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Answer: Before getting into specifics, here is a rule you and all community owners and managers should never forget:

In most disputes, the lapse of time without resolution favors the tenant.

In your situation, this issue could have and should have been nipped in the bud. Since that has not been the case, you now take the risk that he, or his attorney, could argue that you have waived your rights to require him to vacate.

Now to the point:

1. I disagree with the Oregon Fair Housing Counsel, if I correctly understand their initial response. Just like with all such issues, a resident is no more entitled to permit a mean, contentious, threatening care giver in the community than it would be in permitting a known dangerous assistance animal. A balance must always be reached between granting the resident their Fair Housing rights, and the peace, safety, and quiet enjoyment of the rest of the community.

1. While some may disagree with me here, I believe that the Temporary Occupancy statute, ORS 90.275 can be very helpful in this type of situation.[1] But the issue should have been resolved long ago. Once you have someone on a signed Temporary Occupancy Agreement containing a fixed term, you have a degree of control that you did not have before. I would suggest that he be placed on a Temporary Occupancy Agreement for, say, six months, with a commitment that you will renew it for another six months, so long as he does not cause further disturbances, etc. [The Fair Housing law would likely require this commitment, and I agree.]

1. Here are the statutory rules regarding temporary occupancy:

• The temporary occupant is not a tenant entitled to occupy the dwelling unit to the exclusion of others;
• He/she does not have the rights of a tenant;
• The temporary occupancy agreement may be terminated by the tenant [in this case the elderly mother] without cause at any time and the landlord only for cause that is a material violation of the temporary occupancy agreement.
• The temporary occupant does not have a right to cure a violation that causes a landlord to terminate the temporary occupancy agreement;
• Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record [The landlord may not screen the proposed temporary occupant for credit history or income level.]
• A temporary occupancy agreement:
  • May provide that the temporary occupant is required to comply with any applicable rules for the premises; and
  • May have a specific ending date;
• The landlord, tenant and temporary occupant may extend or renew a temporary occupancy agreement or may enter into a new temporary occupancy agreement;
• A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement;
• The temporary occupant must promptly vacate the dwelling unit if a landlord terminates a temporary occupancy agreement for material violation of the temporary occupancy agreement or if the temporary occupancy agreement ends by its terms;
• Subject to certain exceptions, the landlord may terminate the tenancy of the tenant if the temporary occupant fails to promptly vacate the dwelling unit or if the tenant materially violates the temporary occupancy agreement;
• A temporary occupant may be treated as a "squatter" if he/she continues to occupy the dwelling unit after a tenancy has ended or after the tenant revokes permission for the occupancy by terminating the temporary occupancy agreement; and
• A tenancy may not consist solely of a temporary occupancy. Each tenancy must have at least one tenant. [Emphasis added.]

1. As you can see with the last rule, the son may not occupy the dwelling in the absence of his mother being there as a resident. If the mother is in Southern California and he is living in the home during her absence, he is starting to look like a "tenant" and not a caregiver. At the risk of him morphing into a "tenant," you cannot permit this to situation to continue.

1. ORS 90.100(43) defines a "squatter" as a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit. Oregon landlord law does not apply to squatters, meaning that they do not have the protection of tenants. However, since you do not have the son under a Temporary Occupancy Agreement, his status is up in the air.

1. If the son remains in the home, while his mother resides in Southern California, he should not be permitted to stay there. Technically, he cannot do so as a caregiver or a temporary occupant. If you can meet the following requirements, your rights would appear to be governed by ORS 90.403(1) (Taking possession of premises from unauthorized possessor)

(1) If an unauthorized person is in possession of the premises, after at least 24 hours' written notice specifying the cause and the date and time by which the person must vacate, a landlord may take possession as provided in ORS 105.105 to 105.168 if:

(a) The tenant has vacated the premises;

(b) The rental agreement with the tenant prohibited subleasing or allowing another person to occupy the premises without the written permission of the landlord; and

(c) The landlord has not knowingly accepted rent from the person in possession of the premises.

1. If you do not meet the above statutory criteria, then your best bet is to get him on a Temporary Occupancy Agreement, making sure that he still understands that he cannot remain in the home while his mother is living - albeit temporarily - in Southern California.

[1] Some might say that just as you cannot required a "Pet Agreement" for an assistance animal, my response is that the Temporary Occupancy Agreement can, in my opinion, set forth "rules" for the caregiver, which, if not unreasonable, would be proper. In this case, for example, your "reasonable accommodation" to the resident's request that you permit her son to be her caregiver, is to say "Yes, but given his prior known history, these are the rules."

Answer: Under Oregon law, the property of deceased tenants is considered "abandoned" and must be treated as such. The park must issue an abandoned property notice as required by ORS 90.425.

As required by the statute, the abandonment notice must state that: (a) The RV and any other property left behind is considered abandoned; (b) Any lienholder, owner or heir must contact the landlord within 45 days to arrange for the removal of the RV; (c) All other personal property (including the pickup truck) must be "claimed" by contacting the landlord within 8 days after the notice is mailed, and removed within 15 days after contacting the landlord; (d) The RV and other property are stored at a place of safekeeping; (e) Any lienholder, owner or heir may arrange for removal of the RV and other property by contacting the landlord at a described telephone number or address on or before the specified dates; (f) The landlord will make the RV and other property available for removal by appointment at reasonable times; (g) The landlord may require payment of removal and storage charges; (h) If any lienholder, owner or heir fails to contact the landlord by the specified date, or after that contact, fails to remove the RV within 30 days or other property within 15 days, the landlord may sell or dispose of the RV and other property; and, (i) If there is a lienholder, owner or heir of the RV or other property, they have a right to claim the property.

The park must send the notice to the tenant's park address addressed to "The Estate of [Tenant]." The notice must also be sent to any other known address for the tenant's relatives or contact person (sometimes listed on the tenant's rental application). The park must additionally conduct a title search on the RV and send the notice to any lienholder or other owners listed on the title. (Contact the Oregon DMV with the license plate number to determine lienholders or owners on title.) The notice must be sent by regular first class mail, except that lienholders and owners listed on the title (if any) must additionally be sent the notice by certified mail.

While not required by the statute, I also recommend that my clients also conduct a similar DMV search for lienholders or owners on abandoned vehicles (besides the RV). If any are listed, the abandonment notice should also be sent to them via 1st class and certified mail. However, the statutes do allow park owners to post a 72-hour tow notice on abandoned motor vehicles that can then be towed away by a qualified tow company instead of following the abandoned property notice requirements. Most tow companies can provide information on the process that needs to be followed in such circumstances.

In any event, after the park issues the abandonment notice, the RV, pickup truck, and other property can be removed from the rented space to open it up for a new RV tenant. The abandoned RV, vehicle and personal property must be stored in a "place of safekeeping," such as an on-site storage lot.

If the RV remains unclaimed after the 45-day period expires, the park can either throw away or give away the RV if the park estimates that the current fair market value is $1,000 or less, or so low that the cost of storage and conducting an auction probably exceeds the amount that could be realized from a sale. The same holds true for the vehicle and other personal property if unclaimed after the required 8/15 day claiming periods. If the estimated value of any particular piece of personal property (e.g., the RV, vehicle, or other property) is more than $1,000, the park must hold an abandonment auction using the procedures described by the abandonment statute. Since the abandonment auction process is complicated, the park should consult a knowledgeable attorney to handle that aspect, if necessary.

Mark L. Busch
Cornell West, Suite 200, 1500 NW Bethany Blvd
Beaverton, OR 97006
(503) 597 - 1309

mark@marklbusch.com

www.marklbusch.com

How Age-Restrictive Rules Can Violate the Fair Housing Act: Lessons From the Plaza Mobile Estates Case

The Plaza Mobile Estates Case

United States of America v. Plaza Mobile Estates, et al., 273 F. Supp. 2d 1084 (C.D Cal. 2003) is a federal district court decision which is a cause for concern to all landlords, particularly owners of manufactured home communities. The United States and residents of several mobilehome parks sued the owners and managers, seeking a declaration that various park rules violated the FHA based on familial status, and sought injunctive relief to preclude any further publication or enforcement of the discriminatory rules. The court found that the rules at issue were discriminatory on their face because they treated children, and thus families with children, differently and less favorably than adults-only households.

The decision was reached by the district court, not the Court of Appeals, and therefore is not binding precedent on federal appellate courts, or state courts. However, it is a published decision which can be cited as authority in federal district court litigation, particularly within the central district of California.

Rules Found Discriminatory

The court invalidated the “preambles” to the rules of several of the defendant mobilehome parks which stated that the park was “designed and built as an adult facility” or “designed as an ADULT facility.” [Emphasis added]. The court found that these preambles were clear examples of illegal “steering.” The court recognized that while the preambles were not outright refusals to sell or rent to families with children, they clearly suggested a preference for adults only and discouraged families with children from applying for residency.

The specific age restrictive rules invalidated by the court fell into three categories: (1) absolute prohibitions; (2) adult supervision requirements; and (3) hours of access restrictions.

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

The court found that while the health and safety of the children and other residents of the park were legitimate concerns, these absolute prohibitions were not the least restrictive means to achieve such ends. It noted that any concerns that the community owners may have had were not necessarily linked to age, and any concerns about problem behavior could be addressed with the use of non-age related rules. The court held that requiring adult supervision rather than imposing an absolute ban was clearly a less restrictive means of achieving the park’s legitimate goals. However, the court also invalidated a number of adult supervision requirements.

Adult supervision requirements invalidated by the court included those rules that required adult supervision for: (1) children under 18 years old using recreational facilities (recreation building and/or clubhouse), swimming pool, sun deck, saunas and laundry room; (2) children under 14 years old using recreational facilities, swimming pool and tennis courts, and riding bicycles; (3) children under 10 years old using recreational facilities; and (4) all children walking around the park.

As with the absolute prohibitions, these adult supervision requirements were likewise found not the least restrictive means to achieve any health and safety objectives. The court commented that the park’s concerns could be addressed by the use of rules, and that bicycle and pool safety would be better served with a proficiency requirement.

The hours of access restrictions included those rules that prohibited use of the swimming pool and sundeck to children under 18 years old except during specified hours. The court summarily rejected defendants’ attempt to justify these swimming pool hours restrictions as “equitably accounting for the interest of tenants,” noting that this clearly was not a compelling interest. The court further noted that the interest or desire of the adult tenants to discriminate against children could never justify such discrimination.

Compelling Business Necessity Standard

Having found that the age-restrictive rules were discriminatory on their face, the court held that the burden passed to the community owners to justify the rules. The standard applied by the court was whether the owners had a legitimate justification for the discrimination rising to the level of a compelling business necessity as to which the least restrictive means to achieve such end was used. Both criteria, compelling business necessity and least restrictive means, must be satisfied to defeat the claim of unlawful discrimination. The court in Plaza Mobile Estates found that the owners had failed to make this showing.

HUD Approval: No Defense

What is particularly distressing about the Plaza Mobile Estates opinion is that the court invalidated rules which had been approved as part of a Conciliation Agreement entered into with the intervention and approval of HUD. The owners contended that HUD’s approval of the Conciliation Agreement required the conclusion that the rules approved thereunder did not violate the FHA. The court noted that it is the court, not HUD, that is the final arbiter in determining whether the rules are in compliance with the FHA. It therefore appears that a community owner cannot even rely upon the opinion of HUD or the state enforcement agency as a defense against a claim of discrimination.

How Community Owners Can Protect Themselves

In view of the Plaza Mobile Estates decision, landlords need to carefully review their rules and regulations and revise them to eliminate rules which appear to discriminate against families with children. Particularly suspect are rules which expressly refer to children, or persons under age 18. Other rules, which may not contain an express age restriction, are still subject to attack if they have a disparate impact on persons under age 18 or tend to “steer” toward an “adult only” preference.

For instance, community advertising and residency documents obviously must not contain discriminatory phrases and language, such as “adults only,” “retirement community,” or “community for active adults.” In “all-age” communities, there should not be any “adults only” restrictions on the use of common areas, recreational facilities or equipment (except where authorized by state law or regulations). Access to the community’s facilities should not be prohibited to children, and unreasonable supervision requirements must be avoided.

Also, review signs posted throughout the community (whether in the clubhouse or the laundry room, by the swimming pool, or along the streets) for discriminatory words or phrases.

For approval of new tenants, have written policies and guidelines and follow them consistently. Always offer an application to a potential resident, and keep those applications you reject (as well as those you accept).

In speaking to prospective residents, avoid words which might discourage a family with children; avoid “steering” someone to another community or to limited areas within your own community; do not ask about the ethnic, religious or national background of any applicant; do not discuss the problems which a disabled person may encounter in a manufactured home or in your community. Certain words should be avoided, such as: compatible (as in, “Your type is not compatible with our community”), prefer (as in, “We prefer married couples”), discourage (as in, “We discourage children because we have so many elderly residents”), or suitable (such as, “A mobilehome park is not suitable for small children”).

Even if you have adopted good policies and procedures and have trained your management team to be aware of fair housing principles, there is the chance that the policies are not followed. Make sure your staff does follow through!

The following are some additional suggestions:

--Always take an application from any interested person.

--Deal the same with all prospective residents: be pleasant, courteous and non-judgmental. Answer all questions.

--Keep a record of each inquiry and try to obtain as much information as possible about each person. Also, keep all tenancy and application records for at least two years.

What age-restrictive rules are still permissible? At least in California, it is probably still permissible to require children under the age of 14 to be supervised by an adult (but not specifically a parent) when using the swimming pool or spa pool. This is based upon section 65539 of Title 22 of the California Code of Regulations (“CCR”), which provides that, where no lifeguard service is provided, a warning sign shall be placed in plain view which shall state, “Children Under the Age 14 Should Not Use Pool Without an Adult in Attendance.” Interestingly, even this code section only says “should,” not “shall.” Local counsel should be consulted regarding similar provisions in other states.

For years in California, the CCR language has been used by analogy to require adult supervision for the use of other recreational facilities. It is no longer safe to do this. The community may still be able to require adult supervision where needed to minimize risk of injury or death in situations in addition to the swimming pool and spa pool situation referenced in the CCR. Again, the adult supervision cannot be restricted to a parent; any responsible adult can perform the required supervision.

A park may be able to prohibit an activity which is more likely to be engaged in by children than by adults if there is an express ordinance in the municipality where the park is located prohibiting this activity. A primary example of this would be a municipal ordinance prohibiting skateboarding.

It must always be kept utmost in mine that the basic test is that any age-restrictive rule or regulation must satisfy both criteria stated by the Plaza Mobile Estates court: There must be a compelling business necessity for the policy, and the rule must be the least restrictive means to achieve that policy. This is a standard which is difficult to satisfy. Community owners should consult with legal counsel in reviewing and revising their rules to minimize the risk of liability under state and federal laws prohibiting discrimination against families with children.

Robert G. Williamson, Jr. and Linda J. Lester are attorneys with Hart, King & Coldren in Santa Ana, California. They specialize in manufactured housing issues.

Answer. Welcome to the Nanny State! I agree this is a frustrating situation for landlords. I believe rule No. 1 is to pick your shots. By that I mean, you want to look at this in the same way a judge or jury would. Does it pass the "smell test"? - pun intended.

To me it does not. This sounds like a case in which you've got a pretty good paper trail. But someone has to blink. If you fold on this, bad precedent is set. Here she's asking for two extra service animals. By this rationale, the two pet policy means nothing, and she could gather another six animals and make the same claim. I believe you should consult your attorney to find out what he/she recommends.

From where I sit, I think you could take at least one more step, without this going nuclear. You may want to consider issuing a 30-day notice to vacate, citing the rule and what she needs to remedy it, i.e. remove two of the pets.

At that time, the issue will come to a head. Will she go to some advocacy attorney group who says they will fight you for free? Will she fold? Will she try to compromise? There is a Roman saying that if you want peace, prepare for war. In other words, if you show her you mean business, she may take a more realistic look at her position. Until there is a show of force, she has the upper hand. If she backs off, there may be an opportunity to find a solution, e.g. and agreement to re-home the pets with a relative. Any solution that is reached should be in writing, and you should have your attorney prepare it.

If she pushes back, and has some legal group threatening a fight, you can then decide whether to hold 'em or fold em'. Remember, litigation doesn'thappen overnight. You will, at worst, get a threatening letter or two, before something happens. If you don't want the fight, then walk away. Good luck! By the way, during this dispute, if you intend to issue a 30-day letter, you

From a liability standpoint, the contractor should be thoroughly vetted through the Construction Contractor's Board. Make sure that the contractor has no complaints or other Board action. If the home is to be sold on an installment contract, make sure a current form of security agreement is used. Make sure the lien is properly filed with the Department of Consumer and Business Services and appears on the title to the purchaser's home until it is paid off. Make sure the Bill of Sale and, if applicable, the retail installment contract, both have extensive AS-IS language, making no express warranties and disclaiming all implied warranties. Make sure the buyer gets their own inspection of the home, inside and out, including all systems such as plumbing, electrical, HVAC, etc. I don't recommend letting the buyer waive the inspection - it could come back and bite the landlord if an unknown defect is later found. The landlord wants the buyer relying on his own expert, not on anything the landlord says. After the sale the landlord does not want any lingering liabilities.

The landlord may likely have to be licensed as a dealer under ORS 446.003(8). Review ORS 446.616 for the rules concerning transfer of an interest in a manufactured home. Review ORS 446.611 for the rules regarding perfecting a security interest in the home. See ORS 446.641 regarding notification to the county of a transfer of ownership in the home. The landlord should be careful to record his interest first once it is acquired - and make sure title is clear when he first receives it. Otherwise, he may find himself trying to transfer an interest that the public records show belongs to his predecessor and/or has unreleased liens on it.

History

The Civil Rights Act of 1968 enacted The Fair Housing Act ("FHA") to prohibit housing discrimination based on race, color, religion, sex or national origin. The FHA was amended in 1988 to expand its coverage to prohibit discrimination based upon disability or family status, meaning the presence of a child under the age of 18 and pregnant women. Because the creation of families as a protected class clashed with the operation of retirement or adult communities, the 1988 amendments included exemptions for housing developments that qualified as housing for persons over the age of 55. Because there was an inherent conflict between protected family status and the exemption for older persons, Congress responded with The Housing for Older Persons Act of 1995 ("HOPA")* which fine tuned the exemptions and is now the definitive authority for owners of such housing. (You should also be aware that municipalities can have ordinances prohibiting discrimination for categories broader than the Civil Rights Act. Examples of common ordinances gaining popularity are discrimination in housing on the basis of HIV/AIDS status or sexual orientation. Such ordinances are not addressed in this article.)

Occupancy Requirement to Qualify for Exemption

HOPA maintained the requirement that at least 80% of exempt housing must have one occupant who is 55 years of age or older. It also still required that the exempt housing publish and follow policies and procedures that demonstrate an intent to be housing for persons 55 and older. Significant in terms of capital costs, HOPA eliminated the requirement that 55 and older housing had to maintain "significant facilities and services" designed for the elderly. (Communities that are occupied solely by persons who are 62 or older are also exempt from the prohibition against family discrimination under Section 100.303.)

The "Wiggle Room" Factor

At first blush, the 80% requirement appears to give a property owner some "wiggle room" to comply with the exemption. HOPA specifically allows a 55 and older community to be "exempt" from the preference for families if, after September 13, 1988, 80% of the units are occupied by at least one person age 55 years or older. Units occupied by employees of the housing facility or community who are under age 55 do not count against the 80% as long as the employee's perform substantial duties related to the management or maintenance of the community. Likewise, units occupied by persons who are disabled and require a reasonable accommodation, also do not count against the 80%.

However, the 80% requirement can also be a property owners' pitfall if it is achieved improperly. The 80% requirement does not mean that the property owner can manipulate the remaining 20% of units occupied by persons under the age of 55. The 80% occupancy requirement is coupled with an additional requirement that the facility or community adheres to policies and procedures that demonstrate the intent to be a 55 or older facility. A manager cannot merely choose to rent to "good" non-seniors or families just because the facility is over 80% senior.

One provision of HOPA which, on the surface, appears troublesome is Section 100.305(h) which provides that each housing facility may determine the age restriction for units that are not occupied by at least one person 55 years of age or older. On its face, this provision appears to allow a community to set any age requirement it wishes for the twenty percent (20%) of spaces which are not required to be occupied by a person 55 years of age or older, including requiring the occupants of the remaining twenty percent (20%) of spaces to be adults. However, this would appear to be contrary to the general intent of the FHA to prohibit discrimination on the basis of "family status." A more likely interpretation is that the housing provider need not apply any age restrictions on occupancy of the remaining twenty percent (20%) of rental units. This interpretation seems likely, not only in view of the general intent of the FHA, but in view of Section 100.306(d) which provides that a housing facility or community may allow occupancy by families with children as long as it meets the intent requirements of Sections 100.305 and 100.306 (a).

An argument could well be made that a community must allow up to twenty percent (20%) of the spaces to be occupied by persons who do not otherwise satisfy the community's minimum age requirements. The problem is that a park which "uses up" its twenty percent (20%) allotment may find itself below the 80% requirement if a space which was previously occupied by a person 55 years of age or older ceases to be so occupied. This could occur as a result of an older tenant dying or moving out of the community.

It has been our experience that HUD has, from time to time, interpreted the "twenty percent" allowance as a "fudge factor" in order to avoid hardship where, for example, an older tenant dies, leaving a widow who does not satisfy the community's minimum age requirements. This interpretation was bolstered by the requirement that the housing be intended for persons 55 years of age or older and that the properties have rules that limit residency to persons meeting the age requirements. Deliberately allowing persons under age 55 to move into the community seems contrary to this intention.

**Tip: In many states (including California) the law requires that mobilehome park owners uniformly enforce all published rules. To allow some households to avoid the requirement could run afoul of the such laws leaving the door open for a disgruntled tenant to sue on a claim that the management is not uniformly enforcing it own rules.

Published Procedures and Policies of Intent

In addition to requiring that at least 80% of the occupied units be occupied by at least one person who is 55 years of age or older, HOPA requires that the housing be "intended and operated" for persons 55 years of age or older, and that the housing facility "publish and adhere to policies and procedures that demonstrate its intent" to qualify for the 55 or older exemption. Section 100.306(a) sets forth a non-exclusive list of relevant factors in determining whether the park "demonstrates" this "intent":

(1) The manner in which the housing facility is described to prospective residents;(2) Any advertising designed to attract prospective residents;(3) Lease provisions;(4) Written rules and regulations;(5) The maintenance and consistent application of relevant procedures;(6) Actual practices; and(7) Public posting in common areas of statements describing the facility as housing for persons 55 years of age or older.

These requirements bolster the "common sense" approach to a community demonstrating its intent to be housing for older persons. Specifically, without limitation, the park's residency documents need to clearly state the age restrictions on residency, and the age restrictions need to be consistently enforced.

Unscrupulous attempts by property owners to manipulate the intent to remain senior housing have resulted in adverse judgments. In a 2003 federal case in California, Housing Rights Center et al. v. Galaxy Apartments, et al., the apartment complex and management company was sued for allegedly telling an expectant mother that it would not accept families with children because it was a "seniors only" complex. The Housing Rights Center sent "testers" to the building and learned that childless adult testers of all ages were accepted and only testers with children or who were expecting children were told that the complex was seniors only. Obviously, the apartment owner was not complying with the "intent" of the over 55 exemption and was ordered to pay the plaintiffs $51,000 and enter into a two year fair housing training program.

Some states require that housing intended and operated for occupancy by persons 55 years of age or older register with state agencies. You should consult your legal counsel for the applicable registration and renewal process in your state.

Age Verification

HOPA provides specific guidelines for "age verification". To protect your property, these procedures should be followed to the point that, at any given time in the past, you should be able to demonstrate, the percentage of units that were occupied by at least one person age 55 or older.

Section 100.307(d) provides that the following documents are considered "reliable" documentation of the age of the occupants:

(1) Driver's license;(2) Birth certificate;(3) Passport;(4) Immigration card;(5) Military identification;(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or;(7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

This last provision is useful in those cases where tenants who are believed to be over 55 years of age fail or refuse to provide proof of age to the park by allowing any other adult member of the household to sign a statement to the effect that the person in question is, in fact, at least 55 years of age.

**Tip: Make it a policy to obtain a written application for tenancy from every household and keep those applications for the length of the tenancy.

Section 100.307(g) further provides that: "If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older." This section goes on to provide that such evidence may include government records or documents, such as a census; prior forms or applications; or a statement from an individual who has personal knowledge of the age of the occupants. In the latter case, the individual's statement must set forth the basis for such knowledge. Compliance with this provision most probably would be met by a park employee statement as to their opinion of the age of a tenant, based upon the tenant's appearance and, if applicable, the apparent age of the tenant's adult children.

A typical pitfall for owners of such properties is the HOPA requirement that the age verification information must be updated at least every two years, pursuant to Section 100.307(c).

**Tip: In addition to keeping the tenant's application, the management should consider developing a form which it distributes to all spaces at least once every two years, asking residents to confirm the names and ages of all persons who are currently residing in the home. This is probably good policy in any case, since a record of what adults are actually occupying a home is useful in other situations (e.g., naming all adult occupants in an unlawful detainer complaint).

Conclusion

While there is no guaranteed insulation from lawsuits, a property owner or landlord is well advised to have their policies and procedures in writing and reviewed by competent legal counsel. All levels of a property owners' management should be instructed to adhere strictly to those written policies and procedures. With competent advice, you should be able to avoid needless and expensive litigation which only detracts from your eventual retirement.

*/The Housing for Older Persons Act of 1995 is codified in 24 CFR 100.300 et seq. The Code of Federal Regulations can be viewed on line. One such site is the National Archives and Records Administration found at www.gpoaccess.gov/cfr

Robert S. Coldren is a founding partner of the law firm of Hart, King & Coldren. For over 20 years he has represented various entities as they relate to the manufactured housing industry.

Answer. Here is a short summary of the law regarding "service animals" and "assistance animals."

Service Animals. A "service animal" under the federal Americans with Disabilities Act ("ADA") is limited solely to dogs that have been individually trained to work or perform tasks for a person with a disability, e.g. guiding people who are blind, alerting people who are deaf, or protecting a person who is having a seizure. The ADA does require that landlords make reasonable accommodations for residents with disabilities requesting to have a service animal. Note that the term "disability" under the ADA is very, very, broad.[1]

Although service animals must be on leash or harness, they may also be controlled through voice commands or hand signals. Service animals are not "pets." This means, among other things, that certain park rules for pets, such as requiring residents sign a Pet Agreement, cannot be required if it is a service animal. Dogs whose only purpose is to provide comfort or emotional support to a resident do not qualify under the ADA.

Assistance Animals. Under the Fair Housing Act, as amended, housing providers, including manufactured housing communities, must make also "reasonable accommodations" for persons with disabilities requesting to have an assistance animal for emotional support, or to provide other forms of help.

Similar to service animals, assistance animals are not regarded as "pets," and residents cannot be required to sign a Pet Agreement for them. According to the Fair Housing Council of Oregon (here), as assistance animal:

'_ is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability. Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support. For purposes of reasonable accommodation requests (the law does not require) an assistance animal to be individually trained or certified. While dogs are the most common type of assistance animal, other animals can also be assistance animals."

Companion Animals. A "companion animal" is more of a generic term, and the role it serves is what determines which laws will apply.

Approval Requirements. You are correct that you may not refuse to permit an assistance animal or service animal based upon size or breed. This means that you may not, based upon an animal's "propensity" restrict a resident from having a particular animal. There must be some evidence of actual risk to persons or property, such as history of such conduct.

The one limitation where it appears there is some latitude, where the landlord's liability insurance carrier would increase the premium or deny coverage. However, according to the Fair Housing Council of Oregon, even this issue could be problematic for landlords, unless they first sought, as a reasonable accommodation, to obtain another liability insurance carrier that did provide coverage. I suggest that if/when such issues arise in your community that you check first with your attorney to determine how to proceed. Better safe than sorry!

For a very good summary of reasonable accommodations under the federal law, go to: http://www.hud.gov/offices/fheo/library/huddojstatement.pdf

[1] An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.

See, http://www.ada.gov/cguide.htm

Answer. If the test of a good or bad form is whether it works, I would say there was nothing wrong with the old form. To my knowledge, we heard of no complaints or claims arising due to problems with the form. However, over time, we hear of more and more issues concerning the use - and abuse - of the service animal designation. In an effort to better assist members, we thought it would be a good idea to review this form, the current rules and regulations, and make changes where appropriate.

As I explained in last week's article, there are several designations that first need to be clarified. A "service animal" under the federal Americans with Disabilities Act ("ADA") is limited solely to dogs that have been individually trained to work or perform tasks for a person with a disability, e.g. guiding people who are blind, alerting people who are deaf, or protecting a person who is having a seizure. The ADA does require that landlords make reasonable accommodations for residents with disabilities requesting to have a service animal. Note that the term "disability" under the ADA is very, very, broad.[1]

Although service animals must be on leash or harness, they may also be controlled through voice commands or hand signals. Service animals are not "pets." This means, among other things, that certain park rules for pets, such as requiring residents sign a Pet Agreement, cannot be required if it is a service animal. Dogs whose only purpose is to provide comfort or emotional support to a resident do not qualify under the ADA.

Under the Fair Housing Act, as amended, housing providers, including manufactured housing communities, must make also "reasonable accommodations" for persons with disabilities requesting to have an assistance animal for emotional support, or to provide other forms of help.

Similar to service animals, assistance animals are not regarded as "pets," and residents cannot be required to sign a Pet Agreement for them. However, assistance animals are not limited to dogs that have been specially trained. They can include any animal that assists and performs tasks for the benefit of a person with a disability, including emotional support that alleviates one or more identified symptoms or effects of a person's disability.

Lastly, the label "companion animal" is more of a generic term, and the role it serves is what determines which laws will apply.

What follows is a summary of the main issues addressed in MHCO's new Assistance Animal Agreement. Without implying that the Fair Housing Council of Oregon has "endorsed" or "approved" the form, I did consult with them, and their suggestions were very helpful and insightful in developing what you see today.[2]

1. We note in the form that the landlord reserves the right to refuse to permit an animal becoming an assistance animal if:
   1. It has previously caused verifiable and significant damage or injury to persons or property in the Community;
   2. The landlord's insurance carrier would cancel, substantially increase premiums, or adversely change policy terms because of the presence of a certain breed of dog or a certain animal and it would impose an undue financial and administrative burden for Landlord to secure a substitute carrier which would provide coverage for the Animal.[3]
   3. Note, however, that prior to such refusal, a Landlord should secure written verification substantiating the undue financial and administrative burden.

1. The resident with the assistance animal is responsible to see that it conforms to all of the community's rules and regulations, such as being on leash; responsibility for removal of all feces, droppings, etc.; being left unattended outside the home or space.
   1. Consistent with the conduct of all animals and pets in the Community, the assistance animal may not cause any substantial damage (to persons or property), engage in threating behavior, or cause any disturbance to other residents, their guests, or any other third parties in the community.
   2. We confirm in the form that by signing below, the resident confirms that he/she has reviewed the community rules and regulations as they apply to all other animals and pets in the Community. If the resident believes that one or more of the community rules and regulations should not be applied to their assistance animal, the resident is instructed to immediately notify the landlord.

1. Consistent with the community's policy regarding all animals and pets, the resident shall be liable for any losses, damages, claims, and expenses, including attorney fees, directly or indirectly caused by their assistance animal while in the community.

1. In the event of breach of the assistance animal agreement, the landlord reserves the right to terminate it and demand removal within ten days of written notice. A "breach" is defined in the form to mean the occurrence of any event that would constitute a material violation of the agreement or ORS 90.396, as it pertains to their assistance animal. The resident's failure to remove the animal upon demand entitles Landlord to issue a curable Notice of Termination to Resident under ORS 90.630.

1. Given the fact that one never knows for sure if some court might, in the future strike down a provision in our form, we have inserted what is known as a "savings clause." It reads:

"If any portion of this Agreement shall be deemed to be in violation of Federal and/or State Fair Housing Laws, it shall be deemed null and void, and the balance thereof shall remain in full force and effect."

1. The form advises residents that if they believe they have a disability that requires their use of an assistance animal, they may request that an accommodation be made. This is MHCO's Reasonable Accommodation Request Form No. 15. A landlord is entitled to obtain reasonable information in order to assist in determining whether the requested accommodation is reasonably necessary because of the disability. However, if a person's disability is obvious, or otherwise known to the landlord, and if the need for the requested accommodation is readily apparent or known, then the landlord may not seek any additional information about that disability or the disability-related need for the accommodation.

1. Lastly, the form reminds the parties that the Assistance Animal Agreement must be signed before the animal will be permitted to occupy the Home/Space as an assistance animal.

[1] An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.

See, http://www.ada.gov/cguide.htm

[2] This is to say that their suggestions pointed out to me where the mines in the minefield were located.

[3] Note that this "burden" must be both "financial" and "administrative." These are legal terms of art, and before getting into a battle you can't win, I suggest you consult with your attorney to understand the application of these two terms as they relate to your particular situation.

Answer. Much depends on circumstances. Here are your options:

There are three acceptable methods:

(1) Personal delivery;

(2) First class mail; or

(3) Only if the lease/rental agreement permits for both landlord and tenant, either party may use "nail and mail." This allows a written notice to be sent from the landlord to the tenant by first class mail addressed to the tenant at the premises and a copy of the notice to be attached in a secure manner to the main entrance to that portion of the premises; and

Here are the rules for calculating the time periods, depending on the method of service:

(1) Where the time for compliance is measured in days, they are calculated by consecutive calendar days, not including the initial day of service, but including the last day until 12 Midnight of the last day.

(2) Where the time for compliance is measured in hours, they are calculated in consecutive clock hours, beginning immediately upon service.

(3) When "nail and mail" is used for a 72-hour or 144-hour nonpayment notice, the time period for compliance begins at 11:59 p.m. the day the notice is both mailed and attached to the premises. The time period ends 72 hours or 144 hours, as the case may be, after the time started to run at 11:59 p.m. on the day of mailing.

Here are some rules of thumb; they may not be for everyone, but they generally work for me. My approach is to assume that Murphy's Law is ever-present, so I err on the side of being too cautious.

1. When calculating days or hours, always add a few extra just to be safe. Just because it's called a "72-hour notice," doesn'tmean you can't add a few more hours. Same for 24-hour notices.
2. don't forget the additional 3-day period for mailing. It applies to virtually all written notices you give, from 30-day notices, to park closure notices. I frequently add five days rather than three.
3. If you're going to serve a written notice personally, take a witness, just to avoid the possibility of the resident denying service. If someone other than the tenant comes to the door, I'd think twice about making "substituted service," as it's too easy for the person answering to "forget," and you've now got an issue you could have avoided. I suggest finding out when the resident is returning, and come back. Never deliver the notice to a child or teenager - for obvious reasons. If they won't answer the door, don't think you can slip it under the door, behind the screen, or drop it in an open window. Just go back to the office and mail it regular mail.
4. Never, never, never use certified mail or any other form of delivery like UPS or Fed Ex.
5. Remember, if the written notice is properly addressed, stamped and posted, the law "presumes" receipt. While the resident can try to deny it, the "presumption" requires them to prove a reason for non-receipt, which is pretty difficult to do. I've never seen the argument work. A good precaution is to obtain a certificate of mailing from the post office, which confirms that you posted the letter.
6. I'm not a fan of nail and mail. Unless your rental agreement permits it both ways, i.e. from landlord to tenant, and vice versa,[1] you should not use this method. If you're insistent on using this method, don't forget the 11:59 PM rule.
7. don't forget to keep true copies of the notice. You'll have to attach it to eviction complaint, if the matter isn'tresolved by the notice.
8. "Measure twice, cut once." In other words, calculate the number of days or hours a couple of time, just to make sure you've got the proper amount of time. Have someone else review it, just to make sure.

Conclusion. If time is of the essence, and the resident will actually answer the door (not their 6-year old child, or a friend), I would say personal service will suffice. However, my strong preference is to mail all notices, making sure to add at least three days. I prefer this approach since the law presumes receipt, so long as it was properly addressed, stamped and posted. It also avoids the potential for a confrontation at the door.

[1] The MHCO complies with this requirement.

Answer: Your park is private property and you may legally prohibit the use of all marijuana based on federal law, which still makes marijuana illegal. In addition, Oregon's new marijuana law (Measure 91) specifically includes a provision prohibiting its application to any state or federal law pertaining to landlord-tenant matters.

This means that because marijuana production or use is illegal under federal law, landlords may continue to prohibit it on rented premises. The Oregon Supreme Court has held that since marijuana remains illegal under the federal Controlled Substances Act, that Act preempts Oregon's Medical Marijuana Act with regard to both employment practices and housing discrimination claims under state law.

The same reasoning would apply to Measure 91 - marijuana is illegal under federal law. Therefore, tenants would not have any cause of action for "discrimination" claims under state law, nor under federal law (since landlords do not have to "reasonably accommodate" illegal activity under the Fair Housing Act). Unless federal law changes, Oregon's Bureau of Labor and Industries (BOLI) will also undoubtedly adhere to its position that it will not investigate any housing claims of discrimination pertaining to the use of marijuana.

As a practical matter, you may therefore implement and enforce a park rule that prohibits growing, producing or using marijuana anywhere on park property. You should also include this prohibition in your rental agreements.

There are several caveats to mention:

1. Consult with a knowledgeable attorney if you are implementing a new rule to ensure that you follow the proper legal steps to make it enforceable.

1. Do not deny a tenancy application solely because the applicant has a medical marijuana card (which could lead to a discrimination claim). However, even with a medical marijuana card, you can still prohibit the use of marijuana in the park by anyone, including the applicant.

1. It is still possible that an aggressive tenant with an aggressive attorney could sue the park for discrimination (i.e., anyone can sue anyone), but their case would not likely succeed based on current law.

As always, talk to an attorney concerning your specific park issues.