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Answer.  First, let’s deal with the vacant mobile home next door to the troublesome neighbor. You need to review your community rules and the rental/lease agreement to see what restrictions might apply. 

The MHCO Rental/Lease Agreement contains a quiet enjoyment provision similar to ORS 90.740which requires that the tenant “…(b)ehave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors.”[1] 

I assume you have already contacted the problem tenant and requested he/she refrain from such conduct. I would elevate this to a written warning, so you have documentation in the file should he refuse to stop.

The next step, if he/she continues, is, depending upon the applicable provisions of your rules and rental/lease agreement, to issue a notice of termination under ORS 90.630(1)(b) for a material violation of a “… rental agreement[2]provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy….”

And thanks to a 2019 legislative change, ORS 90.630now provides that a 30-day notice of termination may be issued if the prohibited conduct is a “…separate and distinct act or omission *** the tenant “…may avoid termination by correcting the violation by a designated date that is at least three daysafter delivery of the notice.” (Emphasis added.) If substantially the same conduct is repeated with six month after the termination date, a landlord may issue a non-curable 20-days’ notice of termination.[3]

As to the other tenant interfering with your manager’s efforts to rent an RV space, the manufactured housing section of ORS Chapter 90,[4]does not apply, so you must look to that portion of the landlord-tenant law that applies to all other rentals, such as homes and apartments, etc.[5]

You still need to review your rules and rental agreement for a quiet enjoyment provision, or use the statutory equivalent found in ORS 90.325(1)(g). The non-manufactured housing termination for cause statute, ORS 90.392applies. It contains the same “distinct act” and non-curable “repeat violation” provisions. It providesfollows:

· The notice must:

• Specify the acts and omissions constituting the violation;
• State that the rental agreement will terminate upon a designated date not less than 30 days after delivery of the notice; and
• If the tenant can cure the violation, state that the violation can be cured, describe at least one possible remedy to cure the violation and designate the date by which the tenant must cure the violation.

· If the violation described in the notice can be cured by the tenant by a change in conduct, repairs, payment of money or otherwise, the rental agreement does not terminate if the tenant cures the violation by the designated date.

· The designated date must be:

o At least 14 days after delivery of the notice; or

o If the violation is conduct that was a separate and distinct act or omission and is not ongoing, no earlier than the date of delivery of the notice as provided in ORS 90.155.

· If the tenant does not cure the violation, the rental agreement terminates as of the termination date provided in the notice.

· If substantially the same act or omission occurs with six months of the designated termination date, the notice of termination must be not less than 10 days after delivery of the notice, and the tenant does not have a right to cure the violation.

Lastly, I regard this conduct as a different type of activity than the normal Chapter 90 violations. You might consider discussing this with your attorney, since it clearly interferes with your ability to run your business. The loss of potential tenants can have serious financial consequences. Perhaps a letter to the troublesome tenants would be appropriate, warning them of financial claims if the conduct continues. 

The owners and managers of a Midwest community recently agreed to pay $35,000 to settle a lawsuit filed by the Justice Department, alleging that they violated fair housing law by placing undue conditions on a resident’s request to live with her assistance animal and then refused to renew her lease.

The Backstory: The case is about a resident who moved into an 800-unit community, which allowed pets and assistance animals, but had a “no dangerous breeds” policy that prohibited pit bulls. Before moving in, the resident allegedly had been in treatment for mental health disabilities that stemmed, at least in part, from witnessing the traumatic deaths of her boyfriend and mother. A family member gave her a young pit bull, which her treating psychologist said helped alleviate the symptoms of her disability and was a “major and required part of her treatment program.”

She apparently didn’t mention the dog when she moved into the community later that year. When the community discovered the pit bull, the resident requested a reasonable accommodation so she could keep it as an emotional support animal. Allegedly, the community denied the request and told her to remove it.

What followed were communications involving the resident, community representatives, and their lawyers, and ultimately, a series of court proceedings. During the process, the resident produced documentation from her treating psychiatrist that the specific animal was necessary for her to be able to live there and essential to her recovery from the severe trauma she suffered. In an interview before a court reporter, the psychiatrist said much the same thing.

It was about half-way through the one-year lease term when the parties came to terms. In lieu of granting her requested accommodation, the community allegedly gave her two options: either immediately terminate her lease and get some rent back or keep the dog through the end of the lease, but with conditions. Allegedly, the conditions included obtaining an insurance policy to cover the dog, requiring the dog to wear an emotional support vest whenever he left her unit, and repaying the community for any harm caused by the dog.

According to the resident, she picked the second option, but a few months later, she received notice that her lease would not be renewed. Renewed negotiations were unsuccessful, and she moved out. 

After the resident filed a HUD complaint, the Justice Department sued the community for discrimination and retaliation against the resident on the basis of her disability.

The community denied the allegations, but the parties reached a settlement to resolve the matter. Without admitting liability, the community agreed to pay $35,000 to the former resident and adopt policies, including a reasonable accommodation policy that specifically addressed requests for assistance animals. Under the new policy, assistance animals are not subject to breed restrictions or required to wear vests or other insignia that identify them as assistance animals; residents are not required to pay any fees or obtain insurance as a condition of keeping assistance animals.

Lessons Learned: 

1.   Assistance Animals Are NOT Pets: Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, security deposits, or additional rent charges. Whatever your pet policy, you must consider a request to make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the community. That includes a request to keep a pit bull as an assistance animal—despite any policies banning so-called “dangerous breeds”—unless there’s evidence that the particular animal poses a direct threat to the safety or property of others.

2.   Requests for Assistance Animal Can Come Anytime: Don’t get thrown off because the resident makes a reasonable accommodation only after you discover she’s been keeping an animal in violation of your pet policy. Under fair housing law, reasonable accommodation requests may be made at anytime before or during the tenancy. The timing may be off, but it’s risky to deny the request—or make the resident jump through hoops—to overcome suspicions that she’s trying to get around your rules by falsely claiming a pet is an assistance animal. Instead, follow your standard policies for handling reasonable accommodation requests, including verification of the disability and need for the assistance animal if either or both are not known or readily apparent.

3.   Don’t Impose Extra Conditions to Allow Assistance Animals: Don’t require residents with disabilities to pay pet fees or get extra insurance coverage as a condition of allowing them to keep assistance animals. Conditions and restrictions that communities apply to pets may not be applied to assistance animals, according to HUD, though you do have recourse against residents for damages caused by assistance animals. HUD says you may require a resident to cover the cost of repairs for damage the animal causes to his unit or the common areas, reasonable wear and tear excepted, if it’s your policy to assess residents for any damage that they cause to the premises. Allowing for reasonable wear and tear, you may assess the costs against the standard security deposit charged to all residents, regardless of disability.

Answer:  This is a new one.  The Oregon landlord tenant law does not expressly address this specific issue. The closest it comes are the following laws:

1. ORS 90.755 Right to speak on political issues; limitations; placement of political signs:

(1) No provision in any bylaw, rental agreement, regulation or rule may infringe upon the right of a person who rents a space for a manufactured dwelling or floating home to invite public officers, candidates for public office or officers or representatives of a tenant organization to appear and speak upon matters of public interest in the common areas or recreational areas of the facilityat reasonable times and in a reasonable manner in an open public meeting. The landlord of a facility, however, may enforce reasonable rules and regulations relating to the time, place and scheduling of the speakers that will protect the interests of the majority of the homeowners.

            (2) The landlord shall allow the tenant to place political signson or in a manufactured dwelling or floating home owned by the tenant or the space rented by the tenant. The size of the signs and the length of time for which the signs may be displayed are subject to the reasonable rules of the landlord. (Emphasis added.) 

2. 90.750 Right to assemble or canvass in facility; limitations. No provision contained in any bylaw, rental agreement, regulation or rule pertaining to a facility shall:

            (1) Infringe upon the right of persons who rent spaces in a facility to peaceably assemble in an open public meeting for any lawful purpose, at reasonable times and in a reasonable manner, in the common areas or recreational areas of the facility. Reasonable times shall include daily the hours between 8 a.m. and 10 p.m.

            (2) Infringe upon the right of persons who rent spaces in a facility to communicate or assemble among themselves, at reasonable times and in a reasonable manner, for the purpose of discussing any matter,including but not limited to any matter relating to the facility or manufactured dwelling or floating home living. The discussions may be held in the common areas or recreational areas of the facility, including halls or centers, or any resident’s dwelling unit or floating home. The landlord of a facility, however, may enforce reasonable rules and regulations including but not limited to place, scheduling, occupancy densities and utilities.

            (3) Prohibit any person who rents a space for a manufactured dwelling or floating home from canvassing other persons in the same facility for purposes described in this section. As used in this subsection, “canvassing” includes door-to-door contact, an oral or written request, the distribution, the circulation, the posting or the publication of a notice or newsletter or a general announcement or any other matter relevant to the membership of a tenants’ association.

            (4) This section is not intended to require a landlord to permit any person to solicit money, except that a tenants’ association member, whether or not a tenant of the facility, may personally collect delinquent dues owed by an existing member of a tenants’ association.

            (5) This section is not intended to require a landlord to permit any person to disregard a tenant’s request not to be canvassed. (Emphasis added.)

3.  90.740 Tenant obligations. A tenant shall:

            (3) Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenant’s behavior as a tenant.

            (4) Except as provided by the rental agreement:

            (a) Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

            (i) Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors. (Emphasis added.)

So, you see, this simply isn’t addressed in the landlord-tenant law.  Nor should it be.  Clearly, the resident leaving the religious material in the clubhouse could, if he or she wanted, go door to door proselytizing, unless and until others complained.  If the materials are left anonymously, without more than a single resident being offended, I’m not sure what the landlord could or should do.   Remove and destroy the materials?  

If the landlord knows who is doing this, perhaps a personal discussion with them might be in order. But telling them to “stop” because a single person is offended seems unnecessary.  If there is a place in the clubhouse for storage of reading materials, perhaps removing the literature to that location would work.  Certainly, no rule change prohibiting placement of materials in the clubhouse (just because they are religious) is unnecessary.  Management cannot be responsible for controlling the placement of written materials in the clubhouse unless it is offensive, inappropriate for minors and guests.[i] This is what free speech is all about.  My view would be the same regardless of the denomination of the literature.  If I’m incorrect, I’m sure I will hear about it.

Answer:  The initial answer is that you are not “required” to open the park facilities that you have kept closed. You do have some discretion on when and how to open certain non-essential park facilities.

The park does have an obligation to provide essential services like restrooms and showers if those facilities are part of what the park regularly provides to tenants.  Presumably you have already been following the state guidelines for sanitation of those facilities.  Under the state guidelines, facilities such as restrooms and showers should be thoroughly cleaned at least twice daily and, to the extent possible, provided with things like soap, toilet paper and hand sanitizer throughout the day.

For both essential and non-essential services, it is important to follow the state guidelines published by the Oregon Health Authority.  You should go to their website for guidance on all COVID-19 issues at https://govstatus.egov.com/OR-OHA-COVID-19. The website provides general guidelines, as well as more specific guidelines for Phase 1 and Phase 2 reopening, including easy-to-print signs to post in your park regarding occupancy limits, social distancing, hand-washing, and COVID-19 symptom recognition.

With regard to reopening a swimming pool, there are very specific guidelines to follow, which include social distancing around the pool, sanitation requirements, occupancy limits, and clear signage for all of the above.  The specific Phase 2 guidelines can be found here:  https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/le2351C.pdf.

In Phase 2, playgrounds should remain closed, and indoor rec centers should only be reopened if physical distancing can be ensured, occupancy is limited, and regular cleaning can take place, among other requirements:  https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/le2351A.pdf.

Ultimately, you should use your best judgment on when to reopen park facilities based on the guidelines and the park’s ability to comply with the guidelines.  Your decision should also take into consideration the park’s obligation to provide park facilities to tenants under your rental agreement.  While the COVID-19 emergency provides a legal justification to temporarily suspend access to those facilities, to avoid pushback from tenants you should consider reopening the facilities when it is safe and feasible under the guidelines. 

The Justice Department announced that the owners and property managers of a 15-unit apartment community have agreed to pay $40,000 to settle allegations that they failed to stop disability-related harassment of a resident’s daughter by neighbors and then refused to renew their lease because of her disability and that of her daughter.

The Backstory: The case involved a mother and daughter who moved into the community in 2013. Both allegedly had disabilities: The mother had cerebral palsy and a vision impairment, and her 21-year-old daughter was born with Down Syndrome. A family friend helped the family by arranging their housing, taking care of their finances, communicating with others on their behalf, and running errands for them.

While moving in, the mother said they were subjected to offensive comments and gestures by at least three other residents. Among other things, the neighbors allegedly called the daughter “mentally retarded,” and said, “You don’t belong here…you belong in an institution.” Allegedly, the neighbors said much the same thing in complaints to the owner.  

A few days later, the friend said she emailed the owner, explaining that the daughter had a few rough evenings, crying loudly, but that the mother had calmed her down; she also defended the girl against the neighbors’ accusations by saying that she was a great kid and an honor student. Soon after, the friend said that the owner called her; allegedly, he said his policy was not to get involved in neighbor disputes and told them to develop a “plan” to deal with noise complaints about the daughter.

In the months that followed, the friend said she repeatedly complained to the owner and the building manager about continued harassment by the neighbors, one of whom allegedly followed them around making offensive comments and and telling them that they couldn’t use common areas. Allegedly, the mother called police, who warned the neighbor to stop the harassment, but it continued throughout their tenancy, making the daughter afraid to leave the unit.

Eventually, the residents said that their lease wasn’t renewed, so they moved out at the end of the term.

The mother filed a HUD complaint, which triggered the Justice Department to file suit against the owner and manager for fair housing violations. The complaint accused them of disability discrimination by refusing to renew the lease because of the disabilities of the mother and daughter; demanding that they develop a “plan” to deal with the daughter’s disability-related behavior; and pressuring them to move. The complaint also accused them of failure to take prompt action to correct and end the neighbors’ disability-related harassment of the residents.

Though the owner and manager denied the allegations, the parties reached a settlement to resolve the matter. In addition to paying the $40,000 settlement, the community agreed to maintain nondiscrimination housing policies, advertise that they are equal opportunity housing providers, and provide fair housing training.

“No family should have to endure degrading insults and comments in the place they call home,” Gustavo Velasquez, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s settlement reflects HUD and the Justice Department’s ongoing commitment to taking appropriate action against individuals who violate the housing rights of persons with disabilities.”

Lessons Learned:

1.   Rethink “Don’t Get Involved” Policy: It would be exhausting to get involved in every dispute between neighbors, but you should pay close attention to any complaints involving offensive comments or harassment by or against anyone based on race, color, or any other characteristic protected under federal, state, and local law. Depending on the nature and severity of the complaint, you could face liability for harassment under fair housing law if you knew about the offensive conduct but failed to do anything to stop it.

2.   Make a Plan to Address Residents’ Harassment Complaints: Promptly address any complaints of discrimination or harassment based on a protected characteristic—regardless of whether it’s against an employee, an outside contractor, another resident, or other third party. Conduct an investigation and, if warranted, take adequate steps to stop the offending conduct. Get legal advice if necessary, and document what you’ve done to resolve the matter.

3.   Stay Tuned for Upcoming Regulations: HUD is currently in the process of finalizing proposed regulations on liability for harassment under fair housing law. Under the proposed regulations, a person may be directly liable for failure to fulfill a duty to take prompt action and end a discriminatory housing practice by a third party, where the person knew or should have known of the discriminatory conduct.

Answer: False.You may send a general notice to advise residents that there are active COVID cases at the community, but it’s not a good idea to disclose the names or unit numbers of people with the virus. Disclosure may not only violate the resident’s privacy, but also subject the resident to discrimination or harassment by others living at the community.

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.

 

Answer. 659A.145 (Discrimination against individual with disability in real property transactions prohibited) prohibits the following;

Refusing to permit, at the expense of the individual with a disability, reasonable modifications of existing premises occupied or to be occupied by the individual if the modifications may be necessary to afford the individual full enjoyment of the premises. However, in the case of a rental, the landlord may, when it is reasonable to do so, condition permission for a reasonable modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.  (Emphasis added.)

See, also 42 U.S.C. § 3604(f)(3)(A). This is a relatively minor modification to the exterior of the home. You do not have to pay for the ramp or modification. You will want to require the tenant to agree in writing that when they vacate, they pay the cost to remove the ramp (assuming the new tenant will not need it).

As for what modifications would be “required by law” that landlord must pay, I would need specific facts. Assuming that the existing entrance and steps are code-compliant, the placement of the ramp would be at the tenant’s cost. If they were not code compliant, and the tenant wanted the ramp because it was safer and more accessible, I would say the law might place the cost of that modification on you.

The Backstory: This case is based on allegations that the community’s property manager refused to let an African-American man be added as a resident at the park when he moved in with his white girlfriend and her uncle. During the two months he stayed there, the man said that the manager’s son, who helped manage the property, subjected him to racially derogatory comments and harassment. The family said they moved out after being threatened with eviction for having an unauthorized guest unless the boyfriend moved out.

After they filed a HUD complaint, the Justice Department conducted an investigation by sending out testers to check for race discrimination. Based on the family’s complaint and the results of the testing, the Justice Department sued the owners and operators of the community for fair housing violations. According to the complaint, the testing showed that the manager treated prospects differently based on their race by, among other things:

• Requiring African-American prospects to fill out rental applications to be approved for residency, while offering lots to similarly situated white prospects without requiring them to fill out an application;
• Requiring African-American testers to have their mobile homes inspected by the manager before they could move in, but not requiring such inspections for white testers; and
• Quoting higher estimated move-in costs to African-American testers than to white testers.

Until the lawsuit was filed in 2014, the complaint alleged that there had been no African-American residents at the community since at least 2007, when the manager got the job.

The community denied the allegations, but the parties reached a settlement to resolve the case. Without admitting liability, the community agreed to pay the family $217,500 in damages and attorney’s fees and a $34,000 civil penalty. The community also agreed to implement a nondiscrimination policy, establish new nondiscriminatory application and rental procedures, conduct fair housing training, and meet reporting requirements.

“Federal law guarantees everyone the right to housing on equal terms and the right to live free from harassment because of their race or color,” Principal Deputy Assistant Attorney General Vanita Gupta, head of the DOJ’s Civil Rights Division, said in a statement. “Settlements such as this one help ensure that all people can enjoy that right.”

Lessons Learned: 

1.   Keep Race Out of the Leasing Process: It’s illegal to allow race to play any part in decisions about who may live in your community. The Fair Housing Act bans refusing to rent or making housing unavailable to anyone based on his race—or that of anyone associated with him. It’s also unlawful to represent to anyone, because of his race, that a dwelling is not available for rental when such dwelling is in fact available.

2.   Consistency Is Key to Avoiding Fair Housing Problems: Federal officials and private fair housing agencies are still on the lookout for race discrimination by sending out paired testers of different races to see how they’re treated. They’re often looking for any differences in responses to inquiries about vacancies, explanations of application requirements, quoted fees and rental charges, and willingness to show units—to name a few. To avoid fair housing trouble, maintain standard policies and procedures to ensure consistent treatment of prospects, regardless of their race. And document your process with written records, such as guest cards, phone logs, unit availability logs, rental applications, wait lists, and the like.

3.   Don’t Assume Race Discrimination Is a Thing of the Past: It’s not—it’s just gone underground, according to HUD’s latest round of nationwide testing. The 2013 study found that blatant acts of housing discrimination faced by minority home seekers continues to decline, but more subtle forms of housing denial stubbornly persist. Though few prospects were denied an appointment to see an advertised unit, the study found that real estate agents and rental housing providers recommended and showed fewer available homes and apartments to African-American, Asian, and Hispanic families. The study, which involved 8,000 paired tests in 28 metropolitan areas across the country, concluded this is a national, not a regional, phenomenon.

Answer.  Senate Bill 608 applies to this situation. You have not indicated whether the resident’s period of occupancy exceeded one year.[1]For purposes of the answer below, I will assume it is. I will also assume the resident owns their own home, in not in violation of the rules or rental agreement, and is current on rent, i.e. you are not seeking to terminate the tenancy based upon nonpayment, which, as you know, has been prohibited pursuant to HB 4213 which was passed in the Special Session and became immediately effective on June 26, 2020. 

Based upon the above assumptions, here are the rules for what is to happen at the end of a lease term:

The fixed term lease becomes a month-to-month tenancy upon the expiration,unless: 

(a) You and the tenant agreetoanewfixedtermtenancy;

(b) The tenant gives you notice of terminationin writing not less than 30 days prior to the ending date of the lease (or the date designated in the notice for the termination of the tenancy, whichever is later);or 

(c) You give written notice to the tenant under the Qualified Landlord rules.[2]

I suggest you try to find out what the tenant wants to do. Reach out and ask. It may be he or she is just being coy, knowing that the right of occupancy cannot terminate at the end of the lease term, i.e. under SB 608 it automatically becomes a month-to-month tenancy. 

Note that if the tenant remains in occupancy over one year, he or she automatically becomes a month-to-month tenant. If that is the case, you may not reject the tender of rent. However, with 90 days’ notice, you are entitled to increase the rent, so long as it is no greater than 7% plus the change in CPI.

If the tenant plans on withholding rent, that is another issue, since the Special Session rules have imposed limitations on a landlord’s ability to terminate a tenancy for non-payment of rent. This is why you need to contact your tenant to see what’s going on.  Oregon’s laws today do not give residential landlords many options - at least until some of these regulations disappear.[3]