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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.

Rental Application Process

The overall rental application process should include:

1. Review application to make sure it has been completely filled out.
2. Check to make sure that the applicant has included social security number, driver license information etc.
3. Provide the applicant with a copy of the Statement of Policy (keep a signed copy or receipt for your file), the rent history of the space, Rental Agreement/Lease, Park Rules & Regulations, RV Storage Agreement and Pet Agreement (if applicable), and a Flood Plain Notice. None of these documents should be signed by the community owner or manager until the application process is complete and the prospective resident is accepted.
4. Collect application fee.
5. Provide prospective resident with application fee receipt.
6. Conduct credit, rental and criminal check.
7. Attach copies of credit, rental and criminal check to application
8. If credit, rental and criminal checks are acceptable contact prospective resident.
9. If they are denied and they are purchasing an existing home in the park, send them an application denial form. Also, send a copy to the resident selling the home and one for the tenant's file.

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. 

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:

• Unsatisfactory rental references
• Applicant must be 18 years or older
• Provide two pieces of identification, one with each applicant's photo from a government office (i.e. Driver's License, State ID Card, Passport) and Social Security Card
• Be gainfully employed or have verifiable income from retirement, social security or periodic income.
• If the community is either an "age 55 or older" or an "age 62 or older" Community, you must provide proof that you meet the age requirements
• The absence of any prior tenant history or credit history
• Unsatisfactory credit history
• Unsatisfactory character references
• Any criminal history
• Insufficient income to reasonably meet the monthly rental and other expense obligations
• Presence of pets or the number, type or size of pets
• Evidence that the prospective tenant has provided landlord with falsified or materially misleading information on any material items
• If the prospective tenant refuses to sign a new written rental agreement or lease agreement
• The number of additional occupants
• Adverse information contained in the public record

Additional criteria that may be added to qualify could include:

• Minimum two-year verifiable references with previous landlords
• No payment of rent problems over the past two years
• Two years of verifiable employment
• No criminal convictions
• No tax liens
• Sufficient income to pay all outstanding obligations after payment of rent
• Any individual who is a current illegal substance abuser, or has been convicted of the illegal manufacture or distribution of a controlled substance will be denied tenancy
• Any individual or pet/animal whose residency would constitute a direct threat to the health or safety of other individuals.
• If pets are permitted they must meet the requirements of state and local laws, ordinances, and the Community in regards to number, size and breed. Farm animals, exotic and/or wild animals, livestock and certain breeds of dogs. You should list breeds of dogs that are not allowed in your community
• You may want to set a percentage of net-income that should be left over after meeting all financial obligations.
• Homes must be owner occupied - no subleasing

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.

Example: Landlord/Community
Screening or Admission Criteria

General Requirements:

1. Positive Identification with photo ID
2. A complete and accurate application. Incomplete applications will not be processed.
3. Applicant must be able to enter into a legally binding contract
4. Any applicant currently using illegal drugs or reporting a conviction for the illegal manufacture or distribution of a controlled substance will be denied.
5. Any individual who may constitute a direct threat to the health and safety of an individual, complex, neighborhood, or the property of others will be denied.
6. An application insufficient in credit and rental requirements shall require an additional security deposit equal to 50% of stated rental amount, over and above any other security deposit or additional security deposit required.
7. Applicants may qualify individually, however no person may reside in the property if they do not meet the general requirements of (3), (4) and (5).
8. In order to qualify as a co-signer you must meet all the general requirements and have a monthly income of five times the stated rent.
9. Proof of ownership of the home.

Income Requirements:

1. Gross monthly household income should be equal to two and half time the monthly rent
2. A current pay stub from your employer will be required if we are unable verify income over the phone. If you are unemployed you must have income or liquid assets equal to two and half time the annual rent. Self employed individuals will be required to show the previous year tax return and employment will be verified through the state. A recorded business name or corporate filing will suffice.
3. If applicant does not earn enough income to reside in the property then a co-signor will be required.
4. Your application will be denied if we are unable to determine you earn a legal source of income.

Rental Requirements:

1. One year of rental history or mortgage history verifiable by a third party is required. Current or previous mortgage history showing late payments will require an additional deposit of one month rent.
2. Eviction free rental history is required.
3. Rental history from a non-third party will require an additional deposit of one month rent or a cosignor.
4. Rental history with past due rent or an outstanding balance will be denied.
5. If previous landlord fails to give a reference or give a negative reference application will be denied.
6. Three (3) or more 72 hour notices within a one year period will result in denial.
7. Three (3) or more NSF checks within a one year period will result in denial.
8. Rental history demonstrating disruptive complaints or neglect will result in denial.

Credit Requirements:

1. A credit history with negative reports will not be accepted. A negative report is considered an non medical item 60 days past due or greater, collections, repossessions, liens, judgments or garnishments. Negative credit will result in additional guidelines as follows
   1. A credit report containing a discharged bankruptcy will require an additional deposit of one month's rent or co-signor.
   2. 1-2 items 60 days past due or greater, collections, repossessions, liens judgments or garnishments will require an additional deposit of one month's rent or co-signor.
   3. 3-5 of the items above will require an additional one and half time security deposit.
   4. 6-8 of the items above will require an additional one and half time security deposit plus a cosignor.
   5. 9 or more will result in complete denial

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.

1. A conviction, guilty plea, or no-contest plea, ever for: any felony involving serious injury, kidnapping, death, arson, rape, sex crimes/ and or child sex crimes, extensive property damage, or drug related offenses (sale, manufacture, delivery, possession with intent to sell) A/ Felony burglary or class A/ Felony robbery or;
2. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last seven years for any; felony charges or;
3. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last seven years for; any misdemeanor or gross misdemeanor involving assault, intimidation, sex related, drug related (sale, manufacture, delivery or possession), property damage or weapons charges; or
4. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last three years for; any class B or C misdemeanor in any of the above categories or any misdemeanors in the above categories or any misdemeanors involving criminal trespass I, theft, dishonesty, prostitution shall be grounds for denial of the rental application. Pending charges or outstanding warrants for any of the above will result in suspension of the application process until the charges are resolved. Upon resolution, if the desired unit is available, the application process will be completed. Units will not be held awaiting resolution of pending charges.

Denial Policy:

If you applicant is being denied to adverse and negative information being reported, you should:

1. If it is credit related, contact the credit reporting agency listed in the denial letter in order to:
   1. Identify who is reporting negative information about you
   2. Request a correction if the information being reported is incorrect.

Remember - the "Ideal Resident":

1. Pays the rent on time.
2. Keeps the outside of the manufactured home and the space in a clean and well maintained manner.
3. Does not litter, damage or destroy community property.
4. Does not disturb the neighbors.

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. 

1. A landlord may charge a screening fee solely to cover the costs of obtaining information on the applicant.  The landlord must provide the applicant with a receipt for any such screening fee.
2. A landlord may not charge non-refundable fees to secure a signing of a rental agreement.
3. A landlord may charge a deposit to an applicant for the purpose of securing the execution of a rental agreement after the applicant's application has been approved.   If the rental agreement is executed, the landlord shall either apply the deposit toward the moneys due the landlord under the rental agreement or refund it immediately to the tenant/resident.
4. If the Rental Agreement is not executed due to a failure by the applicant to comply with the agreement to execute, the landlord may retain the deposit.
5. If the Rental Agreement is not executed due to a failure by the resident to comply with the agreement to execute, then the landlord shall return the deposit to the applicant within four days.

 A landlord may charge a fee more than once, at the beginning of or during the tenancy, for:

1. A late rent payment
2. A dishonored check
3. Removal or tampering with a properly functioning smoke alarm or smoke detector
4. Any other noncompliance by the tenant with a written rental agreement that provides for a fee for that noncompliance, provided that the fee is not excessive.

When any existing resident intends to sell their manufactured home the resident must do the following:

1. Give the landlord a written 10-day notice of their intent to sell their manufactured home. (Note: The 10 days will run parallel with the 7 day application process - i.e. if the resident notifies the landlord of intent to sell the home and does not give the 10 day notice, then the application process time to approve or reject will take 10 days rather than 7 days.)
2. The existing resident must advise the prospective purchaser that they have to fill out an application with the landlord and be approved.
3. Do not move anyone into the manufactured home that has not been approved through the tenant screening and approval process.

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. 

MHCO Note: At the time of this printing, the Federal Trade Commission still has the effective date for enforcement of the Red Flags Rule as December 31, 2010. Exemptions for specific industries have been granted as late as the first week of December 2010. MHCO and MHI are conducting research on this topic and will be providing additional information as it becomes available. The Federal Trade Commission link is http://www.ftc.gov/bcp/edu/microsites/redflagsrule/index.shtml and contains a lot of information that should be of interest to community owners and manufactured home community retailers. If you are subject to the new rule there is a template developed by the FTC for businesses at low risk for identity theft at this site. While we are still looking into this and monitoring developments in the Congress, it is likely that if a community owner is not billing for utilities, is not providing loans for residents purchasing homes, and is not acting as a retailer selling homes, they are not probably covered by the Red Flags Rule.

The "Red Flags" Rule: What You Need to Know

As of June 1, 2010 the Federal Trade Commission has begun enforcement of the 'Red Flags' rule which mandates creditors and financial institutions to implement identity theft prevention programs. It's important to spend some time discussing the rule, including what it is and what it means for you

The "Red Flags" Rule - In Plain English

The full title is this: "Identity Theft Red Flags and Address Discrepancies under the Fair and Accurate Credit Transactions Act of 2003" (FACT). It amends the Fair Credit Reporting Act (FCRA). The rule was written specifically for companies making loans, such as banks and commercial lending institutions, but a portion of it extends to rental property owners and managers since both rely on consumer reports (e.g. credit) that (1) ask for sensitive information, such as social security numbers, and (2) could turn up address discrepancies. The philosophy behind this rule is simple: sensitive information must be kept secure to prevent identity theft, and a discrepancy in address could indicate fraud.

The rule requires that "reasonable" policies be in place to prevent identity theft and to verify a person's identity when an address discrepancy is reported. In the case of address discrepancy, if the property manager can't work out the discrepancy, the rule says he/she is not to rent to this individual.

What the Red Flags Rule Means for Rental Owners & Property Managers

While the rule has caused some confusion, compliance is straightforward. More than likely, you're probably already in compliance since the only thing that rental owners or property managers have to show is that they have a "reasonable" process in place for preventing identity theft and for checking IDs, verifying IDs, and following up/asking about any discrepancies.

For example, how do you destroy electronic and paper records that contain sensitive information? Or how about this: if someone gives one address on his or her rental application, but the license lists another address, what's your policy for handling this situation? As long as you have reasonable policies in place, you're in compliance.

Do I need to create a special report if I suspect fraud?

The other commonly asked question about the Red Flags rule (beyond "how do I comply") is this: do we need to report suspected fraud? The answer - for better or worse - is no. If you believe someone is trying to perpetrate a fraud, there's no requirement beyond not renting to this individual.

Still Unsure About the Red Flags Rule? Contact Your Screening Partner

Laws, rules, and amendments result in legitimate questions and concerns, so we understand people's trepidation regarding the Red Flags rule. While it's true that you're likely already in compliance, it can't hurt to contact your screening partner and ask to review with them your policies and systems.

For full details, visit the FTC website at http://www.ftc.gov/redflagsrule

The information in this article should not be construed as legal advice. Always consult an attorney for questions regarding legal matters and compliance.

ScreeningWorks is a service of RentGrow, Inc. the resident screening experts (www.ScreeningWorks.com).

For more information please contact info@screeningworks.com or 888-401-7999.

Look for more information on this issue in future issues of MHCO's "Community Update". 

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:

1. Review application to make sure it has been completely filled out.
2. Check to make sure that the applicant has included social security number, driver license information etc.
3. Provide the applicant with a copy of the Statement of Policy (keep a signed copy or receipt for your file), the rent history of the space, Rental Agreement/Lease, Park Rules & Regulations, RV Storage Agreement and Pet Agreement (if applicable), and a Flood Plain Notice. None of these documents should be signed by the community owner or manager until the application process is complete and the prospective resident is accepted.
4. Collect application fee.
5. Provide prospective resident with application fee receipt.
6. Conduct credit, rental and criminal check.
7. Attach copies of credit, rental and criminal check to application
8. If credit, rental and criminal checks are acceptable contact prospective resident.
9. If they are denied and they are purchasing an existing home in the park, send them an application denial form. Also, send a copy to the resident selling the home and one for the tenant's file.

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. 

QUESTION: We ran into a problem recently that we were hoping you could answer.  In Multnomah County, when we file an eviction ("FED"), we are required to file a document entitled "Declaration of Non-Military, Not Minor or Incapacitated." This form requires us to select one of the following categories regarding the defendant's protection under the Service Members Civil Relief Act ("SCRA" or "the Act"): (a) That the person is subject to protection, (b) that he/she is not subject to protection, or (c) that we are unable to determine whether the defendant is or is not subject to the Act.

We had checked the box saying we could not determine, and explained that "We have never seen any indication that this person is or was a service member."  The judge said this was insufficient and refused to grant the FED.  He told us to seek legal counsel.

Any ideas on what we did wrong or how to avoid this problem? I believe there is a web page where you can look up service members, but in this case we don't have a social security number on the resident, so we couldn't look him up anyway.

ANSWER: I've never heard of a judge denying a declaration because a landlord hadn't run the tenant's information through Act's website.  In order to do the search, you need the tenant's first and last name and SSN.  You can also put in their birth date, but I think the SSN gets the best results. The Act's database cannot complete the search if you don't have a SSN or birth date. I'm surprised that the judge didn't set over the hearing and simply direct the you to the website.  Perhaps you could have determined the answer if you had entered the birth date - assuming you had it.  I suspect the judge was new to the job.

Here's the link to their site: https://www.dmdc.osd.mil/appj/scra/scraHome.do

When we don't have a SSN or birth date, we put a statement in the declaration similar to the one you used.  Basically, all you should need to do is show that you have conducted a reasonable investigation based upon the information you have, and that you have been unable to determine through the website or other evidence, that the person is protected by the Act. 

Here's an example that we've used at Multnomah County Circuit Court:

Due to lack of information, the Department of Defense's SCRA military records website could not confirm whether or not defendants, John and Mary Doe, are currently on active duty. It appears to be very unlikely, since the community managers see the defendants on a regular basis and have no knowledge of either of them serving in the United States Military.

The problem you describe only occurs when the defendant does not appear at the first appearance hearing and the judge is uncomfortable granting the judgment of restitution by default without what he/she feels is sufficient evidence that they are not on active duty with the military.  The rash of recent improper foreclosures against servicemen/women probably doesn't help the judge's comfort level.  The judge should have been more helpful, but you should be able to conduct your search on the website, then go back and try again.

I think the take-away here is that landlords should try to get as much information from their resident-applicants in order to avoid these situations in the future.

QUESTION: I have been informed by a swimming pool company that manufactured housing community owners are now required to provide an accessible means of entry for swimming pools. Is it true that community owners with existing pools will now have to buy pool lifts or construct accessible stairs into the pool? If so, it will be a huge expense for many park owners.

ANSWER: The Americans with Disability Act, or "ADA"deals with accommodations in two major sectors, public (Title II) and private (Title III). The public sector covers state and local governmental facilities and the private sector deals with private entities that "own, operate, and lease" places of public accommodation, such as restaurants, hotels, theaters, convention centers, retail stores, shopping malls, dry cleaners, laundromats, pharmacies, doctors' offices, hospitals, museums, libraries, parks, zoos, amusement parks, private schools, day care centers, health spa and bowling alleys.

On September 15, 2010, the United States Department of Justice (DOJ), who enforces the ADA, issued revised regulations for Titles II and III. Among other things, the new regulations include new accessibility standards for swimming pools. Existing swimming pools must be modified to comply with the 2010 guidelines no later than March 12, 2012. For new construction, the 2010 guidelines must be followed on a going forward basis. Included in these guidelines are swimming pool accessibility requirements. They provide that any swimming pool with less than 300 linear feet of pool wall must provide one means of access either by sloped entry or by the installation of a pool lift.

Any pool that has more than 300 linear feet of pool wall must provide two means of access, which can be any of five designated means of access: (1) pool lifts, (2) sloped entries, (3) transfer walls, (4) transfer systems, or (5) accessible pool stairs. Having said this, it is clear that private manufactured housing communities are neither public or private facilities that offer "public accommodations"under the ADA " at least insofar as they do not open their pool and recreational facilities to the general public.

However, two words of warning:

1. While the ADA does not strictly cover private residential facilities such as apartments, homes and manufactured housing communities, if a park resident provides child day care services open to the public in his or her private residence, those portions of the residence used for that purpose are subject to ADA's requirements. So, community owners and managers should be aware if any of their residents are operating such services, as ADA accessibility, including the pool area, may be subject to ADA requirements, to the extent that the resident makes the park facilities available for use by the children.
2. The Fair Housing Act, which is administered by Housing and Urban Development ("HUD"), prohibits discrimination on the basis of handicap. To that extent, landlords arerequired to make "reasonable accommodations" if requested by their handicapped residents. To some extent, this could apply to a pool or other recreational facilities. The body of law as to what constitutes a "reasonable accommodation" is far too voluminous to address here. Suffice it to say, however, that a landlord is not required to make such an accommodation (e.g. retrofitting the community's existing swimming pool) if the cost would impose an undue financial burden.

IMPORTANT INFORMATION ABOUT THIS Q & A SERVICE THE QUESTIONS AND ANSWERS ON THIS SITE ARE PROVIDED AS A BENEFIT FOR OUR MEMBERS. IT IS MADE AVAILABLE SOLELY FOR GENERAL INFORMATIONAL PURPOSES, AND DOES NOT REPRESENT, AND IS NOT INTENDED TO PROVIDE, LEGAL ADVICE OR OPINION AND SHOULD NOT BE RELIED UPON AS SUCH. THE ANSWERS ARE SUMMARY IN NATURE, AND ARE NOT INTENDED TO ADDRESS ALL RELEVANT LEGAL DEVELOPMENTS OR SITUATIONS RELATING TO LOCAL, STATE OR FEDERAL LAW OR RELEVANT CASE HOLDINGS. IF YOU HAVE A SPECIFIC LEGAL ISSUE ON ANY MATTER, YOU SHOULD ALWAYS CONSULT YOUR OWN ATTORNEY FAMILIAR WITH YOUR SPECIFIC FACTUAL SITUATION. MHCO DOES NOT PROVIDE LEGAL ADVICE TO MEMBERS OR NON-MEMBERS. MHCO, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND ATTORNEYS SPECIFICALLY DISCLAIM ANY AND ALL RESPONSIBILITY RELATING TO THE INFORMATION PROVIDED IN THIS SERVICE. IT IS NOT LEGAL ADVICE. IT IS FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE RELIED UP IN LIEU OF OBTAINING SPECIFIC ADVICE AND COUNSEL FROM YOUR OWN ATTORNEY.

Question:  A cable company has offered to install all of the equipment and infrastructure for park-wide cable services at no charge.  We are to receive a one-time payment in exchange for which we give the company an exclusive right to market their services to our residents. They have asked that we sign a written contract which is recordable.  The amount paid is confidential and that portion of the agreement may not be recorded.  There are several provisions that cause us some concern, one of which is whether there might be some violation of the Oregon landlord-tenant law.  What is your opinion?

Answer:  Without actually seeing the contracts, I can only address what I know about such agreements in general.  To that extent, this response must be considered general in nature, and not specific to any particular cable company or park.  I do not practice any form of law that deals with the regulation of utilities, so cannot comment on whether this arrangement complies with those laws.  You may wish to contact the appropriate regulator, just to make sure.

Oregon Landlord-Tenant Law.  In general, I know of no specific laws that would be directly violated by such agreements.  Cable services are covered under the law as "utilities. -"  Accordingly, ORS 90.532 governs, and you should review it.  I am assuming by your question, that the cable company has the right to contact the park residents and market their services.  Your question does not mention any costs to the park, so I assume the monthly service would be charged directly to the residents, if they choose to subscribe.  It is important that you become familiar with the subscription policies and fees, especially whether they are consistent with those provided outside the park.  Remember that you will be giving the company a "captive audience"and it may be difficult, if not impossible, to terminate the service, once you are under contract.  Will the marketing occur before installation of the infrastructure.  Will there be any minimum number of subscribers?  Will rates change and if so, could residents demand you change companies because their rates are not competitive?  How easily may the residents terminate their subscription services?

If you currently provide some type of cable service, either from this company or another, what is your billing arrangement?  If it is buried in the base rent, you may have to deal with whether you should treat this arrangement like a utility "conversion,"such that you must pull the charge out of your base rent, so that the residents are not double-billed.

Park Documents.  What do your rules and rental agreements say?  Is there anything in them that could run afoul of the agreements the company is asking you to sign?  While nothing specific comes to mind that could pose a problem, the best way to avoid the unexpected is to verify that there is no risk of some violation of the park documents by the cable agreements, or vice versa. 

General Observations. Here is a checklist of general issues you may wish to consider:

• Confidentiality always concerns me.  Why does the company want it?  I suspect they don't want parks "comparing notes"on the deal they cut with their company.  While that is understandable, it poses the risk of inadvertent disclosure.  What is the "penalty"for disclosure?  Do you have to refund the initial payment made?  If so, does that mean the deal is over, or does the remainder of the agreement survive - that is, does the company still have the exclusive right to provide services in the park?  I think I would like to see some language which penalized only intentional or willful disclosures (assuming you have any ability at all to negotiate some of these terms).

• I assume the company will own all of the equipment.  Are there certain limitations on their ability to come and go inside the park?  Specifically, is there a risk of noise, inconvenience, traffic issues, etc?  How long will installation take?  Will the park grounds be restored to their original condition?  Again, remember, once these agreements are signed, you're at the company's mercy on what they do.  Make sure their reputation for service and cooperation is good. 

• What is the term of the agreement? I suspect it contains a provision for automatic renewal, absent one party or the other giving notice of termination?  While that is fair, you have to carefully read the agreements to see if there is any right to terminate without cause.  In other words, can you get out of the deal "just because,"or does there have to be a breach? 

• If either side terminates does the initial payment have to be returned to the company?  If so, you might consider making that payment "nonrefundable"after a certain length of time, say five years.  You want to make sure that if the agreements become unenforceable due to some law or similar situation over which you have no control, that you do not have to refund the money.  That is why I suggest a period of years, after which the money becomes refundable.

• Recording of any agreement is significant.  Once recorded, it will act as a sort of restrictive covenant on the land, and will continue ad infinitum.  In your case, I suspect that the recorded agreement will act as a sort of "floating"easement, giving the company general rights of ingress and egress to install, maintain and repair the equipment.  If the easement rights are not specifically defined, you may want to make sure you understand, in advance, where the equipment will be located.  You want to make sure there will be no risk that the company's right of access interferes with the residents' spaces.  It's easy to record such agreements on the public record, but much more difficult to remove them in the event of a dispute.  Do either of your agreements address that issue?  If you part ways with the company, are they obligated to remove their easement rights from the public record (e.g. by a recorded notice of abandonment of their rights under the agreement)?   Will you have to pay any costs to have this done?

• You want to make sure that if the agreement is terminated the equipment must be removed promptly and the land returned to its general pre-installation condition.

• What about liability?  It is not uncommon for these agreements to have cross indemnification provisions, whereby you agree to indemnify them for your negligence, and they do the same. 

• Are there limitations on damages in the agreement?  Most companies attempt to place limits on the kinds of damages that may be recovered (e.g. prohibitions on punitive damages).  Generally, that is fine, but just make sure that these limits apply just to park ownership, as you cannot limit the residents' right vis a vis the cable company.

• If the company has an exclusive right to market its services to the residents, you want to make sure you know what their marketing efforts will consist of.  You want to make sure it will not include personal solicitation to residents.

• Check with other parks to find out whether they have similar agreements.  I acknowledge that they may not talk about it due to the confidentiality provisions, but suspect the agreement that may be recorded is not "confidential. -"  Your main concern should be whether other park owners are satisfied with this particular company. 

• Before jumping into anything, find out if there are competing companies that may have similar programs.

• How will you deal with residents if they ask you whether you received any payment for giving the company its exclusive rights?  The best response might be that your practice is not to discuss the park's financial arrangement with vendors.  Nevertheless, you should expect someone might press the issue.

• How will the exclusivity provisions in the agreement affect a resident's right to have satellite service?  Does the agreement deal with the possibility that satellite providers may want to market in the park?  You may have some difficulty in preventing a resident from signing up for such service, so this issue should be addressed with the cable company ahead of time.  "Exclusive"is a pretty broad term.  Find out what it entails and make sure that it is sufficiently spelled out in the agreement before you sign.

IMPORTANT INFORMATION ABOUT THIS Q & A SERVICE

THE QUESTIONS AND ANSWERS ON THIS SITE ARE PROVIDED AS A BENEFIT FOR OUR MEMBERS.  IT IS MADE AVAILABLE SOLELY FOR GENERAL INFORMATIONAL PURPOSES, AND DOES NOT REPRESENT, AND IS NOT INTENDED TO PROVIDE, LEGAL ADVICE OR OPINION AND SHOULD NOT BE RELIED UPON AS SUCH.

THE ANSWERS ARE SUMMARY IN NATURE, AND ARE NOT INTENDED TO ADDRESS ALL RELEVANT LEGAL DEVELOPMENTS OR SITUATIONS RELATING TO LOCAL, STATE OR FEDERAL LAW OR RELEVANT CASE HOLDINGS.  IF YOU HAVE A SPECIFIC LEGAL ISSUE ON ANY MATTER, YOU SHOULD ALWAYS CONSULT YOUR OWN ATTORNEY FAMILIAR WITH YOUR SPECIFIC FACTUAL SITUATION.  MHCO DOES NOT PROVIDE LEGAL ADVICE TO MEMBERS OR NON-MEMBERS.

MHCO, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND ATTORNEYS SPECIFICALLY DISCLAIM ANY AND ALL RESPONSIBILITY RELATING TO THE INFORMATION PROVIDED IN THIS SERVICE.  IT IS NOT LEGAL ADVICE.  IT IS FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE RELIED UP IN LIEU OF OBTAINING SPECIFIC ADVICE AND COUNSEL FROM YOUR OWN

ATTORNEY.

By Elliot Njus | The Oregonian/OregonLive

The Oregon Legislature has approved a bill that would bar landlords from holding minor marijuana convictions or medical marijuana use against prospective tenants.

The bulk of Senate Bill 970 prohibits the owners of manufactured home parks or marinas from interfering with a resident's choice of real estate agent or subletting the unit while it's up for sale in certain cases. But the marijuana provisions apply to all rentals across the state.

The bill passed with little discussion in either chamber. After winning approval in the House last week, it next heads to Gov. Kate Brown's desk for signing.

State law already specifies that landlords may only consider criminal convictions only if they will negatively affect the rental property or others living there.

Rental Housing Alliance Oregon, a statewide landlords group, opposed the marijuana provisions of the bill, saying it singled out landlords while exempting other types of background checks, such as for employment.

Asking the landlord