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Question 1:  An applicant and his pregnant wife want to rent an available one-bedroom unit. You’re concerned about potential noise complaints about a crying baby, but you could be accused of discrimination based on familial status if you tell them that the unit is no longer available. True or false?

a.            True.

b.            False.

 

Answer 1:A

Reason: 

DO Make Housing Available to Families with Children

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

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

DON’T Penalize Residents for Having a Baby

 

You could trigger a fair housing complaint for denying housing to the couple by misrepresenting the availability of the unit because they’re expecting a child. The law banning discrimination based on familial status protects pregnant women in addition to families with children under 18.

 

Question 2:  A couple with twin toddlers asks about available two-bedroom units. There are three available—two on the ground floor and one on the fourth floor. There’s an obvious danger of children falling from balconies, so it’s okay to tell them only about the two ground-floor units. True or false?

a.            True.

b.            False.

 

Answer 2:  B

Reason: 

DO Tell Prospects About All Units that Fit Their Needs

DON’T Engage in Unlawful Steering Based on Familial Status

Even if acting out of good intentions, you could be accused of violating fair housing law if you tell them about only the ground-floor units. To avoid accusations of unlawful steering, you should tell them about all available units and let them decide where they’d prefer to live.

 

Question 3:  Most of your residents have lived at the community for many years. Since most are over 55, you are justified under the senior housing exemption to restrict occupancy to adults and to advertise the building as an “adult” community. True or false?

a.            True.

b.            False.

 

Answer 3:  B

Reason: 

DO Follow the Rules to Qualify for the Senior Housing Exemption

DON’T Adopt or Enforce Adults-Only Policy

DO Focus Advertising on Property, Not People

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

Even if most of your residents are 55 and older, your community would not qualify for the senior housing exemption unless you comply with all of the law’s technical requirements. Otherwise, your community could be accused of denying housing and discriminatory advertising based on familial status.

 

Question 4:  A community may not be found liable for housing discrimination for applying occupancy standards limiting all units to two people per bedroom. True or false?

a.            True.

b.            False.

 

 

Answer: B

Reason: 

DO Be Prepared to Justify Reasonableness of Occupancy Standards

DON’T Apply Unreasonably Restrictive Occupancy Standards

HUD’s two-person-per-bedroom standard is only a general guideline to determine whether a community’s occupancy standards are reasonable under federal fair housing law. Communities may have to allow more than two people per bedroom based on applicable state or local occupancy standards, the size or configuration of the unit, and other factors. According to federal guidelines, an occupancy policy limiting the number of children per unit is less likely to be reasonable than one that limits the number of people per unit.

Example: In September 2019, HUD charged the owners of a Georgia apartment building with violating fair housing law by refusing to rent to, imposing different rental terms and conditions on, and making discriminatory statements about families with children. In their HUD complaints, fair housing advocates and the mother of two minor children alleged that the owners applied a policy limiting the number of children who could reside in their apartments. Allegedly, the owners’ business voicemail recording announced the policy to persons who phoned looking for housing, and their policy allowed only one child in a two-bedroom unit and two children in a three-bedroom unit.

 

 

Answer:  The park cannot guarantee that health safety measures will be followed by everyone and it is not your job to police the stay-at-home order.  There is little in the way of legal enforcement mechanisms that the park can use to enforce COVID-19 safety measures, particularly on the tenant’s own space.

 

The best that you can do is to remind residents that for the overall safety of everyone in the park, they should avoid congregating on anyone’s rental space.  Your reminder could include the admonition that residents are obligated under Oregon law to notdisturb the peaceful enjoyment of the premises, and that gatherings right now pose a threat to that peaceful enjoyment. (With regard to visiting family members or guests, there is little you can do to prohibit that issue as long as they are not otherwise violating park rules.)

 

You do have more control over common areas such as playgrounds, recreational halls, swimming pools, etc. To the extent possible, you should close those areas to help reduce your risk of liability for any claims of negligence should someone become sick after using your park facilities.  For common areas that are necessities, such as laundry rooms or restrooms, post and enforce reasonable social distancing requirements according to government recommended practices, and more regularly clean and sanitize those facilities. 

 

If certain tenants or groups of tenants persist in gathering in an unsafe manner on their rental spaces, you might have good reason to issue a 30/14-day, for-cause eviction notice for disturbing the peaceful enjoyment of the premises.  Or, if a tenant did something intentional like trying to cough on someone, for example, then you could probably issue a 24-hour eviction notice for “outrageous behavior.”  However, as always, check with an attorney before issuing any eviction notices along these lines.

 

Answer.  When you say “our defense” I’m hoping you are referring to yourself andyour attorney.  While there may be certain “disagreements” with HUD that can be handled directly by a housing provider, most such cases require the assistance of good counsel. If you have not yet done so, please reconsider.

 

My answer below is for general purposes and should not be construed as legal advice in dealing with your specific case.

 

First, HUD says there are twotypes of assistance animals: 

 

(1) serviceanimals, and 

(2) other trained oruntrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. This category HUD refers to as “support animals”.

 

Second, to your point that landlords may reject a requested accommodation for a non-service (i.e. non-certified” animal), I must respectfully disagree.  The term “assistance animal” includes both, and they are protected under the Fair Housing Act. MHCO’s Form 21A applies to both trained and untrained animals.

 

In January, 2020, HUD issued new guidance in FHEO Notice FHEO-2020-01 (“Notice”), here.  It addresses the obligations ofhousing providers under the Fair Housing Act with respect to animals for which persons with disabilities may request areasonable accommodation. The Notice has two purposes:

 

The first, “Assessing a Person’s Requestto Have an Animal as a Reasonable Accommodation Underthe Fair Housing Act,” recommends a set of best practices for complying with the FHA when assessing accommodation requests involving animals to assist housing providersand help them avoid violations of the FHA. 

 

The second section to this notice, “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing,” provides guidance on information that an individual seeking a reasonable accommodation for an assistanceanimal may need to provide to a housing provider about his or her disability-related need for the requested accommodation, including supporting information from a health careprofessional.

 

I suggest that you review the Notice and related information in the above link.

 

Lastly, it is correct that there are other applicable laws – not just those promulgated by HUD: Specifically, Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA).

 

For these reasons, I recommend that you consult with your legal counsel in this dispute.

The CDC has warned against stigmatizing people or groups because of COVID-19. Health officials noted that people in the United States may be worried or anxious about friends and relatives who are living in or visiting areas where COVID-19 is spreading. Some people are worried about getting the disease from these people. Fear and anxiety can lead to social stigma, for example, toward people who live in certain parts of the world, people who have traveled internationally, people who were in quarantine, or healthcare professionals.

Stigma is discrimination against an identifiable group of people, a place, or a nation, according to the CDC. Stigma is associated with a lack of knowledge about how COVID-19 spreads, a need to blame someone, fears about disease and death, and gossip that spreads rumors and myths.

But, as the CDC points out, stigma hurts everyone by creating more fear or anger toward ordinary people instead of focusing on the disease that’s causing the problem. And in multifamily housing communities, stigma against particular people or groups because of COVID-19 could also lead to fair housing trouble.

In this lesson, we’ll review the law and offer six rules to follow to help you avoid fair housing trouble at your community while dealing with COVID-19.

MHCO Tip: The news regarding COVID-19 has been rapidly evolving, so it’s important to stay up to date on the latest developments. For the health information related to virus, visit the CDC’s website at https://www.cdc.gov/coronavirus/2019-ncov/index.html. And check your state, county, or municipal government websites to find out what’s happening in your area.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability—also known as “protected classes.”

In general, fair housing law targets housing practices that exclude or otherwise discriminate against anyone because of their race or other protected class. Owners, managers, and individual employees all may be held liable for discriminatory housing practices, including:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures;
• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms;
• Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
• Assigning residents to a particular section of a community or floor of a building;
• Providing different housing services or facilities, such as access to community facilities; and
• Failing or delaying maintenance or repairs.

In addition, the FHA makes it unlawful to advertise or make any statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. The law also prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right.

Deep Dive: Disability

General Rules: Technically, the FHA bans discrimination based on “handicap,” though the term “disability” now is more commonly used. Under the FHA, disability generally means a physical or mental impairment that substantially limits one or more major life activity. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

The law protects not only individuals who have a disability, but also individuals with a record of such disability (such as medical history of such an impairment), or those who are regarded as having such a disability (such as someone who is believed to have a mental illness, but in fact does not have such an impairment).

Despite the general rule banning discrimination against individuals with disabilities, the law recognizes an exception that allows communities to exclude an individual whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. But it’s a limited exception—federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of the particular applicant or resident based on reliable objective evidence of current conduct or a recent history of overt acts.

Special Rules: In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant requests for reasonable accommodations or modifications if necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.

6 RULES FOR COMPLYING WITH FAIR HOUSING LAW

WHILE DEALING WITH COVID-19

Rule #1: Remember Fair Housing Requirements While Responding to COVID-19

Fair housing law may not be the first thing you think of when it comes dealing with the coronavirus crisis, but it’s important to remember that the law bans discrimination on the basis of race and national origin, disability, and other protected characteristics, even if motivated by concerns about COVID-19. It’s certainly on the minds of federal and state fair housing enforcement agencies and advocates.

“As the global response to the COVID-19 pandemic continues, the Justice Department will remain vigilant in enforcing civil rights laws,” Assistant Attorney General for Civil Rights Eric S. Dreiband said in a statement. “We must ensure that fear and prejudice do not limit access to housing, schools, benefits, services, jobs, and information, among other things, on account of race, sex, religion, national origin, disability, or other protected classes.

“It is important that we all work together to address unlawful discrimination, including violent acts or threats based upon protected classes. As in all emergencies, the COVID-19 outbreak has affected people of many different races, religions, and ethnicities, as well as those with disabilities. Unlawful discrimination may also discourage people from coming forward to seek treatment or information. Laws prohibiting unlawful discriminatory behavior must and will be vigorously enforced,” he said.

HUD Secretary Ben Carson echoed those sentiments in HUD’s Statement on Fair Housing and COVID-19:

We all must be vigilant to take protective measures recommended by public health officials to prevent the spread of COVID-19, knowing that many individuals with COVID-19 show no symptoms and have no awareness of exposure to the virus. Regardless of specific laws, now is not the time to evict people from their homes. If a housing provider is concerned that a person has COVID-19 and may pose a threat to the health or safety of others, the housing provider should set aside fear and speculation, and rely on objective medical information and advice from public health officials to determine steps that could mitigate or prevent the risk of transmission.

Likewise, officials in New York State explain that state law bans discrimination against anyone because of a perceived connection between his race, national origin, or disability, and COVID-19. The law prohibits discrimination against anyone assumed to have been exposed to COVID-19 based on any of these traits.

Fast Fact About Face Masks: If an applicant or resident is wearing a face mask as a precaution, he’s still protected against discrimination, warn officials in New York State. The law prohibits discrimination based on a perceived connection between race, national origin, or disability and possible exposure to coronavirus—wearing a face mask doesn’t change this.

Rule #2: Comply with Laws Banning Discrimination and Harassment Against Racial and Ethnic Minorities

Fair housing law bans discrimination based on race and national origin, so it’s unlawful to exclude or otherwise discriminate against racial or ethnic minorities, even if motivated by concerns about COVID-19.

“As the CDC has said, viruses do not target specific racial or ethnic groups,” HUD Chief Ben Carson said in a statement. “Be aware that the Fair Housing Act and other federal laws prohibit the eviction, turning away or harassment of a person in housing because they are profiled, on the basis of race, national origin or other protected class, to be associated with COVID-19. The Fair Housing Act also prohibits retaliation and intimidation against persons who report acts of discrimination they have witnessed to law enforcement authorities, like HUD, or who aid someone who has been the victim of discrimination.”

Of particular concern during the COVID-19 outbreak are increasing reports of discrimination and harassment against Asian Americans. In the first four weeks following its official launch in mid-March, the STOP AAPI HATE reporting center said that it had received nearly 1,500 reports of coronavirus discrimination from Asian Americans across the country. More than half originated in California and New York—the states hardest hit by COVID-19 at the time. Civil rights violations involving workplace discrimination and being barred from businesses and transportation or refused service made up almost 10 percent of incident reports.

In New York City, officials announced the formation of a COVID-19 Response Team to handle reports of harassment and discrimination related to the outbreak. By mid-April, the New York City Commission on Human Rights recorded 248 reports of harassment and discrimination related to COVID-19, over 40 percent of which identify incidents of anti-Asian harassment or discrimination. By comparison, during this same time period in 2019, the commission received just five reports of anti-Asian discrimination.

The COVID-19 Response Team has taken action in 148 cases, including conducting early or emergency intervention, providing information on how to request a reasonable accommodation, referring the individual to another service or agency, or commencing an investigation. The 18 matters currently under active investigation span discrimination in housing, public accommodations, and employment on the basis of race, national origin, disability, and lawful source of income. Additionally, the Response Team has successfully resolved nine matters of COVID-19-related harassment and discrimination.

“In this time of unparalleled crisis, the NYC Commission on Human Rights is dedicated to responding to and investigating reports of bias, harassment and discrimination related to the COVID-19 outbreak in our city,” Chair and Commissioner of the NYC Commission on Human Rights, Carmelyn P. Malalis, said in a statement. Even in the midst of a pandemic, human rights cannot be violated, and we encourage anyone who has experienced COVID-19- related discrimination to report it to us.”

Fast Fact About Retaliation: Fair housing law also bans retaliating against anyone for complaining about discrimination or bias-based harassment, or otherwise exercising her rights under fair housing law. For example, a housing provider can’t evict someone for reporting housing discrimination to a state enforcement agency, explain New Jersey officials.

Rule #3: Don’t Let Fear of Virus to Lead to Disability Discrimination Claims

It’s important to keep fair housing disability rules in mind when dealing with COVID-19. The FHA bans discrimination based on disability, so it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability.

As noted by Secretary Carson, “There is much still to learn about COVID-19. We know, however, that persons with disabilities, including those who are older and have underlying medical conditions, are vulnerable and at high risk for a severe, life-threatening response to the virus. HUD recognizes that these persons may face unique fair housing and civil rights issues in their housing and related services. Housing providers are required to make reasonable accommodations that may be necessary to deliver housing and services to persons with disabilities affecting major life activities.”

There are no clear-cut answers about whether individuals who contract COVID-19 qualify for the disability protections under fair housing law. In part, that’s because the nature of the virus itself: For example, the symptoms of the condition vary so widely: Some people have no symptoms at all, while others suffer life-threatening, often fatal, consequences. For another thing, there’s still much that isn’t known about the virus—for example, whether people who have recovered from the virus are no longer contagious, and whether and for how long, they may be immune from the virus.

Under fair housing law, the disability provisions protect anyone who has a physical or mental impairment that substantially limits one or more major life activities. For example, the law would protect people with disabilities from discrimination, even if you believe that they have a higher risk of serious consequences from the coronavirus.

The law is also likely to cover anyone with serious symptoms of the virus, but it’s debatable whether it would cover someone with only mild or no symptoms of the virus. On one hand, even people with mild or no symptoms must self-quarantine to avoid any activities that could spread the virus to others, including work, a major life activity. On the other hand, the self-quarantine period is usually only a few weeks—and the disability provisions generally don’t cover temporary conditions.

Even in people with few, if any, symptoms of the virus, it’s important to remember that fair housing law protects not only individuals who have a disability, but also those who are regarded as having a disability—that is, anyone who is mistakenly believed to have a disability. Consequently, you could face a discrimination complaint if you take adverse action against someone because you believe they have the virus—whether or not they actually do.

Q&A

Q: Can or should I disclose the identity of residents who test positive for the virus to other residents?

A: In general, fair housing law requires that disability-related information be kept confidential, so you should exercise caution concerning what you tell your residents about anyone diagnosed with COVID-19.

The first step is to find out about recommendations of state and local authorities, if any, with respect to your obligation to disclose active COVID cases to the residents at your community. Absent applicable requirements, fair housing expert Doug Chasick says it’s fine to send a general notice to advise residents that there are active COVID cases at the community, but not to disclose the names or unit numbers of people with the virus. Disclosure may not only violate the resident’s privacy, but also trigger discrimination or harassment of the resident by others living at the community.

Rule #4: Carefully Consider Reasonable Accommodation Requests

In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant reasonable accommodations if necessary to allow individuals with disabilities to fully enjoy their dwellings.

Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. By definition, reasonable accommodations are exceptions to your general policies or practices. For example, fair housing attorney Terry Kitay says that if someone wants to break a lease early because she has COVID-19, and needs to be hospitalized for treatment, then a request for early lease termination would be an accommodation to a disability.  

Only individuals who qualify under the FHA’s definition of disability are entitled to reasonable accommodations. For example, someone who isn’t sick, but has lost employment because of stay-at-home policies, isn’t entitled to a payment plan as a reasonable accommodation under the Fair Housing Act, explains Kitay. Instead, this would be a customer service you’re providing for residents because of the pandemic.

In other cases, you could get a reasonable accommodation request for an exception to policies adopted to minimize residents’ exposure to the virus. For example, many communities closed amenities, such as fitness centers and pools, and other areas to slow the spread of the virus, but you could get a request by a resident with a disability, who usually uses the treadmill as part of his therapy, for an exception to the policy as a reasonable accommodation so he could use it.

Even though his request is related to a disability, fair housing law doesn’t require you to grant a request for a disability-related accommodation if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. In this case, Kitay says that his request to use the fitness center would probably be considered unreasonable—it would not only pose a direct threat of spreading the virus, but also impose an additional financial and administrative burden on the community to clean and sanitize the facility and the equipment after each use.

Rule #5: Comply with Laws Banning Discrimination, Harassment Based on Sex

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex. Though most sexual harassment claims are filed by women, the law is broad enough to protect both men and women from sexual harassment, regardless of whether the perpetrator is a man or a woman.

Since the COVID crisis began, there have been increasing reports of landlords pressuring women unable to pay rent due to lost income from the COVID crisis into “arrangements” and sexual conduct, according to Khara Jabola-Carolus, Executive Director of the Hawaii State Commission on the Status of Women. Though the law temporarily protects renters from evictions, there’s no official policy for rent forgiveness. About one-third of Americans were unable to pay their rent on April 1—and male landlords were taking advantage of the intensifying financial pressure, she said. 

In response to reports of sexual harassment during the pandemic, Attorney General William Barr directed federal prosecutors throughout the nation to deploy all available enforcement tools against anyone who tries to capitalize on the current crisis by sexually harassing people in need of housing.

“As the country adopted drastic measures to slow the spread of COVID-19, many Americans have lost their jobs and many more have seen their wages curtailed,” Barr said. “These losses have forced many to seek abatements or suspensions of their rent, with reports that nearly one-third of Americans were unable to pay their April rent at the beginning of the month.”

Though many landlords responded by trying to work with their tenants to weather the current crisis, Barr said that others have responded to requests to defer rent payment with demands for sexual favors and other acts of unwelcome sexual conduct. “Such behavior is despicable and it is illegal,” he said. “This behavior is not tolerated in normal times, and certainly won’t be tolerated now.”

In a statement, HUD Secretary Ben Carson praised the Attorney General for devoting all “necessary resource” to aid HUD investigations into reports of landlords demanding sexual favors in exchange for rent.

“The Fair Housing Act embodies the spirit of this great Nation where everyone is entitled to equal opportunity and respect,” Carson said. “No one should have to endure sexual harassment and degrading treatment, especially to keep a roof over their heads. I’m pleased Attorney General Barr has partnered with HUD to fully investigate and prevent sexual harassment in housing particularly during this difficult time in our country.”

Rule #6: Treat Applicants and Residents Consistently

Don’t treat people differently based on whether they have—or you believe they have—been exposed to COVID-19. Absent a positive COVID test, it can be difficult, if not impossible, to tell whether someone has the virus, because so many people have few, if any, symptoms of the virus.

It’s discriminatory to assume that someone has been exposed to the virus, simply based on where they—or their ancestors—were born. For example, enforcement officials in New Jersey explain that owners or managers can’t refuse to make necessary repairs to a unit because the resident is Asian and they’re afraid of contracting COVID-19. Nor can an owner or manager refuse to rent a property to someone based on these reasons. Fair housing law doesn’t prohibit a landlord from taking reasonable steps to protect himself or other residents from COVID-19, but such reasonable steps wouldn’t include actions premised on stereotypes based on race or national origin.

Consistency is key to fair housing compliance, says fair housing expert Doug Chasick. During the COVID crisis, for example, many communities have suspended regular maintenance operations, responding only to emergencies, to avoid the risk of exposure between residents and staff. When responding to emergency repair requests, it’s important for maintenance staff to respond to requests using the same safety practices to avoid potential discrimination claims.

Kitay agrees. When dealing applicants and residents, she says it’s a good idea to assume that everyone is positive, so you go into every situation with the same protocol.

Fair Housing Compliance Basics

• Suspend Judgment
• Think: Equal, Not Fair
• Be Consistent, which doesn’t mean “treat everyone the same”
• Manage Expectations
• Be Transparent – Communicate the “Why”
• Appreciate that Perception Is Reality

 

 

Question.Residents are concerned about the return of the son of a long-time resident who is being released from prison for burglary.  His name is on a rental agreement for a home that he lived in with his parents. His mom still lives in the community under the same rental agreement.  Since his name is still on the rental agreement, does management have to let him back in the community after being away for two years in prison.  The mother says he is still a resident - the residents and management object.  How should management proceed?

Answer.  I’m going to assume the son was a minor when he first came to the park with his mother. That being the case, he never went through the formal application process. I’m also going to assume he is no longer a minor now.  In other words, if he applied for tenancy today, he certainly would have to go through the application process including a criminal background check.

 

The fact that he is on the rental agreement as a minor is irrelevant today. He should be treated the same as any other tenant applicant.  If he wants to apply for tenancy he may do so. This would include a criminal background check.

 

You did not say whether this was a misdemeanor or felony conviction. Nor did you say whether he has other convictions. What has he been doing since release? Is he employed? Does he have any references? Does he have a parole officer? Generally, today, certain property-related convictions (as opposed to person-related, such as assault and battery) are not, per se’ the basis of an automatic denial.

 

Included below are some helpful links, one of which applies to the City of Portland, which has much stricter – some landlords might use other adjectives – than the rest of the state.

 

Uultimately, the issue is notwhether you must accept this person simply because he had formerly lived at the park – you do not. This applies to adult tenants who were previously approved, left and came back a few years later. You are within your rights to require updated background information as a condition to a person’s approval as a new tenant, whether living with an existing tenant, or in their own home.

 

One, “middle ground” approach you may consider is to approve the son as a “temporary occupant” under ORS 90.275.  This arrangement allows you to keep a tighter rein on him; if he causes problems, termination is much easier and fast. If you do this, be sure to limit the agreement to a short period of time, e.g. three months. Once that period expires you do not have to renew it. And if he immediately creates a problem, you can terminate immediately. And, there is no right to cure. Good luck.

 

Resources:

· https://www.mysmartmove.com/SmartMove/blog/hud-guidance-criminal-background-screening.page

· http://fhco.org/index.php/discrimination-in-oregon/protected-classes/national-origin/screening-options

· https://www.opb.org/news/article/portland-tenant-screening-regulations-pass/

· https://www.portlandoregon.gov/phb/article/752954

New Forms

 

For the first time, MHCO is making long term Leases available to its members. The new Lease form is entitled, “MHCO Form 5F: Manufactured Dwelling Space Long Term Fixed Term Lease Agreement.” The corollary forms, which must be used in conjunction with form 5F, are entitled “MHCO Form 5G: Manufactured Dwelling Space Utility Addendum” and “MHCO Form 5H: Rent Addendum.”

 

The look and feel of the new Lease is a radical departure from prior formats. The new Lease contains clearer headings, consolidates similar concepts, and guides readers through its contents. The new Lease further adds many clauses that fill preexisting gaps and further clarify the parties’ rights and obligations throughout the term of the Lease. 

 

Familiarization and Independent Reviews

 

Before using the new Lease and the aforementioned corollary Addendums, members are encouraged to read them and to familiarize themselves with their contents. Members are also encouraged to forward a copy of all three forms to attorneys of their choosing, prior to using the Lease package, in order to procure independent opinions and advice. 

 

While MHCO believes the new Lease package complies with Oregon law, others may disagree. MHCO is not aware of any Oregon litigation focusing on the validity of these types of Leases, but that may be due to their recent introduction. In any event, make sure that the Lease and Addendums are within your realm of risk tolerance, should you elect to utilize the same going forward.

 

How to Use the Long Term Lease Package: Rent

 

Assuming you’ve decided to use the Long Term Leases, first compare the Lease language and customizable portions to the park’s goals. Pay special attention to such items as the duration of the Lease and the Addendums that must be – or may be – added. 

 

Since desired Lease durations and rent structures will inevitably vary from one park to the next, Lease sections 7.1 and 19.40 cross reference a Rent Addendum. That Rent Addendum (Form 5H) is a necessary addition to the Long Term Lease, as it sets forth the rent rates for each year of the lease term. 

 

MHCO’s Rent Addendum (form 5H) provides a clearly stated amount of rent for each year of the Lease. However, MHCO simultaneously recognizes that different parks may desire different Rent Addendum language and made sure that the Lease takes that into account. Parks that wish to use formula-based rent tiers or other structures can add their own Rent Addendums to the Lease, and the generic appearance of the title, “Rent Addendum” in Lease sections 7.1 and 19.40 allows for the integration of those customized, park-specific Rent Addendums.

 

The New Utility Addendum

 

A number of lawsuits focusing on utility billing practices have recently jumped into the spotlight. That litigation trend has triggered a change in the way utility billings are being handled via the new Long Term Lease.

 

Utility allocations and billing practices are far more complicated than most landlords have realized. Inserting utility clauses into the Long Term Lease became cumbersome, as the clauses burgeoned in their breadth and scope. Rather than bloat the new Lease with utility provisions, a new Utility Addendum (Form 5G) was created. As with the Rent Addendum, the Utility Addendum is a necessary component of a complete Lease package (which would minimally consist of the Long Term Lease, Rent Addendum and Utility Addendum). 

 

The new Utility Addendum may intimidate first time users. However, a quick perusal of the headings, followed by a more detailed reading of the options listed under each heading, will assuage those fears and reveal common patterns that are surprisingly user friendly. Nonetheless, landlords should take their time filling in Utility Addendums, so as to ensure they’re complete, accurate, and compliant with all relevant laws. 

 

MHCO’s Forms Database 

 

While three new forms have been described in this article, many other forms remain available to customers and may remain part of your Rental Agreement packages. For example, landlords will still provide Rules and Regulations (and check the correlating box in Lease section 19.40) and may use one of the many other Addendums listed in Lease section 19.40. Further, as new forms become available, they too may be incorporated into future Lease packages. 

 

Supporters, Detractors and the Future

 

Anytime a new form hits the market, there will be an inevitable division between its supporters and detractors. Further, most forms tend to evolve over time. (If the foregoing comments weren’t true, we’d be using the same Rental Agreements today that we had in place decades ago.) We anticipate that the Long Term Lease – and its related Addendums – will follow an evolutionary trend, just as so many other forms have done. Alas, MHCO’s goal of providing customers with contemporary forms that recognize the nuances of today’s practices will remain consistent. 

 

Should any member have questions, comments or suggestions regarding the new forms, please don’t hesitate to contact us. 

Question 2

The temporary occupancy agreement states that the temporary occupant must comply with the laws/Rules Regulations & Policies of the community.  Who is responsible to provide this information to the temporary occupant and when should it be given?  

 

Answer 2

I understand that the temporary occupant law does not specifically address this point.  But you have the most to lose if the rules are not given to them at the outset of the temporary occupant relationship.  That being the case, I would suggest you append the rules to the temporary occupant agreement, and have them sign both the agreement and the attached rules.  Then there is no question about whether they got them.

 

Question 3

The temporary occupant agreement and the law state that a temporary occupant can be terminated “for cause” if there is a material violation of the occupancy agreement and that the temporary occupant does nothave a right to cure the violation.  The other option is termination by automatic expiration of the agreement (if the box is checked that specifies this).  If the landlord needs to issue a for cause termination (instead of termination by automatic expiration) the termination must be done in accordance with the law outlined in ORS 90.392 (for non-MHP tenancies) or 90.630 (for MHP tenancies).  However after reading these statutes, they do not give an option for the landlord to issue a for cause notice with no right to cure. How is a landlord supposed to issue a for cause termination notice with no right to cure and have it held up in court?  If a landlord issues a for cause notice with no right to cure, what form should be used and what is the time frame for the termination.  

 

Answer 3

The temporary occupant law is addressed in ORS 90.275. You may terminate the temporary occupant for a material violation of the temporary occupancy agreement.  That agreement also terminates by its own terms when it expires (if you checked that box on the form). The law says that upon termination or expiration, the temporary occupant shall “promptly vacate.”  If they don’t, then the landlord can issue a for cause termination under 90.630(for MHP tenancies) to the tenant – notthe temporary occupant.  That means you would issue a termination notice under 90.630 for the tenant to vacate if the temporary occupant failed to do so as required.  The opportunity to cure is for the tenant to get the temporary occupant to vacate.    If they temporary occupant fails to vacate within the 30-day cure period given by law to the tenant, then the entire space tenancy is terminated.  In such case, the law says the temporary occupant – if they remain – is treated as a “squatter.”  ORS 90.403then permits you to give a 24-hour non-curable termination notice to the “squatter”  and evict, if necessary, through the normal FED process.

Behind the Headlines: Lessons Learned from the Latest Fair Housing News

This is the first of four articles that MHCO spotlights settlements reached in fair housing cases. The amounts reportedly paid are sometimes staggering—which is news in and of itself—and show just how much it can cost to resolve fair housing complaints. But the real news is in the backstory, the events that led to a complaint against the community. It’s there that you can learn what, if any- thing, the community could have done to avoid the problem in the first place, or once the problem arose, to prevent it from escalating into a formal fair housing complaint.   Over the next four weeks MHCO will run four stories on Fair Housing settlements along with the backstory and lessons learned.  
 

In this lesson, we’re highlighting the news about four fair housing settlements. We’ll start with the headlines and then give you the backstory—the allegations in the complaint—so you can get a feel for how and why the situation led to a formal fair housing complaint. Then we’ll review the lessons learned from each scenario to help you avoid similar fair housing trouble at your community. 

Editor’s Note: Since we’re looking at settlements, we get to hear only one side of the story—the allegations of the resident, the government, or the fair housing advocacy group filing the complaint. It may not be what really happened: All the owners, managers, and communities denied the allegations, so we don’t get to hear their side of the story, which may very well have gotten the whole thing thrown out of court. As a practical matter, however, it’s often better to settle to put an end to the matter, rather than face the prospect of lengthy and expensive legal proceedings. Just remember: The fact that the case was settled doesn’t mean that anyone did anything wrong. 

First Headline:  Landlords Pay $19,500 for Allegedly Denying Housing to Mother of Twins 

HUD announced that a group of landlords have agreed to pay $19,500 to resolve complaints alleging discrimination against families with children. According to the complaint, the owners and their on-site property manager allegedly refused to rent a two-bedroom apartment to a single mother and her twin boys. 

The Backstory:This case started when a mother said she contacted a property manager about renting a two-bedroom unit for herself and her twin 4-year-old boys. She alleged that, after learning she had two sons, the property manager told her that there would be some clean-up involved and that he would get back to her—but he never did. Two weeks later, she said her mother called the property manager on her behalf. When the grandmother reminded him about the two children, the manager allegedly said that he would need to consult with his wife, who wouldn’t be back in town for two weeks. 

Suspecting discrimination, the mother asked her cousin to call about the unit. Allegedly, the property manager asked who would be living there and when the cousin said the apartment would be for her and her husband, he offered to show her the unit the next day.

The mother filed a HUD complaint, alleging that the community denied her the opportunity to rent a two-bedroom unit because she has children. Though the owners and manager denied the allegations, the parties reached a settlement. Without admitting liability, the community agreed to pay the mother $19,500 and to modify its website and advertising policy to clearly state that families with children are welcome. 

“When a property owner refuses to show an available unit to a family because they have children, they’re not only denying them a housing opportunity, they’re violating the law,” Gustavo Velasquez, HUD Assistant Secretary for Fair Hous- ing and Equal Opportunity, said in a statement. “No one should have to hide who they are or who their family is while looking for a place to live. This agreement reaffirms HUD’s commitment to ensuring that housing providers treat all applicants the same, regardless of gender, race or family status.” 

Lessons Learned: 

1. It’s NOT Okay to Turn Away Families with Children:  Though it’s been unlawful for 25 years, communities continue to run afoul of fair housing provisions banning discrimination based on familial status. These rules bar communities from denying housing to applicants because they have one or more children under 18 living with them. Unless the community qualifies as senior housing, it’s unlawful to screen out or deny housing to families with children. 

2. Dot Your I’s and Cross Your T’s to Qualify as Senior Housing: Don’t get lulled into a false sense of security because fair housing law recognizes an exception to the rules banning familial status for senior housing communities. It’s a limited exception, which applies only to “housing for older persons,” and there are lots of hurdles to jump before a community may qualify for the exception. Unless your community meets those specific technical requirements, you can’t simply decide that you’d prefer to rent to adults instead of people who have one or more children in their household. 

3. Testers Are on the Lookout for Discrimination Against Families: 

It’s common for prospects to ask friends or family members to check out suspicions that they’re getting the runaround because they have kids,
but increasingly it’s testers who are contacting communities to check for discrimination based on familial status. To avoid even the hint of discriminatory intent, treat every contact as if he was a fair housing tester—he very well may turn out to be one. 

EDITOR’S NOTE: This settlement is among a string of settlements and court filings in housing discrimination complaints based on familial status. A Wisconsin community agreed to a $100,000 settlement to resolve allegations that it unlawfully excluded families with children from significant portions of its 230-lot mobile home park. 

 

By

Phil Querin and Bill Miner

 

Now that most Oregon counties are gradually permitting the opening of certain businesses, it’s time to think about manufactured housing communities, which seem to have been conspicuously ignored in most press releases.

 

For a list of counties, and the phased guidelines, go to link here: https://govstatus.egov.com/reopening-oregon#phase1.

 

COVID was never a threat contemplated under Oregon landlord-tenant law. Accordingly, landlords cannot be said to be guarantors against the virus attacking their residents. Furthermore, rental agreements that promise certain amenities also did not contemplate COVID and may be used by some residents to attack a landlord’s desire to protect against the virus. We understand that some residents are pushing landlords to reopen common areas. and the below is being as some guidance. If you have residents that are threatening or making demands, you should work with your individual legal counsel to determine the best response.

 

As park common areas are being opened, we need to look at what protections landlords can put into place to address the risks that arise when residents congregate in groups. 

 

 

Here is a short list; much more detail is found on the attachments (attached above) this article. 

 

• If the area is enclosed, the size of the facility will dictate the number of persons who may congregate there;
• If it is an indoor recreational facility, numbers must also be observed;
• The use of shared equipment must be monitored for social distancing (6 feet), and for frequent sanitation;
• Certain areas, because of limited size, may have to be blocked off or have controlled access;
• Library facilities will need to be limited in number of persons, seating, and distancing;
• Personal protective equipment (masks, gloves, sanitizers) should be encouraged (or required) for all users; or disposable ones could be provided by management;
• If the area is not enclosed, social distancing must still be observed;
• If the area is recreational, personal contact activities should be avoided 

 

As guidance, you may consider following state requirement for private facilities: Recreational, Children’s Camps; and Outdoor Facilities.  

 

Perhaps most important is signage which should be developed and posted in all common areas including the management office. Signage should contain, at a minimum, the following caveats:

 

• Warning against coming to the common area if you are ill, have a temperature, cough, or shortness of breath;
• Observe social distancing, except families living together; 
•     Use protective masks;
•     Use protective gloves, where appropriate;
•     Observe etiquette when coughing or  sneezing;
•      Avoid physical contact;
•     Engage in frequent and thorough hand washing with soap and running    water for at least 20 seconds; 
•     Carry portable hand sanitizers;
•     Avoid frequent touching of hard surfaces inside the room. 

 

The above suggestions are just a starting point. Again, park management should consult with its own legal counsel for more thorough detail.

 

 

 

 

 

 

EXECUTIVE RULE NO. 388 ADDENDUM

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.