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Answer. Welcome to the Nanny State! I agree this is a frustrating situation for landlords.  I believe rule No. 1 is to pick your shots. By that I mean, you want to look at this in the same way a judge or jury would.  Does it pass the “smell test”?  – pun intended. 

To me it does not. This sounds like a case in which you’ve got a pretty good paper trail. But someone has to blink.  If you fold on this, bad precedent is set. Here she’s asking for two extraservice animals. By this rationale, the two pet policy means nothing, and she could gather another six animals and make the same claim.  I believe you should consult your attorney to find out what he/she recommends.   

From where I sit, I think you could take at least one more step, without this going nuclear.  You may want to consider issuing a 30-day notice to vacate, citing the rule and what she needs to remedy it, i.e. remove two of the pets.  

At that time, the issue will come to a head. Will she go to some advocacy attorney group who says they will fight you for free? Will she fold? Will she try to compromise?  There is a Roman saying that if you want peace, prepare for war.  In other words, if you show her you mean business, she may take a more realistic look at her position. Until there is a show of force, she has the upper hand.  If she backs off, there may be an opportunity to find a solution, e.g. and agreement to re-home the pets with a relative. Any solution that is reached should be in writing, and you should have your attorney prepare it.

If she pushes back, and has some legal group threating a fight, you can then decide whether to hold ‘em or fold em’.  Remember, litigation doesn’t happen overnight. You will, at worst, get a threatening letter or two, before something happens. If you don’t want the fight, then walk away.  Good luck!  By the way, during this dispute, if you intend to issue a 30-day letter, you should not also be accepting rent.

Phil Querin's article is attached above - click "August 2021 CDC Article".

Answer:   This is a good question, and all too frequently ignored by owners and managers. The first question is whether the issue is addressed anywhere in the community documents, i.e. the statement of policy, rules, or rental agreement. Likely not. It really isn’t addressed in the Oregon Residential Landlord-Tenant Act, with the exception of ORS 90.222, which covers renter’s liability insurance, and is excluded from the manufactured housing section of the law.  

Strictly speaking, the fact that the home was destroyed and is likely uninhabitable does not make it any less of a resident responsibility than before the fire. In other words, it is the resident’s primary responsibility to either promptly repair, replace, or remove the home.  The space is still under lease or rental to the resident, so all of the same rules apply, i.e. to keep it in good condition and safe. If the home is nothing more than a shell, the resident should likely remove it as soon as possible.

If the resident does not have fire insurance to repair or replace the home, I suspect he or she will abandon it, thus making it your problem - or the problem of the lienholder if there is one. Incidentally, if there is a lienholder, the loan documents likely require fire insurance, and that it be a named insured on the policy.  If that is the case, then hopefully, between the resident and their insurance company, there may be available proceeds to repair or replace.[1]

If the resident abandons the home, you should immediately send out a 45-day abandonment letter, thus triggering your right (and duty) to take control of the personal property.  It is likely an attractive nuisance for children, which could result in injury to them, and liability to you.  In such case, you should consider having it either cordoned off with “No Trespassing” signs, or removed.  Make sure that you independently confirm that it is a total loss, and with no salvage value.  If there is salvage value, it belongs to the resident.

ORS 90.675is the abandonment law that applies generally to homes located in manufactured housing communities. Today it contains 23 separate subsections, a behemoth in size compared to most statutes.  Buried 21 sections down in the subterranean recesses of the statute is that portion of the law dealing with health, safety and welfare issues, in which 45 day letters and 30 response periods could not possibly work. In such situations, time is of the essence.  Accordingly, subsection 21 sets forth a fast-track protocol for declaring the abandonment of a home that poses certain risks to others (such as the abandoned shell of a home destroyed by fire). Below is a summary of what this subsection says:

If a governmental agency determines that the condition of the abandoned  home constitutes an extreme health or safety hazard under state or local law andthe agency determines that the hazard endangers others in the facility andrequires quick removal of the property, the landlord may sell or dispose of it by taking the following steps[2]:

· The date by which a tenant, lienholder, personal representative or designated person must contact a landlord to arrange for the disposition of the property shall not be less than 15 days after personal delivery or mailing of the abandonment letter required by ORS 90.675(3);

· The date by which a tenant, lienholder, personal representative or designated person must remove the property must be not less than seven (7) days after the date the tenant, lienholder, personal representative or designated person issues the abandonment letter;

· The contents of the abandonment letter must be in accordance with ORS 90.675(5), except that:

• The dates and deadlines in the notice must be consistent with the fast-track protocol above;
• The abandonment letter must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and
• The landlord must attach a copy of the agency’s determination to the abandonment letter.

The CJO only alters the timeframe for FED proceedings under ORS 105.110. It has no effect on any of the Eviction Moratoria or Safe Harbor provisions created by the Oregon Legislature.

The CJO 21-031 makes the following temporary changes:

1. It extends the usual 7-day window for scheduling a First Appearance under ORS 105.135(2). 
   1. Now, the First Appearances in an FED for Nonpaymentwill be scheduled 21 days after the filing of the eviction action. If a judge is not available at the 21^stday the court clerk will have up to seven (7) additional days to schedule the first appearance. 
   2. The First appearances for all other FED actionswill be scheduled within 14 days of filing of the summons and complaint.
2. If the eviction proceeding goes to a trial, the CJO extends the normal 15-day window under ORS 105.137(6)as follows:
   1. FED trials Nonpayment must be scheduled no earlier than 20 days and no later than 30 days of the First Appearance.
   2. Trial for all other FEDs will be scheduled within 30 days.

Additionally, CJO 21-031 provides that attorneys representing any party in the first appearance in an FED may continue to appear remotely without first filing a motion with the court.

Phillip C. Querin, MHCO Legal Counsel

Introduction. On August 26, 2021 the U.S. Supreme Court struck down the CDC’s[1] current eviction moratorium, ruling that the government agency had exceeded its authority. So, while Oregon landlords are now free of any federal eviction prohibitions, they are still subject to our state laws. These include:

•  SB 278 which provides a 60-day “pause” in the eviction process[2] (90-days in Multnomah County) for tenants seeking rental assistance; and,
• The recent order by Oregon’s Chief Justice, CJO 21-031, which extends the timeframe for eviction hearings after filing of the complaint.[3]

Background. In March of 2020, Congress passed a temporary eviction moratorium with the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). This moratorium only applied to properties being financed with federally-backed loans (e.g. Fannie Mae, Freddie Mac, USDA, etc.) or were accepting federal assistance. Upon the expiration of this initial moratorium in July 2020, the CDC stepped in, with no prior Congressional authorization, and imposed its own eviction moratorium, followed by a series of extensions through 2020 and 2021 as the Covid pandemic evolved. 

In May 2021, the CDC’s Moratorium and extensions were challenged in federal court. While the court ruled that the CDC had exceed its authority, it suspended (i.e. “stayed”) the judgment pending appeal to the U.S. Supreme Court. The case was heard in June, 2021, and the high court agreed that the CDC had exceeded its authority; but it nevertheless declined to vacate the stay because the moratorium was scheduled to expire shortly, on July 31, 2021.[4]

On August 3, 2021 the CDC – still with no Congressional authority – issued a new eviction moratorium, this time basing it on the expanding Delta variant emergency.[5] Unlike the original moratorium which applied broadly to the entire country, the CDC’s new moratorium applied only to “US counties experiencing substantial and high levels of community transmission” of Covid. While in theory this was limiting, in reality, almost every county in the US is currently experiencing “substantial and high levels of community transmission”. Like those before it, this moratorium only applied in the absence of state or local protections that were equal to or more stringent than the CDC’s prohibition. The new moratorium was set to expire on October 3, 2021.

Once again, the new eviction moratorium was challenged in the federal courts and eventually made its way up to the Supreme Court. This time the Court, in a 6-3 decision, ruled that the CDC had exceeded its authority and therefore the moratorium was invalid. In their words, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” So far, Congress has declined to do so.

Where Does This Leave Oregon Landlords?  Regardless of the Supreme Court’s rejection of the CDC’s latest moratorium, Oregon landlords are still subject to eviction restrictions and temporary eviction delays imposed by SB 278, Ordinance 1296 (Multnomah County only), and CJO 21-031.[6]

A Review Of Where We Are Today.

• Nonpayment Debt Remaining from the Oregon Eviction Moratorium (HB 4213/4401): Tenants may not be evicted for a failure to pay rental debt accrued between April 1, 2020 and June 30, 2021. Per Senate Bill 282, tenants have until February 28, 2022 to pay off those rents, fees and charges without threat of eviction or accrual of additional late fees and penalties.[7]

• Rents, Fees, and Charges after July 1, 2021: Tenants must begin paying their current rents, charges, and fees beginning on July 1, 2021 or risk eviction. If they are unable to do so, they may apply for rental assistance and provide their landlord with proof of application. Under SB 278, the proof of application gives the tenant an additional 60-day “pause” (or 90-days in Multnomah County per Ord. 1296) during which time a landlord is prohibited from either issuing a notice of termination or continuing a pending nonpayment of rent eviction. These 60-day or 90-day “safe harbor” provisions remain in effect until March 1, 2022.[8]

• FED Timing Extensions: Once the 60-day or 90-day safe harbor window is closed under SB 278, if the tenant does not receive assistance or otherwise still cannot afford their rent, their landlord may proceed with the eviction process. As noted above, the Oregon Chief Justice’s Order 21-031 extends the normal timeline for First Appearances in  all FEDs and extends the window within which a trial may be scheduled.[9]

Frequently Asked Questions

Question: What if I already have a termination or eviction pending from July?

Answer: Though the Court’s rejection of the CDC’s new eviction moratorium is brand new, and it’s difficult to say how Oregon FED courts will address the issue (if at all), we do know two things:

1. In order for a tenant to take advantage of the protections that were provided by the CDC’s moratorium they must have given their landlord a form (one created by the CDC, or a written document with equivalent information) declaring that they were a “covered person” as defined by their Order. To be a “covered person” the tenant needed to meet both personal qualifications (income, location) and hardship qualifications (loss of income, extreme medical expenses).[10] In the absence of this form, or its equivalent, a tenant is not covered by the CDC’s order.

2. The eviction moratorium was meant to prevent the eviction only. As stated in their own guidance “[the CDC’s new eviction moratorium is not] intended to prevent landlords from starting eviction proceedings, provided that the actual physical removal of a covered person for nonpayment of rent does NOT take place during the period of the Order.”[11]

So, if there is a pending termination or FED from July 2021, it seems that the only real prohibition on an actual eviction would be: (a) If the tenant provided a document demonstrating that he/she was  a covered person; AND (b) The actual eviction occurred between August 3, 2021 (when the CDC’s moratorium went into place) and August 26, 2021 (when the Supreme Court ruled that it was invalid). 

However, all Oregon landlords must follow the 60-day safe harbor laws (or 90-days in Multnomah County) laid out in SB 278 and Ordinance 1296 regardless of the status of the CDC’s now-invalidated moratorium. For that process, see MHCO’s Guidance and Flowchart.

Question: What if I started an eviction in July and my tenant has not paid August rent?

Answer: This depends on whether your tenant notified you of their application for rental assistance under SB 278. If they have not done so, then you may continue with the FED proceeding and obtain a judgment of restitution in the ordinary course. Otherwise, you are subject to the “pause” rules of SB 278 or Multnomah County’s Ordinance 1296 before re-issuing the termination notice and proceeding with the FED. If your case has already reached the First Appearance stage, the court will reset the hearing and/or trial to the appropriate time. Remember: A tenant may provide proof of application at any time up to the First Appearance. 

In the ideal situation your tenant’s application for rental assistance will result in aid from the State of Oregon, you will be recompensed for the unpaid rent, and the eviction will become unnecessary. 

Question: What about for-cause evictions?

Answer: Evictions for cause are not limited by any of the new Oregon legislation, nor were they limited by the CDC eviction moratorium. As discussed above, the FED process for for-cause evictions is modified by the Oregon Chief Justice’s Order 21-031, which remains in effect until the State of Oregon is no longer operating under a State of Emergency or the CJO 21-031 is withdrawn.

1. Center For Disease Control, https://www.cdc.gov/.

[2] Tenants need only demonstrate that they have applied for rental assistance in order to receive the 60-day pause (or 90 days if in Multnomah County). Upon receipt of the tenant’s supporting documentation the landlord may not, for the next 60 days (or 90 days in Multnomah County): (a) Deliver a termination notice for nonpayment, or (b) Initiate or continue an action for possession (i.e., an FED) based upon a termination notice for nonpayment.

[3] The Chief Justice’s Order extends the usual 7-day window for scheduling the First Appearance in nonpayment of rent evictions to at least 21 days after the filing of the FED complaint. First appearances for all other evictions will be scheduled within 14 days of filing.

[4]  See, discussion on the Court’s thinking here: https://www.scotusblog.com/2021/06/divided-court-leaves-eviction-ban-in-place/

[5] See, https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html?s_cid=11509:cdc%20guidance%20delta%20variant:sem.ga:p:RG:GM:gen:PTN:FY21

[6] See Footnotes 2 and 3 above.

[7] See MHCO Guidance on SB 282 for more detailed information:  MHCO.ORG “Community Updates”, “New MHCO Non Payment of Rent Forms Effective July 1, 2021” (posted 7-13-21) and “Phil Querin Article – New Rules for Non Payment of Rent Evictions – SB 278 – July 1st It’s the Law (posted 6-30-21).

[8] See MHCO Guidance on SB 278 for more detailed information: MHCO.ORG “Community Updates”, “New MHCO Non Payment of Rent Forms Effective July 1, 2021” (posted 7-13-21 and and “Phil Querin Article – New Rules for Non Payment of Rent Evictions – SB 278 – July 1st It’s the Law (posted 6-30-21).

[9] See MHCO Guidance on CJO 21-031 for more detailed information: MHCO.ORG, “Phil Querin Q&A”, “Oregon Chief Justice Order Extending Certain Time Periods For FEDs” (9-22-2021)

[10] To be a “covered person” a tenant must declare under penalty of perjury:

(1) The individual has used best efforts to obtain all available government assistance for rent or housing;

(2) The individual either (i) earned no more than $99,000 (or $198,000 if filing jointly) in Calendar Year 2020, or expects to earn no more than $99,000 in annual income for Calendar Year 2021 (or no more than $198,000 if filing a joint tax return) (ii) was not required to report any income in 2020 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check);

(3) The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;5

(4) The individual is using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses;

(5) Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options; and

(6) The individual resides in a U.S. county experiencing substantial or high rates of community transmission levels of SARS-CoV-2 as defined by CDC.

[11] https://www.cdc.gov/coronavirus/2019-ncov/downloads/eviction-moratoria-order-faqs.pdf

While landlords who deliberately abuse their power in this way deserve whatever liability they incur, retaliation can also happen inadvertently. Risk of liability comes into play any time you reject, evict, raise the rent, or make housing decisions that negatively affect a person who’s previously exercised a fair housing right. This is true even if retaliation was the furthest thing from your mind. Moreover, while prohibition against retaliation has always been a fundamental part of fair housing laws, retaliation claims against landlords have increased noticeably in recent years.

How does retaliation happen and what can you do to avoid it? Those are the questions this month’s lesson will answer. First, we’ll explain the laws of retaliation and the conundrum they pose when dealing with protected individuals after they’ve engaged in protected activities. Then, we’ll outline eight rules to follow to ensure that your rental staff is sensitive to retaliation liability risks and the actions they can take to defuse them. At lesson’s end, you can take the Coach’s Quiz testing your knowledge of the lessons and ability to apply them in real-life situations.

WHAT DOES THE LAW SAY?

Retaliation is a form of discrimination that the federal Fair Housing Act (FHA) bans. The rule stems from Section 818 of the FHA, which makes it illegal to “coerce, intimidate, threaten, or interfere with” any person “on account of his having exercised” any right the law protects. Regulations and court decisions interpreting the provision have made it amply clear that acts of retaliation violate Section 818.

In a retaliation proceeding, there are four things that the rental applicant, tenant, or other complainant (which, for simplicity’s sake, we’ll refer to as “tenant,” except where the context requires otherwise) must prove to make a valid case:  

1. Tenant Exercised a Fair Housing Right

First, tenants must show they exercised a fair housing right. Suing the landlord is an obvious example. However, “exercising” a fair housing right can also take more subtle forms, such as:

• Requesting accommodations for a disability;
• Reporting a discriminatory housing practice to a landlord or an authority; and/or
• Talking to a HUD official, bringing a complaint, testifying, assisting, or participating in any way in an FHA proceeding.

2. Landlord Knew of Tenant’s Exercise of the Right

To be liable for retaliation, tenants must show that the landlord knew that they exercised a fair housing right. A landlord is considered to have knowledge if a leasing agent or other employee knew of the activity.  

3. Landlord Took Adverse Action Against Tenant in Response to the Exercise

Next, tenants must show that they were on the receiving end of some “adverse action” from the landlord after they exercised the fair housing right. Examples include:

• Rejection of a rental application or renewal;
• Eviction;
• Rent increases and other unfavorable rental terms;
• Bringing a lawsuit without any reasonable basis;
• Threats to engage in the above or any other adverse actions; and
• Harassment.

4. The Landlord Took the Adverse Action Because of the Exercise

The first three requirements are usually easy to prove. That’s why most retaliation cases come down to the fourth element: Whether the exercise of the fair housing right was the reason the landlord took adverse action against the tenant. Note that retaliation doesn’t have to be a landlord’s only motive for taking adverse action against a tenant; it need only be one of the factors in the decision. In other words, a retaliatory motive taints the entire decision even if there were legitimate, nondiscriminatory motives as well.

Timing Is Everything—Or Is It?

Because landlords rarely admit that the adverse actions they take are in retaliation for the exercise of a fair housing right, there usually must be some other evidence of the landlord’s retaliatory motive. The most common form of evidence is timing. Adverse action that occurs after a tenant exercises a protected right creates the inference that it happened because of the exercise. The smaller the time interval, the stronger the inference. Thus, evicting a tenant 24 hours after she makes a fair housing complaint puts you in a terrible position at trial.  

Even so, the mere fact that adverse action comes after exercise of a right isn’t enough to prove retaliation. Maybe the timing was just coincidental. Besides, exercising a fair housing right doesn’t mean tenants can do whatever they want. After all, a tenant who hasn’t paid rent in months shouldn’t be able to avoid eviction simply because he previously filed a discrimination complaint against his landlord.

Example: A tenant claimed that her Colorado landlord threatened to evict her after she complained that he was discriminating against families with children. The landlord admitted to making the threat but insisted he made it because of the tenant’s refusal to follow a community rule requiring all tenants to put heat tape on their water supply pipe. The HUD administrative law judge (ALJ) found that the evidence supported this explanation and tossed the retaliation case [HUD v. Quintana, HUDALJ 08-92-0239-1 (1994)].

Compliance Strategy

Tenants suing for retaliation have the burden of proving each of the above four elements. That can be a huge advantage in your favor. It means that all you have to do to defeat a case—or better yet, deter tenants from bringing it in the first place—is knock out one of the required elements. While any one of the four elements will do, targeting the fourth element requiring proof of retaliatory motive is almost always the most promising strategy.

8 RULES FOR AVOIDING RETALIATION LIABILITY

You can minimize your liability risks for fair housing retaliation by ensuring your leasing agents and management staff follow these eight rules.

Rule #1: Don’t Retaliate Deliberately

The starting point is to strictly prohibit your staff from targeting tenants for complaining about discrimination or engaging in any other form of protected activity. “Weaponizing rental, renewal, or other leasing decisions to punish fair housing ‘trouble makers’ is a recipe for liability disaster,” cautions a Georgia fair housing consultant. Unfortunately, the six-figure damage awards being handed out against landlords suggests that deliberate retaliation remains an all-too-common occurrence.

Example: A Los Angeles area landlord shelled out $225,000 to settle charges of raising the rent, threatening to evict, and taking away a family’s parking space because of their association with another family that was evicted because they had a disabled child [Downey Property Management, et al., Calif. Dept. of Fair Employment and Housing press release, October 2018].

Example: An Ohio landlord paid $177,500 to settle charges of sex harassment against at least 20 tenants, including refusing to make repairs for women in retaliation for spurning sexual advances [US v. Klosterman, (S.D. Ohio), Oct. 1, 2020].

Taking adverse action might be especially tempting when a tenant’s discrimination accusation or complaint is totally bogus. But while it may seem unfair, retaliation is still illegal even if the accusation that brings it on is false; all that’s required is that it be made in good faith.  

Rule #2: Don’t Try to Keep Tenants from Exercising Their Fair Housing Rights

Don’t do or say anything to pressure or persuade a tenant who expresses fair housing complaints or concerns not to pursue a fair housing complaint. Once a tenant comes to you with a fair housing complaint, your first reaction might be to try to set things right so you don’t end up getting sued. The irony is that in seeking to prevent a fair housing lawsuit, you might actually be inviting one. That’s because your efforts might be seen as an illegal act to “coerce, intimidate, threaten, or interfere” with fair housing rights.

So refrain from making not just threats but also promises or inducements that may be seen as bribes designed to stop the exercise of a fair housing right. Although you can offer constructive solutions, you should make it clear that your suggestions are just that—suggestions—and don’t preclude tenants from filing a complaint or pursuing their other fair housing remedies.

Rule #3: Don’t Charge Tenants Fees for Exercising Their Fair Housing Rights

Another form of retaliatory activity banned by Section 818 is charging tenants fees, deposits, or extra rent for exercising their fair housing rights. Common examples include charging fees for providing disabled tenants handicap-accessible parking spaces or other reasonable accommodations that the FHA requires.

Example: A Colorado condo association fined a tenant with epilepsy for allowing her to keep a service dog in violation of its “no dogs” policy. The tenant sued for retaliation. The association asked for dismissal without a trial. HUD considered the case so important that it intervened on the tenant’s behalf. Fining a tenant for requesting an accommodation is evidence enough to support a retaliation claim, regardless of whether the underlying accommodations claim was valid, the government argued. The federal court agreed and allowed the case to go forward. Retaliation claims stand on their own and aren’t dependent on the validity of the underlying discrimination claim that prompted them, the court concluded [Arnal v. Aspen View Condo. Ass’n, et al., 226 F. Supp. 3d 1177 (D. Colo. 2016)].

Rule #4: Differentiate Between Retaliation and Legitimate Enforcement

This is the most important rule of the entire lesson. There’s a big difference between retaliation and enforcement of rental application and lease rules. Stated differently, protection from retaliation doesn’t require you to accept an unqualified rental applicant or tolerate a tenant’s failure to pay rent or other serious violations. Thus, a tenant isn’t allowed to create a serious disturbance on Tuesday just because he complained about a fair housing issue on Monday.

The key question: How do you enforce your rental qualifications and lease rules against applicants and tenants after they’ve exercised a fair housing right? The answer is not by refraining from taking the action but by ensuring that you can justify it by showing that you did it for legitimate, nondiscriminatory reasons having nothing to do with the previous exercise of a fair housing right.

Example: A Pennsylvania public housing tenant filed a state discrimination complaint contending that she was sexually harassed by maintenance workers and her neighbors over the course of her 10-year tenancy. A few months later, she was evicted. Although the timing was mighty suspicious, the federal court ruled in the landlord’s favor and dismissed the case.

The landlord won because the tenant couldn’t get past the fourth prong of the retaliation test by proving there was a causal link between the eviction and the fair housing complaint. And the reason she couldn’t prove this was because the landlord was able to demonstrate that it had received multiple complaints about the tenant in the months after the sexual harassment complaint. Neighbors accused her of verbal assault, beheading a neighbor’s cat, and inviting a neighbor’s child into her apartment and not letting her go until the police arrived. So, the court concluded that the eviction was for a legitimate and nondiscriminatory reasons and not an act of retaliation for filing the sexual harassment complaint [Madison v. Philadelphia Housing Authority, Civil Action 09-3400, E.D. Pa., June 2010].

Rule #5: Document Legitimate Reasons for Taking Adverse Actions

Doing what the landlord was able to do in the Madison case is the blueprint for not only defeating but preventing retaliation claims. To achieve that objective, you must keep careful records documenting your rental and leasing decisions. Specifically, you must be able to demonstrate the legitimate and nondiscriminatory bases for the rules and standards you establish and the actions you take to enforce them.

Without these records, it will be easy for the people you reject, evict, fail to renew, etc. after they engage in protected fair housing activity to claim that you retaliated. The documents are essential to counteract these claims and show the policy, action, or decision was justified and not a pretext for retaliation.

You also need documentation any time you amend your community bylaws, policies, rental standards, and rules of conduct. Otherwise, a tenant might claim that you made the change to retaliate against them for exercising a fair housing right.

Example: The owner of a Georgia condo claimed the community association deliberately adopted new rent restrictions to keep her from following through with her plans to rent the unit to an African-American woman. Although the deal did go through, the owner sued the association for trying to stop it. The association denied the charges and insisted that the bylaw changes had nothing to do with the proposed rental.

Thus, as is often true in retaliation litigation, the case boiled down to the evidence of the housing provider’s intentions. Unlike the landlord in Madison, the association in this case couldn’t come up with evidence justifying its proposed new rental restrictions. In fact, the absence of discussion of the change in the corporate meeting minutes belied the association’s contention that they were already in the works at least a year before the proposed rental arrangement.

By contrast, there was evidence suggesting that the association was concerned that leasing the unit to an African-American tenant would reduce property values and lead to protests by other owners in the community. Result: The Georgia state court ruled that there was enough evidence to allow the case to go to trial. Having lost its bid for dismissal, the condo association then faced an unenviable choice: Pay a hefty settlement or risk a trial [Bailey v. Stonecrest Condo. Assoc., Inc., 2010 WL 2472501 (Ga.App.)].

Rule #6: Enforce Your Rules and Rental Criteria Consistently

Showing that an enforced policy is legitimate and nondiscriminatory isn’t enough to justify an adverse action against a tenant who has engaged in protected activity; you must also be able to show that the action is consistent with your previous practices. Otherwise, it might look like you’re singling out the tenant for selective enforcement. Thus, for example, failure to follow pool rules would look like a pretext for not renewing a tenant if you let other tenants get away with similar violations.

Deciding not to renew the lease of a person who has engaged in protected activity is a frequent source of retaliation claims, attorneys warn. Accordingly, they suggest that you create a policy for nonrenewals and apply it consistently to all tenants. In addition to listing clear and legitimate criteria for nonrenewals, the policy should require staff to create a memo documenting its discussions about and reasons for not renewing a tenant. These records can put you in a strong position to defend against a claim for retaliatory nonrenewal.  

Rule #7: Don’t Retaliate Against Third Parties

FHA protection from retaliation covers not only rental applicants and tenants claiming to be victims of discrimination, but also third parties who help or encourage them to pursue their fair housing rights. That includes fair housing associations and even your own employees. Result: It’s illegal to fire, demote, transfer, cut the pay of, harass, or take other unfavorable employment action against an employee for speaking up against discriminatory practices or advising aggrieved tenants to contact HUD or other fair housing agencies.

Example: Owners and managers of a Kansas City high-rise rental community shelled out $2.13 million to settle allegations of creating a racially hostile environment and retaliating against a former employee for cooperating with HUD investigators and helping others file complaints with HUD. The abuse, complete with hangman’s nooses and racial slurs, was so bad that the federal court also issued an order permanently banning the community manager from working in rental housing and ordering her to pay a $55,000 civil penalty [U.S. v. Sturdevant, Civil Action No. 07-2233-KHV, Fed. Dist. Ct. Kansas, May 2010].

You can also get into trouble if you take retaliatory action against tenants for opposing discrimination against their neighbors. This is true even if the tenant targeted for retaliation is white or otherwise not part of a protected class under the FHA.

Rule #8: Implement a Non-Retaliation Policy

Although it’s never fun when a rental applicant or tenant comes to you with a discrimination complaint, discouraging such reports could expose you to liability for interfering with the exercise of fair housing rights under FHA Section 818. Moreover, these reports should be welcomed because they can help you identify and root out hidden discrimination problems in your community.

The problem is that people may be reluctant to speak up because they fear retaliation. For example, suppose an applicant hears a leasing agent use a racial slur. What you want her to do is come forward and tell you. But the applicant won’t do that if she thinks it might lead you to reject her. As a result, she may tell a local fair housing organization instead.  

Answer:  By your question, it appears that your community is not submetered.  If it were, the owners of the home would likely recognize the problem and immediately and fix it.

In my experience when water is included as a part of the base rent, most owners really don’t care, and don’t check. But when the community institutes a submetering program, everyone becomes an overnight conservationist. Submetering is a win-win for everyone; the landlord saves money in not having to pay for wasted water, and the residents save in (a) controlling their own water bills, and (b) not having to suffer needless rent increases to recapture the cost of wasted water.

Now to your questions. Clearly, if water is visibly running out of the home, the tenants should be notified and told to fix the problem. They are responsible for their own homes.

As for the less obvious leaking problems, the only way to find out is to survey the tenants on the issue; e.g. do they hear the toilet leaking, for example.[1] Same question for faucets. Next, what about under the home? Has anyone checked lately? I have heard of management offering to do inspections under the home for free, as a part of instituting a submetering program.

But can you require residents take these proactive steps, especially hiring someone to inspect under the home. Except for the rules regarding the siting of home on a space, there are likely no regulations that mandate such action on an ongoing basis – at least if there is no present evidence of leaking. If there is evidence, ORS 90.740 can be relied upon to secure compliance, if nothing can be found in the rules or rental agreement:  

90.740 Tenant obligations. A tenant shall:    

(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;

      (e) Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;

      (f) Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

If the rules do not contain such a provision, consider amending them to add language to address the issue.  Rule changes can be done in a fairly straightforward manner. See, ORS 90.610. Alternatively, even if submetering is not addressed in your rules, you can unilaterally add it to your rental agreements, as a “Plan B”, if you are unsuccessful in implementing the necessary rules.

Answer. ORS 90.396 addresses acts or omissions justifying 24-hour notice of termination. This type of event is covered under the statute. If provides for termination if:

“The tenant, someone in the tenant’s control or the tenant’s pet seriously threatens to inflict substantial personal injury, or inflicts any substantial personal injury, upon a person on the premises other than the tenant;”

What you describe clearly qualifies on its face for a 24-hour notice. However, if this is not something expected, or if the tenant has some mental/anger issues which qualify for treatment, you may want to get more information before proceeding. 

Here are some things to remember:

• 24-hours’ notice is a minimum; you can always allow a longer period of time;
• This violation is not curable like the 30-day notice;

The 24-hour notice should not be used where a 30-day curable notice would likely suffice in securing compliance. Your description clearly suggests a 24-hour notice is appropriate, since allowing the right to cure may not be appropriate. Plus, there is likely too much risk in permitting the resident to return, only to cause further injury to others.

For purposes of service of the 24-hour notice you would normally send by regular mail, personally serve, or mail and attach the notice to the front entrance of the door.  However, if you know a tenant is in jail or here, being housed in a hospital, using the above methods will not likely provide the notice you need. You should contact the institution (e.g., sheriff’s office, hospital admitting desk, etc.) to find out how they permit notices to be delivered to persons in confinement.

In less serious cases, e.g., verbal abuse (not threats of imminent injury, however), the 30-day notice may be more appropriate. Now that ORS 90.630 has a 3-day “cure period” for isolated events, it can be a useful tool that does not prolong the unpleasantness for managers having to wait 30 days. 

For example, if the verbal conduct has continued, and shows no sign of abating, issuing a notice under ORS 90.630 can be used. It now becomes noncurable quickly if breached, so management can use it effectively to stop the conduct. 

Part of the issue today is using the courts to enforce evictions considering Covid delays and the housing crisis. Accordingly, you must be judicious when using termination notices, i.e., only in those cases you believe are necessary either for management safety, or the protection of other residents. 

If the conduct does not rise to “termination notice” level, you might consider using mandatory mediation to secure voluntary compliance. See, ORS 90.767.

Of course, the best solution to threats, intimidation, and more serious conduct is to avoid it by choosing your tenants carefully. This means vetting applicants closely before ever being allowing in the community. Unfortunately, that is not always an option, which is why the 24-hour notice is the tool of last resort.

Lastly, remember that judges are hesitant to terminate a tenant in such cases, unless it is an issue of health and safety of management and the residents. Before proceeding, check with your attorney to discuss how best to proceed.

One level deeper: The agreement resolves claims that the housing authority failed to fulfill a reasonable accommodation request to provide the tenant’s brother with copies of all correspondence sent to the tenant, resulting in the tenant failing to respond to a recertification notice and being evicted.

The tenant also alleged that the housing authority violated Section 504 of Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability by recipients of federal financial assistance. As a result of the housing authority’s failure to provide the tenant’s brother with her recertification notice, the tenant lost her housing.

What you need to know: The Fair Housing Act (FHA) prohibits housing providers from discriminating against people with disabilities, including refusing to make reasonable accommodations in policies or practices when such accommodations may be necessary to provide persons with disabilities an equal opportunity to use or enjoy a dwelling.

In other words, changes in the way things are customarily done that enable a person with disabilities to enjoy housing opportunities is a reasonable accommodation. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, HUD says that treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling.

Takeaway: Remember to carefully consider each reasonable accommodation request you receive. When you get an accommodation request, it’s up to you to evaluate whether the person is entitled to a reasonable accommodation because of a disability and whether the requested accommodation is reasonable and necessary.

1. What does mediation mean? Mediation is an alternative dispute resolution process that is different from going to court and having a judge (or jury) pick a winner and loser by determining the facts and applying the law to the facts. Mediation is also different from arbitration. At an arbitration, the parties typically pick a person (usually an attorney) to act like a judge and determine the facts and apply law. At an arbitration there is also a winner and a loser. 

In mediation, the parties typically pick a third party neutral who will meet with the parties to help them find a solution to resolve a dispute. Because mediation requires the agreement of the parties to come to a resolution, it is not always successful. Mediation does not limit a party’s ability to file a lawsuit or arbitration.

In my experience, the cases that resolve at mediation are where both parties come with an open mind, are willing to listen and can consider compromise in order to avoid the cost and hassle of litigation. 

In my experience, the cases that don’t resolve are usually because one of the parties has unrealistic expectations or opinion of their case, or that the matter should move forward based on “principle.” 

2.   When is mediation required? Mediation is required for any non-exempt issues (see question 3) involving compliance with the rental agreement or non-exempt conduct of a landlord or a tenant within the facility. Please note that a facility is a manufactured home park or a floating home marina. Mediation can be initiated regarding a non-exempt dispute between a landlord and a tenant or between two or more tenants. Note that if the dispute is between two or more tenants, mediation must be initiated by the landlord. 

3.   What types of disputes are exempt (i.e. not subject to mediation)? The following disputes are not subject to mediation:

(a) Facility closures consistent with ORS 90.645 or 90.671; 

(b) Facility sales consistent with ORS 90.842 to 90.850; 

(c) Rent payments or amounts owed, including increases in rent consistent with ORS 90.600;

(d) Termination of tenancy pursuant to ORS 90.394 (failure to pay rent), 90.396 (24 hour notices), or 90.630(8) (three strike provision); 

(e) A dispute brought by a tenant who is alleged to be a perpetrator of domestic violence, sexual assault or stalking under ORS 90.445 when the dispute involves either the allegation or the victim of domestic violence, sexual assault or stalking; 

(g) A dispute involving a person not authorized to possess a dwelling unit as described in ORS 90.403; or 

(h) A dispute raised by the landlord or tenant after the tenancy has terminated and possession has been returned to the landlord (including ORS 90.675 (abandonments). 

4.   How is mediation initiated? Mediation may be initiated by a tenant or a landlord. If a tenant or landlord initiates the mediation process, then the parties are required to participate (but see questions 7 and 8 below). If there is a dispute between or among tenants, a landlord must initiate mediation.  

5.   What if mediation is not currently included in my rental agreement? A landlord and/or tenant is required to mediate regardless of whether a rental agreement currently provides for mediation. If a rental agreement does not currently have such a process, SB 586 requires a landlord to unilaterally amend the rental agreement to include mediation. Specifically, ORS 90.510 (5) (what is required to be included in rental agreements) is amended to include in a rental agreement a section for mandatory mediation of disputes that states: “that the tenant or the landlord may request mandatory mediation of a dispute that may arise concerning the rental agreement or the application of this chapter, and the process by which a party may request mediation, including a link to the web site for the Manufactured and Marina Communities Resource Center with additional information about mandatory mediation of disputes.”

 6.  Who facilitates a mediation? Mediation may be requested through either: (1) Manufactured and Marina Communities Resource Center (“MMCRC”); or (2) a local Community Dispute Resolution Center (“CDRC”); or (3) a mutually agreed-upon and qualified mediator. Each party must cooperate with the CDRC or designated mediator in scheduling a mediation session at a mutually agreeable day and time, within 30 days of the initiation of mediation. Each party must attend at least one mediation session. 

7.   Who has to participate in the mediation (i.e. does it have to be the owner)?  A landlord can designate a representative to participate in the mediation on the Landlord’s behalf (including a non attorney). The representative, however, must have the authority to resolve the dispute in the mediation.  Note that a tenant can also designate a representative.

8.   Do I have to reach an agreement in the mediation?  No. Neither party is required to reach an agreement in a mediation. Each party must attempt to mediate the dispute in “good faith.”  The law specifically says that the parties are not required to: (1) reach an agreement on all or any issues in the mediation; (2) participate in more than one mediation session; (3) participate for an unreasonable length of time in a mediation session; or (4) participate if the other party is using the mediation to harass the party or is otherwise abusing the duty to meditate.

9.   What would happen if a party failed to meditate in good faith? If a party fails to meditate in good faith by abusing the right to require mediation or uses mediation to harass the other party, the aggrieved party may recover an amount equal to one month’s rent from the violating party. Please note that this is a two way street. In addition, the other party has a defense to any claim brought by the violating party over the dispute involved in the mediation request, and may have the claim dismissed.

10. Can I use an admission in mediation at a subsequent trial? Conversely, can something I say be used against me? No. Mediation, and what is said during mediation, is confidential. Any statement made in a mediation is inadmissible. The purpose is to have an honest dialogue in order to encourage a settlement. Additionally, a mediator cannot be called as a witness.

11. Can a tenant request a mediation after I send them a termination of tenancy notice? 

Mediation can be requested after a notice terminating tenancy has been sent to a tenant, but only if the request is made to MMCRC or a designated mediator and a written confirmation of that request is delivered to you (the landlord) before the landlord files an action for possession under ORS 105.110. If the tenant delivers a notice requesting mediation before a landlord files an eviction action, the landlord may not file such action until after the mediation process concludes. If a landlord delivers a notice requesting mediation before a tenant files an action regarding a dispute, the tenant may not file such action until after the mediation process ends. 

12. Can I still accept rent during the mediation process?  Yes. Notwithstanding ORS 90.412, acceptance of rent or performance by a landlord after either party requests mediation and during the mediation process does not constitute waiver of the landlord’s right to terminate a tenancy following the mediation. Acceptance of rent or performance after the mediation process ends may constitute waiver. Additionally, all statutes of limitations are suspended during the mediation process. 

13. What happens after the mediation? If a mediation is successful, the parties should come to an agreement that resolves the dispute. The question is how enforceable is the agreement. Enforceability will depend upon the issues involved, the terms and how the agreement is drafted. I would encourage you to discuss with your legal counsel strategies on how to make the most of a mediation. For example, if an eviction action has already commenced, you may want to attempt to make the agreement a part of the ORS 105.148 mediation/agreement process. Another example is setting up an enforcement mechanism within the agreement itself.  

The CDRC or the designated mediator shall notify MMCRC of the successful or unsuccessful outcome of the mediation. The parties and the CDRC or mediator are not required to give a copy of any mediation agreement to MMCRC.

If a mediation is not successful, the parties may continue on the path they were on before the mediation. 

14. This sounds expensive, who is paying for it? Mediations will be performed by the existing network of CDRC mediators, funded by the existing annual assessment already paid by tenants ($10, collected with property tax assessments).  If the parties choose a private mediator, then the parties will have to determine how that mediator is paid. Additionally, the current annual fee paid by park landlords ($25 for parks of 20 spaces or fewer, $50 for larger parks) is doubled.

15. Very interesting (as always), Bill, but what’s this about $100,000 annual grant to the Oregon Law Center?As you may be aware, some states have allocated substantial funding to their state’s Justice Department or to create a team of private attorneys general to assist with enforcement of tenant rights. Similar systems were originally proposed by the tenants during coalition meetings and were strongly opposed by the landlord group. The ultimate compromise was a limited $100,000 per year grant to be given to the Oregon Law Center to employ one attorney to provide direct legal services to statewide park and marina residents on matters arising under the Oregon Residential Landlord Tenant Act.

16. Is mandatory mediation and the $100,000 per year in perpetuity? No. Both elements have a four-year sunset. An advisory committee has been created to monitor both elements, consisting of equal numbers of landlord and tenant representatives to present a report on the status of both elements to the 2021 and 2023 Legislatures to determine whether they should be renewed.

17. When does all of this go into effect? The effective date of SB 586 is January 1, 2010.