Search

The FHAA

In 1988, Congress amended the Fair Housing Act (FHA) to prohibit not just discrimination on the basis of race, color, sex, religion, disability, or national origin, but also included familial status discrimination. Familial status is defined as " one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent or another person having legal custody of such individual or individuals."

Among other provisions, it is unlawful:

"To discriminate against any persons in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... familial status ..."

Thus, a restriction on access or use of common facilities and amenities bases on age of a child (familial status) is a violation of the FHAA, absent compelling business necessity. Any such rule must be proved to be the least restrictive means to achieving a health and safety justification. What does this legalese mean to the community owner in practical terms? A full-blown trial, risks of heavy penalties, damages, and attorney's fees and costs. This is because there is no bright line test for any age-restrictive regulation: the law is bereft of any standards or guidance to make a reasonable, predictable risk-assessment or likelihood of success. Each case depends on the facts and surrounding circumstances. In other words, each case is a test-case. In sum, the penalties are so severe that prudent counsel would admonish all to eliminate age-restrictive rules and regulations.

Children are as protected as any other protected class. Thus, a simple way to test a rule for FHA compliance is this: insert any other protected class in the place of "children" when testing a rule and regulation. For example, a common past rule (and no longer a valid one) is "all children under 14 years of age must be accompanied by an adult resident when in the pool area." Then, how does this sound: "All Methodists must be accompanied by an adult resident ...." Obviously, such a rule is patently violative of the FHA.

It is also a violation of the FHAA to express to agents, brokers, employees, prospective sellers, or renters a preference, (e.g. "... gosh, if I had my druthers, I would rather not rent to families"). Another issue is use of selective advertisements, or denying information about housing opportunities to particular segments of the housing market because of their race, color, religion, sex, handicap, familial status, or

national origin, (example, in an area overwhelmingly populated by non-English speakers, advertising only in English language publications). Other violations will be found where there are ads or statements made regarding applicants, including: "mature person;" stating an aversion to "families with children" or "teenagers in the building;" advertisements stating non more than "one child;" or, stating that the community owner does not "rent to children." Posting "Adult Community: at the entrance to a non-exempt community also violates the FHAA. Use of the word "adult" without more, constitutes a violation of the FHAA. There are no such thins as adult manufactured home communities, and use of the phrase is deemed to chill family applicants from applying for tenancy in them.

The various rules cited by the courts as impermissibly restricting access or denying the use of the communities' facilities and/or areas on the basis of age, included the following. If your rules contain any of the following restrictions, or any rules similar to them, it is strongly advised that a legal advisor conversant with the FHAA (and implanting regulations and judicial and administrative interpretations) be promptly consulted.

• Children under the age of fourteen (14) years old shall not be allowed to ride a bicycle on the community streets without the accompaniment of an adult registered to the manufactured home in which they reside;
• Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence;
• Children shall not be allowed to play on community streets, or in any other common are areas; Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the manufactured home in which they reside;
• Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
• Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10 a.m. to 12 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12 noon;Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or therapeutic jet pool at any time;
• Children under the age of fourteen (14) years old must be accompanied by a registered resident adult to be allowed to ride a bicycle in the community streets;The adult resident host must accompany all guests of their manufactured home who use the recreation building (clubhouse) or any of the recreational facilities of the community;
• Children under the age of fourteen (14) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
• When using the clubhouse, persons under ten (10) years old must be accompanied by an adult resident;
• Use of the billiards room was restricted to residents over eighteen (18) years old;
• Use of the spa was prohibited to children under eighteen (18) years old;
• Use of the pool by children fourteen (14) years old and under required accompaniment by a resident;
• Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host;
• Parent or resident child or resident host must accompany children at all times in the pool or pool area.
• Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 9 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host;
• No one under the age of eighteen (18) years old is permitted in the billiard room at any time;
• No one under the age of fourteen (14) years old is allowed to use the Jacuzzi;
• At 2 p.m. children are to be out of the pool area;
• Children are not to walk around the community without adult supervision;
• Minors under sixteen (16) years old are not permitted in the therapeutic pool;
• For safety, children are not to ride bicycles, roller skate, skateboard, play in the street, play in RV storage, plan in car wash or wander around the community;
• Children under with (8) years old shall be confided to a play area in the rear fenced yard of the family residence.

The court held that these rules were not based on compelling business necessity and did not represent the least restrictive intrusions on familial status rights in promoting a health and safety interest. Having held that these rules were unlawful, the issues remaining for trial in the Plaza Mobile Estates case included damages, punitive damages, civil penalties, injunctive relief and attorney's fees and costs for the private plaintiffs.

While the action had been brought as a class claim (in which all of possibly thousands of affected residents could have been included in damages awards), class certification efforts were defeated, allowing only the named parties to seek damages.

The court's comments regarding the invalidation of these rules is telling and troubling. The court stated the age-restrictive rules were facially discriminatory. In other words, no matter how administered, the rules were invalid as drafted. Even if never enforced , such rules might dissuade a prospective applicant from applying for tenancy. These rules "...treat children, and thus, families with children differently and less favorably than adults-only households." "Describ[ing] parks as 'adult' parks are clear examples of illegal steering. Although they are not outright refusals to sell or rent or families with children, they indicate a preference for adults only and certainly discourage families with children from applying."

Considering the various age restrictive rules, they fall into three categories: (1) absolute prohibitions, (2) adult supervision requirements, and (3) hours of access restrictions.

Absolute prohibitions

The absolute prohibitions include those rules that (1) prohibit all children under 18 (or 21) years old from using the billiard room and from riding bicycles, (2) prohibit all children under 16 (or 18) years old from using the therapeutic pool, (3) prohibit all children under 14 (or 18) years old from using the sauna or Jacuzzi, (4) require all children under 8 years old to be confined to rear fenced yard of family residence, and (5) prohibit all children from playing on community streets and any other common areas.

The court held that absolute prohibitions such as the foregoing are illegal. The regulations are not the least restrictive means to achieve health and safety objectives ("...prohibiting all 'children' from playing in common areas ... cannot be justified"). The same applies with the billiard room ("... it is unclear how a 17-year-old's access to a billiard room is any more hazardous to ... health or safety that a 22-year-old's access").

Supervision restrictions

The fundamental premise adopted by the court is that "[A]ny concerns that defendants may have are not necessarily linked to age, and any concerns about problem behavior can be address with the use of rules." Thus, the court invalidated blanket prohibitions of all 15-year-olds from using the therapeutic pool and all 13-year-olds from using the sauna or Jacuzzi

In certain instances adult supervision might less restrictively advance health and safety concerns ("assuming arguendo that defendants' concerns were more logically linked to the age restrictions, requiring adult supervision rather than imposing an absolute ban is clearly a less restrictive means ..."). But where to set the limit is uncertain. California regulations state:

"Where no lifeguard service is provided, a warning sign shall be placed in plain view and shall state 'Warning - No Lifeguard on Duty' with clearly legible letters at least 10.2 centimeters (4 inches) high. In addition, the sign shall also state 'Children Under the Age of 14 Should not Use Pool Without an Adult in Attendance."

Based on the Plaza Mobile Estates decision, it is needlessly legally risky to impose any supervision requirement. Clearly, a 14 year age limit for an adult supervision is not enforceable, not legal, and constitutes a violation of the FHA, despite former administrative decisions suggesting the contrary and California regulations cited above. Yet, the need for an age limit is strikingly clear. The same rule applies to use of spas and whirlpools. Certainly an adult supervision requirement should be reasonable[1], but eh court has ruled that such concerns are fro the parents, not the management.

A few apparently unassailable precepts

Given that this case raises many more questions than it answers, the ability to promulgate and rely on age-restrictive rules for access and supervision are certainly less than a matter of clarity. While the previous rulings concerning the enforceability of age-restrictive rules are in some doubt, a few precepts can be stated with some reliability. The first is that an outright prohibition of use or access to any facility or amenity cannot be allowed. Setting up selected hours for usage of a facility of amenity cannot be allowed. Less certain is the ability to promulgate rules requiring adult supervision of children of varying ages for use of facilities or amenities. It would appear that no supervision can be mandated for areas such as clubhouse, billiard room, library or common areas.

Establishing minimum age requirements for supervision: A foray into the uncertain

The "14 and under" requirement of California regulations for pool supervision is a should not a must provision. Hence, management cannot require supervision of 14 years of age and under. The only clearly legal position is not to require supervision, and let it be for the parents to take personal accountability and responsibility for their children. The court makes this statement:

"... there is nothing magical about the age 18 or 14 years old if defendants' concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement."

The courts have intervened on occasion to require discrimination against children for their own good and government does so all the time. For example, you cannot vote until you are 18, drink alcohol until you are 21, cannot drive until you are 16.[2] However, housing providers subject to the FHA may not rely on or use the same governmentally-established restrictions in developing their rules and regulations despite the dangers posed by the common area facilities.

Another example: Pedestrian injuries are the second greatest cause of harm to children from five to 14 years of age. See the National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997.[3] However, it is illegal to have a rule and regulations which states that "children are not to walk around the community without adult supervision."

Is it unreasonable to require adult supervision within the common areas of a manufactured home community? It would seem that such a rule is reasonable. However, for a community owner, such a rule violates the FHA. On the other hand the Consumer Products safety Commission urges supervision of children while on a playground for example (Consumer Product Safety Commission, Public Playground Safety Checklist, CPSC Document #327: "10. Carefully supervised children on playgrounds to make sure they're safe"). The federal law states that the parents are responsible for their children, not the management.

Previously sustained rules

The courts have previously allowed the following rules. This information may be largely historical at this juncture, for it remains unclear whether or not they remain viable in light of the Plaza Mobile Estates decision (these rules were sustained under the previous "reasonableness" test, not the "compelling interest" basis test):

1. Rules which bar use of a pool for children fourteen (14) years of age and less have been upheld because the prohibition implements legislative policy. HUD v. Paradise Gardens, HUDALJ 04-90-0321-1, 1992 WL 406531 (HUDALJ Oct. 15, 1992)
2. A rule which required children under the age of fifteen (15) years to be accompanied by an adult who is at least eighteen (18) years old when using the swimming pool and exercise equipment. (HUD vs. Trace Corporation 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).
3. Rules have been sustained for age restricted access as to power tools. "...Respondents may keep the machine shop with industrial power tools accessible only to tenants who are at least fifteen (15) years of age and may require tenant children between the ages of fifteen (15) and eighteen (18) years to be accompanied by an adult who is at least eighteen (18) years old when using the machine shop. Further, Respondent may require all users of the machine shop to hve complete training on the proper use of such tools." (HUD vs. Trace Corporation, 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).]\
4. In the unpublished decision of United States v. Town Hall Terrace Association, 1997 WL 128353 (W.D.N.Y. 1997), the housing provider made available four pieces of exercise equipment: a multi-purpose with lifting machine, a stationary bicycle, an inclining board and a rowing machine - in its "the fitness center." Until 1992 an express policy restricted the use of the fitness center and its equipment to persons at least eighteen (18) years old. After mid-1992, this threshold was lowered to sixteen (16).[4]
5. One case allowed for a rule requiring adult supervision of children six (6) and under while biking in a street. U.S. v. M. Westland Co., CV 93-4141, Fair Housing-Fair Lending 15,941 (HUD ALJ 1994)). Another authority states that no child should be permitted in a street on a bicycle until at least ten (10) years of age. ("Cycling should be restricted to sidewalks and paths until a child is age 10 and able to show how well he or she rides and observes the basic rules of the road. Parental and adult supervision is essential and until the traffic skills and judgment thresholds are reached by each child." The National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997).

But under the more recent Plaza Mobile Estates decision, the past allowances provide no basis on which to write your rules and regulations.

Don't blame the court!

However, it is too much to criticize or impugn the court for adhering to the letter of the law, and not legislating by "judicial fiat." The court interprets what the law is and does not legislate. That is the job of Congress and more pointedly in this case HUD (in its rule-making powers). The FHA prohibits discrimination, period. The federal law makes NO exceptions; exceptions to familial status rights is the job of HUD. It is not the court's duty. The court is not the Legislature.

The need for uniform guidelines to inform the housing providers of permissible restrictions

HUD should provide guidance for housing providers and establish bright line tests for common sense age-restrictive rules. HUD should defer to other legislative judgments made for child protection by allowing community owners to replicate existing laws in their rules and regulations. Model regulations for protection of the young could be published. HUD could establish a rule pre-approval procedure.

Community owners just want to comply with the law and provide reasonable requirements for protection of children. But now, even experienced lawyers cannot intelligibly predict the enforceability of any age-restrictive rules. At this time, attaining any ascribed legitimacy of a rule only follows after an expensive legal defense with a heavy burden of proof requiring compelling business necessity. A conciliation agreement binds the complainant. If another resident complains the next day, the conciliation agreement is worthless as a defense to the rule. This is an inconceivably inefficient manner of testing rule validity. The costs to business in such concerns vastly outweigh the benefit to be achieved. The cost to the consumer in spreading the expense of this exercise could be largely obviated if the housing provider had some guidance in defining acceptable rules for promotion of health and safety. The suggestion of administering proficiency tests is a null and void concept. The liability for negligently administering such tests, seeking and paying for qualified testers, and then excluding the non-proficient residents will not be pursued by a single housing provider.

What can we do? Even in the absence of specific rules, educational materials may help parents understand common risks associated with youth. When educational information is provided as an adjunct to an activity rather than a rule restricting an activity, the chance of a claim of discriminatory preference is less likely to be made. For example, when a community owner offers such educational material from organizations who seek better protection of children, (e.g., police departments, charitable organizations, etc.) the community owner is providing a service - disseminating information and facts - not discriminating against children.[5]

You may also consider consulting with HUD in advance of amending rules and regulations. IF HUD even informally opines that a proposed policy is not defensible, or that no comment can be offered, at least the community owner can better assess the risk faced with a new rule and regulation. For example, if a resident complains that a particular resident who has open sores due to infection with the AIDS virus desires to use the swimming pool, can the management require that resident to stay out of the pool?

When faced with the question, the manger called to advise that she was not sure how to proceed. While administrative regulations require a doctor's letter stating that no public health or safety risk was posed by the patient's use of the pool, I consulted with HUD before announcing the management policy.

Finally

All the community owner wants is to know what the law is! What we do know is certain rules, certain practices reflecting what the law is not. But it is grossly unfair to relegate the duty to set standards on management. Having read this article, can you now, safely amend your rules to impose such a rule? No. No attorney can give an absolute assurance that such a rule will be sustained until ruled valid in a court. Until a court actually rules on the validity of the rule, or HUD or DFEH offers guidance on their interpretation of the rule, there can be no assurance of what an will not be permitted in developing age-restrictive rules and regulations. The best policy is to eliminate any and all age restrictive rules and regulations to avoid FHA claims.

Reprinted with permission from Western Manufactured Housing Communities Association (WMA) "Reporter", June 2008.

Terry Dowdall has specialized in manufactured home communities' law since 1978. His firm, Dowdall Law Office, APC is located in Orange County and Sacramento, with a practice limited exclusively to the manufactured housing industry. Mr. Dowdall serves as a legal advisor on WMA's Legislative Committee and has authored publications for the Continuing Legal Education of the State Bar. He is a frequent contributor to the WMA Reporter and facilitator at WMA educational seminars. He can be reached at 714-532-2222 (Orange) or 916-444-0777 (Sacramento).

[1] According to the United States Consumer Product Safety Commission, "...The main hazard from hot tubs and spas is the same as that from pools - drowning. Since 1980, CPSC has reports of more than 700 deaths in spas and hot tubs. About one-third of those were drownings to children under age five. Consumers should keep a locked safety cover on the spa whenever it is not in use and keep children away unless there is constant adult supervision. Hot Tub Temperatures - CPSC knows of several deaths from extremely hot water (approximately 110 degrees Fahrenheit) in a spa. High temperatures can cause drowsiness which may lead to unconsciousness, resulting in drowning. In addition, raised body temperature can lead to heat stroke and death. In 1987, CPSC helped develop requirements for temperature controls to make sure that spa water temperatures never exceed 104 degrees Fahrenheit. Pregnant women and young children should not use a spa before consulting with a physician. ... "CPSC Document #5112 "Spas, Hot Tubs, and Whirlpools Safety Alert".

[2] Municipal curfew regulations abound which restrict children. Los Angeles is typical. No one under 18 years of age is permitted in public places during school hours (" ... present in or upon the public streets, ... or any place open to the public during the hours of 8:30 am and 1:30 pm"). L.A.M.C. 45.04. The same restrictions apply after 10 pm. ("... any minor under the age of eighteen years to be present in or upon any public street, ... between the hours of 10:00 pm on any day and sunrise of the immediately following day; ...."). L.A.M.C. 45.03. Regulations for pool halls E.g. 17 (Midland Mi. Mun. Code Sec. 15-34) and 18 (1063-B. Pool halls. Public Laws of Maine) year age requirement), are commonly promulgated for the health and safety concerns for minors. It is unsafe for a park owner to rely on local or state laws in this respect in drafting rules and regulations.

[3] "[P]edestrian injury is the second leading cause of unintentional injury-related death among children ages 5 to 14. While the majority of pedestrian deaths and injuries are traffic-related, children ages 0 to 2 are more likely to suffer non-traffic-related pedestrian injuries, including those occurring in driveways, parking lots or on sidewalks. Although pedestrian injuries are not as common as motor vehicle occupant injuries, a disproportionate number of the injuries sustained by child pedestrians are severe. Between 25 and 50 percent of child pedestrian injuries require hospital admission. Children ages 5 to 9 are at the greatest risk from traffic-related pedestrian death and injury. Nearly one-third of all children ages 5 to 9 who are killed in traffic crashes are pedestrians").

[4] According to the U.S. Products Safety Commission: "The U. S. Consumer Product Safety Commission estimates that between 1985 and 1989, the latest period for which data are available, there were 1,200 amputations of children's fingers because of contact with exercise bikes. Most children were under the age of five. Many of the injuries occurred when the child's fingers touched the moving bike wheel or the chain and sprocket assembly. The Commission is concerned about the severity of injuries to children, especially because the hazard may not be obvious. Therefore, the commission warns parents always to keep children away from exercise bikes. Never use a bike without a chain guard, and when not using the bike, store it where children cannot get to it. Children's fingers can be amputated if they touch moving parts of exercise bike." Prevent Finger Amputations to Children From Exercise Bikes: Safety Alert: CPSC Document #5028.

[5] For example, educational material exist which explain that young children have peripheral vision which is two-thirds that of an adult; they have difficulty determining the source of sounds; traffic noises and sirens may be confusing; they may not understand that an automobile may seriously hurt or kill them; most children cannot understand a complex chain of events; children believe that all grownups will look out for them; they think that if they can see an adult driving a car toward them, the driver must be able to see them; children often mix fantasy with reality - they may give themselves superhuman powers and o not understand that a moving vehicle can hurt them; they have difficulty judging the speed and distance of oncoming vehicles. 

One of the measuring sticks of great managers, as well as great regional managers, is their ability to be friendly while at the same time, keeping their eyes firmly upon the objectives of the community. The responsibilities of property management are immense and sometimes thankless. It is hard to believe that any of us could add another thing to our schedules to strive for better resident relations. But we must, and we must go at it with an eager, devoted, and intense passion to be successful. The only way to achieve this and still maintain the quality of the community is great organizational skills, resident, participation and the initiative to be creative.

No matter how large or small a community and its budget, the following simple steps will bring a community to its peak performance and create strong resident relations.

Get the Residents Involved

Make photo albums or scrapbooks of residents enjoying their community or community activities. Seniors enjoy donating photos from their past and the fun time they've had with neighbors or friends. Residents can form a photography club to take pictures of all community events, funny resident situations and neighbors helping one another. Photo clubs are a good source for pictures submitted by residents. Volunteers can help with the collection of photos and putting together the album. Display the album(s) proudly in the activity center or community lounge area for all to enjoy. Managers should look through the books from time to time to ensure quality content.

Encourage residents to write positive letters or stories about the community. Resident writings can be collected in an attractive album, which is also to be displayed in the community activity center. When the letters have been submitted, ask if they may be used in the community newsletter. Pick one letter a month to exhibit in an attractive picture frame under the caption, "Letter of the month" or "Why we enjoy living in this community."

Create a journal to pass around the community (it may be a spiral notebook) for all residents to write in. A note stating the topic should be firmly attached on the outside of the journal for all to read before inserting thoughts. The note may ask for how long the resident has lived in the community and a short biography. Encourage the use of photos or themselves, their families and/or pets. The final instruction should be "When you are finished with your thoughts, please pass this on to your neighbor. If you do not wish to be a part of this project, please call the community office, and we will pick it up." The notebook should be placed inside a weatherproof cover and given to the first home in the community. Many 55+ communities have seasonal residents. You might want to wait to start until they return, so all may participate.

If your community activity center has a television set and VCR, you can host movie matinees on adverse weather days. Rent a latest release (within the confines of movies seniors love), make popcorn for all (no salt or butter) and offer a non alcoholic beverage. Make sure the television is placed where everyone may comfortably view it, such as a stage as or the center of the room, and make the viewing room dark. What other thoughtful task can one do for less than $20 that gives joy to so many residents?

Everyone loves to show off their pets, especially seniors. Host a pet show. Purchase certificates and first, second, third place ribbons to award. Volunteers may acquire donations from local pet stores or other businesses to be awarded as prizes. Use an outside volunteer to pick the winners based on show, grooming, posture and training. Participants of local pet shows may be willing to volunteer their time to judge.

The same idea can work for a car show. Many residents have classic cars of which they are very proud. You may want to look in your local auto trader magazines for people who host car shows professionally. Many communities are looking for locations to hold their shows, complete with DJs, prizes, emcees and media. Use the same ideas from the pet show for great results.

Consider opening your clubhouse to local hobbyists. Most cities have model train clubs, remote-control airplane clubs, coin collectors and other hobbyists who are always looking for new places to meet and show off their labors of love. This effort provides seniors a pathway back to their childhood.

Keep yourself involved

In 55+ communities, residents are more interested in local government and have the time to help coordinate and change issues of concern. Some merely need the leadership and backing of the property owners or managers and the knowledge of who to contact to start the ball rolling. Cooperation of managers and residents can create great things and bond them together for the common good of everyone.

Perhaps the very best resident relations trick is getting outside the comfortable walls of the community to make changes that affect all the residents. If there are local or state issues of concern to manufactured housing communities or their residents, they need to get involved. Our government works for us, and is more likely to listen than it is often credited as being. One method toward such change is finding a government official who truly cares or is up for election. Their voters live in our communities. Working with the government takes patience and dedication. Although this kind of dedication may be very time consuming, in 55+ communities it is just as valuable as anything else a property manager does.

Start by reading every government mailing received. Items come up for vote on a regular basis that often negatively affect seniors and are addressed in a public forum prior to election. These forums are great opportunities for retirees and managers to give input toward change. Retired residents have the knowledge, spirit and time to investigate, preparing everything it takes to help present ideas in public forums.

Read all the fine print on every utility bill. Rates may increase and go unnoticed. If the utility companies are approached when proposing these changes, very often they may be overturned. It is not hard to present options to officials devising change. For example, in 1992 the managers of a small senior community discovered the water department offered water-leak rebates for site-built homes, but did not offer any solution to water leaks in manufactured housing communities with master meters sub-metered by the community.

With little effort this issue was approached, and the property managers found the city water department to be very cooperative in helping to resolve this problem. Today, a program is in place for all the residents in the city under these conditions, to receive rebates when residents have water leaks.

The same situation happened in a large Florida county. Residents in mater-metered communities also could not receive water leak rebates. Given the equation for determining sewer rates, when residents had leaks, the charges were exorbitant. This seriously affected the fixed-income seniors in the county. In 2000, because of a cooperative effort between water department, community management, and the homeowner's association of a 55+ community, this oversight was resolved. The effort only took a few phone calls, two meetings, a couple of faxes and the designing of a form that would work for the county and the community. Within 30 days of the community's first request, a program was in place for the entire county making it possible for all residents to receive rebates on water leaks.

In 1997, a county water department implemented an ideal way to dispose of waste water by a unique filtering system, then piped the filtered water throughout the county to be used for irrigation (reclaimed water). The process cost the county millions of dollars in construction. The county water department proposed a lengthy, complicated billing system to its customers, in the form of a "base rate." The proposed rate would have a devastating effect to senior residents in manufactured housing communities under the same metering conditions as described above because the master-metered system is considered "commercial".

Many phone calls were made by two community managers, in an attempt to find someone in the water department willing to explain the complex proposal, and willing to work with the communities to lower the billing rate. This six-month process required many meetings with the water department and a dedicated effort to get all the affected communities involved in the process. Today, as a result of this effort, all of the manufactured housing communities in that county now have a new category for billing commercial at residential rates. This new category lowered residents' base rate more than half of the original proposed increase. This lower rate was a big help to set-income seniors.

Keeping the media involved

Local TV media and newspaper reporters are always looking for human-interest stories. Every time a manager discovers a resident who has done something extraordinary, the media needs to be alerted. This includes Senior Olympics medalists, golfers who shot holes in one, shuffleboard champions and bowlers with a 300 game or a high series. Press releases should be sent to local papers to thank residents for special things they do in the form of "Volunteer of the Month" or "Hero of the Month." You might also want to invite the media to special events, such as National Night Out or other unique activities. Not only does the media coverage give residents a terrific boost, it is the best free advertising available.

These ideas and the examples above prove dedication and cooperative efforts between managers, residents, government officials and media to preserve and enhance the lifestyle seniors worked tirelessly to earn. What better way to thank the people who shaped our world, than to work passionately to help preserve the lifestyle for which they worked so hard. Home is where they should feel safe, respected, cared for and appreciated. Home is what we are to provide.

Reprinted from MHCO "Community Management"

Both Landlords and Tenants agree of the importance of sub-metering; it is a win-win proposition. Enduring years of Landlord/Tenant Coalition, one of the most daunting tasks was demonstrating Landlords do not have safes' locked full of money. Financing options simply did not exist to fund mandatory sub-metering. Where were Landlords to find upwards of $750+ per homesite to install water sub-meters? Of course, Landlords proved their argument and negotiated the right to unilaterally amend rental agreements to permit community-wide sub-metering; creating provisions to recapture installation expenses by billing Tenants. Considering a new program now available, I believe every Landlord should sub-meter sooner than later!

Now available is a sub-meter and installation program at zero expense to any Landlord wanting to install new or replace old sub-meter systems. No applications, no qualifications, and no money down gets you state of the art wireless monitored sub-meters (water, electric, and gas are all available). What's the catch? ... the Landlord signs a 10 year Billing Agreement with the provider, in which the Tenant pays. So, how does it work?

First, the meters are purchased/installed/administered/maintained/repaired/monitored/insured/read/etc. by an Independent 3rd party. Just as all meter reading companies, this 3rd party charges a monthly fee for their service ... it is their cost of doing business. In Eugene, this 3rd party charges nearly 1/2 less of what EWEB (Eugene Water and Electric Board) charges it's customers. Second, per ORS 90, the 3rd party bills the Tenant the cost of the sub-meter and installation over a minimum of 60 months. The sub-metering process is complicated; no worries, this 3rd party is experienced, has been in business for nearly a decade, has all the systems and sample notices in place, and handles the entire process on behalf of the Landlord.

The Bottom line: local government agencies and utility companies use Landlords to pass through their exorbitant "fees" and rate increases, in which Landlords are forced to carry until the next "rent" increase ... making the Landlord the greedy bad guy. Prior to sub-metering, utility expenses were 23% of my rent; my monthly invoices now line item sub-meter every utility possible. My rents are now very competitive within the market and I have direct control over costs. I see every reason why all Landlords should do the same.

Indeed, it sounds too good to be true ... it is. Contact me at troybrost@gmail.com, 541-554-1499, or visit www.infrasystems.us to find out for yourself. I will provide you with the contact and information you need and assist you along the way.

From one year to the next, the only certainty one can realistically expect is that rents will need to be adjusted just to keep pace with the utility increases that are coming one's way from the various providers. The annual questions are always, how much will they collectively go up, will they increase more than I am comfortable with recouping from my community residents, and will there be room to also keep up with inflation on my other increased operating costs? Double digit percentage rate increases aren't just exclusive to medical insurance companies. We have witnessed year-over-year, +20% increases with one sewer treatment provider alone and have seen huge increases from just about every utility with the possible exception of phone services.

Another concern about utility costs is the timing of when rates increase which do not necessarily coincide with the implementation of your next rental adjustment, leaving communities absorbing increased costs until the following year. Couple that with each and every time you try to recover these utility costs whereby you look like the quintessential greedy landlord, but in reality, you're just trying to maintain your margin. This should lead owners to question whether they can afford to continue to keep any utilities included in their rent.

A perfect illustration of a utility you should be proactive about is water, which is also normally the driving factor behind the sewer expense. You have probably heard that certain municipalities have increased their water rates despite a reduction in overall consumption. This has happened, in part, due to a need to fill a budgetary hole created by less revenue generated as a result of reduced consumption. Rates are high now and will continue to rise. A factor to consider is that over time, the EPA will have even greater scrutiny over water districts, increased regulation and testing requirements, and reduced maximum contaminant levels (MCLs) which will require better and more expensive treatment facilities. All this translates to more expense which will ultimately be passed on to the consumer. One thing is for certain - you don't want to be the last one in your service district to get out from under this payment responsibility.

You need to be aware that your business is under attack. Municipalities have grown to be creative in expanding their reach into your pocket by creating new sources of revenue by the addition of new fees and charges. As an example, the City of Oregon City has the following line item charges on its utility invoice: 1. Water Treatment, 2. Water Distribution, 3. Stormwater Management (aka surface water), 4. Pavement Maintenance (aka street sweeping), 5. Wastewater Collection, and 6. Wastewater Treatment. This is just one example, but this is not an exhaustive list. The City of Gresham has added what it claims to be a temporary police, fire, and park and recreation fee to their utility invoicing. The City of Everett has a charge on their utility bill for landfill fees. Tri Cities and Moses Lake have an emergency services charge on their utility billing. The City of Salem recently attempted to add street lighting and street maintenance to its list of fees and charges, but backed down under pressure from Commonwealth, MHCO, community owners, and community residents who protested their newly proposed fees which some considered to be a "tax". I'm sure there are also other examples which I have yet to learn about, but rest assured, new fees and charges are appearing with great regularity. The point is that we are under fire from the local municipalities which are attempting to circumvent the law by creating the equivalent of new taxes without them being referred to the voters as required by Oregon and Washington Law.

Many of the newer communities that were developed in the late 80's and early 90's opened their communities with utility charges separate from the rent while still paying the master bill and collecting the individual consumption charges from the residents in addition to their rent. Since then, there has been a growing trend for communities which have recognized this better model to pass through utilities to the residents over time to get out from under the burden of playing "catch up". This is more equitable to your residents, promotes conservation, and will more clearly show your valued community residents exactly what these municipalities are charging and how quickly their charges are increasing. Perhaps then, the residents may direct their ire to the appropriate party and focus their concerns in the direction it belongs with the goal of helping influence the cities or at least making them think twice before adding new fees and charges.

One final important point to consider, for decades residents and resident advocacy groups have lobbied for rent control in our states. We have successfully dodged those bullets each and every time, yet rent control bills surface every legislative session in one form or another. Imagine your state government passing legislation which restricts how much you can charge for the already affordable housing services you provide. Consider how much your utilities have increased over time and what would happen to your cash flow and the value of your community from not being able to recover 100% of this expense. Having utilities separate from the rent is a transparent pass through from the provider to the consumer, rather than a rent increase which would be restricted in some form, likely requiring justification with a potential review board.

If you have any utilities which are included in your rent, I strongly recommend that you consider passing this expense through to your residents. Commonwealth has a solution for accomplishing all of this with minimal cost to you. Please stay tuned for more information about our recommended solution to help you protect the investment you have made in your business in next week's follow up article.

If you have any questions or would like to discuss this, please feel free to contact me at 503.718.0622, Christy Mays - Washington Vice President at 425.952.2750, and/or Tom Petitt - Oregon Vice President at 503.718.0620

Article provided by Adam Cook, President of Commonwealth Real Estate Services. Adam joined Commonwealth in 1992 and has been particularly effective in utilizing his years of experience to improve the services we offer to our clients. During the past fourteen years, he has served as a board member in the Oregon community owner's trade association, Manufactured Housing Communities of Oregon (MHCO), helping to shape legislative efforts in Oregon. He served two years as the association's president.

On July 26, 1990, President Bush signed into law the Americans with Disabilities Act ("ADA"), The Americans with Disabilities Act Accessibility Guidelines (the "1991 Regulations") were shortly thereafter developed to guide new construction and alterations undertaken by covered entities and established the minimum requirements for "accessibility" for disabled persons in buildings and facilities and in transportation vehicles. After more than twenty years, the Department of Justice implemented new regulations, which became mandatory in 2012 (the "2012 Regulations.") Your state may have passed parallel laws, which could increase the protection of individuals with disabilities, e.g., the Unruh Act in California. However, this article focuses on Federal ADA compliance. Keep in mind that the ADA is a civil rights law, which addresses a number of subjects, but this article focuses on ac- cessibility (no longer called "handicap") issues only.

A mobile home park owner might ask, "How about my pre-exist- ing park, does it need to comply with ADA issues?" Answer: "It de- pends." If your mobile home park pre-dates the ADA statute, and the Park has not gone through any significant renovations (deter- mined on a case-by-case basis), then the park may be "grandfathered in" in most cases. However, there can still be considerations of "reasonable accommodation" and "readily achievable barrier removal" under the ADA that could require a park owner to make modifications to existing structures and to make existing buildings "accessible" to the disabled. There may be no "grandfathering in" under these provisions of the ADA. In addition, if the park has undergone sub- stantial alterations/renovations, this could also trigger ADA com- pliance. A mobile home park owner might also ask "If my park needs to comply with ADA issues, then does the park have to comply with the 1991 Regulations or the 2012 Regulations?" Once again, the answer is "it depends." There is a broad "grandfather" clause that exempts all building elements constructed in compliance with the 1991 Regulations until those elements are subject to a planned alteration.

So--is a mobile home park a "place of public accommodation" or not? The ADA defines a "public accommodation" to be "a private entity that owns, leases (or leases to), or operates a place of public accommodation." Examples of places of "public accommodation" include places of lodging; establishments serving food or drink; places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments; stations used for public transportation; places of public display or collection; places of public recreation; places of public education; social service center establishments; and places of exercise or recreation. Does a mobile home park fit within these descriptions? Based on discussions with ADA experts,the typical mobile home park does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the park's facilities are only open for the sole use and enjoyment of the park's residents, rather than the "general public." In some cases, however, a park's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the pub- lic." In addition, the park's office is necessarily "opened to the pub- lic" as persons, not otherwise residents of the park, are allowed in and, in fact, are invited in to inquire about available spaces and/or mobile homes in the park. One issue which has been "rearing its ugly head" recently in connection with what are referred to as "drive-by" ADA lawsuits is the inadvertent conversion of a "non-public" ac- commodation to a "public" accommodation. For example, if the park clubhouse is not open to the general public, but the park allows the clubhouse to be used as a polling station for elections, or for classes for the local college, or for swimming lessons in the pool, the park may have inadvertently converted the area to a "public" accommodation and will be required to comply with the ADA for the impacted area, e.g., pool or clubhouse. Even the "innocent" re- quest by one person to use the "private" restroom at the management office could trigger thousands of dollars in improvements to make the restroom "accessible".

If the park has "public accommodations" which have "barriers" to "access," then the next consideration is whether the "removal of the barrier" is "readily achievable." Remember that these barriers apply to all sorts of disabilities, including sight and hearing, and not just accessibility for wheel chairs. The ADA generally defines "readily achievable" as easily accomplished and able to be carried out with- out much difficulty or expense. 42 U.S.C.S. _ 12181(9). Federal courts have developed several factors in determining what is "readily achievable": (1) nature and cost of the removal; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and re- sources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including com- position, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relation- ship of the facility or facilities in question to the covered entity. Col- orado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The park however will bear the ultimate burden to prove that the barrier removal is not readily achievable. This will be determined on a case- by-case basis for each individual park. The 1991 Regulations pro- vide examples of steps that may be "readily achievable" according to the Department of Justice.

So, how do you lessen the chance of your park becoming a "tar- get" of an ADA lawsuit? There are no "bright lines" as to whether a park has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent park owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the park has any ADA issues and how they should or could be addressed. California has implemented a Certified Access Specialist ("CASp") training and licensing program, which provides incentives (i.e., some protections from lawsuits) for property owners who conduct a CASP inspection. Another, and more conservative approach would be to simply make sure that all of the park facilities are "ADA compliant," even if, technically and legally, you may not be required to do so. Little things can make a big difference in your park. Examples of ADA compliance include: levers on the entrance doors; levers on bathroom doors and fixtures; bathroom fixtures at proper height; proper bathroom accessories; doorways that accept wheelchair access; bathrooms that accept wheelchair access; counters at correct height for wheelchairs users; alternatives (ramps/elevators) to steps into the clubhouse and office; acceptable transitions (no lips) at doorways (interior and exterior); accessible parking and van access spaces; acceptable transitions (commonly referred to as "curb cuts") to sidewalks at street junctions and accessible parking; and acceptable inclines from parking areas to the park's "public accommodations," to name a few.

Your ADA consultant can walk your park and let you know what facilities do and do not comply with ADA. Making the necessary improvements will be money well spent, and potentially "ward off' ex- pensive litigation, which litigation, in all probability, will not be covered by your general liability insurance policy. You might also want to turn this into a "PR plus" for your park - i.e., tell your res- idents about the improvements after they are done! However, such actions may not be right for every park. The park owner should first discuss ADA considerations with its legal counsel to determine what the right course of action is under the particular circumstances.

In addition, insurance is playing an ever more important role in protection against ADA claims. More and more often, ADA plain- tiff lawyers are adding causes of action for negligence and alleging bodily injury to trigger the potential for coverage under the park owners CGL policies. Our recommendation is to tender any ADA claims to your carrier immediately. In addition, some insurers now offer what is known as "tenant discrimination" insurance, which may pro- tect the park owner in the event of an ADA claim since the ADA claim is a civil rights claim. We suggest all park owners speak with their industry insurance broker about possible insurance protection.

John Pentecost is a partner with Hart, King & Coldren, a law firm located in Santa Ana, California. His practice focuses on representation of mobilehome parks and recreational vehicle parks, as well as park owners, throughout the State of California. He can be reached at jpentecost@hk-claw.com

Reprinted with permission from "The Journal", August 2013

Inadequate response time to a resident’s questions.

In an era when customer relations is the new icon of successful marketing it only makes sense to get back to a resident’s question or action-item in a timely manner.  What is timely?  Within 48 hours, at least tell the customer that you are checking on the matter and will have an answer soon.  That’s better than taking a week with no answer, or worse, forgetting about it.

Poor resident relations & communications.

Like timely responses, overall customer communications is important.  That includes such basic things as listening.  Periodically walk the park just to talk with residents and see how they are doing.  Does anyone need special help?  Keep a note pad and pen in your pocket.  Seek input.  Better yet, issue report cards at least twice per year to see how they grade you.  Help them coordinate social activities.  Host spontaneous events like an ice cream social at the clubhouse.  Ice cream is an inexpensive alternative to customers grumbling about invisible management and owners.  But it all boils down to something quite simple: treat them like you want to be treated.

Lax rules & regulations enforcement.

Irregular enforcement of rules and regulations or poorly written rules can only lead to confusion and trouble.  Make sure maintenance violations are quickly handled with the proper notice.  But be fair, friendly and firm.  If your rules seem to prompt lots of confusion and questions, get someone outside the park to read the rules with an eye to clarity and possible changes.

Poor park maintenance.

The visual appeal of your park is essential to both residents and non-residents who drive by your park.  Always maintain its “curb appeal.”  Regularly check for light outages, broken fencing, faded paint and common-area cleanliness.  Neglected streets are especially annoying to residents.  Of special importance is your entrance.  It should look sharp, upscale

and inviting.  Invest in flowering plants to add seasonal color.  A well-kept park makes necessary rent adjustments easier to accept.

Inadequate training of on-site managers.

If your park manager is not familiar with mobile home park residency laws, unintentional violations could result.  Staff should be updated on the latest changes.  Don’t assume they know.  Training for on-site managers is mandatory.  Bring them up-to-date with the latest aspects of insurance, OSHA and health safety issues, worker’s compensation laws, Fair Housing and especially Mobilehome Park Landlord/Tenant Laws.

Poor marketing.

Like any business, you have to keep an eye on your local competition while you’re keeping your park filled.  But marketing is more than park fill and advertising.  Marketing includes everything from market surveys to community and government relations, from promotions and incentives to get new residents, to good relations with current residents.  Good marketing means keeping a close eye on the target audience you want and how you will sell and service them.

Mishandling delinquent rents.

Delinquent rents need quick action.  Monitor them closely.  Mishandling a notice can lead to delays/problems. Listen to a problem to decide if it’s permanent/temporary.  If it’s permanent, act decisively.  If temporary, you may want to set up a written payment plan if possible.

Getting the wrong insurance package.

Keeping costs down is important in any business, but so is risk management.  That means insurance.  The key is to look beyond the basic, generic policy and to seek property and general liability insurance with umbrella coverage.  You want to insure your park for its actual insurable replacement value.  Check the rating of the insurance carriers you are considering.  Shop and compare rates/ratings.

Inadequate safety & accident prevention programs.

Insurance is not enough.  Prevention is just as important.  It’s all about having a park safe for residents, their visitors and the park staff who serve them.  Potholes in roads are unsafe.  A child’s cheerful bike ride could suddenly be ended by an unseen driver because bushes were not trimmed.  Walkways must be well-lighted and free of cracks.  Pools must be free of bacterial growth.  Workers need equipment and training to avoid body movements that can injure them.  Money spent on repairs, signage, equipment, and training is cheap compared to thousands in legal bills, insurance rate increases and time wasted. 

Insufficient awareness of economic changes.

Like any business you have to cover costs and make a profit.  In order to maximize your investment, keep abreast of changing local conditions around your park.  An ill-informed decision could make your park unattractive to potential homeowners.  For example, if a local plant closes or unemployment suddenly jumps, that’s not a good time to raise rents.  Even in healthy times, periodic small rent adjustments make more sense than one big increase that finds residents unprepared and prone to action.  Subscribe to local newspapers.  It’s all about staying in touch and informed to make good decisions.

Note:  This article orignially was published in MHCO's Community Update

So before I give you another accounting rule we are enforcing, let me say the goal is to protect your investment! We live in a very litigious society and need to be aware of potential risks and ways to protect our assets. Commonwealth employees are insured through workers' compensation policies and also provided regular training regarding workplace safety. Another area we are striving to improve risk management and compliance is in the area of hiring contractors. When a contractor is hired, the onsite manager must obtain verification that the contractor is licensed, bonded, and insured. In addition, a Form W-9 must be provided for purposes of reporting non-employee compensation on a Form 1099-Misc at the end of the year.

The downturn in the economy resulted in many contractors allowing their insurance and licensing to lapse. We are currently working on two projects to confirm all contractors are still in compliance. The first will be a "preferred vendor" list by location. Commonwealth is compiling lists by geographic areas of approved vendors so in an emergency situation your onsite manager or regional manager knows what vendors have up-to-date information on file. Secondly, we will be combining this vendor list with our accounting program to alert us when we need to update the insurance information. The reason to remind our customers of this policy is that some may have "tried and true" contractors that would not be eligible to work at the communities unless they can provide the necessary information requested OR become an employee to complete the task you wish to hire them for. I mention the latter as it is a legal remedy to tackling some of the small jobs that may be better served by hiring specialized temporary employees through agencies. Another option is hiring an individual on a task by task basis for their special skill. Commonwealth wants to be sure we are doing our best to protect your investment by limiting your risk exposure, both legal and financial, associated with contractors working at your communities.

Another reminder is that we do send 1099-Misc forms to all contractors annually. The form 1099-Misc reports all non-employee compensation. Amounts paid for employee compensation are reported on a Form W-2. Employees cannot receive a 1099-Misc and Form W-2 from the same employer for similar work. In order to keep away from any proof of control issues, our company policy is to send a W-2 to all employees and make sure all compensation for that individual runs through payroll. All independent contractor payments are reported on a 1099-Misc.

Article provided by Kathleen Landau, Accounting Manager for Commonwealth Real Estate Services since 2009. Kathleen brings over 20 years of accounting experience and knowledge to the Commonwealth team, and as a multi-site property owner herself, understands the unique needs facing property investors and small business owners.

Answer: This may be a habitability issue which you will have to address. Here is what the statute says about the landlord's habitability duties in a manufactured housing park:

90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.) provides:

(2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord's habitability duty under this section includes only the matters described in subsections (3) to (5) of this section.

(3) For purposes of this section, a rented space is considered uninhabitable if it substantially lacks:

(e) At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;" (Underscore mine.)

This would seem to suggest that from a habitability standpoint, as long as the space was in good shape at the commencement of the tenancy, you no longer have any further duty to the resident. I think that conclusion would be a mistake.

Here, the condition of the space has deteriorated due to the proximity of the stream. Inasmuch as you own the ground, and the ground is failing, I would suggest that relocating the home is your responsibility. Alternatively, if the stream is on a part of the park property, you may want to explore stabilizing the lateral support of the side of the stream.

Look at it this way: If you do nothing, and the subsidence continues to the point of damaging the tenant's home, he or she will have a damage claim against the park. If you relocate the home or properly fix the stream bank, further risk of damage is greatly reduced if not eliminated.

If you do pay to relocate the home, make sure that you have a professional address the issue of any further erosion from the stream. You don't want to have to address this problem again a few years down the road.

Answer: Disclaimer: Certain folks, especially those of the regulatory bent, will likely disagree with my answer. The reason stems, I believe, from one of four sources: (a) Rigid (some might say "stubborn" or "dogmatic") adherence to a law or regulation, regardless of how illogical and silly it may be; (b) A belief that everyone is a victim, and deserves to pampered and coddled even in the face of obvious evidence they are gaming the system; (c) Political correctness run amok; or (d) A combination of some or all of the preceding causes.

Whew! I feel better already!

I admit I am one of those folks who have watched in disbelief as some residents have taken the most outlandish positions in an effort to keep a pet they know full well violates the community rules. I recently saw a situation where a new tenant, knowing that the community did not permit pets, moved in and promptly moved her large dog in to live with her, having paid to get the necessary sham certifications and paperwork online, no questions asked.

Here are some general rules:

• The Americans with Disabilities Act, or "ADA" does not apply to private residential housing - only public accommodations.
• ORS 659A.143 governs the use of assistance animals in public accommodations. The rules seem rational and reasonable.
• The Fair Housing Act applies to the use of assistance animals in housing.
• HUD has set out the issues to be vetted for a landlord to make a determination whether to grant a resident the right to have an assistance animal.
• Assistance animals are not pets, and accordingly, pet rules do not strictly apply (such as requiring pet deposits).
• You do not have to accept just any animal as an assistance animal. If it requires some additional cost to the landlord, it is not required. (See, HUD article here.)

The Fair Housing law basically requires that if one has a disability, they may request that their landlord grant them a "reasonable accommodation" - that is, an exception to the community rules, allowing the resident permission to do that which is otherwise prohibited.

Thus, size limits don't strictly apply. And occasionally, residents attempt to have a second pet, claiming that it isn'ta "pet," but an assistance animal. However, here is where the line blurs. How far does the landlord have to bend to accommodate residents, especially in those situations where the resident is gaming the system?

MHCO has forms for dealing with requests for reasonable accommodations, whether they be a non-compliant animal, or some other issue, such as an additional parking space, etc. First and foremost, I suggest following the same protocols in all cases, from the legitimate to the illegitimate.

Secondly, I suggest following the 3-prong test (besides cost, which doesn'treally apply in most cases) as follows: Would granting of the request endanger the Health, Safety, or Welfare of other residents or guest in the community. If the resident, for example, asks to have a pit bull as an assistance animal, it is not altogether unreasonable, after vetting the dog's demeanor, socialization, etc., to propose another less aggressive animal as a "reasonable accommodation."

Third, for such breeds with known vicious propensities, you should check with your liability insurance carrier to see if they have a short list of animals they will not insure if there is an attack. If the carrier says the animal is on that short list, then you should propose another less aggressive animal.

Then there are cases in which the request is clearly a ruse to get a pet approved as an assistance animal, when and it is clear to any reasonable person, it is a ruse. You will have to decide on your own, or with the assistance of your attorney, how to proceed. If, after giving the resident the MHCO form to complete, you are satisfied that it is a ruse, you are going to have to decide whether to call their bluff, or relent. If you relent, you will have done so only after requiring them to complete the necessary paperwork. However, be prepared for more copycats - pardon the pun.

1. If the tenant, in violation of the rental agreement, keeps on the premises a pet capable of causing damage to persons or property, the landlord may deliver a written notice specifying the violation and stating that the tenancy will terminate upon a date not less than 10 days after the delivery of the notice unless the tenant removes the pet from the premises prior to the termination date specified in the notice. If the pet is not removed by the date specified, the tenancy shall terminate and the landlord may take possession in the manner provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings).

1. For purposes of this section, a pet capable of causing damage to persons or property means an animal that, because of the nature, size or behavioral characteristics of that particular animal or of that breed or type of animal generally, a reasonable person might consider to be capable of causing personal injury or property damage, including but not limited to, water damage from medium or larger sized fish tanks or other personal injury or property damage arising from the environment in which the animal is kept.

1. If substantially the same act that constituted a prior noncompliance of which notice was given under subsection (1) of this section recurs within six months, the landlord may terminate the rental agreement upon at least 10 days written notice specifying the breach and the date of termination of the rental agreement.

1. This section shall not apply to any tenancy governed by ORS 90.505 (Definition for ORS 90.505 to 90.840) to 90.840 (Park purchase funds, loans). [Formerly 91.822; 1995 c.559 _28; 1999 c.603 _25]

While I suppose there is an argument that this statute doesn'tapply, since it pertains to "pets," I believe that argument begs the question, since it is your position that these are pets disguised as "assistance animals." If the resident believes you're prepared to commence an eviction proceeding, perhaps they will relent. If not, the judge can decide. Of course, be prepared for the resident to bring in some doctor, chiropractor, or therapist, to claim the resident needs the animal for some protected purpose.

If the animal is dangerous, I strongly believe you are correct to take the issue to the mat, since doing nothing could result in injury to a resident or guest, and you can be sure you will then be accused of permitting the animal to remain when you should not have. Unfortunately, these issues can become expensive, and there is no assurance of victory in court.

It is possible for you and your attorney to develop some type of agreement which closes the loophole that is occurring at your community. I can envisage language that with the proper recitals and provisions, would give you more protection than you now have. However, as we know, until the matter is litigated, you'll never know if the form is bullet-proof. But having it in place is probably better than where you are now, and would likely make a resident think twice about trying to play the "support animal" card, if the agreement expressly says the animal is a pet and that was the sole reason for their wanting it.

Measure 91 – High Times for Oregonians.  According to OregonLive.com, here, there are 23 states that currently have medical marijuana laws on the books. Oregon was one of them. On November 4, 2014, Oregon joined a smaller group of pot-friendly states (Washington, Colorado, Alaska, and the District of Columbia), to permit the recreational use of cannabis.[1]  I will leave it to the wordsmiths to explain how the term “recreational use” found its way into our lexicon when discussing the use of marijuana.  “Recreation” is the last thing one thinks about when taking a toke – or so I’m told….  

State and Federal Laws. The Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., says that marijuana is illegal to grow, process, distribute, and possess, even when state law authorizes its use. Furthermore, federal law supersedes state law where there is a direct conflict between them.  That would seem to suggest that federal law, being more restrictive, would trump Oregon law.  However, this is not the case.

HUD and the Oregon Bureau of Labor and Industries, both of whom enforce fair housing violations, including discrimination based upon disabilities, have taken a laissez faire, or “hands off” approach, i.e. they are not enforcing the laws at the current time.  Accordingly, it is my belief that on both a state and federal level, landlords may properly prohibit growing, processing, distribution and possession of marijuana, even though the user holds a valid medical marijuana card. This opinion was extensively covered in my two articles, here and here.

How Are Landlords Affected by Measure 91?  Now that Oregon has legalized recreational use of pot, how does this change the equation for community owners?  The short answer is that it does not change the issues.  If anything, dealing with the use of recreational pot is the easy part.  The substance can be controlled, should an owner so desire, by a rule change, prohibiting the cultivation, processing, sale or use of marijuana within the community. 

The issues surrounding the legal use of medical marijuana, i.e. by card-carrying tenants, remains the same, i.e. can a park owner prohibit it?  I believe the answer is “Yes.”  But before explaining how, let’s look at the new law that everyone is toking talking about.

Oregon’s New Marijuana Law. An interesting article gleaned from a website called “The Daily Chronic” contains and interesting, though not exactly unbiased, analysis of Measure 91, here.  What follows is a short summary taken from the longer article:

·      It passed by 57% to 43%;

·      Public consumption of pot is prohibited;

·      The Measure does not go into effect until July 1, 2015;

·      Until that time, possession of less than one ounce of marijuana remains a misdemeanor and is subject to a fine of up to $650;

·      You must be 21 or older to possess marijuana;

·      Homemade cannabis extracts (when made with solvents)[2] are prohibited, i.e. one may not produce, process, keep, or store them;

·      Up to 1 ounce of cannabis extracts are permitted, but only if they are obtained through a licensed retailer;

·      Cultivation of up to four plants per household is permitted,[3] but they may not be visible from a public space;[4]

·      The Oregon Liquor Control Commission (“OLCC”) is in charge of regulating commercial cannabis cultivation, processing and retail sales;

·      Of course, there is a tax levied on sales. It is paid by the producers;

·      There are four types of businesses Measure 91 will license:

o   Producers, who will cultivate the pot;

o   Processors, who purchase it from the producers and convert it into assorted products with names, colors, flavors, and scents, reminiscent of the UC Berkley campus circa 1968;

o   Wholesalers, who purchase the pot and pot products for sale to retailers; and

o   Retailers, who will sell directly to consumers.

Sample Policy.  As mentioned above, I believe that community owners may both prohibit the cultivation, processing, retailing, selling and use of pot, inside the community, regardless of whether the user has a lawfully issued marijuana card.  This can be done prospectively, by including the prohibition in the Statement of Policy, the rules, and/or the rental agreement.  It can also be done by a rule change that affects the residents already in the community.  However, I do not believe it may or should be done retroactively to those legal card holders already in the community. Here is a sample policy:

Sample Cannabis Policy For A Rules Change

[To be enacted pursuant to ORS 90.610(3)]

Background. Under the Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., it is illegal to manufacture, distribute, and possess marijuana, even when state law authorizes its use. In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342.  Federal law supersedes state law where there is a direct conflict of laws.  The Federal Fair Housing Amendments Act provides that a disability does not allow the illegal use of a controlled substance under the Controlled Substances Act.

Our Policy. All Residents, their guests, invitees, contractors, employees, and others coming to the resident’s home, space, or common areas in the Community, are subject to the following rules regarding the manufacture, processing, distribution, sale or use of cannabis, or  for any purpose, including medical purposes.

Prohibition.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.

Reasonable Accommodation.  This Community will not agree to make a reasonable accommodation for this prohibition, including medical purposes, to any residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Laws.

Violation. Violation of this policy shall constitute a breach of the terms of Resident’s right of occupancy, and entitle Management to issue Resident a thirty (30) day curable notice of violation under ORS 90.630(1).  A repeat violation will result in a twenty (20) day non-curable notice of violation under ORS 90.630(4).  Resident is responsible for informing their guests, invitees, contactors, employees or others coming to Resident’s home, space or common area guests of this Policy and for ensuring compliance.  Notwithstanding the preceding, Management reserves the right, upon its sole discretion, to issue Resident a non-curable 24-hour notice of violation under ORS 90.396 if Resident’s violation of this policy could reasonably result in danger to the health, safety or welfare of others in the Community. 

Effective Date.  This Policy shall apply from and after _______________________ (“Effective Date”), until modified or amended.  It shall not be applied retroactively to any current Resident whose legal use of cannabis, or cannabis products or extracts for medical purposes, preceded the Effective Date.

The above sample policy can be added as an Addendum to Rental or Lease Agreements and given to prospective tenants, as well. It is sufficient to insert into the Statement of Policy, the following:

Marijuana.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.  This Community will not agree to make a reasonable accommodation for this prohibition, including for medical purposes, to any Residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Act.

[1] The World Health Organization defines cannabis here, as follows: Cannabis is a generic term used to denote the several psychoactive preparations of the plant Cannabis sativa. The major psychoactive constituent in cannabis is ∆-9 tetrahydrocannabinol (THC). Compounds which are structurally similar to THC are referred to as cannabinoids. In addition, a number of recently identified compounds that differ structurally from cannabinoids nevertheless share many of their pharmacological properties. The Mexican term 'marijuana' is frequently used in referring to cannabis leaves or other crude plant material in many countries. The unpollinated female plants are called hashish. Cannabis oil (hashish oil) is a concentrate of cannabinoids obtained by solvent extraction of the crude plant material or of the resin.

[2] For those truly interested in the extraction process using solvents, go to the following link, here.

[3] In other words, a four member household (all 21 or over) would not qualify for 16 plants.  The same rule applies to the right to possess up to one ounce of extracts. There is no multiplier effect.

[4]  I suspect that in community where the backyards are fenced, growing would be permitted so long as they were obscured from the streets and sidewalks.