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Answer:  It would be nice if things were so simple, but they aren’t. Due to COVID coupled with  Legislative dictates and Executive Orders by the Governor, one needs a flowchart to follow the current status of the law. 

Generally, you are correct, June 30, 2021 is the end of the Moratorium (at least for now). But that could change, which is why I say check with legal counsel, because that date could be extended between now and then.

On September 28, 2020, in recognition that Covid-19 hardships were still continuing, Governor Brown issued Executive Order 20-56 which extended the Emergency Period and correspondingprohibitiononno-causeandnonpaymentresidentialevictionstoDecember31,2020. The executive orderdid notextend the Grace Period – all back rents, charges and fees accrued between April 1, 2020 and December 31, 2020 were still due on or before March 31, 2021.

But HB 4401, signed December 23, 2020, provided that forallrenters,theEmergencyPeriod(until December 31, 2020)⁶and Grace Period (through March 31, 2021) as defined in HB 4213 remainunchanged,unless:

• The landlord failed to provide a Notice of Eviction Protection (now a MHCO form)[1];and
• The landlord failed to provide tenant with a Tenant’s Hardship Declaration Form (now a MHCO form) see attached). 

OR

• The tenantfilledoutandreturnedtheHardshipDeclarationFormassertingfinancialhardship.

Conceivably, a landlord could have complied by sending out the two HB 4401 required forms, but the tenant never returned the Hardship Declaration. This would mean that the Moratorium deadline of December 31, 2020 ended. This is unlikely. And even if a landlord properly issued the ten-day notice of termination, the tenant could bring the Hardship Declaration to court at the first appearance and get the benefit to the extended Moratorium.

Bottom line, landlords do not want to issue a 10-day notice or file for eviction unless they are positive that their tenant is not protected by the extended Moratorium period. If in doubt, check with legal counsel first.

Earlier this week the Oregon Legislature released proposed legislation for the upcoming 2021 Legislative Session.  This is our first look at what the Legislature has in mind as we head into the six month session.  Over the next two months new legislative proposals will be added to this list - some proposals will fail, some will pass, some will never get a public hearing.  This year's list is an extension of the Legislature's continued attack on housing providers.  Perennial issues such as 'local rent control', elimination of 'vacancy de-control' are back with significant majorities in the House and Senate supporting these concepts.  It is disheartening to read - and begs the question "why would anyone own rental property in Oregon?".

The first 2021 Legislative Update is attached.  We all have a lot of work in the months ahead.  MHCO will keep you informed on the issues, latest developments and how you can best help impacting this Legislative Session.

The following questions relate to the traditional landlord-tenant relationship in manufactured home parks; specifically, that the landlord rents the dirt to a tenant who owns their manufactured home. If a landlord has park owned homes, they should have their own insurance. Often times, rental agreements may require the tenant to list the landlord as an “additional insured”. Sometimes the landlords are listed, sometimes they aren’t. Sometimes they are listed as “Co-Insured”. The questions below are primarily coming out of the wildfires where several parks have been decimated. The homes have been destroyed, the tenancies have terminated and in some cases, the tenants have taken their insurance money and run (even when a portion of those insurance dollars were to be for “clean up”), leaving the debris behind for the landlord to deal with.

At the outset, I do not believe that we are dealing with “renter’s liability policies” that are defined in ORS 90.222. Rather, these are homeowner policies that protect the home. Assuming it is the latter, I do not believe ORS chapter 90 prohibits a manufactured home park landlord from requiring a tenant to name a landlord as an “Additional insured” (defined below). If these were “renter’s liability policies” then there are specific prohibitions in ORS 90.222 that prohibit a landlord from requiring a tenant to name a landlord as “Additional Insured”.

Question 1:  Our Lease states that Tenants must return the space in a clean first class condition.  We also are on all of the Tenants' insurance as a “co-insured for purposes of notification.”  Only one insurance company made the check out to the Tenant and us.  Since they are to return the space clean and we are listed as co-insured, should the insurance companies have listed us on the checks?  All the Tenants received monies for Debris Removal, do we have a right to that money? (only 30% gave it to us). And if so, how do we handle getting it?

Answer 1:  Without reviewing the specific insurance policy language at issue, it’s difficult to answer the questions, as insurers may define “co-insured” differently.  That said, generally speaking, a “co-insured” is so designated for the purpose of receiving notice from the insurer in the case of pending cancellation of the insurance, for non-pay or other reasons.  Simply being named a “co-insured” does NOT necessarily provide the full rights bestowed onto the First Named Insured, i.e. the person or entity named on the declarations page of the policy as the “insured.”

The insurance company likely was not under any obligation to list the landlord as an additional payee on any checks it issued to its insured (the tenant) just because the landlord was listed as a co-insured.  While the landlord likely has a right to pursue the money from the tenant (based on a claim of breach of contract – the rental agreement), the landlord almost certainly does not have a viable legal challenge against the insurance company, but again, the policy should be reviewed by an attorney. In most cases, a landlord’s only remedy is to sue the tenant in small claims court for the amount to make the landlord whole – mainly, to leave the space in a first class condition. Since this would not be the collection of rent, pursuing those type of damages would not violate the current restrictions on attempting to collect unpaid rent.

It may be helpful to explain the difference in the terms “First Named Insured,” “Named Insured,” “Co-insured,” and Additional Insured.”  As stated above, the “First Named Insured” is the person or entity named the insured on the declarations page.  There is only one First Named Insured on any insurance policy.  They are bestowed all of the coverages provided under the policy, have the obligation to pay the premiums, and are the ONLY person who can make any changes to the policy.

A ”Named Insured” is a person or entity that is formally added to the policy, and also is bestowed all of the coverages provided under the policy, but they are not responsible for paying any premiums, nor can they make any changes.

A “Co-insured” is almost always defined as a person or entity who is guaranteed to receive notice from the insurer in the case of pending cancellation of the insurance, for non-pay or other reasons.  A co-insured is NOT bestowed any rights to any of the coverages provided under the policy.

An “Additional Insured” (which is what the landlords should probably insist on being named in their tenant’s insurance policies moving forward) is a person or entity that is specifically named in the insurance policy (typically via an endorsement) and is bestowed certain rights under the policy, which are also typically explained in the endorsement.  A common example of an additional insured is in the construction context, where the General Contractor will require that it be named as an additional insured by all of its sub-contractors for any claims involved a specific construction project. Please note that a Landlord would also want to also be listed as “Co-Insured” because they would want to continue to get notice if a policy is not renewed.

Again, assuming these are not “Renter’s liability insurance” policies as found in ORS 90.222, then I do not believe there is a restriction.

Question 2:  Some tenants have told me that they have been told by a State Representative not to sign the right of way and to not give the Landlord's their Debris Removal monies.  The State Representative feel all parks should wait and let FEMA/ODOT and State of Oregon do the cleanup free.  Naturally there have been HUGE problems with this, the time it takes, devastation to roads and concrete, etc.  Many parks like us are trying to do some of the work ourselves and hire some of it too.  The sooner you are open, the more likely people can buy homes and get in.  Anyway, our Tenants are now refusing to give us their Debris Removal money.  The State Rep has recommended the tenants contact Legal Aid.  It's a nightmare. 

Answer 2:  This whole situation is a nightmare. I believe (and John Van Landingham agrees), that upon the destruction of the home, and assuming the tenant has vacated the space, the tenancy ended. Because the tenancy ended, the tenant no longer has possession of the premises and has no authority to give permission to access the premises. What’s the best way to handle the stuff that’s left behind? Assuming that you can affirmatively say that the tenant has no desire to assert any ownership over the debris remaining (i.e. it’s a burned out home and nothing is salvageable), you should send an abandonment notice (please remember that DWT can help with this). Upon the completion of the abandonment, you can dispose of the material as you see fit. As with the first question, if the rental agreement says the tenant is responsible for any cleanup of the space, you could seek compensation from the tenant for the clean-up costs, although actually getting compensation may likely be difficult. Hopefully, the Legislature will address this. The state representative is smart to advise tenants to contact Legal Aid; however, a tenant would be smart to contribute the portion of their insurance that was attributed to the clean-up and obtain a release from their landlord.

Question 3:  Can we use the cleanup money that the few Tenants gave us to clean up their space?

Answer 3:  Yes. Additionally, if tenants give you the money they received from insurance to clean up their space, I would not recommend any further action against the tenant (even if the clean up money is not adequate to clean up the space).  

Question 4: Should we have been listed on the insurance checks?

Answer 4:  Again, without reading the specific language of the policies, we cannot say for certain, but if the landlord was only listed as a “co-insured,” the carrier was likely under no legal obligation to list the landlord as an additional payee on checks it wrote to its insured, the tenant.  Being a co-insured only guarantees that you will be notified if the policy was being cancelled.  If you were listed as “additional insured” as defined above, then you may have a claim against the insurance company.

Question 5: Do landlords have any rights to Debris Removal Insurance money?

Answer 5:  Probably, but it is based on a claim of breach of contract on the part of the tenant, and likely only if the landlords are not otherwise compensated by FEMA or the state for cleanup.  The landlords almost certainly do not have any viable legal claim against the insurance company.

Question 6: If we have a right to the Debris Removal insurance money, how do we handle getting it?

Answer 6:  As stated above, the landlord’s likely only avenue for getting Debris Removal insurance money would be to pursue those monies from the tenant, based on a breach of contract claim, i.e. the rental agreement.

A New York City co-op board sued a shareholder resident for violating her proprietary lease by keeping eight dogs and two cats in her apartment. This created noise and odors that other residents complained about. The co-op board didn't seek eviction but sought removal of five of the eight dogs.

The resident argued that she was disabled after suffering a stroke at a young age. She also suffered from major depressive disorder and generalized anxiety disorder. Her doctor said that she needed all the animals to prevent her from becoming suicidal. The resident asked the court to dismiss the case without a trial. She claimed that the co-op board had waived its right under the city’s pet waiver law to object to the dogs by not seeking removal within three months after she acquired each one. She also claimed that she needed all the animals as a reasonable accommodation for her disability.

The court ruled against the resident. A trial was needed to determine the facts. The co-op board and the resident were subject to the New York City pet waiver law, requiring the resident to show that she had openly and notoriously harbored a pet, that the co-op board knew about the pet, and that the board failed to sue the resident within 90 days to seek removal of a pet. There was a dispute as to whether the co-op’s staff knew the resident had more than three dogs as she walked them three-at-a-time, and also walked some of her neighbor's dogs. And each dog was subject to a separate determination of whether the co-op board had waived a right to object.

The resident also argued that the co-op board hadn't demonstrated that she created a nuisance. But the board didn't file a nuisance claim. It claimed that the resident violated provisions of her proprietary lease by letting her dogs create unreasonable noise and annoyance to other residents, and by failing to maintain hygiene in the apartment. The building's house rules also called for supervision of pets and required residents to seek permission to keep pets. The resident failed to show that she didn't violate the lease.

The co-op board didn't dispute that the resident was disabled, and her doctor claimed that she needed all eight dogs. But the resident hadn't demonstrated that permitting her to keep eight dogs was a reasonable accommodation for her disability. There were no court cases cited where a landlord had to permit a person with disabilities to keep multiple emotional support dogs as a reasonable accommodation [79 W. 12th St. Corp. v. Kornblum: Index No. 154129/2017, 2020 NY Slip Op 33884(U) (Sup. Ct. NY; 11/24/20)].

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) makes it illegal to refuse to rent or deny a person housing because of his or her race, color, religion, sex, handicap (disability), familial status, or national origin. Although many states also ban discrimination on the basis of a person’s criminal record, this isn’t one of the protected grounds listed in the FHA.

Question:How can criminal record discrimination be illegal if the FHA doesn’t mention it?

Answer:Refusing to rent to people with a criminal record may be an indirect form of racial, national origin, and other forms of discrimination the FHA does prohibit.

Explanation: The reason for this has to do with the so-called rule of “disparate impact” discrimination that holds that policies and practices that are neutral on their face may still be illegal if they have the effect of discriminating against a group the law protects. This is true even if there was no intent to discriminate.

Example: A fire department policy bans any persons from being promoted to the position of chief unless they have at least 10 years of service in the department. On its face, this seems like a perfectly neutral, legitimate, and nondiscriminatory policy. The problem is that the department began hiring women only five years ago. Before that, it was exclusively male. As a result, the 10-years’ service policy has the effect of excluding women from being promoted to chief and is thus a form of illegal sex discrimination.

Although the potential of disparate impact liability for criminal history restrictions began as an employment principle, the U.S. Supreme Court and HUD have made it clear that it also applies to fair housing. In 2016, HUD published guidance to address the issue. Citing the widespread racial and ethnic differences in the U.S. criminal justice system and statistics showing that across the nation, African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionately higher rates than whites with respect to their share of the general population, the guidance states that barriers to housing based on criminal records are likely to have disproportionate impact on minority home seekers.

The HUD guidance also explains what owners can do to avoid disparate impact liability when carrying out criminal history screening. The eight rules below come from the guidance and later court cases applying them to actual situations.

8 RULES FOR AVOIDING DISCRIMINATION

WHEN SCREENING APPLICANTS’ CRIMINAL BACKGROUNDS

Rule #1: Continue Performing Criminal Background Checks

The starting point is to understand that nobody is saying that you must stop performing criminal background checks on applicants. On the contrary, apartment communities have every right to establish their own policies governing who may live there, as long as their standards are fair, reasonable, and nondiscriminatory—that is, that they apply equally to all applicants regardless of race, color, religion, sex, familial status, national origin, disability—or any other personal characteristic protected under state and local fair housing laws. The FHA also specifically excludes individuals who pose a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

Moreover, courts and HUD have long recognized owners’ rights to perform background screening to ensure applicants meet their legitimate rental criteria. That includes criminal background checks to the extent that they serve the owner’s legitimate business interest in:

• Protecting their property and the safety and property of their residents;
• Ensuring that applicants can pay the rent; and
• Retaining other residents who may be fearful and leave the community if a person with a criminal record is allowed to live there.

Bottom line: The liability risk stems not from performing criminal records screening but how you perform it, including not only your screening criteria but how you use the results to make decisions about applicants.

Rule #2: Don’t Do Criminal Checks Until You Determine the Applicant Is Otherwise Qualified

Don’t perform criminal background checks unless and until you complete the credit, rental history, and other necessary checks and determine the applicant is qualified. This rule is based not so much on law as practical considerations. In addition to the legal complications, criminal checks costs time, money, and administrative effort. So, saving them for the end of the process pending the results of the other checks will enable you to avoid having to do them for applicants who aren’t qualified anyway.

Example: Texas fair housing consultant Ann Sadovsky relays the story of an owner/client facing an applicant who wanted to share the apartment with an unusual and highly undesirable pet, a 500-pound hog. “The poor client was all upset about a messy fight over the community’s no-pets policy,” Sadovsky relates. “I told him not to sweat it until after the applicant got a clear credit and rental history report.” In fact, he didn’t—and the hog issue became completely moot.

“Not that I’m comparing a hog to a person with a criminal record, but the principle of not bothering to engage with an applicant on an issue until verifying that he or she’s qualified to rent from you applies to criminal background checks,” notes Sadovsky.

Rule #3: Establish Clear, Nondiscriminatory Guidelines for Criminal Record Checks

Relying on third-party screening companies to perform actual criminal record checks the way most owners do will spare you the headaches of gathering the data yourself. But it’s how you use that data that will determine your liability. Specifically, you must make consistent, reasonable, and nondiscriminatory decisions about whether to reject applicants because they have a criminal background. The remaining rules in this lesson are designed to help you create and implement rental policies enabling you to meet that crucial compliance challenge.

Let’s start with the general rules governing when denying housing opportunities to people with a criminal record runs afoul of the FHA. The HUD guidance sets out three key questions owners should ask to evaluate whether their criminal record check policies are legally sound:

1. Does the policy have a discriminatory effect? As we explained above, excluding applicants for having a criminal record may have the effect of discriminating. But in a court or HUD administrative proceeding, the person claiming discrimination has the burden of proving that the policy under question actually does cross the line.

The most common way to show discriminatory effect is by using national, state, and/or local statistics showing that African Americans, Hispanics, and other minorities have disproportionately high arrest and conviction rates, as compared to white persons. While it doesn’t necessarily prove that a particular policy had a discriminatory effect, the HUD guidance suggests that such statistical evidence is generally enough to deny an owner’s motion to dismiss and allow the case to go to trial. And that’s crucial because it changes the negotiating leverage and pressures the owner to shell out a substantial sum of money to settle the case. 

By the Numbers:

Using Statistics to Prove Discriminatory Effect

HUD cautions owners to be aware of the discrimination risks associated with rental policies that exclude applicants because they have a criminal background. The guidance cites national statistics showing that racial and ethnic minorities face disproportionately higher rates of arrest and incarceration. According to those statistics, African Americans and Hispanics are arrested at a rate of more than double and incarcerated at a rate of nearly three times their proportion of the general population. Imprisonment rates for African-American males is almost six times greater than for white males, and for Hispanic males, it’s over twice that for non-Hispanic males.

Keep in mind that these are just national statistics. State and local statistics exhibiting similar patterns may be even more compelling in demonstrating that criminal record exclusion has a disproportionate and discriminatory effect on minorities. And, of course, most devastating of all to an owner is statistical evidence showing that the particular community’s policies had the effect of excluding minorities.

2. Is the policy necessary to achieve a substantial, legitimate, and nondiscriminatory interest? The second crucial question is whether a policy of denying housing to people with a criminal record is necessary to achieve what HUD refers to as a “substantial, legitimate, and nondiscriminatory interest” (which we’ll refer to as the “substantial interest standard”). Explanation: As noted above, it’s legitimate for owners to want to keep dangerous people out of their community. But, the guidance warns, this general interest and bald assertions based on stereotypes that individuals with criminal arrests and convictions pose a greater risk than people without criminal records isn’t enough. To justify exclusion on the basis of a criminal record, the owner must be able to prove that the policy actually does assist in protecting resident safety and property. Accordingly, blanket policies won’t work, and owners must make decisions based on the particular circumstances of the case, including how long ago the crime happened and what kind of conduct it involved. We’ll delve into these crucial details below.

3. Is there a less discriminatory alternative available? Even if the owner can show that its criminal record policy meets the substantial interest standard, it may still be unlawful if the person complaining can prove that the owner could have served that interest by adopting another policy or practice that has a less discriminatory effect. As we’ll discuss in Rule #7, such alternatives may include performing an individualized assessment of applicants found to have a criminal record.

Rule #4: Don’t Impose a Blanket Ban on Applicants with a Criminal Record

Now let’s talk about the specific things you can do to ensure that your own policy meets the criteria we explained in Rule #3. First rule of thumb: Don’t implement predetermined, blanket rules, such as automatically rejecting any applicant with a criminal record.

Remember that all forms of criminal conduct won’t satisfy the substantial interest standard justifying denying a person housing because of their criminal records. Thus, blanket policies that treat all criminal conduct the same way are highly problematic. They also make you a sitting duck for a statistical analysis showing that minorities are more apt than white persons to get arrested or convicted of a crime as compared to their percentage of the general population.

Example: A New York City community rejected an African-American applicant after learning of his felony conviction. The community claimed that its policy of automatically rejecting anyone with a felony conviction was nondiscriminatory because it applied to all applicants regardless of race, etc. The applicant conceded that the policy was neutral on its face but contended that it had the effect of racial discrimination, citing “empirical evidence showing that nationally, and in New York State, blanket bans on eligibility, based on criminal history, result in the denial of housing opportunities at a disproportionate rate for African Americans and minorities.” Although the applicant would still have to prove his claim at trial, the court found that the statistical evidence was enough to warrant holding a trial and dismissed the owner’s motion to dismiss [Jackson v. Tryon Park Apartments, Inc. et al, No. 6:2018cv06238 - Document 17 (W.D.N.Y. 2019)].

Rule #5: Reject on the Basis of Criminal Convictions, Not Arrests

While you must make decisions about whether to rent to applicants with criminal records on a case-by-case basis, there are a few bright line rules. One of them is that rejection is justified only when applicants have actually been convicted of a crime; merely being arrested isn’t enough.

Explanation: As the HUD guidance explains, an arrest, on its own, is merely an accusation and doesn’t prove that the person actually did anything wrong. Under our justice system, defendants are presumed innocent. To establish guilt, the criminal prosecutor must persuade the court or jury to convict by proving the charge beyond a reasonable doubt. Many people who get arrested are acquitted; others get their charges dropped and don’t even go to trial.

The problem with arrest records is that they often don’t show how the case was decided and whether the individual was prosecuted, convicted, or acquitted of the charges. As a result, the guidance clearly states that an arrest is not a reliable basis for determining whether a particular individual poses a potential risk to safety or property in applying the substantial interest standard.

Exception: There’s some wiggle room for eviction when a criminal background screening reveals an arrest. What you can do, according to legal experts, is ask about the underlying facts of the case. And even if the arrest hasn’t yet resulted in a conviction or conclusive and final finding of guilt, you may still be able to reject the applicant if:

• The applicant admits to committing a crime; or
• The police or other witnesses provide reliable and legally admissible information showing that a crime was committed.

Rule #6: Distinguish Between Dangerous and Non-Dangerous Convictions

The mere existence of a conviction isn’t enough to get you over the substantial interest hurdle. That’s because all crimes aren’t the same. The owner’s responsibility, the guidance clarifies, is to distinguish between criminal conduct that does indicate a risk to resident safety or property, and criminal conduct that doesn’t rise to that level. The good news is that the guidance sets out clear criteria for making such determinations:

Felonies vs. misdemeanors. The crime must be serious. And while the guidance doesn’t expressly say this, the consensus is that the conviction must be for a felony rather than a misdemeanor. But, as the NYC owner learned in the Jackson v. Tryon Parks Apartments case discussed in Rule #4 above, a blanket rule excluding any person with a felony conviction doesn’t work. The owner must take other factors into consideration.

Type of felony. The next factor to consider in applying the substantial interest standard is the nature of the felony a person was convicted of committing. Although the guidance doesn’t specify the types of felonies that owners may reasonably consider as posing a danger to safety and property, legal experts and case law suggest that the list includes convictions for:

• Illegal manufacture or distribution (but not mere possession) of drugs and other specified controlled substances;
• Sexual assaults;
• Other violent crimes like homicide, assault and battery, domestic violence, robbery, and false imprisonment; and
• Arson, vandalism, and other crimes causing significant damage to property.

How long ago the person committed the felony. The other key factor is how much time has passed. The more recent the conviction, the greater the justification for considering the person who committed it as posing a risk of danger to safety and property. Based on court cases, the unofficial window is seven years. Exception: Sexual assault convictions don’t have a shelf life. In other words, they may be grounds for denying an applicant housing regardless of how long ago they occurred.

Rule #7: Assess Each Felony Conviction Case Individually

Following Rules #4, #5, and #6 should enable you to ensure that your criminal background screening policy meets the first two of the three HUD standards, namely, the discriminatory effects and substantial interest standards. But the HUD guidance says there’s one more thing you should do to meet the third standard—that is, lack of less discriminatory alternatives: Incorporate a process for assessing each case individually that takes into account mitigating factors explaining why the person has a criminal record, such as:

• The circumstances surrounding the criminal conduct;
• How old the person was when he or she engaged in the conduct;
• Evidence that the individual has maintained a good tenant history before or after the conviction or conduct; and
• Evidence of rehabilitation efforts.

Example: A Pennsylvania public housing authority rejected an African-American applicant after the criminal records check revealed that he had pleaded guilty to involuntary manslaughter under its policy calling for mandatory denial of persons convicted of homicide offenses. The applicant claimed that the policy discriminated on the basis of race, applying the same basic logic that the applicant in the Jackson v. Tryon Parks Apartments case used to beat back the owner’s motion to dismiss. But this time the argument didn’t work.

The difference: The PHA gave rejected applicants 30 days to dispute the accuracy and relevancy of the information on which a mandatory denial was based. During the hearing, the applicant clarified that the conviction was for a misdemeanor rather than a felony. As a result, the PHA reversed its decision on the criminal conviction rejection. The problem for the applicant was that the PHA had a second reason for rejecting him, namely, a judgment awarding his previous landlord $871 in unpaid rent. And since the applicant didn’t present any evidence or mitigating information about the nonpayment judgment, the court found that the PHA had a legitimate, nondiscriminatory reason to reject the applicant and tossed his discrimination claim [Hall v. Philadelphia Housing Authority, Civil Action No. 17-5753, U.S. District Court, E.D. Pennsylvania, April 5, 2019].

Rule #8: Apply Your Screening Policy Consistently

So far, we’ve been talking about unintentional discrimination on the basis of discriminatory impact. But be aware that rejecting applicants because they have a criminal record may also constitute intentional discrimination. This can happen if you apply your policy inconsistently to people with comparable criminal histories differently based on their race, national origin, etc.

Example: A federal court ordered a Tennessee community and its property management company to pay $42,250 in damages for selectively applying its policy of disqualifying people with felony convictions to minority applicants. The evidence showed that the defendants denied an African-American applicant because of his criminal record while approving the applications of two white applicants with similar, and what should have been disqualifying, felony convictions [U.S. v. Dyersburg Apartments, Ltd., (W.D. Tenn.), Aug. 13, 2019].

The guidance lists other examples of inconsistent application of criminal records policies and practices showing intentional discrimination:

• A community has a policy against renting to people with certain convictions, but makes an exception for white, but not African-American, applicants; and
• A leasing agent helps a white applicant get his application approved despite his potentially disqualifying criminal record, but doesn’t provide the same assistance to an African-American applicant.

Answer. Wow! Asking me if God caused a windstorm could get me in trouble. What if I’m wrong?  

Question No. 1. Generally, an “Act of God” is considered to be a natural disaster that is outside of human control. That would include earthquakes, windstorms, floods, tsunamis, etc. If you are asking about insurance exclusions for Acts of God, you’ll have to read you policy. Generally, however, as a landlord, you should make sure you have broad general casualty insurance coverage (as opposed to liability insurance coverage), since the former would cover casualty losses (fire, wind, flood, etc.), regardless of causation or negligence, whereas the latter would providecoverage for you only if you causedthe damage. Broad insurance coverage against casualty losses, e.g. from Acts of God, is what community owners should have. Whether residents have such coverage is less certain, since the rental/lease agreements I’ve seen either do not require any form of insurance, or occasionally only liability insurance. And unless their lender requires it, it is unlikely that many owners of older homes have any insurance against loss or damage.

Question No. 2. As to uprooted trees, let’s go to the legal definitions. A “hazard tree” under ORS 90.100(20)must include the following elements:

• It is located  onarentedspacein  amanufactureddwellingpark;

· It measures  at  least  eight inches DBH[2]; and

· It is  considered,by  an arboristlicensed asa landscape  constructionprofessionalpursuant toORS  671.560and  certifiedbythe  InternationalSociety ofArboriculture,toposean unreasonablerisk  ofcausing serious  physical harm  or damage toindividualsor  propertyin the  near  future. (Emphasis mine.)

I draw certain corollaries from this definition – some may disagree:

• A tree is a large living plant that grows out of the ground; if it is blown down, it is no longer a “tree” in the conventional sense. I have no recollection of discussing downed trees as “trees” that would somehow be subject to the hazard tree legislation. I would defer to John VanLandingham’s recollection on this, however.  This answer would seem to dispose of the above question, but I will continue, just to address the other unasked questions that will inevitably arise.
• If a tree does not measure at least eight inches, DBH, it is nota “hazard tree”. This is not to say that the tree is necessarily “safe” or that it may be ignored by landlord or resident.  In the final analysis, landlord and managers should monitor the condition of all trees, both in the common areas, and on the tenants’ spaces. Just because a tree is not a hazard tree does not mean they can be ignored. Similarly, just because the tree is a resident’s responsibility does not mean it should be ignored by management. If it is the resident’s responsibility, management should encourage compliance – since a falling tree limb or the entire tree, may cause damage or injury to other spaces and other residents.
• If a licensed arborist has either said the subject tree does not pose a risk of harm, or the arborist has never opined at all, it is nota “hazard tree”. Again, this does not mean the tree may, or should be, ignored.
• Lastly, remember that all of the above three elements (on the resident’s space; eight inches DBH, and considered dangerous by a licensed arborist) must occur together before a tree can be considered a “hazard tree”.  

Once it meets the statutory definition, then the legal obligations found in ORS 90. 725, 90.727, 90.730, and 90.740apply.  See discussion in my prior post here.

Questions Nos. 3 & 4. I believe the answer to who responsibility for maintenance, removal and disposal are addressed inORS 90.727(Maintenance of trees in rented spaces). Although the statutes do not referral to “disposal” they do refer to removal.  I read these words as interchangeable in this context. For example, removal of garbage and debris from one’s yard, reasonably includes disposal.  The statute provides: 

(1) As used in this section:

      (a) “Maintaining a tree” means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.

      (b) “Removing a tree” includes:

      (A) Felling and removing the tree; and

      (B) Grinding or removing the stump of the tree.[3]

I suppose the next question is whether “removing a tree” can refer to downed trees. I think not, since the follow text quoted above, refers to “felling” it.   

Conclusion.  As noted above, landlords, more likely than residents, have insurance that deals with Acts of God. These types of natural events do not distinguish between whose property is affected, e.g. common areas vs. resident spaces. In some instances, strict enforcement of the hazard tree statute could impose a catastrophic expense to a resident that might be covered under the landlord’s insurance. In such cases, consideration should be given to providing assistance/coverage rather than forcing a tenant into bankruptcy or financial distress.

Question 1: When tenants request an assistance animal, are they required to put a deposit down like everyone else who requests for a pet to be admitted to housing?

Answer 1: No, you can’t charge a deposit for an assistance animal. So don’t charge the deposit until you've made the decision that it's not an assistance animal.

Question 2: If someone has paid a pet deposit and later needs to reclassify their pet as a support animal, must we refund the pet deposit?

Answer 2: Generally, yes. If you decide to approve the animal as an assistance animal, you should refund the deposit.

Question 3: We have verified that a tenant’s Rottweiler is her assistance animal. But Rottweilers are a restricted breed under our property's insurance policy. What should we do?

Answer 3: HUD has told us that if your carrier won't insure you if you allow a Rottweiler on site, and you’re unable to obtain comparable insurance from some other carrier, then that would be a defense to not allowing the Rottweiler. It would not be a defense to not allowing an assistance animal at all, but not allowing that particular breed. The problem is the burden is on you, the housing provider, to show that: (1) your insurance carrier is going to drop you; and (2) you cannot obtain comparable insurance. It's your burden, but it is a potential defense.

Question 4: If a tenant who’s requesting permission for an assistance animal provides verification from a credible source, but it's dated a few years back, is this acceptable? What is the rule for backdated verifications?

Answer 4: There isn't a rule; it's just a reasonableness issue. If the tenant has gotten a new animal, then you should ask the tenant to update the verification letter. If it's the same animal and it's a legitimate letter other than the date, then it’s probably good enough.

Undoubtedly, there is a lot here. And it is all subject to change based upon the whims of the Oregon Legislature. So before taking any legal action against a tenant for nonpayment of rent, charges, utilities, or fees (or a no-cause eviction), qualified legal counsel or someone versed in the current status of these ever-changing laws should be consulted.

To access the complete article - click the attachment above - document includes necessary forms as well as summary.

OHCS has provided the following information on funds that are available:
 
https://www.oregon.gov/ohcs/housing-assistance/Pages/supporting-tenants…

This list of contacts to the STARRprogram should be the best available resources for folks. 

STARRis newly out but the money is going fast so definitely encourage tenants to reach out to their local CAA at the methods they outline on that page. Hope this helps!! 
 

Below is an example of assistance offered thru Land County.  Check with your local county to see what similar services are available and pass that on to your residents.

LANE COUNTY RECEIVES ADDITIONAL COVID-19 RENT RELIEF FROM STATE OF OREGON

News Release from Lane Co. Government
Posted on FlashAlert: March 11th, 2021 8:00 AM
Lane County Human Services Division has received State of Oregon Supporting Tenants Accessing Rental Relief (STARR) funding in the amount of $4,071,554. This is much needed emergency rental assistance for residents of Lane County who have suffered economic impacts or health disparities due to COVID-19.
 
The new funding, Supporting Tenants Accessing Rental Relief (STARR), was approved by the State Legislature as part of the recent eviction moratorium legislation passed in December.  It is intended to assist tenants who are behind in rent due to financial impacts of the COVID-19 pandemic.
 
In 2020, Lane County and partner nonprofit service agencies distributed $7,110,742.00 in rent assistance to 1,725 households (4,516 individuals) through 34 projects.
 
Applications for the new funding will be open on Friday, March 19, from 7:00 a.m. to 1:00 p.m. PST. This application is for Lane County residents with household income at or below 80% Area Median Income. A link to the online application and information phone line will be posted on the website www.LaneCounty.org/RENT.
 
Applicants for STARR 2021 COVID Rental Assistance program must meet the following criteria:
Be a renter living in Lane County
Have income at or below 80% area median income
Experienced loss of income due to COVID-19 related factors, impacted by business closure due to COVID-19, or experienced financial hardship due to COVID-19
Or diagnosed or exposed to COVID-19, or have compromised health status due to COVID-19
 
To apply, visit www.LaneCounty.org/RENT on March 19 between 7:00 a.m. and 1:00 p.m. PST. Applicants will fill out a short application that should take approximately 5 minutes. Once the application closes, applications will be prioritized based on income, unemployment history, and need. As applicants are processed they will be contacted to fill out the full application online, including uploading documents (cell phone pictures are acceptable) and verifying landlord contact information.
 
While applying online is the quickest way to receive this assistance, those unable to apply online can call Lane County’s Rent Assistance information line on March 19 for assistance completing the application on the phone. The number is (541) 682-3776. Callers can leave a message with their contact information. Interested applicants will be contacted directly to complete the application over the phone. This service is available in English and Spanish.
 
For more information, visit www.LaneCounty.org/RENT.

HUD also found that the problem exists in both the home buying and rental markets. Specifically, the report found that, as compared to white renters who contact a rental agent:

• African Americans are told about 11 percent fewer units and shown 4 percent fewer units;
• Latinos/Hispanics are told about 12 percent fewer units and shown 7 percent fewer units; and
• Asian Americans are told about 10 percent fewer units and shown 7 percent fewer units.

Surprised? How can this continue to happen in a country where housing discrimination and segregation have been illegal since 1968, you may wonder.

Part of the answer is that while overt discrimination has become relatively rare, more subtle forms of discrimination continue to thrive. And as they continue over time, they perpetuate institutional segregation. Of course, these subtle forms of discrimination are every bit as illegal as the overt kind. The problem is that they’re also much harder to detect and root out. And because these forms of discrimination are so subtle, it’s easy for property owners, managers, and leasing agents who are otherwise committed to equal housing principles to engage in them unintentionally and inadvertently.  

This month’s lesson deals with one of the most widespread and pernicious forms of subtle discrimination: steering. First, we’ll explain what steering is and how it occurs. And then we’ll set out seven rules to ensure that your leasing agents don’t engage in conduct that constitutes steering. We’ll finish up the lesson with the Coach’s Quiz so you can see how well you learned the material.   

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans discrimination on the basis of race, color, religion, sex, handicap (disability), familial status, or national origin. (To avoid having to list these traits over and over again, we’ll refer to them collectively as “protected characteristics”). Also keep in mind that federal FHA requirements are minimum standards and that many states have adopted their own fair housing laws that extend protections to other protected characteristics, which may include:

• Sexual orientation;
• Gender identity;
• Source of income;
• Criminal record;
• Political belief;
• Creed; and/or
• Military status.

Forms of unlawful discrimination include, among other things:

• Refusing to sell, rent, or negotiate for the sale or rental of, or otherwise make available, or deny housing to a person on the basis of protected characteristics [FHA, Section 3604(a)];  
• Offering different and less favorable terms, conditions, or privileges of the sale or rental of housing due to a person’s protected characteristics [FHA, Section 3604(b)];
• Making notices and statements or engaging in advertising for the sale or rental of housing that indicate a preference on the basis of protected characteristics [FHA, Section 3604(c)]; and
• Making discriminatory misrepresentations about the availability of housing [FHA, Section 3604(d)].

Steering may run afoul of any one or combination of Sections 3604(a), (b), (c), and/or (d), depending on the situation. It occurs when a landlord tries to influence rental prospects’ choice in housing based on their protected characteristics. Steering is illegal because it limits prospects’ choices and denies them the opportunity to buy or rent the housing they choose. Practiced on a wider basis, steering also maintains or creates segregation across apartment communities, neighborhoods, towns, cities, and wider communities.

Part of what makes steering so widespread is how easy it is to conceal. And those very same qualities make it easy to commit accidentally. Nobody would object to the principle that housing providers refrain from trying to influence a person’s housing choices on the basis of protected characteristics. But applying this no-influence principle to real-life situations is very tricky. After all, aren’t leasing agents supposed to provide prospects with information about the apartment so they can decide whether it’s suitable for them?

Steering is all about balancing these competing dynamics. Nobody is suggesting that leasing agents be banned from providing information and answering questions about a property so that prospects can decide whether renting it is right for them. The key to avoiding steering is ensuring that leasing agents don’t carry out these information-sharing responsibilities in a way that influences the prospect’s decision on the basis of his or her particular race, color, etc. And that’s easier said than done. The seven lessons below will enable you to help your leasing agents steer clear of steering.   

7 RULES FOR HELPING LEASING AGENTS AVOID STEERING

Rule #1: Don’t Tell Prospects Where to Rent Based on Protected Characteristics

Steering isn’t always subtle. Sometimes it’s as obvious as a punch in the face. The two most common forms of overt steering:

• Making verbal remarks like “we don’t lease to Black people” or “we don’t have anything suitable for kids or people with disabilities”; and
• Displaying apartments on the basis of protected characteristics such as not showing any units on “adults-only” floors to prospects with young kids.

While these things are enough to make any fair-minded landlord cringe, regrettably, they still happen. And rest assured that if any of your leasing agents were to engage in that kind of conduct, fair housing testers will eventually catch them. At that point, you’ll be looking at not just liability but also potential punitive damages running into six- or even seven figures.

Example: An Atlanta real estate firm and its leading agent had to pay $160,000 to settle steering charges for showing white testers homes in predominately white neighborhoods and Black testers homes in Black neighborhoods. The smoking gun: The agent allegedly told one tester, “I wasn’t sure where to take you because I couldn’t tell over the phone whether you were white or Black.”

Rule #2: Don’t Try to Influence Prospects’ Choices Based on Protected Characteristics

A more common form of steering is to say things to discourage prospects from renting from you (or where in the building to rent from you) or encouraging them to rent from somebody else on the basis of their protected characteristics. Examples of things leasing agents should never say (all of which come from actual HUD cases where landlords were found guilty of steering):

• “I think there are other apartment communities in town that cater more to kids”;
• “We have a few apartments in the back of the building for people with wheelchairs”; and
• “I wouldn’t be comfortable renting in this neighborhood if I were a young single woman.”

Rule #3: Don’t Tell Prospects Where They’d Be “Comfortable”

Notice the word “comfortable” in the last bulleted example above. One of the most common forms of steering is seeking to influence prospects’ choices based on where they’d be most comfortable. The problem is what the word “comfortable” implies.

The critical assumption that’s dangerous to make and even more poisonous to act upon is that people are more “comfortable” and “compatible” with people of their own race, color, etc. Accordingly, telling prospects that they’d be uncomfortable in your community or more comfortable somewhere else suggests that you’re trying to influence them on the basis of their protected characteristics. This conduct constitutes illegal steering even when leasing agents genuinely believe they’re acting in the prospects’ best interests.

Another variation on the theme is seeking to protect residents from discriminatory neighbors, for example, by deliberately not telling a Jewish family about an otherwise suitable vacancy to protect them from the virulently antisemitic neighbor next door. Giving bigots, racists, anti-Semites, and the like veto power over who can lease from you makes you a co-conspirator in discrimination.  

Rule #4: Don’t Answer Discriminatory Questions or Heed Discriminatory Demands

In some cases, the impetus for steering comes not from the leasing agent but the prospect considering the property. One form of this is when a prospect asks questions about, say, the race or color of residents in the community—for example, where a white prospect asks, “Are there any Black people living here?” A more subtle way to pose the question is for prospects to ask a leasing agent, “Do you think I’d be comfortable (there’s that word again) in this community?”

Prospects who ask these kinds of questions are probably either: (1) testers sent to monitor your community’s compliance with the FHA; or (2) genuine racists or bigots. In either case, make sure that leasing agents don’t take the bait. Specifically, make sure they understand that discussing the protected characteristics of other residents with a prospect is a form of illegal steering, even when the prospect brings up the topic.

Note that the same principles apply when a prospect makes discriminatory demands, such as insisting on being shown only units on floors where none of the residents are of a particular race, color, etc.

The best practice for these situations is to have the leasing agent politely decline to answer the discriminatory question or heed the discriminatory demand and tell the prospect of your community’s commitment to fair housing and refraining from discrimination. It’s also a best practice to script the leasing agent’s “we-don’t-discriminate” reply. Language to consider:

“I’m sorry but I’m afraid I can’t answer that question. Please understand that ABC Community is an equal housing opportunity provider committed to complying with all federal, state, and local fair housing laws. ABC does not discriminate against any person because of race, color, religion, national origin, sex, familial status, disability, or [other personal characteristics protected by state or local fair housing law].”

In some cases, the leasing agent may even be able to explain why the prospect’s question or demand is discriminatory and persuade him or her to rephrase or retract it.   

If instead of a direct question about a protected class, prospects ask whether they’d be comfortable renting from you, instruct leasing agents to turn the question around and ask the prospect what he or she means by “comfortable.” If the prospect’s response is nondiscriminatory and not based on the characteristics of the people in the community or neighborhood, the leasing agent can proceed to answer the question. But if the prospect’s response suggests any discriminatory biases, such as, “I’m comfortable with young people” or “I’m uncomfortable around kids,” they should refuse to answer and recite the above statement.  

Rule #5: Don’t Limit Prospects’ Choices Based on Their Kids’ Safety

Leasing agents must understand that it’s not their responsibility to try to talk prospects out of making unsound decisions about where to rent. This instinct of leasing agents to want to protect prospects against themselves is most likely to manifest itself when prospects want to rent apartments that would be unsafe for their young children—for example, units located on an upper floor or right next to a pool with no lifeguard.

A 1992 in-house legal memorandum from HUD’s Fair Housing Division clearly states that denying or trying to discourage families with children housing on the basis of safety is illegal steering. According to the memo, the FHA requires “housing providers to make all units, including units on upper floors and units with balconies, available to families with children.” It also bans the practice of making families with children sign waivers of liability not required of other residents.

Example: In 2017, the U.S. Department of Justice (DOJ) accused the owner and operator of a New Hampshire community of using the safety argument to steer the mother of an infant child away. According to the complaint, the community had a safety policy of placing families with children under the age of 10 in first-floor units only. And since no first-floor units were available, they turned the mother away rather than showing units that were available on the upper floors. Rather than risk a trial, the owner and operator agreed to shell out $25,000 to settle the case.

While ruling out the practice of not showing apartments to families with children on the basis of safety, the HUD memo goes on to say that it’s okay for housing providers to make “factual statements about perceived hazards of their property,” as long as:

• Those statements are “truthful and not misleading”;
• The statements don’t indicate a “preference, limitation, or discrimination” based on familial status; and
• An “ordinary listener” wouldn’t interpret the statements as discouraging families with children from deciding to live in the apartment community or building.

Coach’s Tip: The 1992 HUD memo also clarifies that the FHA doesn’t ban housing providers from imposing “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” such as requiring adult supervision of young children using a swimming pool without a lifeguard.

DEEP DIVE

Steering & Schools

While it might seem like the most natural and innocent thing in the world, discussing neighborhood schools with rental prospects can be a steering liability minefield. That’s because phrases such as “a school with low test scores” or “communities with declining schools” have become code words for racial and other differences to the extent there’s a correlation between the quality of the schools and the racial or ethnic composition of the neighborhood. Similarly, praising the schools in one neighborhood while discretely saying nothing about the schools in another may have the same steering effect.

With this in mind, the National Association of Realtors (NAR) has devised best practices for avoiding steering when discussing schools. And while the recommendations are targeted to real estate brokers, many of them also work for leasing agents on how to avoid steering when talking to prospects about the quality of schools in the neighborhood, including:

• Offer facts, not opinions or personal judgments;
• Keep a list of websites and other sources of objective information about the schools in your area to which you can refer prospects so they can make their own judgments; and
• Ask prospects to clarify their criteria; for example, if they ask whether the schools are “good,” have them describe the standards they believe makes a school good so you can point them to appropriate sources of information.

Rule #6: Don’t Exaggerate a Property’s Drawbacks

Another common way to exert improper influence is to draw attention to or exaggerate the drawbacks or flaws of your property. Such behavior, which runs contrary to the leasing agent’s mission to make your community look good, is powerful evidence of a motive not to rent to the prospect. And when that prospect has one or more protected characteristics, it strongly suggests that discrimination is the driving force behind that motive.

Example: The owner of an Arizona community is determined to maintain a peaceful and quiet “adult” community to attract retirees. Recognizing that categorically refusing to rent to prospects with children is illegal, the owner comes up with a plan to discourage them from doing so by creating a list of all the things that make the property unsuitable for young children. It then instructs leasing agents to go through the list with all prospects that have young kids. Result: The owner—and leasing agents who actually implement the plan—have committed illegal steering.  

Rule #7: Don’t Direct Prospects to Particular Buildings or Areas Based on Protected Characteristics

One particularly egregious, institutional, and still common form of steering is to assign prospects or residents to a particular section of a community or floor of a building because of a protected characteristic. Examples can range from limiting all residents with wheelchairs and/or families with children under a particular age to the ground floor to actual segregation and maintaining separate buildings for Black and white residents. If you don’t believe these things actually happen nowadays, we can cite literally dozens of cases to persuade you otherwise. Here are just a couple of recent examples:

Example: In May 2020, the DOJ filed a lawsuit against a Georgia management company for allegedly steering elderly and disabled African-American rental prospects away from Cedarwood Village, a predominantly white housing complex for elderly persons and persons with disabilities, and to Cedartown Commons, a predominantly Black general occupancy complex.

Example: In January 2021, the DOJ charged a Massachusetts housing authority of steering African-American prospects away from three overwhelmingly white properties that it manages and steering white applicants from two of its disproportionately Black properties in an effort to keep all of these communities racially segregated [United States v. J & R Associates (D. Mass.)].

TIME OUT!

Give Your Marketing Materials an FHA Audit

You may be engaging in steering without realizing it by including language or images in your marketing materials that indicate preferences on the basis of protected characteristics. Statements like “No Children” or “Singles Only” are obvious examples. However, indications of discriminatory preference may be far more subtle, such as characterizing a property located in a predominately white area as being “traditional” or even noting that it’s located next to a particular church. Here’s a list of marketing Do’s and Don’ts that comes straight out of HUD guidelines:

Steer Clear of Discriminatory Marketing