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Answer. Accepting rent for the period beyond the Deadline means that the tenant is entitled to occupy the space even after the failure to cure within the 30-day cure period. Yet the failure to cure is the event after which the landlord may file for eviction; the tenant has no legal right to remain on the space. Accepting rent for that period creates a waiver of the right to treat the failure to cure as a default upon which the eviction may be filed.

There are perhaps three ways to prevent that from happening, so that a landlord may receive rent for the entirety of the second month, notwithstanding the fact that it covers a period beyond the Deadline.

1. The preferred way in my opinion, is to extend the cure period in the notice. When it is issued, extend the 30-day cure period so that it goes through the 30^thor 31^stday (as applicable) of the second month.

EXAMPLE:If a 30-day notice is mailed on March 19, normally, the time to cure would end 33 days hence, i.e. starting with March 20 being the first day, and ending at midnight April 21^stas the end of the cure period. In that case, the landlord can either take no rentfor April or take rent proratedthrough the 21 days of April. 

But if the cure period in the notice is extended through April, and ends  at midnight (end of day) on April 30^ththe L could accept rent for the entire month of April. If the tenant pays the rent for April andcures the violation by April 30, the problem has gone away.  

Of course, there still is a problem if the tenant does not cure and does not pay any rent, if the courts are still closed and no eviction (either for the failure to cure, or failure to pay after issuance of a 72-hour notice) can be filed.

2. Another alternative is to unilaterally extend (in writing) the cure period for another 30 or 31 days on condition rent was paid, to span the following month. Can a landlord do that? In my opinion yes – it does not reduce a tenant right, but expands it. Of course, a judge could see it differently.

3. Lastly, the landlord can try to enter into a written agreement with the tenant (after issuance of the 30-day notice) that acceptance of rent for the balance of the second month shall not be construed as a waiver. But what’s in it for the tenant?

The only time this seems feasible is where the tenant is cooperative about curing within the 30 days, and agrees in writing that if landlord accepts the full rent for the second month it will not constitute a waiver.

The typical commercial lease and property management agreement does not address viral epidemics. The duties and obligations of a landlord or property manager regarding limiting tenants' and guests' risk of exposure to the virus depends on what services, if any, the landlord or property manager provides at the property. In a net leased property where the tenant is responsible for its own maintenance and cleaning services, the landlord's public health obligations would be limited. However, a landlord or property manager who provides cleaning, janitorial and security services such as in a commercial office building or shopping center, should consider implementing the following operational recommendations:

• consult your local health department and the U.S. Centers for Disease Control and Prevention (CDC) for the latest information on the virus and guidelines for controlling transmission
• clean routinely and frequently touched surfaces and objects, including but not limited to, bathrooms, security desk areas, elevator banks, turnstiles, escalators, door handles, communal kitchens or pantries, bathrooms and the like
• offer materials, in multiple languages, to educate employees, visitors, vendors, delivery personnel and staff about proper hand hygiene and cough etiquette
• install hand sanitizer stations in high-traffic areas of the building
• advise any employees who may feel sick to limit face-to-face contact with others and to seek immediate medical help
• consider alternatives and safety protocols for large, public events held on the building property
• review your internal communications and preparedness plan and ensure that all building staff are ready, know their role in keeping the property and its guests safe, and are aware of all communication protocols
• follow Occupational Safety and Health Act (OSHA) requirements, set forth in Sections 13 and 14 of OSHA No. 1 of 2006, which impose various duties on the employer to ensure a safe and healthy work environment
• discuss human resource considerations such as screening employees that have traveled to areas where the virus has been reported and implementing protocols for dealing with a situation where an employee may be infected with the virus
• review leave policies and confirm compliance with legal requirements around mandatory quarantines
• consider ongoing communications with tenants and service providers to inform them of the steps you are taking to clean and sanitize the property and learn how they are addressing the outbreak with their employees and customers
• conduct risk assessment analysis and anticipate supply chain interruption 
• review any rights or remedies the property may have under policies of insurance, which may include coverage for business interruption
• consult with counsel about the COVID-19's impact on the property, contractual obligations and business operations

The Landlord Newsletter is general in nature and is not intended as legal advice for any specific issue that might arise, since every situation is different. Always consult a knowledgeable landlord attorney with your specific legal issues.

On Sunday, March 22, 2020, Governor Kate Brown issued executive order 20-11, which prohibits all law enforcement officers in Oregon from enforcing nonpayment evictions. Officers are prohibited from “serving, delivering or acting on any notice, order or writ of termination of tenancy” based on the nonpayment of rent, fees, utilities, or late charges. The order also applies to no-cause evictions. The order is effective immediately, and will remain in effect for 90 days unless extended or terminated earlier by the governor.

The order does not prohibit landlords from issuing such notices or filing eviction cases in court. However, as a practical matter, nonpayment cases could not be enforced with an actual eviction by the sheriff’s office for at least the next 90 days or longer. In addition, Oregon courts are not holding any eviction hearings whatsoever, which will likely continue through at least the end of April. Given these circumstances, the recommended practice is to hold off on issuing nonpayment eviction notices for the next several months, but consult with your attorney in making any such decision.

It is important to note that the governor’s order does not prohibit the enforcement of “for cause” eviction notices (i.e., for bad tenant behavior, condition of the rental premises, unauthorized pets or occupants, etc.). Again, though, with the courts effectively closed, no eviction cases will be processed for the foreseeable future. (Although it should be possible for attorneys to continue filing eviction cases online to have them ready when the courts start holding hearings again.)

The order does NOT relieve tenants of their duty to pay rent – it merely puts a hold on nonpayment evictions. In Multnomah County, landlords are required to offer tenants a deferred payment plan. To be eligible, an affected tenant must be able to demonstrate with documentation or other objectively verifiable means a “substantial loss of income” resulting from the COVID-19 pandemic and/or government restrictions. The tenant must notify the landlord with this information on or before the day that rent is due to be eligible for rent deferment. The tenant must pay accrued rent to the landlord within six months after expiration of this emergency, and the landlord cannot assess late fees.

The Multnomah County approach also makes sense for landlords throughout the state, since a wave of evictions in 3 months would not serve anyone’s interests. Various rent deferment forms are already available from several landlord trade associations. A well-drafted deferment form should protect the tenant’s continued housing, while also protecting the landlord’s right to recover rent and other charges owed. As usual, consult with an attorney on the use of any such form to make sure that it complies with Oregon law and adequately protects your interests as a landlord.

In response to the COVID 19 epidemic, Governor Kate Brown joined nearly a dozen other governors on Monday issuing a sweeping order (Executive Order 20-12) that essentially requires people to stay home except for essential travel, such as to the grocery store or for medical needs. Violation of the Order is a Class C misdemeanor, which carries a maximum penalty of 30 days in jail and/or a fine of $1,250.

As of 12:01 a.m. on March 24, a long list of businesses (from amusement parks to youth clubs) were ordered shuttered. Most likely, the list of businesses ordered to close does not affect a manufactured home park, RV park or floating home community; however, community owners should review the list of businesses to ensure compliance.

Although “campgrounds” were ordered closed, RV parks are exempted.

Pools, sports courts and playgrounds must be closed. 

The Governor's order does not change her previous order (Executive Order 20-07) with respect to restaurants, bars, and other establishments that serve food and drink, which Order prohibits on-premises consumption of food or drink but allows take-out or delivery services.

Outdoor Activities

Governor Brown's order specifically allows people to be outside for walking or hiking but any outdoor activity that cannot be done while maintaining social distancing (i.e. basketball) is prohibited. State and community parks may remain open if social distancing can be maintained and signage about social distancing must be prominently displayed.

Employees

Effective March 25, all businesses in Oregon shall facilitate telework and work at home by employees, to the maximum extent possible. Work in offices is prohibited whenever telework and work at home options are available, in light of position duties, availability of teleworking equipment, and network adequacy. In other words, your employees do not have to work from home if their duties require them to be on site (maintenance workers) or if they are not set up to work from home (they don’t have the ability or capability from working from home).

Social Distancing Policy

When telework is unavailable, businesses must designate an employee to establish, implement and enforce social distancing policies, consistent with the guidance from the Oregon Health Authority. Such policies must address how the business or non-profit will maintain social distancing protocols for business-critical visitors.

Bill Miner | Davis Wright TremaineLLP

1300 SW Fifth Avenue, Suite 2300 | Portland, OR 97201

Tel: (503) 778-5477 | Fax: (503) 778-5299 

Email: billminer@dwt.com| Website: www.dwt.com

If you do not yet have a policy in place, you should contact your legal or human resource advisor to assist you with the drafting of a social distancing policy. Please note that DWT is offering a draft policy at a fixed price for MHCO members.

COVID 19 - Nonpayment of Rent In Multnomah County/City of Portland And The Rest of Oregon

Declaration of Emergency-Additional Measures

Multnomah County/Portland. Effective immediately, Multnomah County (which includes the City of Portland) has issued a temporary moratorium on nonpayment of rent evictions caused by wage loss resulting from COVID-19.

To establish eligibility, affected tenants must:

1. Demonstrate a substantial loss of income, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic (including County, State, and Federal restrictions imposed to mitigate its spread); and 

2. Notify their landlords on or before the day rent is duethat they are unable to pay rent due to a substantial loss of income as a result of the COVID-19 pandemic.

The Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID 19. 

For example, a restaurant service worker who no longer has a job due to closure would likely be eligible under this Moratorium if timely notification is made to the landlord.

The Executive Rule clarifies that:

• Nothing in the Moratorium relieves tenants of liability for unpaid rent;
• Any deferred rent must be paid within six months after expiration of Oregon’s Declaration of Emergency;
• No late fees may be charged for rent that has been deferred due to the Moratorium;
• Landlord may not file for eviction due to unpaid rent deferred by the Moratorium.

Multnomah County Circuit Court hearings for eviction proceedings are suspended until April 30, 2020, or later.  So the question for landlords is how to proceed if there is a non-payment of rent for which the tenant has not sought, or has not qualified for, rent deferral under the Executive Rule? 

Should a 72-hour notice be sent? What happens if it is not paid? Can an eviction complaint be filed, even though the FED court is closed?

These are judgment calls up to each landlord. Much depends on the tenant. Is he/she a serial late-payer, in which case, this Moratorium might come as a welcome excuse for nonpayment.  In other cases, the tenant may be legitimately short of funds due to COVID-related job loss. In the former case, perhaps the 72-hour notice should be sent – after all, there is a non-curable right of termination when three such notices are sent within a rolling 12-month period. The same approach could be said about filing for eviction, even though the courts are currently closed.

For landlords of communities within Multnomah County/City of Portland, they should inform their tenants about the Moratorium, so they can apply for the Moratorium, i.e. rent deferral. Otherwise, if rent is not paid, a landlord is left to wonder about the cause. With non-communicative tenants, written notices are the only real alternative, even if landlords cannot act on them right now.  

The Rest of Oregon.  Subject to jurisdictional changes in other cities or counties, at the current time,there are no abate/deferral of rent laws similar to those discussed above. However, residents elsewhere are seeking rent concessions, and some landlords may be willing to voluntarily cooperate. 

Accordingly, MHCO felt that the Multnomah County/Portland model had certain merits, since we felt it was better for landlords to adopt voluntary arrangements, such as partial payments consistent with ORS 90.417, versus having residents unilaterally paying reduced rent or nothing at all with no explanation.  Although we do not agree with the mandatory moratorium on non-payment of rent evictions, that issue is, for now, moot, since Oregon circuit courts are closed to such proceedings.

What MHCO is Doing.  We are creating two new forms to address rent deferrals. The first one is limited to communities located withinthe Multnomah County/City of Portland area (Form 13-A). The second one is similar to the first insofar as allowing deferred/partial payments, but apples to the rest of the state (Form 13-B).  Both forms have certain similarities, although Form 13-B gives more latitude to negotiate with tenants over the length of the repayment period. The Multnomah County/Portland Form 13-A mandates a 6-month term.

Final Note.  When using either form, it is important to remember that resident participation in both rent deferral programs is based upon several prerequisites:

1. The request and documentation must occur before the applicable rental period for which the relief is sought; 
2. There must be evidence of actual or impending “substantial loss of income”;
3.  The evidence must be in the form of “documentation” or through other “objectively verifiable means”; and
4. The loss of income must “result” from the COVID-19 Pandemic.  

Lastly, this is not to suggest that if a resident was in dire straits for reasons unrelated to COVID-19, landlords should not try to assist if possible. We’re all in this together.

Attached above are revised (as of April 2, 2020) Forms 13A and 13B for rent concession.  

Answer. The Multnomah County Moratorium does not declare a “rent-holiday” or anything close. Rent is still due and payable. The only exception is that if there is a timely request for partial payments, and the tenant has an objectively verifiable proof of loss of cash-flow related to COVID, you and the tenant are encouraged to enter into an agreement for partial payments for a period of time. Keep in mind that the state courts are not hearing FED evictions for nonpayment of rent, so your options are limited. Reaching a repayment program ahead of time is better that not getting any rent money and not being able to do anything about it.

MHCO has issued a recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon).

Question.Regarding Form 13-A (Mult. Co.), what if the resident decides they cannot pay anything?  Is that acceptable? Is that what I put in the agreement?

Answer.  The Multnomah Count Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID-19. 

In order to qualify, the resident needs to demonstrate a “substantial loss of income”, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic. Note, this includes loss of income related to County, State, and Federal restrictions imposed to mitigate the spread of COVID-19.

So what is your resident providing to establish the substantial loss of income? Presumably, if the resident is no longer employed, he/she can no longer pay the rent. If so, documentation or other information must be provided to establish this. If that is not the case, i.e. if there is no job loss, or it’s not related to COVID, or there is not a substantial loss of income, etc. they don’t qualify.

Keep in mind that if both residents are working and one loses their job for COVID-related reasons, this, of itself, does not automatically qualify them for partial rent payments. If the remaining resident is still working and generating income, you will want to explore how much rent can still be paid. Paying nothing should not be an option where the household is still generating some income, and the resident can pay a portion of the rent, but chooses not to.

Remember, whatever is deferred will have to be repaid within 6 months after the Governor’s Declaration of Emergency expires, so if the tenant is just trying to get out of paying anyrent, there is no real advantage to entering into the agreement today if it results in six months of rent abate, only to have to file an eviction the. The bottom line is that before you enter into the partial rent agreement, you should thoroughly vet the resident’s COVID-related issues and ability to pay at least something. However, as noted above, no Oregon courts are hearing nonpayment of rent evictions, so you alternatives are limited. 

Question.  Regarding having to demonstrate they have substantial loss of income due to the virus, can we:

• Ask to see their final pay stub and current bank statement so we can help figure out what they can pay us?  
•  Can we ask for a letter from their employer stating that they were laid off?  How are they supposed to prove they can't pay in full?

Answer.  Good questions. the Declaration of Emergency is not specific, except only to say that the proof has to be “through documentation or other objectively verifiable means.”

Here are the elements of proof as I see them:

• Is it COVID-related?
• Is there a substantialloss of income? 
• Does it prevent the resident from paying some or all of the space rent?

What you decide to accept as “evidence” is between you and the resident. But other than requiring that he/she provide sensitive, confidential, personally identifiable information (e.g. social security number) I submit that pay stubs, account information is OK, so long as the protected information is redacted, i.e. blacked out. An employer statement is probably unnecessary in most cases, as there would likely be some form of written or emailed announcement.

Question. The  Multnomah County Order says near the bottom that for landlords of communities within Multnomah County they should inform their tenants about the Moratorium. How should I do that?

Answer.I believe reliable information is your best approach so residents trust you as a source. MHCO has distributed material on the Multnomah County Moratorium, and developed two forms which are self-explanatory and follow the law. 

You want residents to know what the law is ahead of time. It is important to convey that the law does not “forgive” any deferred rent; there is no “rent holiday”; and any rent abatement must be supported by verifiable documentation or information showing a substantial loss of cash flow. Without such information, a tenant does not technically qualify for partial payments. 

Unless a tenant has lost their entire source of income, e.g. job loss and is unable to qualify for unemployment, most situations would seem to result in a possible wage reduction, rather than a total loss of income.

Question.Does the Moratorium apply to utilities?

Answer. As for utilities, here is the rule: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 

Question.  If residents do not get hold of me by the 1^stof the month, are we still under the obligation to enter into these agreements? 

Answer.  Only the Multnomah County form, 13-A requires the request to be made before the first of the month, since that is what the ordinance says. We developed Form 13-B (for areas outside of Multnomah County/City of Portland) and followed generally, Form 13-A. We did so because we believed it was a good approach. However, the Oregon Legislature has not developed a comparable law for areas outside Multnomah County/City of Portland – although we expect one shortly.

Accordingly, there are some differences between the two forms, one of which is that Form 13-B does not expressly require that the request must be made before the first of the month.

Nevertheless, assuming your community is inside the Portland/Multnomah County area, and rent has not yet been paid, say for April, and the resident requests to make partial payments, I suggest that a certain amount of latitude is important during these tough times. In other words, if the resident is a legitimate candidate for partial payments, you should consider having them sign Form 13-A. 

Question. Do we fill out either Form 13A or 13B each month?

Answer.  No. Form 13-A (Portland/Multnomah County) lasts for the duration of the Moratorium because that is what the law says; Form 13B last for the duration of the “Concession Period” which is the amount of time both landlord and resident agree rent shall be abated. 

However, directly above the resident’s signature in both forms, the following provisoappears in bold print:

By signing below, Resident certifies that the documentation or other objectively verifiable information supporting a substantial wage loss is true and correct to the best of his/her knowledge. In the event that through other income or employment, Resident’s wage loss is reduced or eliminated, Landlord will be promptly notified, and this Agreement shall either be terminated or modified accordingly.

Question. I've had my first call regarding nonpayment of rent.  The daughter called me to say her mother had been laid off.  She said the Governor said they have six months to pay rent.  I cautioned her that we needed some proof of wage loss, and if so, the parents would need to enter into an agreement for partial payments.  She said we can't evict them. I said not now, but eventually if rent isn't paid an eviction would occur.  
 

I don't think this conversation went very well.  A script of what we should be asking for or saying would help - even just bullet points so I know I am doing it correctly?

Answer. We cannot develop a script for many reasons, the first of which all circumstances can vary. However, I believe the following information distills exactly what landlords and residents can and cannot do: - but you should not treat tenant requests with a one-size-fits-all approach.
 

• The Multnomah County Moratorium does not declare a “rent-holiday”;
• Rent is still due and payable. 
• Deferred rent is not forgiven;
• The only exception to payment of full rent is a timely request for partial payments, in which case the tenant must establish with reasonable evidence:
  • An objectively verifiable proof of substantial loss of cash-flow;
  • It must be related to COVID;
  • MHCO has recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon);
  • Deferred rent must be repaid with 6-months after the Moratorium ceases in Form No. 13A (Multnomah County)  and an agreed-upon period of time in No. 13B (Rest of Oregon);
• Oregon courts are not hearing FED evictions for nonpayment of rent for the time being – we don’t know how long that will last;
  • If the resident engages in some activity that endangers the health, safety and welfare of the residents, management, or visitors/guests, you should check with your county court to see if a proceeding would be timely heard if you filed for eviction.
• For utilities: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 
• The above rules are fluid, and we do not yet know what the Oregon Legislature might do. Once that occurs, we anticipate having to make adjustments in the current rules upon which the above information is based.

COVID Questions 

(Corrected)

Question No. 1:.  If the resident hat has not been financially impacted by Covid-19 but is not paying rent what should we do?  Should we give a 72-hour notice, or should we wait?

Answer: First and foremost, remember that this situation is very fluid. Regulations can change overnight. This could affect the answers we give today. For example, CDC was previously saying face masks were not necessary, but recently reversed itself to recommend masks for use even where the person has no symptoms (“asymptomatic”) but “…is in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especiallyin areas of significant community-based transmissionsocial contact.” See, link, here. Likewise, various jurisdiction can implement regulations at almost any time.

Under the Governor’s Executive Order 20-13, issued April 1, 2020, there is a 90-day moratorium on virtually every part of an eviction, from issuance of the termination notice, to the filing of the eviction complaint, and execution of the FED judgment. 

Here is summary:

· Subject to the following, landlords of residential properties in Oregon shall not, for any reason, terminate a tenant's rental agreement. This includes filing, serving, delivering or acting on any notice, order or writ of termination or the equivalent.

· Nor may landlords “…otherwise interfere in any way with such tenant's right to possession of the tenant's dwelling unit.”

·  This relates to:

• • Nonpayment of rent, late charges, utility charges, or any other service charge or fees owed to the landlord; or 
  • Any termination without cause under ORS 90.427.

· The Executive Order does notrelieve a residential tenant's ultimate obligation to pay rent, utility charges, or any other service charges or fees; they still must be repaid.

· Late charges or other penalties due to the landlord arising from nonpayment are specifically waived during the Moratorium; i.e. repayment is notrequired after the Moratorium is over.

· The Executive Order also prohibits enforcing any existingnonpayment or no-cause eviction judgments.

· It does notapply to the termination of residential rental agreements for causes other thannonpayment of rent.

· It also prohibits law enforcement officers in Oregon from serving, delivering or acting on any notice, order or writ of termination of tenancy or the equivalent or any judicial action, arising under the Oregon eviction statutes that relate to residential evictions for nonpayment. 

• During the Moratorium, any residential tenant who is or will be unable to pay the full rent when due under a rental agreement or lease, shall notify the landlord as soon as reasonably possible; and shall make partial rent payments to the extent the tenant is financially able to do so.

See, Executive Order 20-13 here. 

The above discussion refers to statewide Executive Order 20-13, but with limited exceptions, likely applies equally to the City of Portland/Multnomah County which has its own set of rules.  I say “likely” because there is no final word on the issue, as it raises complicated state vs. local preemption issues. But the legal consensus is these prohibitions do apply to the City of Portland/Multnomah County. The only exception is (likely) that the 6-month repayment period still applies to deferred rent for the City of Portland/Multnomah County, but not the rest of the state.

Essentially, other than the power of persuasion, your options are limited in this case until the Moratorium is over.

Question No. 2: If the resident violates the rules, has unauthorized residents, disturbs the peaceful enjoyment of other residents - can we give an eviction notice, or should we wait?

Answer: Almost all hearings and trialshave been postponed indefinitely in Oregon  – not just FED hearings for nonpayment of rent. but for everything else, as well. 

I suggest you first speak with the resident and inform him/her that you can and will issue a 30-day termination notice, and file for eviction if the conduct does not cease. 

However, it may be that you will not be able to have a judge hear the matter. I suggest you check with your local county court to see if a hearing can be set, since this is a safety issue and one that needs to be addressed now. If not, at least if you should proceed with the 30-day notice and, if the conduct continues, file and serve the eviction complaint, so you will be at the front of the line when the courts do open.

Attached (above)  is a copy of a page from a March 27 Oregon Supreme Court Press Release on how the Oregon trial courts will be conducting business going forward.

Under a limited exception, senior housing communities may lawfully exclude families with children, but that exception applies only if your community satisfies specific technical requirements. Unless you meet these requirements, your community could be liable for restricting or otherwise excluding families with children from living there.

In this lesson, we’ll review the law governing familial status and offer 10 rules—the essential Dos & Don’ts—for complying with fair housing law when dealing with families with children. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans discrimination based on familial status. In general, that means you can’t 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 applies when one or more children under the age of 18 are living with:

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

It also applies to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.

In a nutshell, the familial status provisions apply whenever there’s one or more children under 18 living in the household. The children may be living with one or both birth parents—whether they’re married, divorced, single, gay, or straight. The adult could also be an adoptive parent, foster parent, or legal guardian. Individuals with legal custody include family members or others approved by the courts. More broadly, the law applies to people with written permission of the parent or legal guardian.

Senior housing exemption. Under a limited exception, senior housing communities may lawfully exclude children, but only when they satisfy strict legal requirements to qualify as “housing for older persons.” The exemption applies to housing communities or facilities that are governed by a common set of rules, regulations, or restrictions. A portion of a single building is not considered a housing facility or community, according to HUD. And remember: The senior-housing exemption applies only to the FHA’s familial status provisions; the community still must abide by the law’s protections based on race, color, national origin, religion, sex, and disability.

FOLLOW 10 RULES FOR DEALING WITH FAMILIES WITH CHILDREN

Rule #1

DO Make Housing Available to Families with Children

DON’T Deny Housing Because There’s a Child in the Household

Though it’s been unlawful for more than 30 years, communities continue to run afoul of fair housing provisions by denying housing to families with children.

It’s important to remember that familial status is on the same footing as race and any of the other protected classes under fair housing law. Just as it’s unlawful to turn people away because of their race, you can’t turn prospects away because they have one or more children living with them. It doesn’t matter whether you—or your current residents—would prefer to be living among adults; it’s unlawful to deny housing to people—or to treat them differently—because there’s a child under the age of 18 in the household. In fact, simply expressing a preference against families with children can lead to a fair housing complaint.

Example: In February 2020, the owners of a California community and its leasing agency agreed to pay $10,000 to resolve allegations that its leasing agent denied a father of two children the opportunity to rent a condominium. In his HUD complaint, the father alleged that he was denied the opportunity to rent the condo because his two young daughters would be living with him part time. According to the father, the leasing agent refused to consider his application for the unit, saying, “I don’t want to waste your time or mine. Sorry.” The housing providers denied that they discriminated against the family.

“Families today face enough challenges without being denied a place to call home because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue working to ensure that housing providers meet their obligation under the Fair Housing Act to treat home seekers with children equally.”

Example: In March 2019, a California rental property owner and his management company agreed to pay $15,000 to resolve a HUD complaint alleging that they refused to rent a unit to a couple because they have three children. The case came to HUD’s attention when Project Sentinel, a HUD Fair Housing Initiatives Program agency, filed a complaint alleging that the family was denied the opportunity to rent a two-bedroom unit because they have children. The housing providers denied that they discriminated against the couple.

“Families shouldn’t have their access to housing denied simply because they have children,” Farías said in a statement. “This type of discrimination has been against the law for more than 30 years, and HUD will continue working to make the public and housing providers aware of their rights and responsibilities under the Fair Housing Act.”

Rule #2

DO Follow the Rules to Qualify for the Senior Housing Exemption

DON’T Adopt or Enforce Adults-Only Policy

Although fair housing law generally prohibits discrimination based on familial status, there’s a limited exception that applies to senior housing communities that meet strict legal requirements to qualify as “housing for older persons.” Senior communities that comply with these technical requirements are exempt from the general rules that protect families with children. There’s no middle ground—you either meet those requirements or you don’t. And if you don’t, you’re likely to trigger a fair housing complaint if you adopt or enforce an “adults-only” policy that prevents families with children from living there.

Example: In January 2019, the California Department of Fair Employment and Housing (DFEH) announced a $10,000 settlement to resolve a fair housing complaint against the owner of a six-unit rental community and the real estate brokerage firm that managed it. Fair housing advocates filed the complaint, alleging that the property was advertised online as an “adult complex” and included a restriction of “maximum 2 adults.” During a follow-up call, the property manager allegedly told a tester that children were not allowed. DFEH found that the complex wasn’t a senior citizen housing development and that there was cause to believe a violation of state fair housing law had occurred. The case was settled prior to formal mediation.

“In California, senior housing developments can, with some exceptions, exclude residents under 55 years of age if they have at least 35 units and meet other requirements,” DFEH Director Kevin Kish said in a statement. “All other rental properties violate the law if they categorically exclude families with minor children.”

Rule #3

DO Apply Same Terms and Conditions Regardless of Familial Status

DON’T Treat Prospects Differently Because They Have Children

Treat prospects consistently, regardless of whether there are children in the household. It’s unlawful to impose different terms and conditions of a tenancy on households based on familial status, so you can’t make the leasing process more cumbersome, or quote higher rental terms, for families with children.

Example: In May 2019, a court refused to dismiss a fair housing case against a Virginia couple who engaged the services of a real estate agency to assist them in leasing their five-bedroom, five-and-a-half bath, 8,500 sq. ft. home. Shortly after it was listed for rent at $3,750 per month, a prospect contacted the realty agent about leasing the home for his multigenerational family. When the agent asked how many people would be living there, the prospect said his family consisted of him and his wife, their five minor children, and his two parents.

A few days later, the agent allegedly told the prospect that the owners “were not interested in renting to a large family.” Later, the owner allegedly told the agent that he was willing to rent to the prospects “if they paid more.” According to the prospect, the agent told him that he could rent the home if he was willing to pay “a few hundred dollars” more since there would be two families living there. The prospect said he told the agent that there would not be two families living there. The home was later rented to a family consisting of a husband, wife, and two children for the advertised rent.

The prospect sued the owners and the agency for discrimination based on familial status under state law. The prospect claimed that the agent’s “tone and communications” made him believe that the landlords feared additional wear and tear on the home because his family included five children and that the couple wasn’t willing to rent them the home, despite the prospect’s willingness to pay the advertised rent, because they were “a large family.” According to the prospect, the owner’s use of terms “additional family” and “two families” were code words to mask their preference to refuse to rent to his family because it included five children under age 18.

The court refused to dismiss the case. The owner alleged that his request for additional rent was related to the presence of the additional adults, not the minor children, in the household, but court ruled that further proceedings were needed to resolve the case [Commonwealth ex rel. Real Estate Board v. Tutt Taylor & Rankin Real Estate LLC., Virginia, May 2019].

Rule #4

DO Be Prepared to Justify Reasonableness of Occupancy Standards

DON’T Apply Unreasonably Restrictive Occupancy Standards

Fair housing law doesn’t prevent you from maintaining reasonable occupancy policies as long as you apply them consistently. But it’s illegal to set overly restrictive occupancy standards that have the effect of excluding families with children. If a community’s occupancy policy keeps the number of occupants unreasonably low, it’s likely to discourage families with children from living there unless they’re willing to pay for a larger unit.

To ensure your community’s occupancy standards pass muster, the first step is to check applicable state and local laws, which may limit occupancy based on the number of people, square footage, and other factors. In general, federal fair housing law defers to reasonable state and local restrictions on occupancy, so you have to be familiar with those laws before you set or enforce your occupancy standards.

Subject to state and local law, two persons per bedroom is a reasonable occupancy policy under federal fair housing law, according to HUD guidelines issued in 1991 known as the “Keating memo.” Nevertheless, HUD says that’s only a rule of thumb, which may not be reasonable in certain cases because of the size of the bedrooms and of the overall unit, the age of the children, the unit configuration, other physical limitations of the housing, state and local law, and other relevant factors. Among other things, HUD will look at evidence, such as discriminatory statements or rules, which may suggest that the occupancy policy was adopted as a way to restrict children from living there.

Example: In February 2020, HUD approved a settlement between fair housing advocates and a group of California property owners and managers resolving allegations of discrimination based on familial status. Fair housing advocates filed the HUD complaint, alleging that fair housing testing showed that the owners and two property managers refused to rent to families with children or offered them different lease terms and conditions. The advocates also claimed that the owners and managers implemented an unreasonably restrictive two-person-per-bedroom occupancy policy at two rental properties. The housing providers denied the allegations.

“Families looking for safe, decent housing shouldn’t be penalized because they have children,” Anna María Farías, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s agreement reaffirms HUD’s commitment to ensuring that housing providers meet their obligation to treat all applicants the same.”

To avoid fair housing trouble, you’re better off focusing on the number of people who may occupy units, not the number of children you’d prefer to live there. HUD guidelines state that an occupancy policy that limits the number of children in a unit is less likely to be reasonable than one that limits the number of people per unit.

Example: In September 2019, the owners and managers of a large rental home in Idaho agreed to pay $15,000 to settle allegations that they refused to rent the home to a married couple because they had more than four children. Specifically, the HUD charge alleged that the homeowners discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they had seven minor children. When the couple met with the property manager about renting the home, he allegedly said that the owners had set a limit of four children for the home. The charge also alleged a policy restricting the number of children was written in the rental contract.

“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Farías said in a statement. “Today’s action will hopefully serve as a reminder to all housing providers of the importance of meeting their obligations to comply with the requirements of the Fair Housing Act.”

Rule #5

DO Be Careful About Applying Occupancy Standards When a Child Joins a Household

DON’T Penalize Residents for Having a Baby

Fair housing rules banning discrimination based on familial status apply not only to families with children under 18, but also to pregnant women and others who have or are in the process of adopting or obtaining custody of a child.

Consequently, it’s unlawful to discriminate against a resident who has a baby, adopts a child, or takes custody of grandchildren. As long as the unit is large enough for the family under applicable state and local occupancy limits, you could face fair housing liability if you evict them, refuse to renew their lease, or insist that they move to a larger unit.

Example: In September 2019, the Justice Department sued the manager and owners of a Missouri apartment complex for discrimination on the basis of familial status. The case began with a HUD complaint filed by a couple, who alleged that the owners and manager terminated their tenancy because of the birth of their second child. At the time, the couple said they and one minor child had been renting their one-bedroom unit at the community for more than a year. The complaint also alleged that the community’s application form, lease agreement, and correspondence with the couple stated an explicit “No children” policy.

Example: In August 2018, HUD charged the owners of a South Dakota community and their property management company with housing discrimination for refusing to let a couple and their newborn baby stay in their one-bedroom apartment because of the community’s occupancy policies. According to the charge, shortly after the new baby arrived, the mother allegedly asked agents of the property management company how long two adults could live in a one-bedroom unit with an infant and was told that they would have to move to a two-bedroom unit. The community claimed that the two-person-per-bedroom occupancy policy was required by the city’s occupancy code. But HUD alleged that the city code was more flexible than that by allowing consideration of additional areas beyond bedrooms that may be considered for sleeping and occupancy purposes.

“Occupancy policies that exclude families with children or make it harder for them to obtain housing are unlawful and have no place in today’s often tight housing markets,” said Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity.

Rule #6

DO Tell Prospects About All Units that Fit Their Needs

DON’T Engage in Unlawful Steering Based on Familial Status

Limiting a prospect’s housing choices because they have children under 18 in the household is a fair housing violation, commonly known as “steering.” In general, steering means guiding, directing, or encouraging prospects to live—or not live—at the community or in certain areas within a community based on familial status or other characteristics protected under fair housing law. Among other things, you may not restrict where families may live by making certain units, floors, or buildings off-limits to families with children.

When discussing vacancies with prospects, tell them about all available units that meet their stated requirements. Even if you believe it might be better for the children, you could trigger a discrimination complaint if you don’t tell families with children about available units on upper floors or near water features, such as a pond or pool.

Example: In December 2017, the owners and operators of a New Hampshire community agreed to pay $25,000 to settle fair housing case for discrimination based on familial status. In its complaint, the Justice Department alleged that a mother of an infant child visited the community to inquire about two-bedroom apartments but was told that the community had a policy of placing families with children under the age of 10 in first-floor units only, and that no first-floor units were available.

Rule #7

DO Adopt Child-Neutral Community Rules

DON’T Allow Rules to Unfairly Target Children

Rules governing residents’ behavior in common areas, such as hallways, parking lots, and outside spaces serve a legitimate purpose: to protect property and ensure safety. But you could trigger a discrimination claim if your rules unreasonably target children or limit their behavior.

As much as possible, avoid adopting rules that specifically target children’s behavior. Rules banning children from playing outside, unduly restricting their access to amenities, or requiring adult supervision of all children under 18 could lead to accusations that you’re treating families with children less favorably than adult households living at the community.

Example: In April 2018, the owner of a 44-unit California community agreed to a $25,000 settlement to resolve claims that the owner’s “house rules” discriminated against families with children. In a complaint filed with state officials, a family alleged that the owner had a number of rules discriminating against children who lived in the complex. According to the family, children were forbidden from using the swimming pool after 6 p.m., even though adults were free to use the pool until 9 p.m. The family also alleged that the rules prohibited children from riding bicycles, using skateboards, or playing with Hot Wheels, wagons, or balls in common areas—rules that were not applied to adults. Allegedly, the family eventually moved out of their unit due to the restrictions on where their child could play.

“DFEH is committed to ensuring that families with children are not discriminated against in housing,” Kevin Kish, Director of the Department of Fair Employment and Housing, said in a statement. “Discriminatory restrictions on children’s use of common areas are not only against the law, but make it difficult for families with children to find and stay in suitable housing.”

Coach’s Tip: Even if your community’s rules apply to all residents—not just children—you could still face a discrimination claim if you enforce the rule only against children. For example, singling out children for breaking the rules against noisy behavior in common areas—but ignoring similar transgressions by adults—could lead to a fair housing claim based on familial status.

Rule #8

DO Focus Advertising on Property, Not People

DON’T Suggest that Children Aren’t Welcome at Your Community

Under the FHA, it’s unlawful to “make, print, or publish…any notice, statement, or advertisement,” that indicates any preference, limitation, or discrimination based on familial status and other protected characteristics. This rule applies to not only discriminatory advertising, but also all kinds of statements, including:

• What you say to prospects, applicants, or residents in person or over the phone;
• What you write in notes, text messages, emails, and perhaps even social media, as well as community rules and policies;
• What you put in your advertising and marketing materials—including words and graphics—in print, online, and other media.

Unlike other prohibited practices, liability for making discriminatory statements doesn’t require proof of discriminatory intent. The test is whether an “ordinary reader or listener” would interpret the statement as indicating a preference for—or against—families with children. According to HUD guidelines, advertisements may not contain limitations on the number or ages of children, or state a preference for adults, couples, or singles.

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

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

Coach’s Tip: To avoid accusations of discriminatory advertising, focus on descriptions of the property available for rent, not the kind of people who may want to live there.

Rule #9

DO Abide by Legal Obligations Involving Lead-Based Paint

DON’T Deny Housing to Families with Children Due to the Presence of Lead Paint

Although lead-based paint was banned for residential use in 1978, HUD estimates that about 24 million older homes still have significant lead-based paint hazards. Lead-contaminated dust is the primary cause of lead exposure and can lead to a variety of health problems in young children; at higher levels, lead can damage a child’s kidneys and central nervous system and can even be deadly, according to HUD.

While an affected community may be tempted to avoid renting to those most at risk—young children—that practice is banned under fair housing law. Regardless of the presence of lead-based paint, you may neither exclude nor discourage families with young children from living there.

Example: In January 2019, a federal appeals court upheld a $43,500 jury verdict against a Massachusetts community. In its complaint, the Justice Department alleged that the owner of a four-unit rental property violated federal fair housing law when he refused to rent a unit to a family because they had children under 6 years old and the units had no lead certificate. According to the Justice Department, the jury found that the owner made an apartment unavailable to the family based in substantial part on their familial status and that the owner retaliated against them after they filed their HUD complaint.

Rule #10

DO Review Student Housing Policies Affecting Students with Children

DON’T Risk Fair Housing Trouble in Student Housing Based on Familial Status

Fair housing experts warn that student housing providers are risking fair housing trouble when it comes to housing decisions affecting students with minor children. If you rent to anyone, including students, it’s a violation of fair housing law to refuse to rent to a student with a young child on the same terms and conditions as you would to other applicants.

Example: In March 2020, the National Fair Housing Alliance (NFHA) announced a settlement agreement with the largest third-party property management company in the nation for campus living. NFHA reports that the agreement will open up access to 140,000 beds across 40 states and 77 cities to families with children.

The settlement resolves NFHA’s lawsuit alleging that the company violated fair housing law by discriminating against families with children. The complaint alleged that the company, although marketing itself as student housing, knowingly rented to non-students while enforcing policies that discouraged families with children, even when the parents were students.

NFHA also alleged that the company, which owns or manages hundreds of apartment buildings throughout the country, had a policy that no more than one person could reside in each bedroom. According to the complaint, the policy wouldn’t permit a mother and her 2-year-old child to live in a large one-bedroom apartment under one lease, so the student and her daughter had to sign two leases and pay double the rent.

Example: In September 2019, the Justice Department sued the owners and managers of residential rental housing in Hawaii, alleging that they violated fair housing law by refusing to rent to families with children. The lawsuit claimed that the three properties were operated as student housing for post-secondary students.

Specifically, the complaint alleged that the communities discriminated against families with children by: (1) refusing to rent or to negotiate for the rental of the three properties on the basis of familial status; (2) steering prospective renters with children who inquired about housing away from the properties to a separate property management company; and (3) making discouraging and other discriminatory statements to potential renters with children who inquired about housing, including that the housing wasn’t “suitable” or the right “fit” for families with children. The complaint contains allegations of unlawful conduct; the allegations must be proven in federal court.

“Owners and managers of rental housing must ensure their housing is open to families with children,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “The Fair Housing Act requires it, and the Justice Department will continue both to enforce the Act vigorously and to seek relief for families victimized by unlawful discrimination.”

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

Answer.  By way of disclaimer, ORS 90.630 was amended in the 2019 Legislative Session, and this bifurcated violation scheme (separate/distinct conduct vs. repetitive/ongoing conduct) is brand new. MHCO’s 2020 violation forms make an effort to deal with this, but largely by paraphrasing the statute. In short, the concept and statute can be confusing, as your question implies.

Although I did not sit on the Landlord-Tenant Coalition meetings discussing this change, I believe I understand the rationale for doing so, which is very legitimate: Before the 2019 legislation, if a person violated the rental agreement, the rules, or a law or ordinance, the only recourse was to issue a 30-day notice requiring that the act (e.g. noise, unruly conduct) or omission (e.g. failure to maintain the space) cease by the end of the 30^thday.  While that approach works satisfactorily in most instances, there was always an open question whether, on single violations (e.g. yelling at the neighbors) could reoccur for the next 29 days and stop on the 30^th, thereby avoiding termination of the tenancy, since it was “cured” within 30 days.

I always maintained that the statute permitted non-curable termination if the misconduct re-occurred within the 30 days, but the statute was not clear on the point, and I suspect others did not agree with me.

So the purpose of the 2019 amendment to ORS 90.630 was, in part, I believe, to address repeat violations within the 30-day period. To the extent it addresses the conundrum of allowing multiple isolated violations to continue for 29 days without termination, I believe it did a very good job.

Now to the new statute, ORS 90.630, which seems to raise the question you’re asking – since repetitive or continuing violations cannot involve pets or assistance animals; does that mean you cannot use Form 43 for an unauthorized pet?

My interpretation of the statute is that an “unauthorized pet” does not fall into the same category as a “pet” or “assistance animal” that has been previously approved by management. In the latter case, management should have a Pet Agreement (but not for the assistance animal) governing violations which would trigger a fine.[1]

So I believe you coulduse either notice here. But since treating it as a continuing violation would permit the offender to keep the animal in the community for 29 days and remove it by the 30^thday to avoid termination of the tenancy. I don’t believe that is what you want.

My view is that the preferred approach is to treat the violation as a single event: i.e. bringing the pet into the community when it was never approved.  This gives you the fastest recourse in getting the pet removed, at the risk of a noncurable termination of the tenancy.

This is my opinion only, and based upon what I believe to be the rationale of the revised ORS 90.630; there are others that might disagree. So check with your own legal advisor for a definitive opinion.