The owners and managers of a Midwest community recently agreed to pay $35,000 to settle a lawsuit filed by the Justice Department, alleging that they violated fair housing law by placing undue conditions on a resident’s request to live with her assistance animal and then refused to renew her lease.

The Backstory: The case is about a resident who moved into an 800-unit community, which allowed pets and assistance animals, but had a “no dangerous breeds” policy that prohibited pit bulls. Before moving in, the resident allegedly had been in treatment for mental health disabilities that stemmed, at least in part, from witnessing the traumatic deaths of her boyfriend and mother. A family member gave her a young pit bull, which her treating psychologist said helped alleviate the symptoms of her disability and was a “major and required part of her treatment program.”

She apparently didn’t mention the dog when she moved into the community later that year. When the community discovered the pit bull, the resident requested a reasonable accommodation so she could keep it as an emotional support animal. Allegedly, the community denied the request and told her to remove it.

What followed were communications involving the resident, community representatives, and their lawyers, and ultimately, a series of court proceedings. During the process, the resident produced documentation from her treating psychiatrist that the specific animal was necessary for her to be able to live there and essential to her recovery from the severe trauma she suffered. In an interview before a court reporter, the psychiatrist said much the same thing.

It was about half-way through the one-year lease term when the parties came to terms. In lieu of granting her requested accommodation, the community allegedly gave her two options: either immediately terminate her lease and get some rent back or keep the dog through the end of the lease, but with conditions. Allegedly, the conditions included obtaining an insurance policy to cover the dog, requiring the dog to wear an emotional support vest whenever he left her unit, and repaying the community for any harm caused by the dog.

According to the resident, she picked the second option, but a few months later, she received notice that her lease would not be renewed. Renewed negotiations were unsuccessful, and she moved out. 

After the resident filed a HUD complaint, the Justice Department sued the community for discrimination and retaliation against the resident on the basis of her disability.

The community denied the allegations, but the parties reached a settlement to resolve the matter. Without admitting liability, the community agreed to pay $35,000 to the former resident and adopt policies, including a reasonable accommodation policy that specifically addressed requests for assistance animals. Under the new policy, assistance animals are not subject to breed restrictions or required to wear vests or other insignia that identify them as assistance animals; residents are not required to pay any fees or obtain insurance as a condition of keeping assistance animals.

Lessons Learned: 

1.   Assistance Animals Are NOT Pets: Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, security deposits, or additional rent charges. Whatever your pet policy, you must consider a request to make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the community. That includes a request to keep a pit bull as an assistance animal—despite any policies banning so-called “dangerous breeds”—unless there’s evidence that the particular animal poses a direct threat to the safety or property of others.

2.   Requests for Assistance Animal Can Come Anytime: Don’t get thrown off because the resident makes a reasonable accommodation only after you discover she’s been keeping an animal in violation of your pet policy. Under fair housing law, reasonable accommodation requests may be made at anytime before or during the tenancy. The timing may be off, but it’s risky to deny the request—or make the resident jump through hoops—to overcome suspicions that she’s trying to get around your rules by falsely claiming a pet is an assistance animal. Instead, follow your standard policies for handling reasonable accommodation requests, including verification of the disability and need for the assistance animal if either or both are not known or readily apparent.

3.   Don’t Impose Extra Conditions to Allow Assistance Animals: Don’t require residents with disabilities to pay pet fees or get extra insurance coverage as a condition of allowing them to keep assistance animals. Conditions and restrictions that communities apply to pets may not be applied to assistance animals, according to HUD, though you do have recourse against residents for damages caused by assistance animals. HUD says you may require a resident to cover the cost of repairs for damage the animal causes to his unit or the common areas, reasonable wear and tear excepted, if it’s your policy to assess residents for any damage that they cause to the premises. Allowing for reasonable wear and tear, you may assess the costs against the standard security deposit charged to all residents, regardless of disability.

Question:  Our manager is having difficulties with troublesome residents who are interfering with his efforts to fill spaces. In one case it is a vacant mobile home the manager is showing, but the neighbor is mean/obnoxious and does not want the home purchased. In the other case we have an empty RV pad and another neighbor comes out scaring away the RV owner who wants to rent the space. What are our legal rights regarding these two neighbors?

Question. There is a lot of misinformation floating around about the Multnomah County/City of Portland Moratorium regarding COVID-related loss of income by residents. What is the straight story?

By Phil Querin and Bill Miner

Now that most Oregon counties are gradually permitting the opening of certain businesses, it’s time to think about manufactured housing communities, which seem to have been conspicuously ignored in most press releases.

For a list of counties, and the phased guidelines, go to link here: https://govstatus.egov.com/reopening-oregon#phase1.

COVID was never a threat contemplated under Oregon landlord-tenant law. Accordingly, landlords cannot be said to be guarantors against the virus attacking their residents. Furthermore, rental agreements that promise certain amenities also did not contemplate COVID and may be used by some residents to attack a landlord’s desire to protect against the virus. We understand that some residents are pushing landlords to reopen common areas. and the below is being as some guidance. If you have residents that are threatening or making demands, you should work with your individual legal counsel to determine the best response.

As park common areas are being opened, we need to look at what protections landlords can put into place to address the risks that arise when residents congregate in groups. 

Here is a short list; much more detail is found on the attachments (attached above) this article. 

• If the area is enclosed, the size of the facility will dictate the number of persons who may congregate there;
• If it is an indoor recreational facility, numbers must also be observed;
• The use of shared equipment must be monitored for social distancing (6 feet), and for frequent sanitation;
• Certain areas, because of limited size, may have to be blocked off or have controlled access;
• Library facilities will need to be limited in number of persons, seating, and distancing;
• Personal protective equipment (masks, gloves, sanitizers) should be encouraged (or required) for all users; or disposable ones could be provided by management;
• If the area is not enclosed, social distancing must still be observed;
• If the area is recreational, personal contact activities should be avoided 

As guidance, you may consider following state requirement for private facilities: Recreational, Children’s Camps; and Outdoor Facilities.  

Perhaps most important is signage which should be developed and posted in all common areas including the management office. Signage should contain, at a minimum, the following caveats:

• Warning against coming to the common area if you are ill, have a temperature, cough, or shortness of breath;
• Observe social distancing, except families living together; 
•     Use protective masks;
•     Use protective gloves, where appropriate;
•     Observe etiquette when coughing or  sneezing;
•      Avoid physical contact;
•     Engage in frequent and thorough hand washing with soap and running    water for at least 20 seconds; 
•     Carry portable hand sanitizers;
•     Avoid frequent touching of hard surfaces inside the room. 

The above suggestions are just a starting point. Again, park management should consult with its own legal counsel for more thorough detail.

Behind the Headlines: Lessons Learned from the Latest Fair Housing News

This is the first of four articles that MHCO spotlights settlements reached in fair housing cases. The amounts reportedly paid are sometimes staggering—which is news in and of itself—and show just how much it can cost to resolve fair housing complaints. But the real news is in the backstory, the events that led to a complaint against the community. It’s there that you can learn what, if any- thing, the community could have done to avoid the problem in the first place, or once the problem arose, to prevent it from escalating into a formal fair housing complaint.   Over the next four weeks MHCO will run four stories on Fair Housing settlements along with the backstory and lessons learned.  
 

In this lesson, we’re highlighting the news about four fair housing settlements. We’ll start with the headlines and then give you the backstory—the allegations in the complaint—so you can get a feel for how and why the situation led to a formal fair housing complaint. Then we’ll review the lessons learned from each scenario to help you avoid similar fair housing trouble at your community. 

Editor’s Note: Since we’re looking at settlements, we get to hear only one side of the story—the allegations of the resident, the government, or the fair housing advocacy group filing the complaint. It may not be what really happened: All the owners, managers, and communities denied the allegations, so we don’t get to hear their side of the story, which may very well have gotten the whole thing thrown out of court. As a practical matter, however, it’s often better to settle to put an end to the matter, rather than face the prospect of lengthy and expensive legal proceedings. Just remember: The fact that the case was settled doesn’t mean that anyone did anything wrong. 

First Headline:  Landlords Pay $19,500 for Allegedly Denying Housing to Mother of Twins 

HUD announced that a group of landlords have agreed to pay $19,500 to resolve complaints alleging discrimination against families with children. According to the complaint, the owners and their on-site property manager allegedly refused to rent a two-bedroom apartment to a single mother and her twin boys. 

The Backstory:This case started when a mother said she contacted a property manager about renting a two-bedroom unit for herself and her twin 4-year-old boys. She alleged that, after learning she had two sons, the property manager told her that there would be some clean-up involved and that he would get back to her—but he never did. Two weeks later, she said her mother called the property manager on her behalf. When the grandmother reminded him about the two children, the manager allegedly said that he would need to consult with his wife, who wouldn’t be back in town for two weeks. 

Suspecting discrimination, the mother asked her cousin to call about the unit. Allegedly, the property manager asked who would be living there and when the cousin said the apartment would be for her and her husband, he offered to show her the unit the next day.

The mother filed a HUD complaint, alleging that the community denied her the opportunity to rent a two-bedroom unit because she has children. Though the owners and manager denied the allegations, the parties reached a settlement. Without admitting liability, the community agreed to pay the mother $19,500 and to modify its website and advertising policy to clearly state that families with children are welcome. 

“When a property owner refuses to show an available unit to a family because they have children, they’re not only denying them a housing opportunity, they’re violating the law,” Gustavo Velasquez, HUD Assistant Secretary for Fair Hous- ing and Equal Opportunity, said in a statement. “No one should have to hide who they are or who their family is while looking for a place to live. This agreement reaffirms HUD’s commitment to ensuring that housing providers treat all applicants the same, regardless of gender, race or family status.” 

Lessons Learned: 

1. It’s NOT Okay to Turn Away Families with Children:  Though it’s been unlawful for 25 years, communities continue to run afoul of fair housing provisions banning discrimination based on familial status. These rules bar communities from denying housing to applicants because they have one or more children under 18 living with them. Unless the community qualifies as senior housing, it’s unlawful to screen out or deny housing to families with children. 

2. Dot Your I’s and Cross Your T’s to Qualify as Senior Housing: Don’t get lulled into a false sense of security because fair housing law recognizes an exception to the rules banning familial status for senior housing communities. It’s a limited exception, which applies only to “housing for older persons,” and there are lots of hurdles to jump before a community may qualify for the exception. Unless your community meets those specific technical requirements, you can’t simply decide that you’d prefer to rent to adults instead of people who have one or more children in their household. 

3. Testers Are on the Lookout for Discrimination Against Families: 

It’s common for prospects to ask friends or family members to check out suspicions that they’re getting the runaround because they have kids,
but increasingly it’s testers who are contacting communities to check for discrimination based on familial status. To avoid even the hint of discriminatory intent, treat every contact as if he was a fair housing tester—he very well may turn out to be one. 

EDITOR’S NOTE: This settlement is among a string of settlements and court filings in housing discrimination complaints based on familial status. A Wisconsin community agreed to a $100,000 settlement to resolve allegations that it unlawfully excluded families with children from significant portions of its 230-lot mobile home park. 

Question 1 

The law and MHCO ocupancy agreement both state that a landlord can screen an occupant for conduct or criminal history but not for credit history or income level.  If after screening a temporary occupant, the findings reveal that they have civil case(s) and/or eviction matters relating to previous rental history where the derogatory rental reference is financial (not necessarily bad personal conduct). Can this be grounds for denial? 

Answer 1

Not in my opinion.  The temporary occupant agreement concept is that the person is notgoing to be a “co-renter”. They are being permitted to come onto the space as an accommodation by the landlord to the current resident who wants them there.  If they are to become a temporary occupant, but your background check inadvertently reveals derogatory references related to financial information, and that concerns you, then limit the amount of time they can remain there, and take things a month, or six months, at a time.  You might consider having tenants fill out a form in advanceexplaining exactly why they want the temporary occupant there. If a tenant wants them there to share the rental obligation then you should know that beforeoffering the temporary occupant status.  If that is the case, then have them apply as a tenant.  If they don’t pass the financial background check, then reject them on that basis.       

Question.Residents are concerned about the return of the son of a long-time resident who is being released from prison for burglary.  His name is on a rental agreement for a home that he lived in with his parents. His mom still lives in the community under the same rental agreement.  Since his name is still on the rental agreement, does management have to let him back in the community after being away for two years in prison.  The mother says he is still a resident - the residents and management object.  How should management proceed?

Answer.  I’m going to assume the son was a minor when he first came to the park with his mother. That being the case, he never went through the formal application process. I’m also going to assume he is no longer a minor now.  In other words, if he applied for tenancy today, he certainly would have to go through the application process including a criminal background check.

The fact that he is on the rental agreement as a minor is irrelevant today. He should be treated the same as any other tenant applicant.  If he wants to apply for tenancy he may do so. This would include a criminal background check.

You did not say whether this was a misdemeanor or felony conviction. Nor did you say whether he has other convictions. What has he been doing since release? Is he employed? Does he have any references? Does he have a parole officer? Generally, today, certain property-related convictions (as opposed to person-related, such as assault and battery) are not, per se’ the basis of an automatic denial.

Included below are some helpful links, one of which applies to the City of Portland, which has much stricter – some landlords might use other adjectives – than the rest of the state.

Uultimately, the issue is notwhether you must accept this person simply because he had formerly lived at the park – you do not. This applies to adult tenants who were previously approved, left and came back a few years later. You are within your rights to require updated background information as a condition to a person’s approval as a new tenant, whether living with an existing tenant, or in their own home.

One, “middle ground” approach you may consider is to approve the son as a “temporary occupant” under ORS 90.275.  This arrangement allows you to keep a tighter rein on him; if he causes problems, termination is much easier and fast. If you do this, be sure to limit the agreement to a short period of time, e.g. three months. Once that period expires you do not have to renew it. And if he immediately creates a problem, you can terminate immediately. And, there is no right to cure. Good luck.

Resources:

· https://www.mysmartmove.com/SmartMove/blog/hud-guidance-criminal-background-screening.page

· http://fhco.org/index.php/discrimination-in-oregon/protected-classes/national-origin/screening-options

· https://www.opb.org/news/article/portland-tenant-screening-regulations-pass/

· https://www.portlandoregon.gov/phb/article/752954