Items that are prohibited from a Rental Agreement are covered in ORS 90.245. The following items are prohibited from inclusion in a Rental/Lease Agreement:
Note: Landlord may be responsible for 3 times the monthly rent in damages for attempting to enforce prohibited provisions.
The renting of spaces by manufactured homes in a manufactured home community is governed by the Oregon Residential Landlord and Tenant Act in Chapter 90 of the Oregon Revised Statutes. The Act requires that a written rental Agreement, Statement of Policy and Rules and Regulations be provided to each tenant renting a space in a manufactured housing community. This agreement, which includes or incorporates the community rules and regulations, becomes the contract that governs the relationship between the landlord and the tenant. Much of what you may or may not be able to do in your community will be addressed in the rental agreement.
Although many residents in your community may have rental agreements that are 5 or 10 years old, residents moving in to your community must be given a current rental agreement that conforms with the most recent amendments of Residential Landlord and Tenant Act and Federal Fair Housing Act. MHCO form '5A', "Manufactured Dwelling Space Rental Agreement/Dispute Resolution Addendum" (for month to month tenancies) and MHCO form '5B', "Manufactured Dwelling Space Lease Agreement/Dispute Resolution Addendum" are available through MHCO or you may have a rental agreement drafted by your attorney.
The Oregon Legislature occasionally adopts revisions to the Landlord and Tenant Act. Landlords and managers should make sure that they are utilizing the most current Rental Agreement. Rental Agreements generally may not be changed after execution, with the exception of mutual agreement of the parties; rent increases; and statutory changes (requirements of revised laws will apply even though not stated in the pre-existing agreement). ORS 90.510(4).
The MHCO Rental Agreement is designed to meet the current requirements of Oregon State Law. The Rental Agreement, which is intended for use in all classifications of parks, can be changed or altered to suit individual situations. In either event, you should consult with your attorney in order to insure that the agreement you choose meets all the legal requirements. It is important to remember that the tenant cannot be required to waive any rights that are granted to the tenant/resident by Oregon State Law.
The Rental Agreement should be completed and signed by both the landlord and the tenant/resident PRIOR to the home being moved into the community or PRIOR to the tenant/resident occupying a home already sited in the community.
Upon reaching the ending date, fixed term tenancies will automatically renew to a month-to-month tenancy upon the same terms and conditions (except duration and rent).
In order to renew or extend a fixed term tenancy, (and avoid rolling into a month-to-month tenancy), the landlord must submit the proposed new lease agreement to the tenant at least sixty (60 days prior to the end of the lease term. The landlord is to include with the proposed lease agreement a written statement summarizing the new or revised term, conditions or rules and regulation.
If the landlord fails to submit a proposed new lease agreement the tenancy renews as a month-to-month tenancy.
The new or revised terms, conditions, rules and regulations must:
The tenant must accept or reject the proposed new rental agreement at least thirty (30) days prior to the end of the lease term.
If the tenant fails to accept or unreasonably rejects the proposed new lease agreement, the fixed term tenancy terminates on the last day of the lease term without further notice.
If the tenancy terminates for failure to renew by the tenant, and the tenant surrenders and delivers possession of the premises to the landlord, the tenant is entitled to substantially the same rights and responsibilities as a lien holder under ORS 90.675(18) (the abandonment statute) except that the term of the storage agreement may not exceed six (6) months. (Note: this is not technically an "abandonment" the lien holder's rights are delayed until the end of the tenant's storage agreement.)
Fixed termed tenancies entered into before the effective date of this 2001 Act are not made invalid because their duration is less than two years. However, upon renewal or extension in accordance with the Act, the lease agreement must comply with minimum two (2) year requirement.
A landlord may charge a fee more than once, at the beginning of or during the tenancy, for:
Once you have determined that an individual is qualified to live in the community and all the proper documentation has been explained and signed, you should consider a meeting with the new resident. Use the Park Rules & Regulations as a briefing tool. The conversation should not be a "laying down of the law", but rather an open discussion of what is expected of both the new resident and community management. New residents may not know their responsibilities (despite signing numerous documents outlining their rights/responsibilities), thus it is your responsibility to clarify and remind them of their responsibilities. Be sure your new resident understands such things as:
The Rental Application form provides the basic information needed to make a decision on accepting the applicant. Under current Oregon Law you will have not more than 7 days from application to accept or decline a prospective resident. Used properly, the rental application and personal interview will prove helpful in countering charges of discrimination in renting spaces. When completed, a rental application should reveal:
At the time the prospective tenant returns an application for residency, the manager or landlord should provide the prospective tenant with copies of the Statement of Policy, the rent history of the space, the Rental Agreement and the Rules and Regulations. These documents may have been provided earlier in the application packet. You may provide these documents anytime prior to the signing of the rental/lease agreement (ORS 90.510(3)(a). However, make sure that the receipt for receiving these documents is signed prior to signing the rental agreement.
As mentioned earlier, it is advisable to provide the prospective resident these documents with the application so that the prospective resident can make an informed decision regarding where they would like to apply. Take time to make sure the prospective resident is aware of the content of each of these documents. It will do the community or the resident little good to have the prospective resident move in without taking the time to read and understand the Statement of Policy, the rent history of the space, the Rental Agreement and the Rules and Regulations. Poorly informed residents will likely result in future problems in the community.
Your "Screening Criteria" is another important document that should be provided to an interested applicant. This is the document that will determine where you draw the line between acceptance and denial. Your "Screening Criteria" is a written statement of the factors the landlord considers in deciding whether to accept of reject an applicant and any qualification required for acceptance. What can you have on that list? That is up to you. Here is a brief list to get you started: unsatisfactory rental references, the absence of any prior tenant history or credit history, unsatisfactory character references, criminal history, bankruptcy filed in the past two years, payment of rent problems, no social security number, and inaccurate information on the application, insufficient debt to income ratio. All of these are reasons for denial - it is up to you establish them as a basis for acceptance into you community. For example - maybe you accept applicants with felony conviction that are 20 years or older - it is up to you to include that on your screening criteria.
Remember to apply your criteria uniformly in all applications. Do not make exceptions. The question of whether you denied one person and accepted another could be tied to a potential discrimination case. Save yourself the agony of these situations - write a "screening criteria" and apply it uniformly. Used properly and consistently it can be a tool that keeps you above any suspicion of discrimination. The one limit on your screening criteria is that you cannot deny residency to anyone because of his or her race, color, sex, handicapped status, familial status, national origin or sources of income. However, you can deny tenancy to anyone - even if they are in a protected class - if they do not meet any of the minimum criteria that you establish in your screening criteria. Often potential applicants will "self screen" themselves by reading your "screening criteria" and realizing that they do not qualify, thus saving you and the potential applicant time and energy.
Screening/Admission Criteria: All applicants should be presented with a full explanation of the established basis for acceptance or rejection. This should be a written statement of any factors a landlord considers in deciding whether to accept or reject an applicant and any qualifications required for acceptance. This may include:
Additional criteria that may be added to qualify could include:
You MUST post your community's screening criteria publicly in the office and provide written copies to all prospective residents.
Remember to apply your criteria uniformly in all applications. Do not make exceptions! Once you make an exception for one of your criteria you are opening up the possibility of future problems. You will be in the awkward position of having to explain why you made the exception to one applicant and not to another applicant. The question of whether you denied one person and accepted another could be tied to a potential discrimination case. Save yourself the agony of these situations and do not make exceptions to your screening criteria. Take the time to put your screening criteria in writing to protect yourself and provide prospective residents with a copy so that they can have the necessary information upon which to make a decision.
Remember - you cannot deny residency to anyone because of his or her race, color, religion, sex, handicapped status, familial status, national origin or source of income. However, you can deny tenancy to anyone - even if they are in a protected class - if they do not meet any of the minimum criteria.
For example: If someone applies for a space in your park and reveals that they are Catholic and have a bad credit record you cannot deny tenancy based on the fact that the individual is Catholic. However, you may deny the tenancy based on the fact that the prospective tenant has bad credit so long as the minimum screening criteria have been consistently applied.
Tell the applicant that you require a certain amount of time to screen the completed application, but that they will be notified within seven days, in accordance with Oregon law. This will give you the opportunity to complete credit and criminal checks, determine the condition of the home for pre-sale or move-in requirements, check employment and personal references; and get information about current and past tenancies.
General Requirements:
Income Requirements:
Rental Requirements:
Credit Requirements:
Criminal:
Upon receipt of the rental application and a screening fee, Landlord will conduct a search of the public records to determine whether the applicant or any proposed tenant has been convicted of, or pled guilty to, or no contest to, any crime.
Denial Policy:
If you applicant is being denied to adverse and negative information being reported, you should:
Remember - the "Ideal Resident":
The key to identifying the "Ideal Resident" is a thorough and complete processing of the rental application and the supplemental verification forms, combined with a personal interview of the prospective tenant. "Snap judgements" or a "hurry to rent the space" must be avoided.
Used properly and consistently, the Rental Application and supplemental verification forms will prove helpful in countering charges of discrimination in renting spaces. The application should be used in conjunction with a personal interview of the entire household, which can reveal characteristics that do not come through on the written application. In order to protect yourself against claims, you must adopt and consistently follow specific guidelines and procedures by which each and every application is reviewed. The "Resident Acceptance Policy" will assist you in documenting the basis for your acceptance or rejection of each application. It is a good idea to maintain all rejected applications and supporting information for a period of at least three years. Tenant screening is a very important part of community management and it should not be done without reason and consistency. Tenant screening cannot be based on your personal feelings or emotions.
A thorough screening is your best resource for finding good residents. Current residents in surrounding home sites will feel more secure knowing their neighbors have also been screened.
As a community manager, you will normally be charged with accepting or rejecting prospective residents. This is one of the most important functions that you will perform as a manager of a manufactured home community. Done properly and effectively, the rental application and screening process will minimize potential problems in landlord - resident relations. If the process is done incorrectly the seeds of future problems will be sown. Every prospective resident should be given sufficient information to make an informed decision about living in a manufactured home community.
When an individual stops by the manufactured home community office inquiring on the possibility of becoming a resident, always give them an application packet. Anyone who is interested in applying should be given the application packet - inconsistency in giving out application packets could lead to cause of action by the resident selling the home in the community or a fair housing violation.
The application packet is your opportunity to sell the prospective resident on your community. Include in the application packet an application and "Minimum Criteria Standards", optional information may include what homes are available in the community, a community newsletter, information on the history of the community, the advantages of living in a manufactured home community etc. You may also want to include at this time a copy of the rental/lease agreement, rules and regulations, rent history, and statement of policy. Remember, you want to sell the prospective resident on your community, but you also want them to make a well informed decision.
Providing a prospective resident's with extensive information regarding your manufactured home community allows the applicant to evaluate for themselves if they qualify. Including what your expectations are in order to qualify and expectations and requirements to maintain residency in the community allows the prospective resident to self qualify.
The overall rental application process should include:
Under current Oregon law you will have not more than 7 days to accept or reject a prospective resident. The 7 days begins on the day of receipt of a complete and accurate written application. The landlord and the prospective resident may agree to a longer time period for the landlord to evaluate the prospective resident's application to address any failure to meet the landlord's screening or admission criteria.
If the existing resident fails to give the required 10 day notice in writing prior to the sale of the home, the landlord may extend the written application process by 10 days. (ORS 90.680)
An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation required pursuant to ORS 90.510 including any financial data and references.
In order to comply with Oregon Law, and to provide accurate records, there are several forms that are to be completed when the applicant is accepted to become a resident in the community. These forms should be completed after you have reviewed the resident's application, and completed all background checks and tenant screening, but before the resident moves into their home.
Copies of the following forms should be given to the new resident:
The following documents should be in the new resident's office file:
Remember - Prior to renting a space and permitting possession, you must have all proper inquiries completed and applicant accepted and the rental agreement signed.
If you are aware of a sale and do not have the purchaser fill out an application, or fail to advise the seller and prospective purchaser in writing that the application has been rejected within 7 days after they fill out the application, then the purchaser can move into the mobile home under the same condition of the rental agreement of the seller. Basically, they assume the existing rental agreement you have with the seller of the manufactured home.
If a prospective tenant refuses to provide you with the necessary information for you to qualify them, then it is an automatic denial of the applicant.
It is important that an application is filled out and you check out the person carefully. You should check them out the same as you do any prospective resident. You do not have to approve the person just because they are buying an existing home in the park. If they have a bad credit or rental history, they can be refused as a prospective tenant. This does not necessarily kill the sale of the mobile home. They can still purchase the home, they just cannot keep it in the park. You need to provide a written rejection to both the seller and prospective purchaser within 7 days. You need to advise them why they were not accepted. If you denied them for credit reasons, give the applicant the name and phone number of the company who provided you with the report. Advise the applicant that they can call them if they have any questions regarding the report.
It is important that you advise anyone that has a "For Sale" sign on their manufactured home that they do the three things listed at the beginning of this section. Failure by the prospective resident to fill out an application or the landlord's failure to advise them that they do not qualify can be a very costly mistake in the event they move in and then you give them notice. It makes for ill feelings for everyone involved.
If a resident sells their home and the new owner of the home has not filled out an application prior to moving into the home, you do not need to accept them as a resident. You have no contract with them and you can request them to remove the home from the park. DO NOT ALLOW PROSPECTIVE TENANTS TO MOVE IN BEFORE THE SCREENING PROCESS HAS BEEN COMPLETED, AND THE APPLICANT HAS BEEN APPROVED AND SIGNED, AND RECEIPTED FOR THE STATEMENT OF POLICY, RULES AND REGULATIONS AND RENTAL AGREEMENT. DO NOT ACCEPT RENT FROM ANYONE THAT YOU HAVE NOT APPROVED TO LIVE IN THAT HOME. If you accept rent before you qualify them then you may have established them as a tenant. Simply tell them that you cannot accept the rent until they fill out an application and are accepted by the landlord. DO NOT HAVE ANYONE SIGN A RENTAL AGREEMENT UNTIL YOU HAVE RUN CREDIT, RENTAL AND CRIMINAL CHECKS ON THEM AND THEY HAVE BEEN ACCEPTED. If any of the reports come back unfavorable there is nothing you can do about it because you have established them as a tenant by signing the agreement/lease.
Once you have determined that an individual is qualified to live in the community and all the proper documentation has been explained and signed, you should consider a meeting with the new resident. Use the Park Rules & Regulations as a briefing tool. The conversation should not be a "laying down of the law", but rather an open discussion of what is expected of both the new resident and community management. New residents may not know their responsibilities (despite signing numerous documents outlining their rights/responsibilities), thus it is your responsibility to clarify and remind them of their responsibilities. Be sure your new resident understands such things as:
As of July 1, 1992, all manufactured home communities renting space for manufactured dwellings have been required to provide prospective and existing tenants with a Statement of Policy. The applicants must receive their Statement of Policy before signing the rental agreement. Existing tenants who have not previously received a copy of the Statement of Policy and are on month-to-month rental agreements must receive their copy at the time the next 90-day rent increases notice is issued (ORS 90.510(3)(b). All other existing tenants shall receive a copy of the statement of policy upon expiration of their current rental agreement and before signing a new agreement.
While a Statement of Policy is not technically a contract, it is an important document. A tenant or rental applicant who makes their decisions or changes their position in reliance upon the policies set forth in the statement may be entitled to hold the landlord to those written policies. As proof of delivery of the Statement of Policy to tenants or applicants, it is advised to get a signed receipt.
A landlord who intentionally and deliberately fails to provide a Statement of Policy as required by ORS 90.510, or delivers a legally defective one, may be subject to a lawsuit.
The Statement of Policy is required to include the following information in summary form:
Before any tenant moves into your community the tenant's file should contain the following information:
By Terry R. Dowdall, Esq.
The federal Fair Housing Amendments Act (FHAA) of 1988 created a new protected class of "familial status." In California, the federal courts have addressed these requirements by ruling that "all age" communities may not discriminate against children, no more than management can discriminate against any other protected class. This article is addressed to the need for continuing concerns over rule and regulation content and enforcement. This guidance comes from a case brought against Plaza Mobile Estates, defended by this office.
In 1988, Congress amended the Fair Housing Act (FHA) to prohibit not just discrimination on the basis of race, color, sex, religion, disability, or national origin, but also included familial status discrimination. Familial status is defined as " one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent or another person having legal custody of such individual or individuals."
Among other provisions, it is unlawful:
"To discriminate against any persons in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... familial status ..."
Thus, a restriction on access or use of common facilities and amenities bases on age of a child (familial status) is a violation of the FHAA, absent compelling business necessity. Any such rule must be proved to be the least restrictive means to achieving a health and safety justification. What does this legalese mean to the community owner in practical terms? A full-blown trial, risks of heavy penalties, damages, and attorney's fees and costs. This is because there is no bright line test for any age-restrictive regulation: the law is bereft of any standards or guidance to make a reasonable, predictable risk-assessment or likelihood of success. Each case depends on the facts and surrounding circumstances. In other words, each case is a test-case. In sum, the penalties are so severe that prudent counsel would admonish all to eliminate age-restrictive rules and regulations.
Children are as protected as any other protected class. Thus, a simple way to test a rule for FHA compliance is this: insert any other protected class in the place of "children" when testing a rule and regulation. For example, a common past rule (and no longer a valid one) is "all children under 14 years of age must be accompanied by an adult resident when in the pool area." Then, how does this sound: "All Methodists must be accompanied by an adult resident ...." Obviously, such a rule is patently violative of the FHA.
It is also a violation of the FHAA to express to agents, brokers, employees, prospective sellers, or renters a preference, (e.g. "... gosh, if I had my druthers, I would rather not rent to families"). Another issue is use of selective advertisements, or denying information about housing opportunities to particular segments of the housing market because of their race, color, religion, sex, handicap, familial status, or
national origin, (example, in an area overwhelmingly populated by non-English speakers, advertising only in English language publications). Other violations will be found where there are ads or statements made regarding applicants, including: "mature person;" stating an aversion to "families with children" or "teenagers in the building;" advertisements stating non more than "one child;" or, stating that the community owner does not "rent to children." Posting "Adult Community: at the entrance to a non-exempt community also violates the FHAA. Use of the word "adult" without more, constitutes a violation of the FHAA. There are no such thins as adult manufactured home communities, and use of the phrase is deemed to chill family applicants from applying for tenancy in them.
The various rules cited by the courts as impermissibly restricting access or denying the use of the communities' facilities and/or areas on the basis of age, included the following. If your rules contain any of the following restrictions, or any rules similar to them, it is strongly advised that a legal advisor conversant with the FHAA (and implanting regulations and judicial and administrative interpretations) be promptly consulted.
The court held that these rules were not based on compelling business necessity and did not represent the least restrictive intrusions on familial status rights in promoting a health and safety interest. Having held that these rules were unlawful, the issues remaining for trial in the Plaza Mobile Estates case included damages, punitive damages, civil penalties, injunctive relief and attorney's fees and costs for the private plaintiffs.
While the action had been brought as a class claim (in which all of possibly thousands of affected residents could have been included in damages awards), class certification efforts were defeated, allowing only the named parties to seek damages.
The court's comments regarding the invalidation of these rules is telling and troubling. The court stated the age-restrictive rules were facially discriminatory. In other words, no matter how administered, the rules were invalid as drafted. Even if never enforced , such rules might dissuade a prospective applicant from applying for tenancy. These rules "...treat children, and thus, families with children differently and less favorably than adults-only households." "Describ[ing] parks as 'adult' parks are clear examples of illegal steering. Although they are not outright refusals to sell or rent or families with children, they indicate a preference for adults only and certainly discourage families with children from applying."
Considering the various age restrictive rules, they fall into three categories: (1) absolute prohibitions, (2) adult supervision requirements, and (3) hours of access restrictions.
The absolute prohibitions include those rules that (1) prohibit all children under 18 (or 21) years old from using the billiard room and from riding bicycles, (2) prohibit all children under 16 (or 18) years old from using the therapeutic pool, (3) prohibit all children under 14 (or 18) years old from using the sauna or Jacuzzi, (4) require all children under 8 years old to be confined to rear fenced yard of family residence, and (5) prohibit all children from playing on community streets and any other common areas.
The court held that absolute prohibitions such as the foregoing are illegal. The regulations are not the least restrictive means to achieve health and safety objectives ("...prohibiting all 'children' from playing in common areas ... cannot be justified"). The same applies with the billiard room ("... it is unclear how a 17-year-old's access to a billiard room is any more hazardous to ... health or safety that a 22-year-old's access").
The fundamental premise adopted by the court is that "[A]ny concerns that defendants may have are not necessarily linked to age, and any concerns about problem behavior can be address with the use of rules." Thus, the court invalidated blanket prohibitions of all 15-year-olds from using the therapeutic pool and all 13-year-olds from using the sauna or Jacuzzi
In certain instances adult supervision might less restrictively advance health and safety concerns ("assuming arguendo that defendants' concerns were more logically linked to the age restrictions, requiring adult supervision rather than imposing an absolute ban is clearly a less restrictive means ..."). But where to set the limit is uncertain. California regulations state:
"Where no lifeguard service is provided, a warning sign shall be placed in plain view and shall state 'Warning – No Lifeguard on Duty' with clearly legible letters at least 10.2 centimeters (4 inches) high. In addition, the sign shall also state 'Children Under the Age of 14 Should not Use Pool Without an Adult in Attendance."
Based on the Plaza Mobile Estates decision, it is needlessly legally risky to impose any supervision requirement. Clearly, a 14 year age limit for an adult supervision is not enforceable, not legal, and constitutes a violation of the FHA, despite former administrative decisions suggesting the contrary and California regulations cited above. Yet, the need for an age limit is strikingly clear. The same rule applies to use of spas and whirlpools. Certainly an adult supervision requirement should be reasonable[1], but eh court has ruled that such concerns are fro the parents, not the management.
Given that this case raises many more questions than it answers, the ability to promulgate and rely on age-restrictive rules for access and supervision are certainly less than a matter of clarity. While the previous rulings concerning the enforceability of age-restrictive rules are in some doubt, a few precepts can be stated with some reliability. The first is that an outright prohibition of use or access to any facility or amenity cannot be allowed. Setting up selected hours for usage of a facility of amenity cannot be allowed. Less certain is the ability to promulgate rules requiring adult supervision of children of varying ages for use of facilities or amenities. It would appear that no supervision can be mandated for areas such as clubhouse, billiard room, library or common areas.
The "14 and under" requirement of California regulations for pool supervision is a should not a must provision. Hence, management cannot require supervision of 14 years of age and under. The only clearly legal position is not to require supervision, and let it be for the parents to take personal accountability and responsibility for their children. The court makes this statement:
"... there is nothing magical about the age 18 or 14 years old if defendants' concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement."
The courts have intervened on occasion to require discrimination against children for their own good and government does so all the time. For example, you cannot vote until you are 18, drink alcohol until you are 21, cannot drive until you are 16.[2] However, housing providers subject to the FHA may not rely on or use the same governmentally-established restrictions in developing their rules and regulations despite the dangers posed by the common area facilities.
Another example: Pedestrian injuries are the second greatest cause of harm to children from five to 14 years of age. See the National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997.[3] However, it is illegal to have a rule and regulations which states that "children are not to walk around the community without adult supervision."
Is it unreasonable to require adult supervision within the common areas of a manufactured home community? It would seem that such a rule is reasonable. However, for a community owner, such a rule violates the FHA. On the other hand the Consumer Products safety Commission urges supervision of children while on a playground for example (Consumer Product Safety Commission, Public Playground Safety Checklist, CPSC Document #327: "10. Carefully supervised children on playgrounds to make sure they're safe"). The federal law states that the parents are responsible for their children, not the management.
The courts have previously allowed the following rules. This information may be largely historical at this juncture, for it remains unclear whether or not they remain viable in light of the Plaza Mobile Estates decision (these rules were sustained under the previous "reasonableness" test, not the "compelling interest" basis test):
But under the more recent Plaza Mobile Estates decision, the past allowances provide no basis on which to write your rules and regulations.
However, it is too much to criticize or impugn the court for adhering to the letter of the law, and not legislating by "judicial fiat." The court interprets what the law is and does not legislate. That is the job of Congress and more pointedly in this case HUD (in its rule-making powers). The FHA prohibits discrimination, period. The federal law makes NO exceptions; exceptions to familial status rights is the job of HUD. It is not the court's duty. The court is not the Legislature.
HUD should provide guidance for housing providers and establish bright line tests for common sense age-restrictive rules. HUD should defer to other legislative judgments made for child protection by allowing community owners to replicate existing laws in their rules and regulations. Model regulations for protection of the young could be published. HUD could establish a rule pre-approval procedure.
Community owners just want to comply with the law and provide reasonable requirements for protection of children. But now, even experienced lawyers cannot intelligibly predict the enforceability of any age-restrictive rules. At this time, attaining any ascribed legitimacy of a rule only follows after an expensive legal defense with a heavy burden of proof requiring compelling business necessity. A conciliation agreement binds the complainant. If another resident complains the next day, the conciliation agreement is worthless as a defense to the rule. This is an inconceivably inefficient manner of testing rule validity. The costs to business in such concerns vastly outweigh the benefit to be achieved. The cost to the consumer in spreading the expense of this exercise could be largely obviated if the housing provider had some guidance in defining acceptable rules for promotion of health and safety. The suggestion of administering proficiency tests is a null and void concept. The liability for negligently administering such tests, seeking and paying for qualified testers, and then excluding the non-proficient residents will not be pursued by a single housing provider.
What can we do? Even in the absence of specific rules, educational materials may help parents understand common risks associated with youth. When educational information is provided as an adjunct to an activity rather than a rule restricting an activity, the chance of a claim of discriminatory preference is less likely to be made. For example, when a community owner offers such educational material from organizations who seek better protection of children, (e.g., police departments, charitable organizations, etc.) the community owner is providing a service – disseminating information and facts – not discriminating against children.[5]
You may also consider consulting with HUD in advance of amending rules and regulations. IF HUD even informally opines that a proposed policy is not defensible, or that no comment can be offered, at least the community owner can better assess the risk faced with a new rule and regulation. For example, if a resident complains that a particular resident who has open sores due to infection with the AIDS virus desires to use the swimming pool, can the management require that resident to stay out of the pool?
When faced with the question, the manger called to advise that she was not sure how to proceed. While administrative regulations require a doctor's letter stating that no public health or safety risk was posed by the patient's use of the pool, I consulted with HUD before announcing the management policy.
All the community owner wants is to know what the law is! What we do know is certain rules, certain practices reflecting what the law is not. But it is grossly unfair to relegate the duty to set standards on management. Having read this article, can you now, safely amend your rules to impose such a rule? No. No attorney can give an absolute assurance that such a rule will be sustained until ruled valid in a court. Until a court actually rules on the validity of the rule, or HUD or DFEH offers guidance on their interpretation of the rule, there can be no assurance of what an will not be permitted in developing age-restrictive rules and regulations. The best policy is to eliminate any and all age restrictive rules and regulations to avoid FHA claims.
Reprinted with permission from Western Manufactured Housing Communities Association (WMA) "Reporter", June 2008.
Terry Dowdall has specialized in manufactured home communities' law since 1978. His firm, Dowdall Law Office, APC is located in Orange County and Sacramento, with a practice limited exclusively to the manufactured housing industry. Mr. Dowdall serves as a legal advisor on WMA's Legislative Committee and has authored publications for the Continuing Legal Education of the State Bar. He is a frequent contributor to the WMA Reporter and facilitator at WMA educational seminars. He can be reached at 714-532-2222 (Orange) or 916-444-0777 (Sacramento).
[1] According to the United States Consumer Product Safety Commission, "...The main hazard from hot tubs and spas is the same as that from pools – drowning. Since 1980, CPSC has reports of more than 700 deaths in spas and hot tubs. About one-third of those were drownings to children under age five. Consumers should keep a locked safety cover on the spa whenever it is not in use and keep children away unless there is constant adult supervision. Hot Tub Temperatures – CPSC knows of several deaths from extremely hot water (approximately 110 degrees Fahrenheit) in a spa. High temperatures can cause drowsiness which may lead to unconsciousness, resulting in drowning. In addition, raised body temperature can lead to heat stroke and death. In 1987, CPSC helped develop requirements for temperature controls to make sure that spa water temperatures never exceed 104 degrees Fahrenheit. Pregnant women and young children should not use a spa before consulting with a physician. ... "CPSC Document #5112 "Spas, Hot Tubs, and Whirlpools Safety Alert".
[2] Municipal curfew regulations abound which restrict children. Los Angeles is typical. No one under 18 years of age is permitted in public places during school hours (" ... present in or upon the public streets, ... or any place open to the public during the hours of 8:30 am and 1:30 pm"). L.A.M.C. 45.04. The same restrictions apply after 10 pm. ("... any minor under the age of eighteen years to be present in or upon any public street, ... between the hours of 10:00 pm on any day and sunrise of the immediately following day; ...."). L.A.M.C. 45.03. Regulations for pool halls E.g. 17 (Midland Mi. Mun. Code Sec. 15-34) and 18 (1063-B. Pool halls. Public Laws of Maine) year age requirement), are commonly promulgated for the health and safety concerns for minors. It is unsafe for a park owner to rely on local or state laws in this respect in drafting rules and regulations.
[3] "[P]edestrian injury is the second leading cause of unintentional injury-related death among children ages 5 to 14. While the majority of pedestrian deaths and injuries are traffic-related, children ages 0 to 2 are more likely to suffer non-traffic-related pedestrian injuries, including those occurring in driveways, parking lots or on sidewalks. Although pedestrian injuries are not as common as motor vehicle occupant injuries, a disproportionate number of the injuries sustained by child pedestrians are severe. Between 25 and 50 percent of child pedestrian injuries require hospital admission. Children ages 5 to 9 are at the greatest risk from traffic–related pedestrian death and injury. Nearly one-third of all children ages 5 to 9 who are killed in traffic crashes are pedestrians").
[4] According to the U.S. Products Safety Commission: "The U. S. Consumer Product Safety Commission estimates that between 1985 and 1989, the latest period for which data are available, there were 1,200 amputations of children's fingers because of contact with exercise bikes. Most children were under the age of five. Many of the injuries occurred when the child's fingers touched the moving bike wheel or the chain and sprocket assembly. The Commission is concerned about the severity of injuries to children, especially because the hazard may not be obvious. Therefore, the commission warns parents always to keep children away from exercise bikes. Never use a bike without a chain guard, and when not using the bike, store it where children cannot get to it. Children's fingers can be amputated if they touch moving parts of exercise bike." Prevent Finger Amputations to Children From Exercise Bikes: Safety Alert: CPSC Document #5028.
[5] For example, educational material exist which explain that young children have peripheral vision which is two-thirds that of an adult; they have difficulty determining the source of sounds; traffic noises and sirens may be confusing; they may not understand that an automobile may seriously hurt or kill them; most children cannot understand a complex chain of events; children believe that all grownups will look out for them; they think that if they can see an adult driving a car toward them, the driver must be able to see them; children often mix fantasy with reality – they may give themselves superhuman powers and o not understand that a moving vehicle can hurt them; they have difficulty judging the speed and distance of oncoming vehicles.