Question:Our park is having plumbing issues. One resident says a sewage pipe may be collapsing that is obstructing sewage flow. Another resident complains that their tap water is discolored, and says they have to install an expensive filtration system.

 

My question is “Where is the line between resident responsibility and landlord responsibility for park systems – from well water, public water, septic, public sewer, and electrical systems, etc.”?

 

 

In this article, MHCO tackles a challenging problem: resident hoarding. In multifamily housing communities, extreme cases of hoarding can pose serious health and safety hazards—not only to anyone living in the affected unit, but also to neighbors who may share walls, ceilings, floors, hallways, and even HVAC systems. Potential problems include fire hazards, mold and other environmental dangers, pests and vermin, foul odors, and even structural damage. 

Unfortunately, it’s often difficult to detect because people with a hoarding problem rarely seek help on their own. Conditions inside the unit may not come to light until an emergency crops up—or conditions inside seep out into neighboring units or common areas. By the time it’s discovered, the problem may be so out of hand that your first impulse is to order the resident to clean up immediately or move out.

But that approach could land you in fair housing trouble. Hoarding disorder is a recognized mental health impairment, so the resident would probably qualify as an individual with a disability under fair housing law, triggering your responsibility to try to work out a reasonable accommodation to allow him to continue to live there. There are limits to your obligations toward the resident, but you’ll have to tread carefully—and document your efforts to work out a resolution—to prevent or defend a potential fair housing complaint.

In this lesson, we’ll explain how fair housing law may protect residents engaged in hoarding behavior, as well as the limits to those protections. Then, we’ll offer seven rules to help you comply with fair housing laws when dealing with a hoarding problem. 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans discrimination against individuals with disabilities. The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activities. The law applies to individuals who have a disability, as well as those who are “regarded as” or have a “record of” having a disability—even though they may not in fact have a qualifying disability under fair housing law.

Hoarding is more than simply having too much clutter. It’s a recognized mental health disorder, characterized by saving things that others may view as worthless, and persistent difficulty in getting rid of or parting with possessions, which leads to clutter that disrupts an individual’s ability to use their living space, according to the American Psychiatric Association (APA). At some point, it’s likely that you’ll be confronted with a hoarding problem, which may affect 2 to 6 percent of the U.S. adult population, according to the APA.

TIME OUT!

What Is Hoarding Disorder?

In 2013, the APA recognized hoarding disorder as an official psychiatric diagnosis in its Diagnostic Statistical Manual V (DSM-V). Specific symptoms for a hoarding diagnosis include:

• Lasting problems with throwing out or giving away possessions, regardless of their actual value.
• The problems are due to a perceived need to save the items and distress linked to parting with them.
• Items fill, block, and clutter active living spaces so they cannot be used, or use is hampered by the large number of items (if living spaces are clear it is due to help from others).

Hoarding causes major distress or problems in social, work, or other important areas of functioning (including maintaining a safe environment for self and others). Many people with hoarding disorder also experience other mental disorders, including depression, anxiety disorders, attention deficit/hyperactivity disorder, or alcohol use disorder.

Source: APA

The inclusion of hoarding as an official psychiatric disorder in the DSM-V confirms that hoarding is a mental disability, says fair housing attorney Lynn Dover. Federal and state fair housing laws protect people with mental disabilities from discrimination and require housing providers to make reasonable accommodations when necessary to afford a resident with a disability an equal opportunity to use and enjoy her housing, she says.

In hoarding cases, for example, the community may be asked to hold off on eviction proceedings to allow enough time for the resident to remedy the health and safety issues. Assuming it’s safe to do so, the community may have to grant the request—made by or on behalf of the resident—because there’s an identifiable relationship between the requested accommodation and the resident’s disability.

Nevertheless, there are limits to your obligations to grant reasonable accommodations even if a resident qualifies under the disability provisions. For one thing, the FHA doesn’t protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation.

Furthermore, the law doesn’t require you to grant an accommodation request if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. But tread carefully: Even if the resident’s request is unreasonable, communities are required to engage in an “interactive process” with the resident to try to work out an alternative accommodation that would meet his disability-related needs without posing an undue burden on the community or require a fundamental alteration of its operations.

7 RULES FOR RESPONDING TO A HOARDING PROBLEM

Rule #1: Watch for Signs of Hoarding

Train your staff to be vigilant for any signs of hoarding behavior by your residents. Residents engaged in hoarding behavior rarely come forward on their own, so you may not be aware of a hoarding problem until its effects seep outside the resident’s unit and into hallways or neighboring units.

The observations of staff members are crucial to detect hoarding problems. During their routine duties, your leasing, maintenance, housekeeping, or security staff may notice excess clutter or noxious odors in hallways and common areas that seem be emanating from a particular unit. Train staff to report such problems immediately, so that you’ll be able to address the issue at the earliest stage possible.

For the same reason, pay attention to similar complaints from neighbors, particularly when the source of the problem seems to be next door or on the floors above and below a particular unit. Hoarding isn’t limited to common possessions, such as clothing, newspapers, or plastic bags; some people hoard garbage and rotting food—even animals or human waste products. Any and all can lead to serious health and safety problems involving fire hazards, impaired air quality, mold growth, pest infestation, and structural damage, which can spread rapidly and lead to serious injury or disease without prompt attention. 

Rule #2: Investigate Potential Hoarding Problems

As soon as potential hoarding problems come to your attention, inspect common areas and inside the units of residents who have lodged complaints. Make an effort to determine whether complaints all seem to be pointing to a particular unit.

The next step is to contact the resident whose unit appears to be the source of the problem. Your right to enter and inspect a resident’s unit depends on a variety of factors, including the seriousness of the reported problem, state and local sanitary codes and landlord-tenant laws, the provisions of the lease, and other legal requirements.

In general, communities may enter the units of residents only with reasonable advance notice and during normal business hours, except in cases of emergency. Be sure to document that you have complied with applicable requirements, which will be particularly important if the resident in fact has a hoarding problem and denies you entry.

Once inside, document the conditions, particularly focusing on any violations of lease provisions and applicable health and safety codes. Make notes about the nature and cause of any noxious smells, pest infestations, and other problems that have spread outside the unit. Attempt to take photos since descriptions of hoarding conditions can go only so far to show the seriousness of a hoarding problem. However, if the resident is adamant about not having photos taken, it’s best not to push the issue since the goal is to gain the resident’s cooperation in remedying the unit’s condition.

Whatever you find inside the unit, be sure to treat the resident with dignity and respect. That may be challenging if confronted with the telltale signs of hoarding: an accumulation of large amounts of clothing, papers, bags, newspapers, blocked exits, rotting food, signs of rodent or pest infestation, large numbers of animals, or human or animal waste. Unless you maintain a neutral, nonjudgmental demeanor, you could inadvertently make matters worse by exacerbating the resident’s distrust and resistance to change.

Here’s what you shouldn’t do: Take matters into your own hands to clear away the resident’s possessions. You might believe that you’re helping the resident to conquer a problem that she’s been promising to rectify for years, but that approach can backfire unless the resident gives you the authority to do so, warns F. Willis Caruso, Esq., Clinical Professor Emeritus of the John Marshall Law School Fair Housing Legal Support Center and Clinic.

Rule #3: Listen for Reasonable Accommodation Requests

When resident hoarding comes to light, follow your standard policies and procedures for addressing safety and health problems. Comply with notice requirements dictated by the lease and applicable law if conditions inside the unit are bad enough to rise to the level of a direct threat that can’t be eliminated or sufficiently mitigated by a reasonable accommodation.

Before taking legal action against a resident with a hoarding problem, determine whether the resident qualifies as an individual with a disability under fair housing law. Obvious signs of unsafe and unsanitary hoarding are usually enough to suggest that the resident has hoarding disorder—a recognized mental impairment. As a result, fair housing law may require you to grant a reasonable accommodation that would give the resident time to clean out the unit to preserve her residency.

Dover says it’s rare for residents with hoarding issues to specifically ask the owner or management for an accommodation. Nevertheless, you should listen for reasonable accommodation requests, which may be framed as something the resident “needs” or “wants” because of a disability. In hoarding cases, it may be a request from the resident, a family member, or an advocate to delay legal action against the resident to give him more time to clean out the unit.

In most cases, that’s enough to qualify as a reasonable accommodation request since the FHA doesn’t require that the request be made in a particular manner or at a particular time. According to federal guidelines, a resident or applicant makes a reasonable accommodation request whenever he makes it clear to the housing provider that he’s requesting an exception, change, or adjustment to a rule, policy, practice, or rule because of a disability.

Caruso emphasizes the need to train staff on how to respond to reasonable accommodation requests. It’s a good idea to have a standard form for detailing requests for reasonable accommodations, but you could get into trouble if the staff isn’t trained on how to use it. Training should also cover what to do with the request, including when to go up the chain of command when dealing with hoarding and other challenging issues, he says.

Rule #4: Evaluate Reasonable Accommodations to Remedy Hoarding Problems

Follow your community’s policies and procedures if a resident or someone on his behalf requests a reasonable accommodation to address hoarding problems within a unit. Depending on the seriousness of the health and safety risks involved, you may not have to grant the request—but you do have to take it seriously by responding formally and promptly. Under HUD guidelines, an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation.

Fair housing advocates take the position that before trying to evict a resident whose mental disability is causing him to violate the terms of his lease or community rules, good faith efforts must be made to accommodate his disability even if he hasn’t specifically asked for an accommodation, according to Dover. This generally requires the resident be given opportunities to come into compliance so he can retain the residency.

Dover offers these examples of potential accommodations:

• Meeting with the resident to identify health and safety issues that need to be addressed in the unit;
• Establishing goals and timelines with the resident to address the health and safety issues;
• Setting periodic dates for follow-up visits to the unit to monitor compliance;
• Memorializing the goals, timelines, and re-inspections in a written agreement that the resident signs;
• Providing the resident with a list of community resources that can assist persons with hoarding issues;
• Working with a fair housing and/or mental health advocacy group or attorney assisting the resident to develop a plan to bring the unit into compliance;
• Extending time for compliance with a legal notice that has been served or entering into a stipulation in an eviction that gives the resident a final opportunity to address the health and safety issues and retain the tenancy.

When dealing with a hoarding situation, the focus should only be on solving legitimate health and safety issues rather than on trying to achieve ideal housekeeping habits, says Dover. Even if the resident meets minimum health and safety standards, you should recognize that the unit may not meet your expectations of an “optimal condition.” It’s also important to realize that residents with hoarding issues may not recognize they have the problem (or the severity of the problem) or be equipped to resolve the hoarding problem on their own, she says.

If health and safety issues are initially resolved, you should be aware that, even with treatment, hoarding disorder has a high rate of recidivism, says Dover. This means that a resident with hoarding issues may “slip” and re-hoard again in the future. Therefore, any written agreement made with the resident should include language that provides for periodic unit “check-ins” to monitor ongoing compliance after the health and safety issues have been remedied and a specified time period for correction of any future health and safety issues.

Rule #5: Engage in an Interactive Process to Resolve Hoarding Problems

Even when a resident qualifies as an individual with a disability, a request for an extended period to clean the unit may be unreasonable if conditions inside pose immediate or serious health and safety risks.

Fair housing law doesn’t require communities to grant accommodation requests that are unreasonable. Dover says that accommodation may not be required, and termination of the tenancy may be possible, if:

• The person is a clear, direct, and immediate threat to the health and safety of other residents or the property and there’s no accommodation that will eliminate or sufficiently mitigate the health and safety issues;
• There are serious health and safety issues that can’t be mitigated through accommodation;
• The resident has caused serious monetary damage to the unit and won’t reimburse the landlord for the cost to repair the unit; or
• The resident won’t engage in the accommodation process or cooperate to bring the unit back into compliance.

Nevertheless, tread carefully before rejecting a requested accommodation on the grounds that it’s unreasonable. HUD says you should discuss with the resident whether there’s an alternative accommodation that would effectively address his disability-related needs without posing an undue burden on the community.

For example, you may work out a plan with time frames for resolving lease violations, but you may have to be flexible if the resident fails to remove enough belongings to remedy valid safety and health concerns. It may take multiple attempts, extended deadlines, or outside help to alleviate problems inside the unit. And you may have to be satisfied with less than “broom clean” conditions; if the resident remedies health and safety problems, it may be unreasonable to impose overly stringent standards.

To keep things on track, the plan should allow for periodic unit visits during the accommodation process—as often as once a month, if warranted. Hoarding is notoriously difficult to treat, and recurrences are common, so periodic unit visits to monitor compliance may help ward off future problems. But it’s important to make sure that the frequency of these visits isn’t overly intrusive. In most situations, the visits after the resident has remedied the unit shouldn’t be more frequent than quarterly at most. The agreement should also spell out consequences for failing to maintain the unit as agreed—for example, by giving you the right to serve a new legal notice or reinstate eviction proceedings if the resident doesn’t live up to her agreement to maintain the premises.

Rule #6: Proceed with Eviction if Interactive Process Fails

If the resident ignores warnings about lease violations or otherwise fails to address hoarding problems, you may initiate proceedings to recover possession of the unit. Be sure to document your compliance with notice provisions and other legal requirements imposed by state and local law. It’s also important to have documentation of the condition of the premises, including photos, if available; descriptions; and witness testimony.

Even after legal proceedings have commenced, however, you should be prepared for an 11th-hour request to delay eviction proceedings to allow the resident more time to clean up the premises. Because people with hoarding disorder are resistant to parting with their possessions, it often takes official legal proceedings that threaten their continued residency to prompt them to do something to remedy the problem.

Nevertheless, there are limits on your obligation to accommodate residents whose hoarding behavior poses ongoing safety and health hazards to other residents. Fair housing law doesn’t protect anyone, with or without a disability, who poses a direct threat to the health and safety of others or whose behavior would result in substantial physical damage to the property of others, if the threat can’t be substantially reduced or eliminated with a reasonable accommodation.

To determine whether a resident with a hoarding problem poses a direct threat, the community must make an individualized assessment based on reliable, objective evidence, such as current conduct or recent history of overt acts. HUD says that the assessment must consider:

• The nature, duration, and severity of the risk of injury;
• The probability that injury will occur; and
• Whether there are reasonable accommodations that will eliminate the direct threat.

Because of these and other requirements, Dover says it’s a good idea to seek legal advice before taking any action to terminate a tenancy if hoarding issues may be involved. No two hoarding situations are alike, so each situation involving a resident with hoarding issues requires analysis based on the facts of the particular case. If not handled appropriately, it could result in a fair housing complaint being filed against you, the property, and the company, she warns.

Rule #7: Recognize that Residents May Get Multiple Chances to Remedy Hoarding Problems

Even when you’ve proven that the resident’s hoarding justifies eviction, you should be prepared for further delays under certain circumstances. No matter how patient you’ve been with efforts to address hoarding problems, the courts may be willing to put an eviction on hold to allow more time to remedy the situation.

Example: In November 2019, a court ruled that a New York cooperative community proved that hoarding conditions in a resident’s unit justified her eviction but put the matter on hold to give her guardian more time to clean it up or move her to another residence.

The resident was an elderly woman who had lived at the community for 10 years. In 2017, the landlord issued a termination notice and later initiated eviction proceedings because conditions in her unit amounted to a nuisance. The landlord claimed that the resident violated the lease by keeping her unit in poor condition by amassing clutter in the form of garbage, books, and newspapers, resulting in infestation, unreasonable odors, and an increased risk of fire.

Nearly a year later, a court appointed a guardian with authority to access her unit, arrange for a heavy-duty cleaning, and if necessary, remove the resident from the premises to complete the cleaning. The court later expanded the guardian’s authority to defend the resident in housing court proceedings and arrange for heavy-duty cleanings and home care services.

After multiple attempts to resolve the matter, the case went to trial in 2019. An employee of the management company testified that strong odors of urine and garbage continued to emanate from the resident’s unit as recently as the day before the hearing. Although a cleaning had occurred in 2018, the employee said that it alleviated the odors for only a few weeks.

A maintenance worker also testified that he was in the resident’s unit twice that year to inspect her air conditioning units. He said he observed piles of garbage, clothing, papers, and other debris that made navigating the unit difficult and that there were extreme odors of urine and feces. He produced photos, which showed garbage and clutter strewn throughout her unit.

The resident’s next-door neighbor also testified about pungent odors emanating from the resident’s unit and that he was concerned that the smell could cause health problems or diminish the value of his apartment.

The court ruled that the landlord proved that the resident breached the lease by maintaining a nuisance, which interfered with other residents’ use and enjoyment of their homes. It was clear that the resident’s failure to keep her unit free from clutter and in a sanitary condition over the course of at least two years represented a continuity and recurrence of objectionable conduct.

Although the landlord was entitled to final judgment of possession and warrant of eviction, the court had broad discretion to determine whether a resident with a disability should be given an opportunity to cure the condition or be allowed additional time to relocate. In this case, the court said that the resident, an elderly woman who had lived in the current unit for 10 years, would be likely to suffer extreme hardship if a stay weren’t granted. Furthermore, the guardian was making good faith efforts to secure a safe, affordable dwelling for the resident and that it was reasonable to afford the guardian more time to do so. In the meantime, the resident had allowed the landlord to have access to her unit and had cooperated with the guardian’s efforts to keep the unit clean and free of clutter.

The court granted a stay of execution for 90 days to allow the guardian time to sell her unit and relocate her to a suitable environment, or in the alternative, to allow the guardian an opportunity to cure the nuisance condition, without prejudice to seek a further stay upon the showing of good cause [140 W. End Ave. Owners Corp. v. Dinah L., New York, November 2019].

• Fair Housing Act: 42 USC §3601 et seq.

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

 

Question:  I am confused on the use of rules violation notices.  Do I use a 20-day notice or 30-day notice?  Does the “three strikes law” apply?

 

 

 

City of Portland Rental Housing Hoops

 

In 2018, the City of Portland enacted a Residential Rental Registration Program, Ordinance No. 189086. Its goal was to create an inventory of rental housing in a single location. Manufactured housing communities paid little attention, since it applied to “rental housing units”. At the time there were no specifics about funding the Program.

 

In 2019, the City implemented a $60 annual fee per rental unit to fund the Program. In December I contacted the Portland Housing Bureau to see if somehow it would be interpreted as applying to manufactured housing communities inside the City of Portland.[1]

 

On February 4, 2020 I had a conversation with two representatives of the Bureau. The agreed that the $60 fee would not apply to manufactured housing spaces in the City of Portland. However, they did say that it would apply to community owned homes – which does make sense, since they are also subject to the non-manufactured housing section of the Oregon Residential Landlord-Tenant Act, ORS Chapter 90.

 

Although most park owners are aware of the hoops, following are links to the applicable requirements when located within the City of Portland:

 

• Under the Ordinance, park owners will have to register with the City. See: https://www.portlandoregon.gov/revenue/59484

 

• And since the City views housing rental as a business, a business license will be required. See: https://www.portlandoregon.gov/revenue/59484

 

• Also, the Portland Business Tax applies. See: https://www.portlandoregon.gov/revenue/29320See the following link for exeptions: https://www.portlandoregon.gov/revenue/59568

 

• And with the new $60 fee, landlords will have to complete Form R (here), to include with their business tax filing.

 

The 2019 tax is due on April 15, 2020for calendar year taxpayers. For further information, owners should check with their own legal counsel and/or CPA.

 

 

 

[1]I stated: “My reading of the ordinance, which was passed almost 1 ½ years ago, is that it does not apply to rental spaces in mobile home parks. Section 7.02.890 A provides: “For purposes of this section, except where defined by administrative rule in accordance with Section 7.02.210, "residentialrentalunit"meansanyresidentialpropertyrented or offered for rent for a period of more than 30 consecutive days. If a property contains more than one residential living quarter, the term residential rental unit refers to each separate livingquarter.”  (Italics mine.) Mobile home spaces do not contain “more than one residential living quarter” so it seems fairly clear that the drafters did not intend (or believe) that mobile home park spaces constituted ‘residential living units.’”

10 Essential Rules for Avoiding Fair Housing Trouble

This month, we highlight 10 essential rules to help you to comply with fair housing law. Housing discrimination has been outlawed for more than 50 years, but all too often communities still find themselves on the wrong side of the law and are forced to pay out thousands—and in some cases millions—in settlements or court awards, civil penalties, and attorney’s fees to get themselves out of fair housing trouble.

In this article, we’ll provide an overview of fair housing requirements and offer 10 essential rules to help you ward off fair housing problems at your community. 

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status. In a nutshell, the FHA prohibits communities from excluding or otherwise discriminating against prospects, applicants, and residents—as well as anyone associated with them—based on any of these protected characteristics.

The FHA also bans discriminatory statements—including advertising—that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. And the law prohibits retaliation against anyone for exercising his or her rights under fair housing law or assisting others who exercise that right.

FOLLOW 10 ESSENTIAL RULES

TO AVOID FAIR HOUSING TROUBLE

Rule #1: Don’t Discriminate Based on Race or Color

The FHA bans discrimination based on both race and color, two separate but closely related characteristics. In general, race refers to a person’s physical appearance and color refers to a characteristic of a person’s race, so discrimination claims based on color are often coupled with claims based on race.

Be sure to give prospects the same information about availability and the terms and conditions of tenancy, such as screening criteria, rental terms, and any other relevant information. Under the FHA, it’s unlawful to deny housing based on an applicant’s race or color by providing different and false information about terms, conditions, and availability of rental properties.

Example: In September 2019, the owners and managers of two New York apartment buildings agreed to pay $272,000 to resolve allegations of racial discrimination against African American prospects in violation of federal, state, and local fair housing laws. The Fair Housing Justice Center filed the lawsuit based on the results of a two-year investigation involving white and African American testers posing as prospective renters. The complaint alleged that the white testers were repeatedly shown available units and encouraged to apply, while the African American testers were routinely told that no apartments were available for rent.

It’s also important to apply the community’s policies and procedures—including screening criteria—consistently without regard to race, color, national origin, or other protected characteristics. Whatever your policy on criminal background checks, for example, applying it only to applicants who are members of racial or ethnic minorities, but not to white applicants, is a sure way to trigger a fair housing complaint.

Example: In August 2019, the owners and managers of a Tennessee community agreed to pay $42,250 to resolve a race discrimination case alleging that they denied the rental application of an African-American applicant because of his criminal record, despite contemporaneously approving the rental applications of two white people with disqualifying felony convictions.

Tip: If your community has a policy to conduct criminal background checks, check to make sure it passes muster under HUD’s 2016 guidelines on the use of criminal records in conventional and assisted housing communities. The HUD guidance doesn’t prevent communities from screening applicants based on their criminal history, but you could trigger a fair housing complaint if the policy, without justification, has a disparate impact—or discriminatory effect—on minority applicants.

Rule #2: Don’t Discriminate Based on National Origin

The FHA prohibits discrimination based on national origin, which means the geographic area in which a person was born or from which his or her ancestors came. National origin discrimination means treating people differently because they or their family are from outside the United States, or because they have physical, cultural, or linguistic characteristics of persons from a foreign geographic area.

Example: In March 2019, the owners of a Minnesota rental home and a realty company agreed to pay $74,000 to resolve allegations that they refused to rent to a family of five adults and six minor children because they are Native American and Hispanic, and had minor children. HUD’s charge alleged that the housing providers discouraged the family from renting the six-bedroom home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.

“Denying a family housing because of their ethnicity or familial makeup not only robs them of a place to call home, it violates the law,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Tip: In September 2016, HUD issued new “Limited English Proficiency” (LEP) guidance on how fair housing law applies to claims of housing discrimination brought by people because they don’t speak, read, or write English proficiently. Although people with limited English proficiency are not a protected class under the FHA, the law bans discrimination based on national origin, which is closely linked to the ability to communicate proficiently in English.

Rule #3: Don’t Discriminate Based on Religion

The FHA prohibits discrimination based on religion, so it’s unlawful to refuse to rent to people, or to treat them differently, because of their religion. For example, it’s unlawful to show favoritism toward applicants who share your religious beliefs—or bias against—those of other religious faiths.

Example: In December 2019, a California homeowners association (HOA) and its management company agreed to pay $40,000 to resolve allegations that they refused to permit a condo owner to display a religious object, a mezuzah, on her front doorpost because it violated community rules. A mezuzah is a small object placed on the doorpost of many Jewish homes in fulfillment of religious obligations. Allegedly, someone forcibly removed the mezuzah from her doorpost.

“A rule prohibiting the display of a mezuzah effectively makes that housing unavailable for many observant Jews,” said Kevin Kish, director of California’s Department of Fair Employment & Housing. “For that reason, DFEH interprets California fair housing law to require landlords and HOAs to permit residents to display mezuzah outside of their homes.”

Tip: The FHA doesn’t define “religion,” but fair housing experts believe it’s broad enough to prohibit discrimination against individuals who aren’t affiliated with a particular religion or don’t ascribe to particular religious beliefs. Treating people differently simply because they do—or do not—attend religious services or identify with a religious faith could lead to fair housing trouble.

Rule #4: Don’t Discriminate Against Families with Children

Fair housing law prohibits discrimination because of familial status, which FHA defines to mean households with one or more children who are under 18 years of age, where the child is living with:

• A parent,
• A person who has legal custody (such as a guardian), or
• A person who has the written permission of the parent or legal custodian to care for the child.

That covers not only traditional families with children, but also same-sex couples, single mothers or fathers, grandparents, and others who have permission to have a child under 18 living with them. It also includes pregnant women and those in the process of securing legal custody of a minor child, such as a foster or adoptive parent.

There’s a limited exception to the familial status provisions that allows senior housing communities to lawfully exclude children, but it applies only if the community satisfies strict legal requirements to qualify as “housing for older persons.” Otherwise, it’s unlawful to refuse to rent to families with children under 18 by enforcing an “adults-only” policy or adopting rules, such as an age limit, that would prevent children from living there.

Overly restrictive occupancy standards can lead to discrimination claims based on familial status because they limit the housing choices of families with children under 18. In general, the law considers two people per bedroom—regardless of gender—to be a reasonable occupancy standard, but there are exceptions based on the size or configuration of the unit and other factors.

Example: In September 2019, the owners and managers of a single-family rental home in Idaho agreed to pay $15,000 to settle allegations that they discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they have seven minor children. HUD’s charge alleged that when the couple met with the property manager about renting the home, he told them that the owners had set a limit of four children for the home.

“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

The FHA’s familial status provisions also protect pregnant women from discrimination, so it’s unlawful to require residents to move out because of the birth of a child.

Example: In April 2019, the owners and operators of a student housing community in Arizona agreed to pay a $2,000 civil penalty to resolve allegations of discrimination based on sex and familial status. The Tucson Civil Rights Division brought a charge of housing discrimination against the community after viewing an example lease agreement on the apartment complex’s website. Allegedly, a portion of the lease agreement stated that if a female resident became pregnant, then she must vacate the apartment upon or prior to the birth of the child.

Rule #5: Don’t Discriminate Based on Sex

Under the FHA, it is unlawful to discriminate against applicants based on their sex. Making decisions about whether to accept or reject applicants based on their sex can lead to costly fair housing litigation, particularly when combined with allegations of discrimination based on familial status or other protected characteristics. 

Example: In June 2018, the owner of a three-unit rental community in South Dakota agreed to a $3,000 settlement to resolve allegations of discrimination based on sex and familial status. The complaint alleged that the owner refused to rent a unit to a woman and her 17-year-old daughter because she would be concerned about any woman being alone there and she had “always rented to bachelors” [U.S. v. Kelly, South Dakota, 2018].

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex, according to HUD, which explains the two main types of sexual harassment:

Quid pro quo harassment occurs when a housing provider requires a person to submit to an unwelcome request to engage in sexual conduct as a condition of obtaining or maintaining housing or housing-related services. HUD offers these examples:

• A landlord tells an applicant he won’t rent her an apartment unless she has sex with him.
• A property manager evicts a tenant after she refuses to perform sexual acts.
• A maintenance man refuses to make repairs unless a tenant gives him nude photos of herself.

Hostile environment harassment occurs when a housing provider subjects a person to severe or pervasive unwelcome sexual conduct that interferes with the sale, rental, availability, or terms, conditions, or privileges of housing or housing-related services. HUD offers these examples:

• A landlord subjects a tenant to severe or pervasive unwelcome touching, kissing, or groping.
• A property manager makes severe or pervasive unwelcome, lewd comments about a tenant’s body.
• A maintenance man sends a tenant severe or pervasive unwelcome, sexually suggestive texts and enters her apartment without invitation or permission.

Combatting sexual harassment remains a top priority for federal enforcement officials, who continue to come down hard on owners and managers accused of sexual harassment against prospects, applicants, or residents.

Example: In August 2019, the owner and manager of rental properties in New York agreed to pay $850,000 to resolve allegations that he sexually harassed numerous female applicants and residents for nearly three decades. In its complaint, the Justice Department alleged that the landlord subjected former residents and prospects to unwanted sexual intercourse, sexual advances and comments, groping or other touching of their bodies without consent, and offers to reduce or eliminate security deposits and rent in exchange for sexual contact. The complaint also accused him of taking or threatening to take adverse action against residents when they refused or objected to his advances.

“The sexual harassment of the vulnerable female applicants and tenants in this case by their landlord is an egregious and intolerable violation of federal civil rights law,” Assistant Attorney General Eric Dreiband said in a statement. “The Department of Justice will continue to pursue any depraved landlords and others who prey upon vulnerable women” [U.S. v. Waterbury, New York, August 2019].

Rule #6: Don’t Discriminate Based on Disability

The FHA prohibits discrimination based on disability. Under fair housing law, disability means a physical or mental impairment that substantially limits one or more major life activities. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

Under the FHA, it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability.

Example: In October 2019, the owner and manager of a California community agreed to pay $50,000 to resolve a fair housing claim by a resident who alleged that her lease was illegally terminated based on her disability. In her complaint, the resident claimed that the community terminated her lease because throughout her tenancy she experienced multiple medical emergencies that required the assistance of an ambulance to transport her to the hospital. Allegedly, the property manager received complaints from other residents about these emergencies.

“Housing providers cannot terminate or decline to renew a lease simply because they disfavor tenants with disabilities,” Kevin Kish, Director of the California Department of Fair Employment and Housing, said in a statement.

Tip: Although the disability rules protect those recovering from past drug addiction, it specifically excludes anyone who is currently using illegal drugs. The law also excludes individuals with disabilities whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. Nevertheless, federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of whether that particular applicant or resident poses such a threat based on reliable objective evidence of current conduct or a recent history of overt acts.

Rule #7: Carefully Consider Reasonable Accommodation and Modification Requests

In addition to the general rules banning disability discrimination, the FHA imposes affirmative duties on housing providers—with respect to reasonable accommodations, reasonable modifications, and accessibility design features—to ensure that individuals with disabilities have the same opportunity as everyone else to have full use of the community.

Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. In general, communities are required to make an exception to the rules, when requested, if it’s both reasonable and necessary to allow an individual with a disability to fully use and enjoy the community. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking spot in a community that doesn’t have assigned parking.

Example: In August 2019, a New Jersey HOA agreed to pay $30,000 to resolve allegations of discrimination against a resident with disabilities by denying her the right to have a dog as an assistance animal. According to the HUD charge, the community allegedly required the resident, who has hearing and sight disabilities, to cage her animal in common areas and use the service entrance when entering and exiting the building with the animal.

“No person with a disability should be denied the reasonable accommodation they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Example: In March 2019, the owners and managers of a San Diego apartment complex agreed to pay $17,000 to resolve allegations that they denied the request of a resident with disabilities for a designated parking space close to the building. The HUD complaint was filed by the resident, who uses a wheelchair, alleging that his request for an assigned parking space in the development’s garage had been denied. He said that the community later allowed him to park in non-assigned accessible spaces in the garage, but it wouldn’t give him the key necessary to enter the garage and to use the elevator. As a result, the resident said that whenever he wanted to enter the garage, he had to wait for another resident to open the gate, then follow that person in so he could use the elevator.

“To a person with mobility limitations, a designated parking space can mean the difference between merely living in a development and truly being able to call a place home,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Tip: The FHA also makes it unlawful to refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing. Reasonable modifications are structural changes to interiors and exteriors of units and to common and public use areas, such as lobbies, main entrances, and parking lots. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area.

Rule #8: Abide by Rules Banning Discriminatory Advertising

Under the FHA, it’s unlawful to advertise or make any statement that indicates a limitation or preference based on race, color, religion, national origin, sex, disability, or familial status. Liability for making discriminatory statements doesn’t require proof of discriminatory intent. Instead, the focus is on whether the statement would suggest a preference to an “ordinary reader or listener.” The rules apply not only to verbal and written statements, but also to all advertising media, including newspapers, magazines, television, radio, and the Internet.

Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children. A fair housing advocacy group filed the HUD complaint alleging that the community posted discriminatory advertisements indicating that children were not allowed and refused to negotiate with fair housing testers posing as families with children.

“It’s hard enough for families to find places to live that meet their needs without being denied suitable housing because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to working to ensure that housing providers comply with their Fair Housing Act obligation to treat all applicants the same, including families with children.”

Rule #9: Watch Out for Potential Retaliation Claims

Under the FHA, it’s unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised a fair housing right—or anyone who assisted others in exercising that right. Because discrimination and retaliation are separate violations under fair housing law, you could face liability for retaliation if you take adverse action against a resident solely because he filed a discrimination complaint against you—even if the discrimination claim is ultimately dismissed.

Watch out for potential retaliation claims when dealing with requests for reasonable accommodations or modifications by or on behalf of individuals with disabilities. The law protects people from retaliation for exercising their right to make disability-related requests.

Example: In March 2019, the owner and manager of a California rental community agreed to pay $6,000 to settle allegations that they refused to remediate mold at the property as a reasonable accommodation for a couple with disabilities and retaliated against them for asking that the mold be removed. In their HUD complaint, the couple alleged that the owners retaliated against them for making the reasonable accommodation request by increasing their rent and issuing a notice terminating their lease.

“Reasonable accommodation requests aren’t requests for special treatment. They are what many individuals with disabilities need to live in the place they call home,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Rule #10: Abide by Applicable State and Local Fair Housing Laws

To avoid fair housing trouble, it’s important to comply with not only the FHA, but also applicable state or local fair housing laws. Often, these state and local laws extend fair housing protections beyond federal requirements to ban discrimination based on:

Marital status: Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed.

Age: Many state and local laws ban discrimination based on age, though there are significant differences in how the laws apply because of the way they define age.

Sexual orientation and gender identity: Many state and local fair housing laws ban discrimination based on sexual orientation; of those, many, but not all, also cover gender identity or transgender status.

Source of income: Many state and local fair housing laws also cover lawful source of income to ban discrimination against people based on where they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance. Of those, many, but not all, also cover housing subsidies, most notably Section 8 housing vouchers.

Military status: Some state and local laws offer some form of fair housing protection for military status. The laws generally prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

Other protected classes: Some state and local laws ban discrimination based other factors, such as status as survivor of domestic violence, genetic information, HIV status, lawful occupation, political beliefs or affiliation, student status, alienage or citizenship, personal appearance, or arbitrary personal characteristics.

Editor’s Note: The 2020 Oregon Legislative ‘Short Session’ began today.  The article below from “The Oregonian” gives a good summary of what to expect over the next 35 days.   Over the past 6 months since the end of the 2019 Oregon Legislative Session, MHCO worked to minimize the number of legislative proposals in the ‘short’ 2020 Legislative Session.  That effort appears to have paid off – with over 200 legislative proposals – none directly impact manufactured home communities – a rare respite.  That does not mean there won’t be significant – substantive proposals that will impact other concerns impacting you life.  

Oregon Legislature readies for session of big money votes, possible boycotts

By Hillary Borrud | The Oregonian/OregonLive and Ted Sickinger| The Oregonian/OregonLive and Fedor Zarkhin | The Oregonian/OregonLive

Oregon lawmakers return to the Capitol on Monday to open a short 35-day session. Already, they appear on the brink of another national headline-grabbing shutdown.

Republicans in both the House and Senate say they will flee the Capitol if necessary to stop a carbon cap-and-trade bill, just as Senate Republicans did in 2019. That could create an impasse from the get-go with supermajority Democrats, who have pledged to deliver the climate change bill this year.

Chief among those is Senate President Peter Courtney, who promised after he failed to lock down enough votes in his own caucus last year that he would stay on in his leadership role largely to see through the “unfinished business” of the climate bill in 2020.

Lawmakers now appear likely to start work without Courtney, who is still recovering from a hip infection. Sen. Elizabeth Steiner Hayward, a Multnomah County Democrat and co-chair of the Ways and Means Committee, said budget writers and the rest of the Senate are nonetheless well positioned going into the session thanks to Courtney’s work “putting people in the right (leadership) positions.”

“I would doubt he would be back on Monday,” Steiner Hayward said on Thursday. “But all of us who have been talking to him regularly, including me as a physician, have been encouraging him to take the time he needs to get his health back on track.”

Once again, Republican walkouts could also jeopardize other important legislative business. This time the central question is how to allocate roughly $490 million in windfall tax revenue state economists pinpointed after lawmakers wrote the 2019-21 budget, plus potentially more than $300 million in state bonding debt that public university leaders want for renovation and expansion projects on campuses around the state.

Steiner Hayward and the two other leaders of the Ways and Means committee said the additional revenue is all but spoken for, due to dire needs at the state’s child welfare agency, psychiatric hospital, forestry department and parole and probation programs.

That sets up a strategic quandary for Democrats, who must decide whether to first attempt to pass what environmentalists consider a long-overdue climate plan or instead focus on getting funding for homeless services, mental health and other priorities passed before taking up the carbon bill that could spark a shutdown.

In Salem, Mayor Chuck Bennett, who spent decades as a Capitol lobbyist, said he would prefer Democrats pick the latter strategy. “I would hope, I guess because it’s the first issue on our agenda and our community’s agenda dealing with homelessness and unsheltered individuals in the community, they would take this up first or very early,” Bennett said.

The capital city is hoping the state will supply several million dollars to help open a shelter, homeless navigation center and supportive shelter for people with serious mental illnesses. Bennett pointed out Salem is represented by lawmakers from both parties. “We would hate to see something like this get caught up in an unrelated issue or blocked by activities around an unrelated issue.”

Kotek said Thursday she expects Republicans to “show up to work” and that legislative business will proceed “in normal fashion.”

“I live in the present, I’m gonna take one day at a time,” Kotek said. “I’m going to work transparently and collaboratively with all members, including my Republican colleagues.”

Key deadlines to pass bills in the short session already loom: To stay alive, most bills must be scheduled for a work session by the end of the first week. A revenue forecast on Feb. 12 will inform budget choices, telling lawmakers whether they have more or less tax money to work with.

In a search for leverage against a shutdown, Democrats’ public employee union allies point to poll results that show a majority of likely voters oppose Senate Republicans’ two walkouts last year. On the strength of those statewide poll results, the unions are funding two ballot initiative campaigns to expel or fine lawmakers who shut down business at the Capitol for an extended period by walking out and denying a quorum.

That doesn’t sway Senate Republican Leader Herman Baertschiger Jr. of Grants Pass, who said on Wednesday that GOP senators commissioned their own polling in Republican-held districts and “I think we’re gonna be fine.” The biggest message from constituents, including in swing districts in south Salem and Bend? “Stop cap-and-trade, by far,” Baertschiger said.

Other highly charged issues could also fuel partisan tensions. For example, Rep. Brad Witt, D-Clatskanie, has introduced a bill to ban coyote hunting contests. A similar proposal last year largely divided the Senate along partisan lines, with a couple Democrats joining all but one Republican in voting “no” before it died in the House. Two gun control bills have also been filed this session. One would require owners to lock up their guns when they’re not in use and another would allow local governments to forbid people with concealed-carry licenses to carry guns in public buildings, including the Capitol, schools and hospitals.

Democrats’ top priority this session, the cap and trade climate bill, has a few new wrinkles designed to keep Republicans in the building.

The carbon pricing framework in last year’s House Bill 2020, known as the Clean Energy Jobs bill, would remain largely intact. It would limit greenhouse gas emissions and require most big polluters including gas and diesel sellers and manufacturers to buy increasingly scarce “allowances” to emit carbon, giving them an incentive to choose greener options.

But backers say they’ve made significant changes to lessen the impact on rural Oregonians and industrial firms – two sources of loud opposition in 2019.

The first is a geographic phase-in of carbon pricing for gas and diesel. It would hit the Portland area in 2022 and smaller metro areas in 2025 but exempt more rural areas until at least 19 counties opt into the program, which may never happen.

Industrial companies, meanwhile, would only be regulated on the emissions generated by their industrial processes, not the natural gas they burn, cutting the number of firms directly affected from 30 to about 11.

Backers added other enticements, including using a significant chunk of the money from the sale of allowances for forest restoration efforts, a potential source of jobs and capital in rural areas.

Whether these tweaks are enough to bring reluctant Democrats aboard, much less keep Republicans in the Capitol, remains to be seen. The changes were enough to win the support of Sen. Arnie Roblan, D-Coos Bay, a holdout last time around. And the new bill makes a specific accommodation for Boeing, which may win the vote of Sen. Laurie Monnes Anderson, whose last-minute flip-flopping helped kill the bill last year.

Republicans and some industrial lobbyists have nonetheless reprised their sky is falling rhetoric, and the prospect of a walkout to prevent passage of this bill is very much on the table.

Vaping will also be on the legislative docket, with bills that would ban all flavored products and a bill that would ban internet e-cigarette sales. The bills are intended to curb youth addiction to nicotine and come in the wake of a national vaping-related lung illness epidemic that has killed 60 people nationally and two in Oregon. The vast majority of the lung illnesses nationally are connected to illegal marijuana products, but nicotine vape liquids are still considered a possible culprit in some cases.

Top Democrats overseeing budget adjustments all pledged not to touch an extra $500 million cushion built into the current budget to guard against an economic downturn.

Rep. Dan Rayfield, a Corvallis Democrat who is also a co-chair of Ways and Means, said the budget committee will be highly skeptical of any requests that would grow future state budgets, since agencies use staffing and program levels from the second year of a biennium as a starting point to calculate their future budgets. “You have to be very conscious about the fact that spending mid-biennium can really cost the state and put you in a rough situation a year from now,” Rayfield said.

That hasn’t stopped Oregon leaders from amassing a wealth of ideas for how to spend the money mid-budget cycle. Gov. Kate Brown wants additional money for earthquake preparedness and $40 million for international track and field championships set to take place in Eugene in 2021. House Speaker Tina Kotek, a Portland Democrat, wants $120 million to pay for shelters and other services to address the state’s homelessness crisis, including some of the state’s borrowing capacity to pay for affordable housing preservation and construction.

Lawmakers must also decide whether to guarantee K-12 schools and early childhood education programs will receive their full $1 billion from a new business tax. That would require the state to spend more income tax money on schools if proceeds from the new business tax falls short of state economists’ predictions.

“The schools are crying for money,” Baerstchiger said, referring to a push by lobbyists for the state teachers union, including House District 36 candidate Laurie Wimmer.

Sen. Betsy Johnson, a Scappoose Democrat and co-chair of the Ways and Means Committee, described the teachers’ pitch only as a “request.” But Kotek described it as a done deal, saying lawmakers will set aside $50 million from the general fund for lawmakers to dispense if the business tax comes up short.

Another priority for Brown is to pass legislation to bolster the state’s wildfire preparedness. She is looking for a significant chunk of money - as much as $200 million annually to fund forest restoration on 5.6 million acres over the next 20 years. That’s 10 percent of the state’s land.

Brown is also backing a recommendation from her wildfire council to add 68 new positions at the forestry department and the state fire marshal’s office at cost of $40 million per biennium to modernize suppression efforts.

Lawmakers acknowledge they must move at breakneck speed to resolve all the requests.

“Everybody’s going to be hoppin,’” Kotek said. “I’m optimistic we can get a lot of work done.”