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Manufactured Housing Communities of Oregon is the largest organization in Oregon representing exclusively manufactured home communities. As an MHCO Associate member you will benefit from exposure to manufactured home community owners and managers.  In addition, MHCO Associate members are frequently asked to participate in MHCO Seminars and Annual Conference as well as articles posted on the MHCO Web Site. Take advantage of this exposure now by becoming an Associate member today!

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Chuck Carpenter brings years of diverse professional experience to the executive directorship of MHCO. From his multiple degrees in Economics and Political Science to his tenure as a United States Naval Officer, Chuck is eminently qualified to serve MHCO’s members as a political advocate working in the their best interests.

Chuck served two terms in the Oregon House and over the past 20 years has proven to be a tireless ally to the state’s small business owners.

In his fifteen years as the Executive Director of MHCO, Chuck has successfully applied his knowledge of the players and the politics in Salem to influence legislation for the benefit of MHCO's membership.

Curriculum vitae

• Graduate University of Rochester, Rochester NY, BA Economics, BA Political Science, 1985
• United States Naval Officer - Surface Warfare Office, 1985-1991
• Elected to the Oregon House of Representatives, 1994
• Served two terms in the Oregon House representing Beaverton, Cedar Hills, Cedar Mills, Sauvie Island, 1995-1999
• Executive Director, Manufactured Housing Communities of Oregon, 1999 - present
• Negotiated on behalf of community owners in eight Landlord-Tenant Coalition Omnibus Bills
• Involved in the operations of the Oregon Legislature for the past 20 years
• President of the Oregon Small Business Coalition, 2012-2014

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The limitation on evictions after the first year of occupancy will likely have the biggest impact on landlords. During the first year of occupancy in a month-to-month tenancy, the landlord can evict a tenant with a written 30-day, “no-cause” notice. In a fixed-term tenancy, the landlord can similarly evict a tenant with a 30-day, no-cause notice at the end of the term IF the term falls within the first year of occupancy. After the first year, the new law essentially means that tenants can live in a rental unit for life unless they fail to pay rent, violate the rental agreement, or the landlord’s plans for the rental unit change substantially.

The main takeaway is that landlords should carefully evaluate tenants during the first year of occupancy to ensure that they would be good long-term tenants. If not, landlords should consider terminating the tenancy for no-cause before the second year of occupancy begins. There are some exceptions to the no-cause eviction rule after the first year, such as when a landlord intends to put the rental unit to a different use (i.e., to undertake substantial repairs, demolish the unit, move in family members, or sell the unit). Even then, the tenant can only be evicted with a 90-day notice and in some cases the landlord must pay the tenant one month’s rent to move out. There are also exceptions for tenants who live in the landlord’s primary residence as a tenant, or on the same property as the landlord (i.e., in a duplex).

Under SB 608, during any tenancy other than week-to-week, a landlord may not increase rent during the first year of the tenancy. After the first year, rent can only be increased with at least 90 days’ written notice. During any 12-month period, rent cannot be increased in an amount greater than 7% plus inflation as measured by the Consumer Price Index for All Urban Consumers, West Region. However, there are exemptions if the first certificate of occupancy for a rental unit was issued less than 15 years from the date of the rent increase, or if the landlord is providing reduced rent as part of a federal, state or local program or subsidy.

While most landlords would be content with 7% rent increases, the real danger is that this limit will be pushed downward by future legislatures. The 7% limit also prohibits landlords from quickly recouping large capital expenditures, such as unforeseen repair costs to their rental units. To guard against this, it seems likely that many landlords will set rents higher for new tenants, and/or regularly raise rents at 7% annually plus the CPI when they may not have done so before SB 608.

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

mark@marklbusch.com

www.marklbusch.com

Answer:  This is really a 24-hour notice issue.  The applicable statute, ORS 90.396, gives you the right to issue a non-curable 24-hour notice.  The theft constitutes (in my opinion) "outrageous conduct,” for which the notice may issue.[1]  However, it is true that the statute states that a landlord should not issue a 24-hour notice if a 30-day curable notice would suffice.  I suggest that you talk to the resident and tell him he's got two choices: (a) Either return the stolen property, pay the cost to re-install andtake a curable 30-day notice; or (b) Take a 24-hour non-curable notice under ORS 90.630 (for any number of reasons, such as violation of law – i.e. theft – violation of rules or rental agreement re damage to park property).  If there is a repeat violation within six months following the date of issuance of the 30-day notice, then you can give him a 20-day non-curable notice to terminate the tenancy.

Question: If I give 24-hour notice for a dog and they correct the situation by removing the dog but the same dog or substantially the same offense occurs in 3 months what does the landlord do?

Answer:  You don't say why you want to issue a 24-hour notice for the dog.  It must be serious, such as a real threat or actual damage to a person in the park (other than the pet owner).  The applicable statute is ORS 90.396(2) which provides:  

"If the cause for a termination notice *** is based upon the acts of the tenant's pet, the tenant may cure the cause and avoid termination of the tenancy by removing the pet from the premises prior to the end of the notice period.  The notice must describe the right of the tenant to cure the cause. If the tenant returns the pet to the premises at any time after having cured the violation, the landlord, after at least 24 hours' written notice specifying the subsequent presence of the offending pet, may terminate the rental agreement and take possession (of the space).

In those cases in which the offence is not sufficient to issue a 24-hour notice you have two other options: (a) Fine the resident under the Pet Agreement, if one has been entered into; or (b) issuance of the 30-day curable 30-day notice if your rules have been violated.  

[1]Note, the "substantial damage” portion of this statute says "…on more than one occasion.”

Answer:  My answer requires that I make some assumptions:

• When you say “pre-approved” I will assume he has not received a final approval;
• I will assume that somewhere in your application paperwork it states that the landlord-tenant relationship does not commence until the rental or lease agreement is signed.
• I will assume that management did not say or do anything to cause the applicant to believe he could purchase the home before final approval.
• Accordingly, I will assume that the person is NOT legally a tenant in your community.

ORS 90.303(3)(Evaluation of Applicant)[1]provides that when evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is: 

     (a) A drug-related crime; 

     (b) A person crime; 

     (c) A sex offense; 

     (d) A crime involving financial fraud, including identity theft and forgery; or 

(e) Any other crime if the conduct for which the applicant was convicted or     charged is of a nature that would adversely affect: 

  (A) Property of the landlord or a tenant; or 

(B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent.  (Emphasis added.)

So, under the facts of your question (subject to my assumptions), you are within your rights to decline the applicantat the present time.[2]  Since he is not legally a “tenant” under ORS Chapter 90, the landlord tenant law would not apply, so I would notsuggest proceeding under the abandonment statute, ORS 90.675(Disposition of Manufactured Dwelling). 

There is no “limit” on how long an approved applicant has to sign the rental agreement in ORS. But there is nothing preventing you from inserting this requirement in your application paperwork.[3]

So that he could recoup the cost of the home, I would try to reach out to him and propose, subject to a carefully drafted agreement, that he could sell the home to an approved tenant. Have him enter into a storage agreement with monthly payments, but no occupancy.  

While technically you would not be subject to the park-sale statute, ORS 90.680(Sale of Dwelling), you could use it for guidance when screening other applicants for tenancy.

Over the years we have had many requests for a 'template' for Manufactured Housing Rules and Regulations. The copy (attached above) is a good start - but remember, your rules should reflect your community. In addition to the template check out the numerous articles MHCO has published over the years. Take advantage of your MHCO membership and check out the applicable articles. And as many of you know - you can always call the MHCO office if you have questions at 503-391-4496.

This is the fourth of eight articles on disaster preparedness  and how  to  safeguard your community, save lives and minimize damage.

Hazardous materials are anything that can be a risk to life, health or property.  They can be chemical, biological or physical.  Some are intended for one safe use, but can be dangerous if used another way.  Gasoline, for example, when used in a car is relatively safe, but if it’s spilled on the ground or gets into drinking water it can be dangerous.  

Chemical plants and nuclear power plants can be sources of hazardous materials, but so can hospitals and other facilities you might not associate with dangerous materials.  Some hazardous materials are liquid, some are solid and some are gases or vapors.  If they have a commercial use or are waste, they are moved around the country by truck, train or ship.

There are about 30,000 sites in the United States that store hazardous materials as waste, according to the Federal Emergency Management Agency.  Local governments and residents can find out about these sites by asking their local emergency planning agency.  Many communities have a Local Emergency Planning Committee that identifies hazardous materials sites and educates the community about them.

If you have a hazardous materials site in your region or are near a highway, railroad track or shipping channel, you need to include plans for hazardous materials accidents in your Emergency Plan.  Residents also should be encouraged to include hazardous materials accidents in their family emergency plans.

Hazardous Materials Alerts

Find out from the local fire department or emergency planning agency how a manufactured home community will be notified if there is a hazardous materials accident.  Warnings could include outdoor sirens, radio and TV announcements, automated telephone systems or vehicles with public address systems.

What To Do

Let residents know what the alert will be for your community.  In many cases, the right response to a hazardous materials accident is evacuation.  If your community is asked to evacuate, residents should leave immediately, using the disaster plan you have given them.  If there is time before an evacuation, residents should close all windows and doors, and turn off heating and cooling systems and all fans.

If your community is asked to stay indoors after a hazardous materials accident, here are some steps residents can take to reduce risk:

• Follow all instructions given by local officials.
• Close windows & all outside & inside doors.
• Seal gaps around doors & windows with wet towels & duct tape.
• Close fireplace dampers.
• Close drapes, curtains, blinds & shades.
• Turn off heating/air conditioning system & all fans.
• If an explosion is possible, stay away from windows.
• If you think a gas or vapor is in your home, breathe lightly through a cloth or towel.  Keep a battery-powered radio with you & listen for more information. 

What to Do After A Hazardous Materials Accident

• If your community has been evacuated, don’t let residents to return to the community until the local emergency officials say it’s safe.
• When residents do return home, they should open windows and vents, and turn on fans to bring fresh air into the house.
• If people have been exposed to a hazardous material, they should ask the local emergency management authorities what to do. In some cases, a thorough shower or bath is recommended; in other cases water should not be used.
• If people have medical symptoms that could be related to hazardous materials, they should see a doctor immediately.
• Don’t use any food or water that may have been contaminated.
• Wash clothes, bedding, towels and drapes, if they have come in contact with a hazardous material.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination against individuals with disabilities, including the refusal to make reasonable accommodations in rules, policies, practices, or services when they’re necessary to provide individuals with disabilities an equal opportunity to use and enjoy their home at the community.

The reasonable accommodation provisions come into play whenever an individual with a disability wants to use an assistance animal in communities that either prohibit or impose restrictions or conditions on pets at the community. Like all reasonable accommodation requests, the determination of whether an individual has a disability-related need for an assistance animal involves an individualized assessment, according to HUD.

Federal fair housing law broadly defines “disability” to mean physical or mental impairments that substantially limit one or more major life activities. That covers a wide variety of physical and psychological impairments—many of which aren’t obvious or apparent—as long as the impairment is serious enough to substantially limit a major life activity, such as seeing, hearing, walking, or caring for oneself.

Assistance animals are not pets under fair housing law, according to HUD. They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability. You can’t charge an extra fee or pet deposit as a condition of granting a reasonable accommodation for an assistance animal.

Don’t get confused by the different rules under the Americans with Disabilities Act (ADA), which governs the types of animals used by individuals with disabilities in places that are open to the public, such as restaurants, hotels, and other venues. With one limited exception, the ADA permits only individually trained service dogs—and excludes emotional support animals.

But the FHA, which governs multifamily housing communities, is much broader than that. Fair housing law allows not only service dogs, but also any type of animal that provides assistance or emotional support to an individual with a disability. Breed, size, or weight limitations may not be applied to an assistance animal, according to HUD. Assistance animals don’t have to be individually trained or certified—and they all have the same legal standing—regardless of what type of assistance they provide to an individual with a disability.

8 RULES FOR HANDLING REQUESTS

FOR ASSISTANCE ANIMALS

Rule #1: Adopt Pet Policy Subject to Exceptions for Assistance Animals

Fair housing law doesn’t prevent you from having a pet policy—as long as you don’t use it to keep out assistance animals. Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, pet deposits, or additional rent charges. Whatever your policy on pets, it’s unlawful to deny an exception for an assistance animal needed by an individual with a disability to fully use and enjoy the community.

Example: In July 2019, HUD charged a Maine community and one of its agents with discrimination for denying a veteran with disabilities the right to keep his assistance animal. In his HUD complaint, the veteran alleged that he called the community in response to an ad on Craigslist. When he told the agent that he had a disability-related need to live with his assistance dog, the agent allegedly responded, “absolutely not,” and she regretted allowing a prior tenant to live with his assistance dog because other tenants then wanted to get pet dogs.

“No person with a disability should be denied the accommodation they need, especially individuals who served in the Armed Forces to defend our freedom,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work to ensure that housing providers meet their obligation to comply with this nation’s fair housing laws.”

Rule #2: Don’t Make Snap Decisions About Requests for Assistance Animals

Anytime someone asks for an exception to your pet policy to keep an assistance animal, you should treat it as you would any other request for a reasonable accommodation. The reasonable accommodation rules kick in anytime anyone says he needs or wants something—including an assistance animal—because of a disability. The law doesn’t require that a request be made at a particular time or in a particular manner. The person doesn’t have to mention fair housing law or use the words “reasonable accommodation.”

When you receive a request for an assistance animal, HUD says there are two relevant questions:

1. Does the person seeking to use and live with the animal have a disability—that is, a physical or mental impairment that substantially limits one or more major life activities?
2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks with services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to both questions is “no,” then HUD says that fair housing law doesn’t require you to make an exception to your pet policy and the reasonable accommodation request may be denied.

If the answer to both questions is “yes,” however, you’re required to make an exception to your pet policies to permit an individual with a disability to live with and use an assistance animal at the community, unless doing so would impose an undue financial or administrative burden or would fundamentally alter the nature of the community’s services.

The request may also be denied if the animal is a direct threat to your property or the health and safety of others. But HUD warns that you can’t make that decision based on speculation about the animal’s size or breed—you have to look into the specifics of the particular animal involved. It can get complicated, so don’t make snap decisions about whether to bar an animal on that basis without reviewing all the facts.

Rule #3: Request Documentation When Needed to Evaluate Request

Don’t deny a request just because you’re uncertain about whether the person seeking the accommodation has a disability or a disability-related need for an assistance animal. Though fair housing law generally forbids housing providers from making disability-related inquiries, there’s an exception for reasonable accommodation requests when either the disability—or the disability-related need for the requested accommodation—isn’t obvious or apparent.

Just remember: You can’t ask questions about an applicant’s disability or disability-related need for an assistance animal if both are known or readily apparent. The classic example is a request by a blind or visually impaired applicant to keep a guide dog. Since both the disability and the need for the animal are readily apparent, you can’t ask for documentation about the applicant’s disability or disability-related need for the dog.

You may request information from a resident with a known or obvious disability—but only if his need for the assistance animal isn’t readily apparent. As an example, federal guidelines point to a request by an applicant who uses a wheelchair to keep a dog as an assistance animal. The applicant’s disability is readily apparent, but the need for the assistance animal isn’t obvious, so you can ask the applicant to provide information about the disability-related need for the dog—as long as you don’t go overboard by asking for too much information.

Rule #4: Ask for Verification If Resident Doesn’t Have Apparent Disability

Be careful about how you handle requests for assistance animals from applicants or residents who don’t have an obvious or apparent disability. Under fair housing law, all individuals with disabilities are equally protected—whether they’re physical or mental, obvious or not–so don’t let outward appearances affect how you treat them.

If the resident’s disability isn’t readily observable, you may ask for reliable disability-related information that’s necessary to verify that the resident has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal. You can’t ask the resident for information about what his disability is or what the animal does to assist him—only for confirmation that there is a disability and that the animal is needed because of that disability.

In general, verification may come from a doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability—even the resident himself, under certain circumstances. But you can’t ask applicants or residents for access to medical records or medical providers—or for detailed or extensive documentation about their physical or mental impairments.

For example, HUD says that communities may ask applicants who want a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support, according to HUD.

Editor's Note: For model forms you can use to verify an applicant or resident's need for an assistance animal, see “Use Forms to Verify Resident’s Need for  Assistance Animal,” which appeared in our June 2018 issue.

Rule #5: Consider Requests for Emotional Support Animals

Treat requests for emotional support animals the same as any other request for a service dog or any other type of assistance animal. Fair housing law allows people with disabilities to have assistance animals that perform work or tasks, or that provide disability-related emotional support.

Example: In April 2019, the Justice Department sued the owner and property manager of a seven-unit rental property in New York City for refusing a reasonable accommodation to allow a resident with psychiatric disabilities to live with an emotional support German Shepherd in his unit. According to the complaint, the resident was a retired law enforcement officer and September 11th first responder who required an emotional support dog to assist him with his disabilities. The complaint alleged that the community sought to evict him for living with an emotional support dog and, after discontinuing the eviction action in which each side was supposed to pay its own attorney’s fees, the community allegedly retaliated and harassed him by billing him for its attorney’s fees related to its unsuccessful eviction attempt [U.S. v. Higgins, April 2019].

Example: In March 2019, the owner and property manager of a 232-unit housing cooperative in New York City agreed to pay $70,000 to settle allegations that they violated fair housing law by refusing to allow a resident with disabilities to keep an emotional support beagle in his unit. The Justice Department filed the complaint, alleging that the resident had disabilities and requested a reasonable accommodation to keep an assistance dog in his unit. According to the complaint, the community effectively denied the request by issuing a notice of default stating that he violated his lease by harboring a dog in his unit. A few months later, the complaint alleged that the community notified him that his tenancy would be terminated because he kept a dog in his unit [U.S. v. 118 East 60th Owners, Inc., March 2019].

Rule #6: Don’t Put Too Much—or Too Little—Stock in Online Certifications

Knowing the rules on disability verification is essential to avoiding the common mistakes that lead to complaints involving requests for assistance animals. It’s particularly important now that so many applicants or residents can go online and find a quick “certification” process to say their dog is a certified assistance animal.

Example: In November 2018, a court dismissed claims against a Florida homeowners association for denying a resident’s request for an assistance animal. In his complaint, the resident alleged that he was disabled as a result of a 2009 auto accident and bought a Rottweiler puppy in 2017 to serve as a service dog allegedly on the advice of his doctor. When he received a notice of violation stating that Rottweilers weren’t permitted, the resident said he informed the community that the puppy was a service animal. Instead of completing a medical release and form to verify his accommodation request, he allegedly produced service dog identification cards purchased online, his handicap parking placard, and copies of his disability checks. Allegedly, the community denied his reasonable accommodation request because he didn’t provide documentation of his disability or need for a service dog. 

He sued, but the court dismissed the case because the resident failed to prove that he had a disability under fair housing law. The only information about his disability was in his complaint. Although he alleged permanent mobility impairments from his 2009 car accident, he failed to present evidence of his injuries or limitations. And the community presented photos of him riding a scooter, and standing and walking unaided, which contradicted his allegations of disability [Fitzsimmons v. Sand & Sea Homeowners Association, November 2018].

When an applicant provides you with an online certification that he needs an assistance animal, it’s necessary to determine whether it meets the requirements that it’s reliable and from someone familiar with the applicant’s disability. Don’t automatically assume that an online certification wasn’t issued by any recognized group, or a medical or mental health provider, and deny the request.

You still have the obligation to consider, respond, and act on the request—even when you suspect that the online verification doesn’t provide you with all the information you need to act on the accommodation request. Unless the applicant has an obvious disability, you may request confirmation from her treating mental or medical health professional to verify that the applicant is under the provider’s care and treatment and that the provider has diagnosed a medical or mental condition that renders the patient disabled. You may also request confirmation from the treating doctor or mental health provider that the animal is prescribed to assist with the disability.

If the applicant or resident is unwilling to cooperate or obtain the proper medical or mental health provider’s assistance in verifying the information, then you may have grounds for denying the request. But this is a difficult area, so it’s important to get legal advice before taking any adverse action.

Rule #7: Consider Requests for Dogs Otherwise Excluded Under Pet Policies

Carefully consider requests for assistance animals—even if it’s for an animal that’s generally prohibited under your pet policies. It’s common for communities to allow only certain types of pets or to exclude animals based on their size or breed. But remember—these limits don’t apply to assistance animals. HUD says that breed, size, and weight restrictions may not be applied to an assistance animal.

Example: In February 2019, the owner and manager of an apartment building in Manhattan agreed to pay $100,000 to settle allegations of disability discrimination for refusing to rent a unit to an applicant with a psychiatric disability and her fiance because she had a large assistance animal.

According to the complaint filed by the Justice Department, the couple expressed interest in renting a unit, but they had a “service animal” that was “probably over the permitted weight limit” for the building. After they submitted forms requesting a reasonable accommodation, the manager allegedly notified them that the community would permit them to have a dog up to 50 pounds as a reasonable accommodation but their current dog—a 120-pound Cane Corso—was too large, so it would be best if they didn’t pursue their application for an unit in the building [U.S. v. Glenwood Management, February 2019].

It can get complicated when it comes to breed restrictions. Many communities have policies restricting certain dog breeds, most notably pit bulls, but HUD says that breed restrictions don’t apply to assistance animals. To comply with fair housing law, you must assess whether the particular animal in question poses a direct threat; otherwise, you may be accused of denying a reasonable accommodation by excluding an assistance animal based on its breed.

It’s another matter if your community is subject to a local ordinance banning pit bulls or other “dangerous breeds.” If allowing the dog would violate local law, then you may have grounds to deny the request, but this is another gray area where it’s a good idea to get legal advice before taking action on the request.

Example: In April 2019, the Nebraska Supreme Court ruled against a resident who claimed that the city violated fair housing law by denying his reasonable accommodation request to keep his pit bull as an emotional support animal despite its ordinance banning pit bulls and other “dangerous dogs.”

The lawsuit was filed by a resident who was partially paralyzed and had a pit bull as an emotional support animal. That same year, the city adopted an ordinance banning pit bulls and other dangerous dogs but grandfathered in dogs registered with the city before the law took effect. The resident failed to register the dog on time, so an enforcement officer said he’d have to get rid of the dog.

After obtaining documentation from his doctor, the resident sued the city for violating fair housing law. Rejecting the city’s argument that it was exempt from the FHA, the court issued an order that the ordinance was invalid as applied to the resident’s retention of the dog in his home.

On appeal, the state’s highest court reversed in part, ruling that the resident failed to prove that the requested accommodation was necessary. Assuming that he needed an emotional support dog, he failed to prove that other dogs not covered by the ordinance couldn’t provide comparable therapeutic benefit with regard to his disability. Fair housing law didn’t give him a right to his preferred option [Wilkinson v. City of Arapahoe, April 2019].

Rule #8: Don’t Ban Assistance Animals from Common Areas

Don’t impose unreasonable limits that prevent residents with disabilities from bringing their assistance animals into common areas. HUD says that residents with disabilities may use assistance animals in all areas of the premises where persons are normally allowed to go unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of your services.

Example: In February 2019, a court ruled that a Nevada homeowners association had to pay a couple $635,000 for refusing to grant the wife’s disability-related reasonable accommodation request to bring her assistance animal, a Chihuahua, into the clubhouse.

The court ruled that the FHA applied because access to the clubhouse was necessary for the couple’s enjoyment of their home. The dog qualified under the ADA as an assistance animal because it assisted the wife with acute pain attacks and with retrieving her walker. The dog was not disruptive, threatening, or harmful to the other residents in the community or in the clubhouse, so the accommodation to allow the dog to accompany the wife into the clubhouse was clearly a reasonable accommodation of the wife’s disability.

The court assessed punitive damages against some of the parties involved in denying the wife’s accommodation requests. Among other things, the court said they:

• Continued, in a harassing and malicious manner, to request documentation about the wife’s need for the dog’s assistance even after sufficient documentation was provided regarding her disability and the ways in which the dog assisted her;
• Actively and wantonly prevented the couple from using the clubhouse once documentation was provided;
• Sent or directed to be sent communications on behalf of the board portraying the couple as litigious and untruthful and knew that these communications would contribute to a hostile, threatening, and intimidating living environment; and
• Failed to discourage other residents from harassing and threatening the couple at open meetings and through anonymous letters.

The court further found that they acted with personal animus toward the couple, which fueled the antagonism among the community [Sanzaro v. Ardiente Homeowners Association, LLC, February 2019].

Nevertheless, you don’t have to tolerate bad behavior by individuals with disabilities—or their assistance animals—when they’re in common areas. You may expect them to have their assistance animals under their control, for example, by requiring them to be leashed unless doing so would interfere with the animal’s ability to perform disability-related tasks. You may establish rules to require residents with assistance animals to pick up and dispose of the animal’s waste and to hold them accountable if the animal becomes disruptive or acts aggressively toward other residents.

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

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination based on race, color, religion, sex, national origin, familial status, or disability—what’s known as “protected classes.”

Congress added familial status to the list of federally protected classes when it amended the FHA in 1988. In a nutshell, the familial status provisions make it unlawful to discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. Specifically, the FHA’s ban on discrimination based on familial status apply to one or more children under 18 living with:

• A parent;
• An individual with legal custody; or
• An individual who has the written permission of the parent or custodian.

The familial status provisions also apply to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.

Nevertheless, Congress recognized the need to preserve housing specifically designed to meet the needs of senior citizens. Consequently, the 1988 amendment created an exemption from the FHA’s familial status requirements for communities that qualified as “housing for older persons.” Congress later amended the law in the Housing for Older Persons Act of 1995 (HOPA), resulting in the current version of the federal exemption for senior housing.

The exemption allows senior housing communities that meet specific requirements to legally exclude families with children. The exemption applies to housing communities or facilities, which are governed by a common set of rules, regulations, or restrictions. A portion of a single building isn’t considered a housing facility or community, according to HUD. The senior housing exemption applies only to the FHA’s familial status provisions; communities must still abide by the law’s protections based on race, color, national origin, religion, sex, and disability.

The law describes three types of communities that are eligible for the senior housing exemption:

1. Publicly funded senior housing communities: Housing communities where HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a federal, state, or local government program;
2. 62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and
3. 55-and-older communities: Communities that house at least one person who is 55 or older in at least 80 percent of the occupied units and adheres to a policy that demonstrates intent to house persons who are 55 or older.

7 RULES TO FOLLOW TO AVOID FAIR HOUSING TROUBLE

IN SENIOR HOUSING COMMUNITIES

Rule #1: Comply with Technical Requirements for Senior Housing Exemption

Senior communities must adopt policies and procedures to ensure strict compliance with the technical requirements of the senior housing exemption. If you don’t comply with the law’s requirements, then you lose the exemption, which in essence makes your community automatically liable for excluding or discriminating against families with children. 

Complying with the law governing the 62-and-older exemption is relatively straightforward. To qualify, the community must be intended for and occupied solely by persons aged 62 and older. For example, HUD regulations explain that a 62-and-older community would have to refuse the application of a 62-year-old man whose wife is 59. In the same vein, a community would lose its exemption if it allowed continued residency by a current resident who married someone under the age of 62.

Complying with the law governing the 55-and-older exemption is more complicated. To qualify, the community must satisfy each of the following requirements:

• At least 80 percent of the occupied units must have at least one occupant who is 55 years of age or older;
• The community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and
• The community must comply with HUD’s regulatory requirements for age verification of residents.

1. 80 percent rule. To meet this requirement, a community must ensure that at least one person 55 or older lives in 80 percent of its occupied units. The law doesn’t restrict the ages of the other occupants in those units. Furthermore, there are no age limits for the occupants of the other 20 percent, so communities may accept families with children, although they don’t have to do so.

The 80 percent rule applies to the percentage of “occupied units,” which includes temporarily vacant units if the primary occupant has resided in the unit during the past year and intends to return on a periodic basis. That means that a unit would count toward the 80 percent requirement if its 55-year-old occupant resided in the unit for only part of each year.

To maintain eligibility for the exemption, it’s a good idea to ensure that more than 80 percent of your occupied units are occupied by at least one person aged 55 or older. If you skate too close to the line, your community could be forced into a difficult situation—for example, if a 60-year-old resident dies, leaving a 54-year-old surviving spouse.

To prevent just such a problem, HUD advises communities to plan with care when renting the 20 percent portion of the remaining units to incoming households under age 55. Such planning should address notice to incoming households under the age of 55 regarding how the community will proceed in the event that the 80 percent requirement is threatened.

2. Intent to operate as senior housing. A community must publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons 55 years of age or older. HUD offers some examples of the types of policies and procedures to satisfy this requirement, including:

• The written rules, regulations, lease provisions, or other restrictions;
• The actual practices of the community used to enforce the rules;
• The kind of advertising used to attract prospective residents to the community as well as the manner in which the community is described to prospective residents; and
• The community’s age-verification procedures and its ability to produce, in response to a familial status complaint, verification of required occupancy.

3. Verification of occupancy. To qualify under the 55-and-older exemption, communities must able to produce verification of compliance with the 80 percent rule through reliable surveys and affidavits.

HUD regulations require communities to develop procedures to routinely determine the occupancy of each unit, including the identification of whether at least one occupant is 55 or older. The procedures may be part of the normal leasing arrangement. And, every two years, communities must update, through surveys or other means, the initial information to verify that the unit is occupied by at least one resident age 55 or older.

In addition, communities must establish procedures to verify the age of the occupants in units occupied by persons 55 and older through reliable documentation, such as birth certificates, driver’s licenses, passports, immigration cards, military identification, and other official documents that show a birth date. HUD regulations also allow a certification signed by any member of the household aged 18 or older asserting that at least one person in the unit is 55 or older.

Rule #2: Market Your Community as Senior Housing

For 55+ communities, it’s essential to ensure that your advertising and marketing doesn’t undercut your ability to qualify for the senior housing exemption.

To qualify for the senior exemption, the law requires communities to demonstrate an intent to provide housing for older persons. The manner in which your community is described to potential residents is among the relevant factors listed in HUD regulations to determine whether a community has complied with the intent requirement. Using the wrong words to describe yourself not only may trigger a fair housing complaint, but also undercut your ability to demonstrate your intent to operate as “55 or older” housing.

As an example, fair housing expert Doug Chasick points to the increasing number of housing developments that market themselves as “Active Adult” or “Empty Nester” communities. Yet, he points out, using the term “Adult Only” housing was outlawed back in 1988, when President Reagan signed amendments to the FHA into law. He says that some state and local enforcement agencies claim that using these phrases are always illegal because they’re incompatible with the intent requirement.

HUD doesn’t take it that far. It’s true that HUD regulations state that “Phrases such as “adult living,” “adult community,” or similar statements in any written advertisement or prospectus are not consistent with the intent that the housing facility or community intends to operate as housing for persons 55 years of age or older. But HUD says that the use of these terms does not, by itself, destroy the community’s ability to meet the intent requirement, according to HUD. If a facility or community has clearly shown in other ways that it intends to operate as housing for older persons, meets the 80 percent requirement, and has in place age verification procedures, then HUD says that the intent requirement can be met even if the term “adult” is occasionally used to describe it.

That’s not to say that Chasick says it’s a good idea to use those terms in your advertising or marketing materials. In fact, he recommends against it unless you want to be caught up in an expensive investigation or enforcement action. Instead, Chasick recommends using words like “senior housing,” “senior living community,” “a 55 and older community,” or even a “55 and Better Community” when describing your community to demonstrate your intent to operate as housing for older persons.

Coach’s Tip: Chasick warns against using the phrase “active adult” in your advertising and marketing materials. Every senior should be welcome, whether they’re active or not, he says.

Rule #3: Don’t Discriminate Based on Race or Other Protected Characteristics

The FHA’s senior housing exemption is limited: It offers protection from federal fair housing claims based upon familial status as long as your community meets the FHA’s requirements to qualify as housing for older persons. It doesn’t exempt senior housing communities from any claims based on race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

That means that senior communities must take steps not only to qualify under the senior housing exemption, but also to ensure they don’t exclude or otherwise discriminate against applicants or residents based on race or other protected characteristic. For example, senior communities must adopt nondiscriminatory policies and procedures governing the application process and treatment of residents in addition to complying with the age-verification and other requirements to qualify for the senior housing exemption. And train your staff to apply those policies consistently to all applicants and residents, regardless of race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

Rule #4: Enforce Rules to Prevent Harassment by or Against Residents

Take steps to enforce rules to prevent harassment or other misconduct by or against residents. If a resident complains about being harassed by other residents based on her race, sex, or any other protected class, then you should take the complaints seriously.

You shouldn’t be expected to police the behavior of your residents, but you should make it clear that bullying or any other forms of harassment based on protected characteristics won’t be tolerated. Depending on the circumstances, you could face liability under fair housing law if you knew that a resident was subjected to severe and persistent abuse from other residents, but you did nothing to stop it.

Example: In August 2018, a federal court reinstated a fair housing case against an Illinois retirement community for harassment and retaliation. The complaint alleged that the resident endured months of physical and verbal abuse by other residents because of her sexual orientation, and that despite her complaints, the community did nothing to stop it and in fact, retaliated against her because of her complaints.

Fair housing law prohibits discriminatory harassment that creates a hostile housing environment. To prove the claim, the resident had to prove that: (1) she endured unwelcome harassment based on a protected characteristic; (2) the harassment was severe or pervasive enough to interfere with her tenancy; and (3) there was reason to hold the community responsible.

The resident’s complaint satisfied the first and second requirements. She alleged that she was subjected to unwelcome harassment based on her sex, and the community agreed that the court’s earlier ruling—that employment discrimination based on sexual orientation qualifies as discrimination based on sex—applied equally to housing discrimination claims. And the alleged harassment could be viewed as both severe and pervasive—for 15 months, she was bombarded with threats, slurs, derisive comments about her families, physical violence, and spit.

The complaint also satisfied the third requirement. When the case goes back for further proceedings, the focus will be on the management defendants to determine whether they had actual knowledge of the severe harassment that the resident was enduring and whether they were deliberately indifferent to it. If so, then they subjected the resident to conduct that the FHA forbids [Wetzel v. Glen St. Andrew Living Community, August 2018].

Editor’s Note: The appeals court’s ruling—that discrimination based on sexual orientation qualifies as sex discrimination—applies to all the states within the court’s jurisdiction, including Illinois, Indiana, and Wisconsin. But more recently, a court in Missouri came to the opposite conclusion—that discrimination claims based on sexual harassment don’t qualify as sex discrimination—and dismissed a complaint filed by a married lesbian couple who alleged that a senior living community turned them away because of their sexual orientation [Walsh v. Friendship Village of South County, January 2019].

Rule #5: Watch for Potential Disability Discrimination Claims

Senior housing communities must pay particular attention to fair housing protections for individuals with disabilities. The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy.

Example: In December 2018, the owners and operators of a California senior housing complex agreed to pay $2,500 to resolve claims that they violated state fair housing laws by denying housing to a prospective resident because she has a disability.

In her complaint, the prospect alleged that the property manager initially approved her tenancy application but rescinded the approval after meeting her and seeing that she uses a wheelchair. The prospect’s daughter had handled most aspects of the application process, including viewing the unit. When the prospect arrived in a wheelchair to sign the lease, the property manager allegedly refused to rent her the unit and accused her and her daughter of misrepresenting the prospect’s identity by bringing other individuals to view the unit.

“The Fair Employment and Housing Act promises that all tenants, regardless of disability, have equal access to housing,” Kevin Kish, Director of the California Department of Fair Employment and Housing, in a statement. “Housing providers have a legal obligation to eliminate unlawful bias from every stage of the housing application process.”

Fair housing law bans discrimination against applicants and residents because they—or someone they’re associated with—is a member of a protected class. HUD says that the FHA’s disability provisions were intended to prohibit not only discrimination against the named tenant, “but also to prohibit denial or housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants or other associates with disabilities.”

Example: In December 2018, HUD announced that a New Jersey condo association representing residents of a 55-and-older condominium development has settled a complaint alleging that it refused to sell a condo to a man with disabilities and his wife because the couple planned to have their adult disabled daughter live with them. The settlement requires the association to pay a $9,000 civil penalty to the United States, undergo fair housing training, and make changes to the associations’ bylaws as they relate to reasonable accommodations. The wife, now a widow, is pursuing claims against the association in state court. The association denies that it discriminated against the family.

“No family whose members have disabilities should be denied the reasonable accommodations they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully, today’s ruling will remind homeowner associations of their obligations under the Fair Housing Act and encourage them to follow the law” [Secretary, HUD v. Tamaron Association, December 2018].

Senior communities must be prepared to comply with the full array of disability protections. For example, the FHA requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. The law also requires owners to permit residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises.

Example: In December 2017, the owner and property manager of a California community agreed to pay $11,000 to resolve a HUD complaint alleging disability discrimination against a resident with a mobility impairment. According to her complaint, the resident requested to have a live-in aide and a key to a locked gate near her unit to make it easier for her to come and go. In both instances, she said that the owner and property manager asked her intrusive questions about her disability, challenged whether she really had a disability, asserted that the development was for individuals who could live independently, and ultimately denied her requests.

“Residents with disabilities have the right to reasonable accommodations that allow them to use and enjoy their home, without unnecessary and invasive questioning,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work with housing providers to ensure they meet their obligation to comply with national fair housing laws.”

Example: In December 2018, the Fair Housing Justice Center (FHJC) announced that a settlement has been reached with the remaining defendants in two federal lawsuits against the operators of dozens of nursing homes and assisted living facilities for allegedly refusing to make American Sign Language (ASL) interpreter services available to deaf and hard-of-hearing residents. Though denying the allegations, the defendants in the latest settlement agreed to pay $245,675 in damages and attorney’s fees to resolve the case.

The FHJC says that the settlements in these cases ensures that deaf and hard-of-hearing people will have access to ASL services and other auxiliary aids and services as a reasonable accommodation in 61 nursing homes and 35 assisted living facilities in the New York City region. The settlement agreements reached with the defendants in these two cases also yielded a total monetary recovery of nearly $1.2 million in damages and attorney’s fees.

Rule #6: Review ‘Independent Living’ Requirements

Depending on the circumstances, you could face a fair housing complaint for imposing independent living requirements on applicants or residents. Courts have found that a policy requiring applicants to demonstrate an ability to live independently violates fair housing laws protecting individuals with disabilities [Cason v. Rochester Housing Authority, August 1990].

Example: In September 2017, the owner and managers of a 41-unit community in California agreed to pay $18,500 to resolve allegations of discrimination against elderly residents with disabilities who relied on support from caregivers. A fair housing organization filed the complaint on behalf of an elderly resident facing eviction after returning from the hospital with support from a part-time caregiver. Allegedly, the owner and property manager said that they didn’t want the “liability” of her remaining in her home, threatened to call the county to have her “removed,” ordered her to move out, and asked invasive questions about the extent of her disabilities. According to the organization’s complaint, its investigation corroborated the resident’s allegations and revealed that testers calling for disabled relatives were told that the complex was for “independent living” and people who “can take care of themselves.”

Example: In Michigan, fair housing advocates recently sued an affordable senior housing apartment complex, alleging that the community applies “independent living” requirements to force residents with disabilities to move, even if those residents are meeting all the requirements of the lease. The complaint asks the court to recognize the community’s practices as discriminatory and prevent the complex from forcing tenants with disabilities to leave their homes when they remain capable of meeting all of their lease obligations.

“Civil rights laws ensure that people with disabilities can decide for themselves where and how to live in the community of their choosing,” says Susan Silverstein, Senior Attorney at AARP Foundation. “The law doesn’t allow landlords to refuse to accommodate tenants with disabilities,” adds a lawyer for the Michigan Clinical Law Program, “and it certainly doesn’t allow landlords to refuse to let tenants age in place just because they might need some outside help.”

Example: And in New York, fair housing advocates and two individuals sued the state and four adult care facilities, alleging that they maintained and enforced blanket policies barring wheelchair users, regardless of their individual needs or abilities, and steered applicants who use wheelchairs to nursing homes.

One of the individual plaintiffs, an elderly woman with disabilities, alleged that she was barred from returning to one of the communities once she began using a wheelchair. According to the woman, the community tried to evict her because of an internal policy barring admission of people who use wheelchairs and state health department regulations that supported such policies at these and other facilities.

The lawsuit also alleges that New York State promotes disability discrimination through its regulations and policies, including its policy permitting adult homes to ban wheelchair users from admission. Until recently, state health department regulations stated that adult homes and assisted living programs should not admit or retain people who are “chronically chairfast.”

The state has since amended the regulations to eliminate the phrase “chronically chairfast” and to add language that operators may not exclude individuals solely because they primarily use a wheelchair for mobility and must make reasonable accommodations as necessary to comply with the law. Last fall, the court issued an order directing the community to allow the elderly woman to return to her home. The case is still pending in federal court.

Rule #7: Comply with Applicable State and Local Laws

It’s critical to review applicable state and local fair housing laws because the laws affecting senior housing may vary substantially, depending on your location. For example, HUD points out that federal fair housing law doesn’t cover age discrimination, which is a protected characteristic under some state and local fair housing laws.

Moreover, HUD notes that some state and local governments with fair housing laws that have been determined to be substantially similar to the federal law may not include an exemption from the familial status discrimination for housing for older persons.

Alternatively, some state or local laws impose different standards for the senior housing exemption. In California, for example, the legislature adopted more stringent requirements on senior housing than is required under the FHA “in recognition of the acute shortage of housing for families with children” in that state. The law imposes specific requirements related to accessibility, common areas, and refuse collection.

Still other state and local laws apply an older version of the federal exemption. Under the original 1988 legislation, 55-and-older communities had to have “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the exemption.

Though Congress eliminated the “significant services and facilities” requirement from federal fair housing law, some states didn’t follow suit. In Georgia, for example, communities are still required to furnish “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the senior housing exemption.

Coach’s Tip: HUD urges communities to check all relevant state, local, and federal laws, as well as any requirements imposed as a term of governmental financial assistance before implementing policies and procedures that limit residents’ eligibility. Because of the complexity of the issues involved, you should get legal advice from an attorney well versed in the legal requirements for senior housing issues in your jurisdiction. 

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

Coach Source

Douglas D. Chasick, CPM, CAPS, CAS, ADV. RAM, CLP, SLE, CDEI: The Fair Housing Institute, Inc.; Norcross, GA;