation - testifying in opposition in the summer and autumn of 2018.  The resulting legislation - SB 970A - is less draconian because of MHCO's efforts.  However, just to be absolutely clear - MHCO remains in opposition.

Attached (above) is Phil Querin's analysis of the legislation (soon to become law) and how it will impact community owners.  MHCO is in the process of making necessary changes to  the appropriate forms.   Unlike the earlier rent control bill - this legislative will not be effective until later this year.  

Also attached (above) is the article Phil Querin did from last year on 'how not to conduct a consignment sale' that was in effect a response to the news story.  That article remains as true today as it was a year ago when we first published the article.  

In the end these two articles by Phil Querin are a good civics lesson on how bad actions by a small group can result in legislation that impacts everyone.  

If the son is on parole, you may want to try to contact his parole officer. I fully suspect that there may be conditions of his parole that may apply to keep him out of the park.

At the risk of sounding harsh, it is a fact that "sexual predators" are not a protected class under the state and federal constitution. In short, you can have rules forbidding them to be in the park due to the proximity of children.

If you don't have such rules, you may want to enact some. But even though you don', I believe you did the right thing to require that he not occupy the home. You can and should do the same thing with regards to forbidding him to come into the park at all. If his family wants to see him, they can go to where he currently lives. The person(s) who has/have hired him to do odd jobs should be told that he cannot come into the park for ANY reason.

If you wonder whether this can be done without some specific rules, my response is that I would prefer rules to be in place. But even though you presumably have nothing on point, it would not stop me from banning him from the park. If he legally objects and wins, then it was a court that said he could come in - not you. Your main duty is to the park residents and their children. Better to try to remove him and fail than not to try at all.

Lastly, for your information, ORS 90.630(1)(c) permits a landlord to terminate a tenant if it is determined that they are "a predatory sex offender under ORS 181.585 to 181.587." From your question, I could not tell whether the adult son was on the rental agreement, but if so, he is a "tenant." The statute is not clear whether it can be applied to only a single tenant, without terminating the tenancy of the remaining occupants. Of course, the statute doesn'taddress the larger issue of whether you may prohibit him from coming into the park, but I believe you are fully within your rights, as discussed above. However, you should first clear any such action with the park ownership, and they should secure legal advice on how to proceed.

Answer: One issue is accepting rent from a person occupying the space after the legal tenant has moved out. This can occur, for example, where someone is residing at the space under a Temporary Occupancy Agreement, but the approved tenant, no longer resides there. Alternatively, the person could be a lawful visitor, who has overstayed their permitted time, and the legal resident has left. ORS 90.403 deals with this:

90.403 Taking possession of premises from unauthorized possessor. (1) If an unauthorized person is in possession of the premises, after at least 24 hours' written notice specifying the cause and the date and time by which the person must vacate, a landlord may take possession as provided in ORS 105.105 to 105.168 if:

• The tenant has vacated the premises;
• The rental agreement with the tenant prohibited subleasing or allowing another person to occupy the premises without the written permission of the landlord; and
• The landlord has not knowingly accepted rent from the person in possession of the premises.
• Note that service of a notice to terminate does not create a right of tenancy for the person in possession of the premises.

It can be fatal to a landlord's effort to remove the non-tenant if rent has been accepted from them. On the other hand, if the rent is in the form of a check or money order, and signed by the legal tenant, it makes no difference who delivers it.

But if the person is not the lawful tenant, I believe you have a right to refuse to accept the rental payment if it is in cash, or a check or money order in that person's name. I'm not concerned that there is no rule on it, since the law is clear (at least to me) that if the person is not your "Tenant" - i.e. the one in possession under a rental or lease agreement - you do not have to accept a rent payment from them.

The other issue arises when a lawful resident resides in the space, but they have an occupant who has not been approved as a co-tenant or a temporary occupant. If you are going to accept them as a temporary occupancy, get them on a Temporary Occupancy Agreement. You can do a criminal background check, but not a financial one, since they are there not to subsidize the tenant's rent (as might be the case if they were a co-tenant). Accordingly, do not accept rent in any form from temporary occupant, unless it is drawn on the tenant's bank account and the check bears that out.

As to unlawful occupants who are staying at the space, but have not been approved as a tenant and you know of their occupancy, insist that they apply for tenancy, and make sure they do not stay beyond the time allowed for visitors under the park rules, until they have been approved.

Note, the issue of waiver is not just a question of accepting a check from the unapproved person. Acceptance of rent - even from the lawful tenant - when you know he or she is housing an unapproved person, can also result in waiver of your right to thereafter demand they vacate.

ORS 90.412 provides in part:

(2) Except as otherwise provided in this section, a landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord:

(a) During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or

(b) Accepts performance by a tenant that varies from the terms of the rental agreement.

(3) A landlord has not accepted rent for purposes of subsection (2) of this section if:

(a) Within 10 days after receipt of the rent payment, the landlord refunds the rent; or

(b) The rent payment is made in the form of a check that is dishonored.

(4)A landlord does not waive the right to terminate a rental agreement for a violation under any of the following circumstances:

(a) The landlord and tenant agree otherwise after the violation has occurred.

(b) The violation concerns the tenant's conduct and, following the violation but prior to acceptance of rent for three rental periods or performance as described in subsection (2) of this section, the landlord gives a written warning notice to the tenant regarding the violation that:

(A) Describes specifically the conduct that constitutes the violation, either as a separate and distinct violation, a series or group of violations or a continuous or ongoing violation;

(B) States that the tenant is required to discontinue the conduct or correct the violation; and

(C) States that a reoccurrence of the conduct that constitutes a violation may result in a termination of the tenancy pursuant to ORS 90.392 (Termination of rental agreement by landlord for cause), 90.398 (Termination of rental agreement for drug or alcohol violations),

So the take-away here is that you do not want to accept rent from anyone, even the tenant, when you know they are violating the rules, such as keeping an unapproved occupant at the space or having an unapproved pet. If you accept rent from the lawful tenant under these circumstances, return it within ten days after receipt - if the check has been cashed, write a new check back to the tenant with an explanation, and demand that the unpermitted person apply for tenancy.

Under the statute, waiver will not occur for the first two events of accepting the rent without returning is within ten days. The third or subsequent time can constitute a waiver. Waiver does not occur if the rent is properly returned within the ten day period, no matter the number of times it's tendered.

As for taking a rent check from the unapproved person, I don't recommend doing so unless the check is drawn on the tenant's own account. If it's a joint account with the unapproved person, don't accept it. The same holds true of any other form of payment (e.g. cash or money order) unless there is clear evidence that it came from the lawful tenant. Just remember, though, that acceptance of rent from the lawful tenant - in any form - can count as a waiver under ORS 90.412 if you know they have an unlawful occupant at the space.

Answer: One issue is accepting rent from a possessor after the legal tenant has gone. This can occur, for example, where someone is residing at the space under a Temporary Occupancy Agreement, but the approved tenant, no longer resides there. Alternatively, the person could be a lawful visitor, who has overstayed their permitted time, and the legal resident has left. ORS 90.403 deals with this:

90.403 Taking possession of premises from unauthorized possessor. (1) If an unauthorized person is in possession of the premises, after at least 24 hours' written notice specifying the cause and the date and time by which the person must vacate, a landlord may take possession as provided in ORS 105.105 to 105.168 if:

(a) The tenant has vacated the premises;

(b) The rental agreement with the tenant prohibited subleasing or allowing another person to occupy the premises without the written permission of the landlord; and

(c) The landlord has not knowingly accepted rent from the person in possession of the premises.

(2) Service of notice under this section does not create a right of tenancy for the person in possession of the premises. [2005 c.391 _12] (Emphasis added.)

In this case, it can be fatal to a landlord's effort to remove that person if rent is accepted. If rent is in the form of a check, cash or money order, I can think of no reason to accept it. Period. Since the person is an unlawful occupant, I'm not concerned that there is no rule on it, since the statute clearly gives you the legal entitlement to evict.

The other issue arises when a lawful resident resides in the space, but they have an occupant who has not been approved as a co-tenant or a temporary occupant. If you are going to accept them as a temporary occupancy, get them on a Temporary Occupancy Agreement. You can do a criminal background check, but not a financial one, since they are there not to subsidize the tenant's rent, as in co-tenancy. Accordingly, do not accept rent in any form from temporary occupant, unless it is drawn on the tenant's sole account and the check bears that out.

As to unlawful occupants who are staying at the space, but have not been approved as a tenant, the issue of the form of payment misses the larger point - which is waiver. If the person is unauthorized, and you know of their occupancy, insist that they apply for tenancy, and make sure they do not stay beyond the time allowed for visitors under the park rules. The issue of waiver is not just a question of accepting a check from the unapproved person. Acceptance of rent from the lawful tenant when you know he or she is housing an unapproved person, can also result in waiver.

ORS 90.412 provides in part:

(2) Except as otherwise provided in this section, a landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord:

(a)During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or

(b)Accepts performance by a tenant that varies from the terms of the rental agreement.

(3)A landlord has not accepted rent for purposes of subsection (2) of this section if:

(a)Within 10 days after receipt of the rent payment, the landlord refunds the rent; or

(b)The rent payment is made in the form of a check that is dishonored. (Emphasis added)

So the take-away here is that you do not want to accept rent from anyone, even the tenant, when you know they are violating the rules, such as keeping an unapproved occupant at the space. If you accept rent from the lawful tenant under these circumstances, return it within ten days after receipt - if the check has been cashed, write a new check back to the tenant with an explanation, and demand that the unpermitted person apply for tenancy. Under the statute, waiver will not occur for the first two events of accepting the rent without returning is within ten days. The third or subsequent time can constitute a waiver. Waiver does not occur if the rent is properly returned within the ten day period, no matter the number of times it's tendered.

As for taking a rent check from the unapproved person, I don't recommend doing so unless the check is drawn on the tenant's own account. If it's a joint account with the unapproved person, don't accept it. The same holds true of any other form of payment (e.g. cash or money order) unless there is clear evidence that it came from the lawful tenant. Just remember, though, that acceptance of rent from the lawful tenant - in any form - can count as a waiver under ORS 90.412 if you know they have an unlawful occupant at the space.

As for a park rule, I think it's always a good idea to have a rule about the time, place and form of payment. It's OK to say non-residents cannot pay the space rent for residents, but even without such a rule, I believe you are within your rights to refuse payment. Rent is defined at ORS 90.100(37) as follows:

Rent means any payment to be made to the landlord under the rental agreement, periodic or otherwise, in exchange for the right of a tenant and any permitted pet to occupy a dwelling unit to the exclusion of others and to use the premises. (Emphasis added.)

Since the payment from the unauthorized resident is not from a "tenant", and not pursuant to the "rental agreement", and not "in exchange for the right to occupy" the space, it's my opinion that, with or without a rule to this effect, you are within your rights to reject it, regardless of form.

Screening Criteria

The manufactured housing section of Oregon's landlord-tenant law provides that "Any conditions the landlord applies in approving a purchaser... as a tenant in the event the tenant elects to sell the home" should be disclosed in the rental or lease agreement."[1] Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what may be placed in the rental or lease agreement.

MHCO's rental and lease agreement forms[2] contain a number of criteria that landlords may impose, such as: (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.

Although there may be other criteria that landlords may wish to use when deciding whether to accept an applicant as a tenant, the above list is very comprehensive, and should be sufficient in imposing adequate guidelines when a tenant wishes to sell their home on site. MHCO additionally has an application form which solicits this and other information from prospective tenants.

Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check that provides the necessary verification. Although Oregon law imposes a 7-day period within which landlords have to respond to a submitted application, it does not prohibit landlords from imposing a longer period so long as the applicant agrees. Additionally, Oregon law expressly states that the 7-day period does not commence if the application is incomplete or inaccurate. Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete - and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned. Accepting an incomplete application or continuing with the process after discovering that the applicant has provided bad information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.

It is also important to note that Oregon law permits the '_landlord and the prospective purchaser (to) agree to a longer time period for the landlord to evaluate the prospective purchaser's application or to allow the prospective purchaser to address any failure to meet the landlord's screening or admission criteria." Thus, as noted on the MHCO Application form, there is a place for the landlord to insert a period longer than the statutory seven day period. If the landlord suspects any delay, either on the applicant's part or his own part, a longer period should be inserted. If the applicant rejects this extension, then the landlord can decide whether he wants to proceed to process the application at all.

Note: If a tenant has not previously given the landlord the 10 days' advance notice of intent to sell as required in ORS 90.680(4) (a), the landlord's seven day response time is extended to 10 days. But remember, in no instances does the landlord have to receipt and process an inaccurate or incomplete application. It is better not to accept a defective application - or return it immediately upon finding that it is inaccurate or incomplete, than continuing to process it.

If a landlord requires a prospective purchaser to submit an application for occupancy at the time that the landlord gives the prospective purchaser the application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale. It is important to remember that the terms of these park document given to the prospective tenant need not be the same as those in the existing (i.e. selling) tenant's documents.[3]

Park Documents.

Landlords and managers should always remember that when they change one of the park documents, they may have to change others. This is because of two risks: (a) The failure to incorporate a change in the lease, say, into the Statement of Policy, and (b) An inconsistency between one or more of the park documents, such as the rental agreement and the rules. Rules can generally be changed in the middle of a tenancy, but rental agreements cannot. So landlords should remember to make sure their documents are all internally consistent.

Fair Housing Laws.

The state and federal fair housing laws are essentially - but not completely - the same. Landlords and managers should familiarize themselves with any special ordinances found in their city or county laws. However, Oregon law prohibits any form of discrimination in the sale or rental of housing when directed at the following protected classes: '_race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income."[4] The easiest, best, and safest way to deal with the risk of a discrimination claim is to make all screening criteria facially neutral. Do not have rules which - even unintentionally - could have a negative impact on a member of a protected class.

In Oregon, most claims of discrimination relate to familial status. Examples range from managers encouraging families to purchase and reside in one particular area of the community (where there are more children), to making off-hand comments to applicants (e.g. "there would be very few children for your kids to play with here") that may be construed as indicating a desire not to rent to people with children. For this reason, landlords and managers should strive to apply their screening criteria neutrally regardless of the applicant's membership in a protected class.

Additionally, caution should be exercised in answering questions over the phone, since federal and state "testers" have been known to test parks by making multiple phone calls asking various loaded questions, such as "Is this a good place to raise my children?" If the community is a family park, the best response to open-ended telephone inquiries is to tell the caller that it is a family park, open to all, and that they are welcome to come in and pick up an application for processing.

One of the biggest areas of concern for landlords and managers today involve issues of immigration status. At the risk of minimizing the problem, there is one basic rule that landlords and managers should always remember when screening applicants. While it is not a "silver bullet," it should help avoid the vast majority of issues regarding immigration status. Never treat any single applicant differently from another. This means that landlords should not automatically "suspect" that certain persons are illegally in this country and then impose more rigorous screening criteria on them alone. It is best not to ask about immigration status.[5] If the applicant passes the same screening criteria imposed upon others, and all of the information in their application checks out, you should accept the current applicant, regardless of whether you have suspicions about their immigration status. One of the frequently asked questions is whether a landlord may insist that applicants provide their social security number. While this is not automatically illegal, it can be when applied to some applicants and not others. Consistency is the name of the game. Do not request verification in some cases and not others. Do not accept some tenants who fail to provide the number, but accept others (who are not obviously immigrants) without also providing such proof.

Another area of concern is occupancy limits or extra occupancy charges.[6] This is somewhat of a grey area because Oregon law currently permits a two person per bedroom rule - assuming that it is expressly listed as part of the park's screening criteria and uniformly applied. However, the problem is that federal law contains no specific occupancy limits. This means that, in theory, one could be in compliance with state law, while violating federal law. For example, if a family consisted of two adults and three children who owned a 2-bedroom home, a "2-persons per bedroom" requirement would mean that they could not move into the park. But if the third child was an infant who slept in the parents' room, one may ask whether this standard is reasonable, even though it complies with Oregon law. At the risk of violating federal law, which imposes no such occupancy limits, the better approach might be to avoid the "slippery slope" problem entirely, by not creating occupancy limits.[7]

Perhaps the most difficult of screening criteria issues is in the area of assistance animals. Since handicap is a protected class, this means that if one could establish a legitimate need for an assistance animal they could not be prevented from having one - even though the park might have a one-pet policy and this might be their second pet. This could be so even though the animal was not trained or certified in providing assistance. MHCO has Form 15 that may be given to tenants applying for a "reasonable accommodation" which is the technical term used when an allegedly handicapped person requests relief from strict application of a rule that interferes with their handicapped. [8] As most landlords and managers know, the handicap protections can be severely stretched. There are many reasons for this, including, among other things, the handicap may be allegedly psychological, and the tenant has nothing more than a note from a doctor - not a treating psychologist or psychiatrist.

The other difficult issue is that assistant animals are not technically "pets" and therefore are not subject to the requirement that the Pet Agreement be completed. Ultimately it comes down to a rule of reason and proof. Does it appear that the person requesting the accommodation is legitimately handicapped? Do they have a known history of the handicap - that is, has it ever come up before? Does it appear that the claim of a handicap is new, and possibly raised as a pretext, say to circumvent a one-pet policy?

Ultimately, the issue comes down to public safety in the community. For example, if the tenant wanted to have a pit bull (in violation of a dangerous breed prohibition) or a bull-mastiff (in violation of a size restriction), the landlord should ask which battle he or she wants to fight? If the tenant isn't credible, has a history of skirting the rules on this or other issues, it might make sense to refuse and let them take the next step. If they bring the animal into the park in light of the denial, you will have a choice; either do nothing or send out a notice of violation which would require removal of the animal. The risk in allowing dangerous or oversized breed into the park is that it may harm someone, and then the landlord will have to defend a lawsuit for failing to enforce their own rules. Additionally, in consenting, the precedent has been set, now permitting such animals based upon a tenant's assertion the need it for assistance. Remember, "reasonable accommodations" need only be "reasonable." Dogs with vicious propensities or who pose danger to children because of their size, are not the only type of assistance animals available.

Marijuana cards raise the same issue, although perhaps even worse, since the cards seem to be freely given to almost anyone. In some cases, however, this too can be dealt with on another level. If the persons with medical marijuana cards have an inordinate amount of traffic at their home throughout the day and night, perhaps the issue is one for the police, since it is still illegal to sell or distribute marijuana, medical or otherwise. If they are dealing in the illegal drug, careful (documented) scrutiny of these comings and goings might prove useful.

Miscellaneous Screening and Application Issues

• Occasionally, tenants apply for occupancy even though they cannot afford to purchase the home on their own, and perhaps would not qualify under the financial criteria imposed for acceptance into the park. However, they may have a parent or other person willing to assist in the purchase and willing to guarantee the applicant's performance. There is nothing wrong with this approach, assuming that the guarantor passes all of the financial criteria the park would impose. First, remember that the guarantor will not be living in the home - they may have their own housing requirements that impose financial limitations on them. If the tenant defaults, can the guarantor actually afford to pay the space rent? Under such cases, the financial criteria applied to co-signers should be more rigorous than those imposed on tenant applicants. Secondly, landlords should be sure to have their attorney draft a solid guarantee agreement that gives them the right to seek payment against the guarantor without having to first evict the tenant. Third, before accepting a co-signer, a landlord should ask whether they have a sufficiently significant relationship with the applicant such that they will actually be willing to subsidize the space rent if it is not paid.

• A fundamental problem in the tenant screening process is the denial process. Landlords must be prompt in informing applicants if their application is denied. Obviously, a denial can provoke an angry response. Landlords need to be proactive. MHCO has two forms to address the issue, so that the landlord or manager does not have to engage in any more explanation than that provided in the form. MHCO Form 10, identifies the source of the material or information resulting in the turn down. That is all the landlord is required to do, unless it comes from a credit reporting agency. In that case, MHCO's Form 10A should be given so that applicant has the ability to know which credit company was involved and track down the source of the information.

• It is due to financial issues that many applicants get turned down. Especially today. For that reason, MHCO has developed the "Straight Talk" form, describing manufactured home living and affordability issues. It should be used in all cases, if possible.

• Although we discussed the Statement of Policy ("SOP") above, there are two additional points to be made: (a) Always be sure to obtain a receipt (MHCO Form 7C), since it is proof positive that the resident received the SOP and the Rules and Rental or Lease Agreement. Without the receipt, the tenant can deny receiving it, and the burden of proof to establish delivery is on the landlord. This can be a difficult task unless witnesses were present who can verify delivery. (b) The second item to note is use of the Rent History attachment to the SOP a copy of the Rent History (Form 7A). This permits the tenant to see the monthly base rent for each of the five years preceding the current year of tenancy.

• Perhaps one of the most important (and newest) forms if not used, is the Flood Plain Notice (MHCO Form 6). It notifies those residents whose homes are located in all or part of a 100-year floodplain. This means that landlords and/or their managers, should look at a current FEMA map to determine whether all or a portion of their park is located inside such a plain. If so, those residents whose spaces are in the floodplain should be notified. While technically, being located in a 100-year floodplain means that flood water levels are statistically expected to flood onto the plain once every 100 years, most people realize that over the course of 100 years, there could be three or more such floods or none at all. The MHCO form, in compliance with Oregon statute, suggests to those receiving the notice that they consider obtaining flood insurance. The good news is that once having given this notice, a landlord is not liable for any uninsured water loss suffered by the resident due to a flood; the bad news is that failing to give the notice can subject the landlord to the lesser of two months' rent or the resident's actual damages, whichever is less.

Conclusion

Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes. Unfortunately, the desire to have the rental flow commence quickly sometimes results in the process becoming rushed. And landlords and managers should never allow the applicant to rush them. Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed. Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws.

[1] Rental Agreement MHCO Form 5A and Lease Agreement Form 5B.

[2] Rental Application MHCO Form 1, and Application Screening Charge Notice and Receipt, MHCO Form 9.

[3] See, ORS 90.680(5)

[4] Source of income would refer to whether the applicant was receiving some form of state or federal assistance, or child support, for example.

[5] While compliance with the law seems like a reasonable area of inquiry, the problem is that managers and landlords don't ask this question of a family from England or Germany. This creates the appearance that questions regarding immigration status are reserved for Latinos or those from other Central American countries. National origin is a constitutionally protected class. As a result, this type of selective screening creates (in legal terms) a "disparate impact" on folks from Mexico and Central America, and can therefore be found to be a violation of the Fair Housing laws.

[6] Occupancy limits are sometimes used as "tools" by landlords to impose restrictions on persons with larger families, and therefore poses a potential violation of the familial status protected status. This has not been a significant problem Oregon.

[7] Generally, the only strong justification for occupancy limits in family parks is where it can be claimed that too many people in a home overtaxes the utility systems. While legitimate in some instances, proving it could be very costly.

[8] However, prudence should be exercised here. You would not ask an obviously blind person to fill out a request for reasonable accommodation when asking for a guide dog.

Screening Criteria

The manufactured housing section of Oregon’s landlord-tenant law provides that “Any conditions the landlord applies in approving a purchaser…as a tenant in the event the tenant elects to sell the home” should be disclosed in the rental or lease agreement.”[1]Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what may be placed in the rental or lease agreement.

MHCO’s rental and lease agreement forms[2]contain a number of criteria that landlords may impose, such as:  (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.

Although there may be other criteria that landlords may wish to use when deciding whether to accept an applicant as a tenant, the above list is very comprehensive, and should be sufficient in imposing adequate guidelines when a tenant wishes to sell their home on site.  MHCO additionally has an application form which solicits this and other information from prospective tenants.

Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check that provides the necessary verification.  Although Oregon law imposes a 7-day period within which landlords have to respond to a submitted application, it does notprohibit landlords from imposing a longer period so long as the applicant agrees.  Additionally, Oregon law expressly states that the 7-day period does not commence if the application is incomplete or inaccurate.  Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete – and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned.  Accepting an incomplete application or continuing with the process after discovering that the applicant has provided bad information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.

It is also important to note that Oregon law permits the “…landlord and the prospective purchaser (to) agree to a longer time period for the landlord to evaluate the prospective purchaser’s application or to allow the prospective purchaser to address any failure to meet the landlord’s screening or admission criteria.”  Thus, as noted on the MHCO Application form, there is a place for the landlord to insert a period longer than the statutory seven day period.  If the landlord suspects any delay, either on the applicant’s part or his own part, a longer period should be inserted. If the applicant rejects this extension, then the landlord can decide whether he wants to proceed to process the application at all.

Note: If a tenant has not previously given the landlord the 10 days’ advance notice of intent to sell as required in ORS 90.680(4) (a), the landlord’s seven day response time is extended to 10 days. But remember, in no instances does the landlord have to receipt and process an inaccurate or incomplete application.  It is better not to accept a defective application – or return it immediately upon finding that it is inaccurate or incomplete, than continuing to process it. 

If a landlord requires a prospective purchaser to submit an application for occupancy at the time that the landlord gives the prospective purchaser the application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale. It is important to remember that the terms of these park document given to the prospective tenant need not be the same as those in the existing (i.e. selling) tenant’s documents.[3]

Park Documents. 

Landlords and managers should always remember that when they change one of the park documents, they may have to change others. This is because of two risks: (a) The failure to incorporate a change in the lease, say, into the Statement of Policy, and (b) An inconsistency between one or more of the park documents, such as the rental agreement and the rules. Rules can generally be changed in the middle of a tenancy, but rental agreements cannot.  So landlords should remember to make sure their documents are all internally consistent.

Fair Housing Laws.

The state and federal fair housing laws are essentially – but not completely – the same.  Landlords and managers should familiarize themselves with any special ordinances found in their city or county laws.  However, Oregon law prohibits any form of discrimination in the sale or rental of housing when directed at the following protected classes: “…race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income.”[4]  The easiest, best, and safest way to deal with the risk of a discrimination claim is to make all screening criteria facially neutral.  Do not have rules which – even unintentionally - could have a negative impact on a member of a protected class.  

In Oregon, most claims of discrimination relate to familial status.  Examples range from managers encouraging families to purchase and reside in one particular area of the community (where there are more children), to making off-hand comments to applicants (e.g. “there would be very few children for your kids to play with here”) that may be construed as indicating a desire not to rent to people with children.  For this reason, landlords and managers should strive to apply their screening criteria neutrallyregardless of the applicant’s membership in a protected class.  

Additionally, caution should be exercised in answering questions over the phone, since federal and state “testers” have been known to test parks by making multiple phone calls asking various loaded questions, such as “Is this a good place to raise my children?”  If the community is a family park, the best response to open-ended telephone inquiries is to tell the caller that it is a family park, open to all, and that they are welcome to come in and pick up an application for processing.

One of the biggest areas of concern for landlords and managers today involve issues of immigration status.  At the risk of minimizing the problem, there is one basic rule that landlords and managers should always remember when screening applicants. While it is not a “silver bullet,” it should help avoid the vast majority of issues regarding immigration status.  Never treat any single applicant differently from another.  This means that landlords should not automatically “suspect” that certain persons are illegally in this country and then impose more rigorous screening criteria on them alone.  It is best not to ask about immigration status.[5]  If the applicant passes the same screening criteria imposed upon others, and all of the information in their application checks out, you should accept the current applicant, regardless of whether you have suspicions about their immigration status. One of the frequently asked questions is whether a landlord may insist that applicants provide their social security number.  While this is not automatically illegal, it can be when applied to some applicants and not others.  Consistency is the name of the game.  Do not request verification in some cases and not others.  Do not accept some tenants who fail to provide the number, but accept others (who are not obviously immigrants) without also providing such proof.

Another area of concern is occupancy limits or extra occupancy charges.[6]  This is somewhat of a grey area because Oregon law currently permits a two person per bedroom rule – assuming that it is expressly listed as part of the park’s screening criteria and uniformly applied.  However, the problem is that federal law contains no specific occupancy limits.  This means that, in theory, one could be in compliance with state law, while violating federal law.  For example, if a family consisted of two adults and three children who owned a 2-bedroom home, a "2-persons per bedroom" requirement would mean that they could not move into the park.  But if the third child was an infant who slept in the parents’ room, one may ask whether this standard is reasonable, even though it complies with Oregon law.  At the risk of violating federal law, which imposes no such occupancy limits, the better approach might be to avoid the “slippery slope” problem entirely, by not creating occupancy limits.[7]  

Perhaps the most difficult of screening criteria issues is in the area of assistance animals.  Since handicap is a protected class, this means that if one could establish a legitimate need for an assistance animal they could not be prevented from having one – even though the park might have a one-pet policy and this might be their second pet.  This could be so even though the animal was not trained or certified in providing assistance. MHCO has Form 15 that may be given to tenants applying for a “reasonable accommodation” which is the technical term used when an allegedly handicapped person requests relief from strict application of a rule that interferes with their handicapped. [8]As most landlords and managers know, the handicap protections can be severely stretched.  There are many reasons for this, including, among other things, the handicap may be allegedly psychological, and the tenant has nothing more than a note from a doctor – not a treating psychologist or psychiatrist. 

The other difficult issue is that assistant animals are not technically “pets” and therefore are not subject to the requirement that the Pet Agreement be completed.  Ultimately it comes down to a rule of reason and proof.  Does it appear that the person requesting the accommodation is legitimately handicapped? Do they have a known history of the handicap – that is, has it ever come up before?  Does it appear that the claim of a handicap is new, and possibly raised as a pretext, say to circumvent a one-pet policy?  

Ultimately, the issue comes down to public safety in the community.  For example, if the tenant wanted to have a pit bull (in violation of a dangerous breed prohibition) or a bull-mastiff (in violation of a size restriction), the landlord should ask which battle he or she wants to fight?  If the tenant isn’t credible, has a history of skirting the rules on this or other issues, it might make sense to refuse and let them take the next step.  If they bring the animal into the park in light of the denial, you will have a choice; either do nothing or send out a notice of violation which would require removal of the animal.  The risk in allowing dangerous or oversized breed into the park is that it may harm someone, and then the landlord will have to defend a lawsuit for failing to enforce their own rules.  Additionally, in consenting, the precedent has been set, now permitting such animals based upon a tenant’s assertion the need it for assistance.  Remember, “reasonable accommodations” need only be “reasonable.”  Dogs with vicious propensities or who pose danger to children because of their size, are not the only type of assistance animals available.

Marijuana cards raise the same issue, although perhaps even worse, since the cards seem to be freely given to almost anyone.  In some cases, however, this too can be dealt with on another level. If the persons with medical marijuana cards have an inordinate amount of traffic at their home throughout the day and night, perhaps the issue is one for the police, since it is still illegal to sell or distribute marijuana, medical or otherwise.  If they are dealing in the illegal drug, careful (documented) scrutiny of these comings and goings might prove useful.

Miscellaneous Screening and Application Issues

• Occasionally, tenants apply for occupancy even though they cannot afford to purchase the home on their own, and perhaps would not qualify under the financial criteria imposed for acceptance into the park.  However, they may have a parent or other person willing to assist in the purchase and willing to guarantee the applicant’s performance.  There is nothing wrong with this approach, assuming that the guarantor passes all of the financial criteria the park would impose.  First, remember that the guarantor will not be living in the home – they may have their own housing requirements that impose financial limitations on them.  If the tenant defaults, can the guarantor actuallyaffordto pay the space rent?  Under such cases, the financial criteria applied to co-signers should be more rigorous than those imposed on tenant applicants.  Secondly, landlords should be sure to have their attorney draft a solid guarantee agreement that gives them the right to seek payment against the guarantor without having to first evict the tenant.  Third, before accepting a co-signer, a landlord should ask whether they have a sufficiently significant relationship with the applicant such that they will actually be willing to subsidize the space rent if it is not paid.  

• A fundamental problem in the tenant screening process is the denial process.  Landlords must be prompt in informing applicants if their application is denied. Obviously, a denial can provoke an angry response.  Landlords need to be proactive.  MHCO has two forms to address the issue, so that the landlord or manager does not have to engage in any more explanation than that provided in the form.  MHCO Form 10, identifies the source of the material or information resulting in the turn down.  That is all the landlord is required to do, unless it comes from a credit reporting agency. In that case, MHCO’s Form 10A should be given so that applicant has the ability to know which credit company was involved and track down the source of the information.  

• It is due to financial issues that many applicants get turned down.  Especially today. For that reason, MHCO has developed the “Straight Talk” form, describing manufactured home living and affordability issues.  It should be used in all cases, if possible. 

• Although we discussed the Statement of Policy (“SOP”) above, there are two additional points to be made: (a) Always be sure to obtain a receipt (MHCO Form 7C), since it is proof positive that the resident received the SOP and the Rules and Rental or Lease Agreement.  Without the receipt, the tenant can deny receiving it, and the burden of proof to establish delivery is on the landlord.  This can be a difficult task unless witnesses were present who can verify delivery.  (b) The second item to note is use of the Rent History attachment to the SOP a copy of the Rent History (Form 7A).  This permits the tenant to see the monthly base rent for each of the five years preceding the current year of tenancy.

• Perhaps one of the most important (and newest) forms if not used, is the Flood Plain Notice (MHCO Form 6).  It notifies those residents whose homes are located in all or part of a 100-year floodplain.  This means that landlords and/or their managers, should look at a currentFEMA map to determine whether all or a portion of their park is located inside such a plain.  If so, those residents whose spaces are in the floodplain should be notified.  While technically, being located in a 100-year floodplain means that flood water levels are statistically expected to flood onto the plain once every 100 years, most people realize that over the course of 100 years, there could be three or more such floods or none at all.  The MHCO form, in compliance with Oregon statute, suggests to those receiving the notice that they consider obtaining flood insurance.  The good news is that once having given this notice, a landlord is not liable for any uninsured water loss suffered by the resident due to a flood; the bad news is that failing to give the notice can subject the landlord to the lesser of two months’ rent or the resident’s actual damages, whichever is less.

Conclusion

Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes.  Unfortunately, the desire to have the rental flow commence quickly sometimes results in the process becoming rushed.  And landlords and managers should never allow the applicant to rush them.  Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed.  Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws.

©Copyright by Phillip C. Querin. No portion may be reproduced without the express written consent of the author.

[1]Rental Agreement MHCO Form 5A and Lease Agreement Form 5B.

[2]Rental Application MHCO Form 1, and Application Screening Charge Notice and Receipt, MHCO Form 9.

[3]See, ORS 90.680(5)

[4]Source of income would refer to whether the applicant was receiving some form of state or federal assistance, or child support, for example.

[5]While compliance with the law seems like a reasonable area of inquiry, the problem is that managers and landlords don’t ask this question of a family from England or Germany.  This creates the appearance that questions regarding immigration status are reserved for Latinos or those from other Central American countries. National origin is a constitutionally protected class.  As a result, this type of selective screening creates (in legal terms) a “disparate impact” on folks from Mexico and Central America, and can therefore be found to be a violation of the Fair Housing laws.

[6]Occupancy limits are sometimes used as “tools” by landlords to impose restrictions on persons with larger families, and therefore poses a potential violation of the familial status protected status.  This has not been a significant problem Oregon.

[7]Generally, the only strong justification for occupancy limits in family parks is where it can be claimed that too many people in a home overtaxes the utility systems.  While legitimate in some instances, proving it could be very costly. 

[8]However, prudence should be exercised here. You would not ask an obviously blind person to fill out a request for reasonable accommodation when asking for a guide dog.

Answer. Based upon recent news reports, it appears that, subject to certain exceptions,[1] there will be no effort by the federal Department of Justice to seek out and charge violators of the Controlled Substances Act in those states where the medical or recreational use of marijuana is legal.

Thus, it appears that when it comes to enforcement of park rules and regulations, Oregon landlords are on their own; neither the feds, nor the state, will go after persons with lawfully issued medical marijuana cards. Furthermore, if a tenant has a valid card, then arguably he or she has some medical condition that has authorized its issuance. Is the landlord obligated under the Fair Housing laws to make a "reasonable accommodation" for their medical condition, and permit the tenant to continue their use or grow operation? If properly done, the answer is likely "No." Here's why:[2]

In January 20, 2011, the U.S. Department of Housing and Urban Development ("HUD") issued a Memorandum, the subject of which was "Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing." While the Memo was limited to federal public and assisted housing, it can be regarded as a helpful - though perhaps not a "final" resource - on the issue.[3] It is very complete and helpful for all landlords. It can be found at this link. Here is what the Memo directs:

Public housing agencies '_in states that have enacted laws legalizing the use of medical marijuana must therefore establish a standard and adopt written policy regarding whether or not to allow continued occupancy or assistance for residents who are medical marijuana users. The decision of whether or not to allow continued occupancy or assistance to medical marijuana users is the responsibility of PHAs, not of the Department."

Thus, HUD appears to be leaving it up to the state public housing authorities to decide whether the refusal to permit on-premises use of medical marijuana constitutes a fair housing violation. Between the lines, it appears that HUD will not directly investigate such claims, leaving it up to public housing agencies on the state level.

While HUD's pronouncement is directed toward "public housing" is would be hard to believe private housing would be treated any differently. Oregon fair housing law is "substantially equivalent" to federal fair housing law. So, generally speaking, on the issue of medical marijuana, as goes the federal law, so goes state law.

However, in the 2010 case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court held that employers do not have a legal duty to allow employees to use medical marijuana on the job. This case addressed many unanswered questions on the use of medical marijuana in Oregon from an employment perspective. In a subsequent article [found here] by the Fair Housing Council of Oregon it appears that the rationale of the Emerald Steel Fabricators case is helpful for landlords declining to admit new residents with medical marijuana cards - so long as they have an existing policy against the use and cultivation of marijuana in the community.

Thus, it appears that in Oregon, on both the federal and state levels, enforcement agencies are taking a laissez-faire approach to the medical marijuana issue. This means that landlords have it within their control, with little fear of fair housing/reasonable accommodation claims, to enact rules and regulations prohibiting the on-premises medical or recreational use of marijuana.

However, I do not believe the proscription should be retroactive to tenants holding legal medical marijuana cards who have already signed their rental agreements or leases. Like you, I believe that a court would not be favorable to your situation.

It appears that your resident's medical marijuana card is in order. It must valid and current for Oregon. A California card, for example, would not suffice. [See, State v. Berrenger, 2010].

Conclusion. Yours is a difficult situation. For existing tenants I believe you can legally institute a "no marijuana" policy against recreational and medical use. However, making it retroactive as to persons already holding medical marijuana cards, would be a difficult proposition, since they did not bargain for that when they became residents or when they received their card.

In some instances, and this may not be one, I have seen situations where the resident, under the guise of holding a medical marijuana card, is also selling the drug illegally to others. This situation is most apparent when there are late night visits by unknown persons for short periods of time. If this situation presents itself, and neighbors complain, you may have recourse by issuing a 30-day curable notice of termination for violating ORS 90.740(4)(j) for disturbing the neighbors' peaceful enjoyment. You do not have to raise the marijuana use, just the noise and disruption. Upon a second similar violation within six months of the date of issuance of the first notice, you can issue a 20-day noncurable notice.

[1] The exceptions are: The distribution of marijuana to minors; Directing revenue from marijuana sales to gangs and cartels; Diverting marijuana from states where it is legal to other states where there are no laws allowing for marijuana use; Using legal sales as cover for trafficking operations; Using violence and or firearms in marijuana cultivation and distribution; Driving under the influence of marijuana; Growing marijuana on public lands; Possessing marijuana or using on federal property.

[2]Note: This answer is not intended to constitute legal advice. Readers should consult their own legal counsel to determine how to proceed in these cases, as the correct outcome depends upon the specific facts of each situation.

[3] Note that Oregon has its own set of fair housing laws.

History

The Civil Rights Act of 1968 enacted The Fair Housing Act ("FHA") to prohibit housing discrimination based on race, color, religion, sex, or national origin. The FHA was amended in 1988 to expand its coverage to prohibit discrimination based on disability or family status, meaning the presence of a child under the age of 18 and pregnant women. Because the creation of families as a protected class clashed with the operation of retirement or adult communities, the 1988 amendments included exemptions for housing developments that qualified as housing for persons over the age of 55. Because there was an inherent conflict between protected family status and the exemption for older persons, Congress responded with The Housing For Older Persons Act of 1995 ("HOPA") which fine tuned the exemptions and is now the definitive authority for owners of such housing. (You should also be aware that municipalities can have ordinances prohibiting discrimination for categories broader than the Civil Rights Act. Examples of common ordinances gaining popularity are discrimination in housing on the basis of HIV/AIDS status, sexual orientation. Such ordinances are not addressed in this article.)

Occupancy Requirement to Qualify for Exemption

HOPA maintained the requirement that at least 80% of exempt housing must have one occupant who is 55 years of age or older. It also still required that the exempt hosing publish and follow policies and procedures that demonstrate an intent to be housing for persons 55 and older. Significant in terms of capital costs, HOPA eliminated the requirement that 55 and older hosing had to maintain "significant facilities and services" designed for the elderly. (Communities that are occupied solely by persons who are 62 and older are also exempt from the prohibition against family discrimination under Section 100.303.)

"Wiggle Room" Factor

At first blush, the 80% requirement appears to give a property owner some "wiggle room" to comply with the exemption. HOPA specifically allows a 55 and older community to be "exempt" from the preference for families if, after September 13, 1988, 80% of the units are occupied by at least one person age 55 years or older. Units occupied by employees of the housing facility or community who are under the age 55 do not count against the 80% as long as the employees perform substantial duties related to the management or maintenance of the community. Likewise, units occupied by persons who are disabled and require a reasonable accommodation, also do not count against the 80%.

However, the 80% requirement can also be a property owners' pitfall if it is achieved improperly. The 80% requirement does not mean that the property owner can manipulate the remaining 20% of units occupied by persons under the age of 55. The 80% occupancy requirement is coupled with an additional requirement that the facility or community adheres to policies and procedures that demonstrate the intent to be a 55 or older facility. A manager cannot merely choose to rent to "good" non-seniors or families just because the facility is over 80% senior.

One provision of HOPA which, on the surface, appears troublesome is Section 100.305(h) which provides that each housing facility may determine the age restriction for units that are not occupied by at least one person 55 years of age or older. On its face, this provision appears to allow a community to set any age requirement it wishes for the twenty percent (20%) of spaces which are not required to be occupied by a person 55 years of age or older, including requiring the occupants of the remaining twenty percent (20%) of spaces to be adults. However, this would appear to be contrary to the general intent of the FHA to prohibit discrimination on the basis of "family status". A more likely interpretation is that the housing provider need not apply any age restriction on occupancy of the remaining twenty percent (20%) of rental units. This interpretation seems likely, not only in view of the general intent of the FHA, but in view of Section 100.306(d) which provides that a housing facility or community may allow occupancy by families with children as long as it meets the intent requirements of Sections 100.305 and 100.306(a).

An argument could well be made that a community must allow up to twenty percent (20%) of the spaces to be occupied by persons who do not otherwise satisfy the community's minimum age requirements. The problem is that a park which "uses up" its twenty percent (20%) allotment may find itself below the 80% requirement if a space which was previously occupied by a person 55 years of age or older ceases to be so occupied. This could occur as a result of an older tenant dying or moving out of the community.

It has been our experience that HUD has, from time to time, interpreted the "twenty percent" allowance as a "fudge factor" in order to avoid hardship where, for example, an older tenant dies, leaving a widow who does not satisfy the community's minimum age requirements. This interpretation was bolstered by the requirement that the housing be intended for persons 55 years of age or older and that the properties have rules that limit residency to persons meeting the age requirements. Deliberately allowing persons under the age of 55 to move into the community seems contrary to this intention.

**Tip: In many states the law requires that mobile home parks owners uniformly enforce all published rules. To allow some households to avoid the requirement could run afoul of such laws leaving the door open for a disgruntled tenant to sue on a claim that the management is not uniformly enforcing its own rules.

Published Procedures & Policies of Intent

In addition to requiring that at least 80% of the occupied units be occupied by at least one person who is 55 years of age or older, HOPA requires that the housing be "intended and operated" for person 55 years of age or older, and that the housing facility "publish and adhere to policies and procedures that demonstrate its intent" to qualify for the 55 or older exemption. Section 100.306(a) sets forth a non-exclusive list or relevant factors in determining whether the park "demonstrates" this "intent":

(1) The manner in which the housing facility is described to prospective residents;
(2) And advertising designed to attract prospective residents;
(3) Lease provisions;
(4) Written rules and regulations;
(5) The maintenance and consistent application or relevant procedures;
(6) Actual practices; and
(7) Public posting in common areas of statements describing the facility as housing for persons 55 years of age or older;

These requirements bolster the "common sense" approach to a community demonstrating its intent to be housing for older persons. Specifically, without limitation, the parks' residency documents need to clearly state the age restrictions on residency, and the age restrictions need to be consistently enforced.

Unscrupulous attempts by property owners to manipulate the intent to remain senior housing have resulted in adverse judgments. In a 2003 federal case in California, Housing Rights Center et al. v. Galaxy Apartments, et al., the apartment complex and management company was sued for allegedly telling an expectant mother that it would not accept families with children because it was a "seniors only" complex. The Housing Rights Center sent "testers" to the building and learned that childless adult testers of all ages were accepted and only testers with children or who were expecting children were told that the complex was seniors only. Obviously, the apartment owner was not complying with the "intent" of the over 55 exemption and was ordered to pay the plaintiffs $51,000 and enter into a two year fair housing training program.

Some states require that housing intended and operated for occupancy by persons 55 years of age or older register with state agencies. You should consult your legal counsel for the applicable registration and renewal process in your state.

Age Verification

HOPA provides specific guidelines for "age verification". To protect your property, these procedures should be followed to the point that, at any given time in the past, you should be able to demonstrate, the percentage of units that were occupied by at least one person age 55 or older.

Section 100.307(d) provides that the following documents are considered "reliable" documentation of the age of the occupants:

(1) Driver's license;
(2) Birth Certificate;
(3) Passport;
(4) Immigration card;
(5) Military identification;
(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability, or
(7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

This last provision is useful in those cases where tenants who are believed to be over 55 years of age fail or refuse to provide proof of age to the park by allowing any other adult member of the household to sign a statement to the effect that the person in question is, in fact, at least 55 years of age.

**Tip: Make it a policy to obtain a written application for tenancy from every household and keep those applications for the length of the tenancy.

Section 100.307(g) further provides that: "If the occupants of a particular dwelling unit fail to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older." This section goes on to provide that such evidence may include government records or documents, such as a census; prior forms or applications; or a statement from an individual who has personal knowledge of the age of the occupants. In the latter case, the individual's statement must set forth the basis for such knowledge. Compliance with this provision most probably would be met by a park employee statement as to their opinion of the age of a tenant, based upon the tenant's appearance and, if applicable, the apparent age of the tenant's adult children.

A typical pitfall for owners of such properties is the HOPA requirement that the age verification information must be updated at least every two years, pursuant to Section 100.307(c).

**Tip: In addition to keeping the tenant's application, the management should consider developing a form which it distributes to all spaces at least once every two years, asking residents to confirm the names and ages of all persons who are currently residing in the home. This is probably good policy in any case, since a record of what adults are actually occupying a home is useful in other situations (e.g., naming all adults occupants in an unlawful detainer complaint.)

MHCO has a number of forms specifically designed for use in a "55 and Older Community". Form are available for MHCO members at MHCO.ORG

Reprinted from MHCO "Community Update" March/April 2005