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Answer:  ORS 90.725 deals with the abandonment of owner-owned manufactured homes located in manufactured housing communities. MHCO Form No. 30 contains an extensive Intake Worksheet for park owners and managers to initiate the abandonment process. It starts with the issuance of a 45-day letter.[1]Form No. 30 includes the 45-day letter. 

 

The 45-day letter permits the landlord to reasonably decide whether the associated personal property is, or is not, worth $1,000 or less. If the value is $1,000 or less, the landlord may dispose of it or give it without consideration to a nonprofit organization, or to a person unrelated to the landlord. The landlord may not retain the property for personal use or benefit.

 

If the landlord is not declaring the abandonment of a home located in a manufactured housing park, the personal property abandonment statute, ORS 90.425, would apply. It deals exclusively with a landlord’s disposition of personal property, which is defined as:

 

“…goods, vehicles and recreational vehicles and includes manufactured dwellings and floating homes not located in a facility. “Personal property” does not include manufactured dwellings and floating homes located in a facility and therefore subject to being stored, sold or disposed of as provided under ORS 90.675.” (Emphasis added.)

 

Although the statutory procedure is much the same as for abandoned manufactured homes, the landlord would issue a “15-day letter” rather than one for 45-days. 

• It would notify the former tenant that the property is considered abandoned;
• It would be sent to the tenant’s space address and any other address you reasonably believe will reach them or a relative, friend, or other person known to you;
• If you can determine that there is a lien on the vehicle, you should include the lienholder in the notice and send the letter by regular and certified mail;
• The 15-day letter would tell the former tenant/lienholder to contact the landlord or manager at an address and phone number, to arrange for removal of the vehicle within 15 days – be sure to add 3 additional days for mailing, where appropriate;
• You would tell them that before removal you may require payment of all removal and storage charges;
• If you reasonably believe the value is $1,000 or less you would tell them so, together with your intent to dispose of the vehicle as described above;

 

• If you believe the value is over $1,000 you would include that in your letter; you may sell by public or private sale, and you may participate as a bidder

 

During this period, you have a duty to keep the vehicle in a place of safekeeping. 

 

Although the statute does not address this alternative option, here is one that may be useful, although you should confirm with your own attorney first:  Have the vehicle towed by a towing and storage facility, and so notify the former tenant using the same 15-day letter format described above. 

 

You should first make sure with the towing company that if there will be a charge to you, it is established up front, and the events to occur if the owner does not pick the vehicle up from them. I do not recommend this option if the car has any significant value, or there is a lienholder on title.

Answer: No

In this case from 2021, the Kentucky court dismissed the tenant’s failure-to-accommodate lawsuit without a trial. The tenant’s disability wasn’t obvious, and the board had a legitimate right to request additional information about its impact on her ability to engage in “major life activities” in making an accommodations decision [Commonwealth Comm'n on Human Rights v. Fincastle Heights Mut. Ownership Corp., 633 S.W.3d 808, 2021 Ky. App. LEXIS 104, 2021 WL 4484981].

Takeaway: Although you’re not allowed to ask privacy-invasive questions about a person’s disabilities, HUD guidelines give landlords leeway to gather limited information in response to a reasonable accommodations request to the extent the information is necessary to determine three things:

1. The person meets the FHA definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities;
2. Exactly what accommodation is being requested; and
3. Whether there’s a “nexus” or relationship between the disability and the need for the requested accommodation.

Answer:  This law has been around for several years, although it is my first opportunity to review it. This statute does not apply to manufactured housing communities, RV parks or  floating home communities. Rather, it applies to “planned communities.”

 

These are housing communities regulated under ORS 94.565, et seq. Essentially, they are akin to residential subdivisions that have a homeowner’s association form of governance, common areas, and periodic assessments or dues. All the homeowners own their homes and the lots they are sited on. This statute allows homeowners to install charging stations on their own property, subject to certain regulations by the HOA.

 

So, the short answer to your question is that since manufactured housing communities, RV parks and marinas are not planned communities because the residents do not own the underlying land, ORS 94.565 does not apply. However, it is conceivable that a park or marina might install charging stations on its common area for resident usage.

Q: If I am thinking of selling my park, when do I have to send notice to my tenants?
 

A: ORS 90.842 requires an owner to give written notice of the owner's interest in selling the park before an owner markets a park for sale or when the owner receives an offer to purchase that the owner intends to consider, whichever occurs first. If possible, I advise my clients to send the notice before entering into a listing agreement and certainly before actively listing the property. 

This requirement has been in place since 2015 and HB 2364 did not modify it. In the last few years, my experience has been that the statute is triggered mostly when an owner receives an offer to purchase that it intends to consider.

 

Q: Does the notice need to be sent to each tenant individually versus all tenants (e.g. "Dear Mr. Johnson" vs. "Dear Tenant")?

 

A: The plain language of the law states "all tenants," but the 2014 Summary of Legislation states that the purpose of the bill is to require park owners to notify "individual park residents" if the owner is interested in selling the park. Because it appears that the original intent was to notify everyone, the safer course is to send the notice to each tenant individually.

 

If a tenants committee has been formed, and the purpose of the committee is (in part) to purchase the park, and you have met with the committee in the previous 12 months, you can send a notice to the tenants' committee in lieu of all tenants. Also note that you must send a copy of the notice to the Housing and Community Services Department. 

My practice, since 2015 has been to still send the notice to all tenants, even if an owner is aware of a tenants’ committee. This requirement was not changed with HB 2364. The statute did add that the requirement to send the notice to the Housing and Community Services Department must be done “in the manner prescribed by the department by rule.”  At the time of publication, I do not believe this rule has been promulgated; however, at this time, I would send a copy of the notice to the Manufactured Communities Resource Center.

 

Q: What does the notice have to include?

 

A: (1) The owner is selling the park; (2) The tenants, through a tenants committee, have an opportunity to purchase the park; (3) In order to compete to purchase the park, within 15 days after delivery of the notice, the tenants must form (or identify) a single tenants committee for the purpose of purchasing the park and notify the owner in writing of: (a) the tenants' interest in competing to purchase the park; and (b) the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase; (4) The representative of the tenants committee may request financial information described in section 2(2) of the statute within the 15 day period; and (5) information about purchasing a park is available from the Housing and Community Services Department.

HB 2364 increased the time from 10 days to 15 days to allow the tenants to respond.

 

Q: Does 15 days really mean 15 days?

 

A: The law discusses "delivery of the notice." I advise my clients that all notices should be sent by first class mail and 3 days should be allowed for mailing just as if you were sending a 30-day notice or a 72-hour notice. Certificates of Mailing (Not certified mail!!) for each notice are strongly encouraged. By way of example, if you send the notice on June 1, then the "15 days" would run on June 18.

 

Q: What do the tenants have to do after I send them the notice?

 

A: If the tenants are interested in competing to purchase the park, within the 15 days, the tenants must notify the owner in writing of their interest in competing to purchase the park, the formation or identification of a single tenants committee formed for the purpose of purchasing the park and the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

In practice, a non-profit entity, like CASA of Oregon, will notify you or your legal counsel of the tenants’ interest in competing to purchase your park. I have found CASA of Oregon to be professional and reasonable with both the manner of delivery of notices and information (electronic mail is preferred). In most cases, you (or your legal counsel) will not be dealing with the tenants’ committee but will be primarily communicating with CASA and their professional advisors.

 

Q: Do I have to give the tenants my tax returns, SSN and Mother’s Maiden Name?

 

A: No. But, during the 15 days of delivery of the notice, and in order to perform a due diligence evaluation of the opportunity to compete to purchase, your tenants (through CASA or another non-profit), may request specific financial information which may include: the asking price, if any (this provision contemplates that you may not yet know your asking price when you send your notice); the total income collected from the park and related profit centers, including storage and laundry, in the calendar year before delivery of the notice; the total operating expenses for the facility paid by the owner or landlord in the calendar year before delivery of the notice; the cost of all utilities for the park that were paid by the owner in calendar year before delivery of the notice; the annual cost of all insurance policies paid by the owner as shown by the most recent premium; the number of homes in the park owned by the owner; and the number of vacant spaces and homes in the park. Please note that I have seen requests that ask for additional information; providing information outside of what is outlined above is discretionary. The owner has 14 days to deliver the information to the tenants.

The changes above are three-fold: First, the owner has been given an additional 7 days to pull this information together. In practice, a well-organized owner should have this information all pulled together prior to sending the initial notice so there is no delay.  Second, the statute used to call for the information in the 12 months prior to sending the notice, now it is the calendar year. Figuring out this information across calendar years can be challenging. In practice, an owner may want to give information from the previous calendar year together with a year-to-date snapshot of the income and expenses. CASA may ask for 2-3 years’ worth of information; you are not required to give it, but there is nothing stopping you. Finally, “total operating expenses” were added. My practice has been to provide a P&L or pro forma that you would give to any other seller. Such information would likely exceed your obligations. 

Q:  Is the information protected from disclosure?

A: Yes. The statute allows an owner to designate all, or part of the financial information, as confidential. If the owner designates the financial information as confidential, the parties may establish a list of who can see the information and with whom the information can be shared. In practice, CASA has modified their confidentiality agreement to only allow members of CASA (and their legal and accounting professionals) to see the confidential information. If the confidentiality agreement is breached by the tenants, the owner may recover actual damages from the tenant or tenants.

 

What happens after I disclose the financial information?

 

A: Within 45 days after delivery of the financial information (or 45 days after the end of the 15 day period in the unlikely event the tenants do not request financial information), and if the tenants choose to compete to purchase the park, the tenants must: (1) form a corporate entity that is legally capable of purchasing property or associate with a nonprofit corporation or housing authority that is legally capable of purchasing real property or that is advising the tenants about purchasing the park in which the tenants reside; and (2) submit a written offer to purchase the park, in the form of a proposed purchase and sale agreement, and either a copy of the articles of incorporation of the newly formed entity .

 

The increase to 45 days is a substantial change to the statute. It used to be 15 days. While a bit more onerous, it is less than what was originally being proposed. 

 

Q: Do I have to accept the offer?

 

A: No. You may accept, reject, or submit a counteroffer. You should view the tenants (and negotiate with them) as you would any potential third-party purchaser. If the offer is far off or not commercially reasonable, you can reject the offer outright. While not required, I usually advise my clients to explain why it's not doable (e.g., unreasonable financing terms, not enough cash, long closing date, too much many contingencies). If the offer is close to the mark, you may want to counter with terms. In my opinion, the key is to deal with the tenants committee as you would any bona fide purchaser. don't treat them differently just because they are tenants.

Nothing in HB 2364 changed this, although a “good faith and fair dealing” requirement was added in the consideration and negotiation with the tenants group.  (See below).

Q: What if I just don’t want to sell to my tenants because they’re tenants?

A: In my opinion, this was the behavior that the Legislature was trying to address by adding in the “good faith and fair dealing” requirement. One of the problems with “good faith and fair dealing” is that it is not a specific action that can be measured, but an action that a future judge or jury will likely “know it when they see it.” There is no doubt that if an owner decided not to give a group of tenants an opportunity to compete to purchase or decided not to sell to the tenants when the terms were otherwise commercially reasonable (and better than other offers), just because they are tenants, that behavior would violate the statute. The penalty is severe. The owner could be facing a judgment equal to 10% of the purchase price of the facility plus attorney fees.

 

As you can imagine, as MHCO was attempting to understand what this would mean for owners, we wanted to understand what the intent of the language was. We were able to work with Chair Julie Fahey (now Majority Leader Fahey) to place some helpful language in the legislative record that would assist future owners (and their attorneys) in understanding what was (and was not) “good faith”. 

 

Chair Fahey’s comments, together with the examples of what is good faith will help any future owner navigate an offer from their tenants.
 

During consideration in the Committee, Chair Fahey was clear in stating that the purpose of the good faith language was not intended to give the tenants a “right of first refusal” nor to give tenants any special advantage over another third-party purchaser in negotiation; rather, the purpose is to strengthen the requirement that facility owners give a fair chance to their tenants to compete to purchase a facility. 

 

Furthermore, Chair Fahey stated that, “good faith on the part of the parties, both the tenants and any facility owner, is presumed.” A tenant or group of tenants would have to prove that that a facility owner was unwilling to consider an offer from tenants, to negotiate with tenants, or to sell to tenants solely because they are tenants (and no other commercially reasonable factors exists), would violate the statute, as amended.

 

Additionally, Chair Fahey shared some specific examples of what was acting or negotiating in good faith:

 

1. After giving the notice required by ORS 90.842, the facility owner enters into a non-binding letter of intent with a separate third-party potential purchaser. That non-binding letter of intent references the facility owner’s duty to consider, in good faith, any offer the tenants may make (this is a common practice, and one I advise my clients on as it allows an owner to move on two tracks). It is very important that the third-party purchaser be aware of and respect an owner’s obligation to consider the tenants’ offer;

 

2. After receiving an offer from the tenants, the landlord rejects the offer because the material terms of the offer are outside of what the facility owner would consider.  Material terms could include (but are not limited to): price; date of closing, amounts and timing of earnest money deposits; dates of due diligence and contingences and possible effect on date of closing; and whether earnest money is “hard”, or whether the earnest money will go hard; details of contingencies (including financing contingencies);

 

3. After receiving an offer from the tenants, the landlord rejects the offer because of other extenuating circumstances. Other extenuating circumstances could include (but are not limited to): the potential sale of a facility that would include other consideration besides cash (i.e. stock or property trades);
4. A landlord rejects an offer from the tenants and the landlord provides a rationale for the rejection that is true (please note that the rationale is not necessary, but providing a truthful rationale, is in of itself good faith); and

 

5. After receiving an offer from the tenants, the landlord makes a counteroffer that is commercially reasonable.

 

This is not an exhaustive list but provides good guidance on how an owner should consider any potential offer. Again, you should work with your legal professional as you navigate this issue.

 

Q: What happens if the tenants don't respond within the 15 days or don't respond within the 45 days of me providing financial information?

A: You have no further duties under the statute.

Q: What do I do if I think this process is only being invoked to harass me?

A: Call your lawyer. The parties (including the tenants) are required to act in a commercially reasonable manner. Depending on the conduct (and the ability to establish the conduct and motive) your attorney should be able to develop a strategy to combat poor behavior.

Q: I've entered into a purchase and sale agreement with a separate buyer, and I haven't followed the process. What should I do?

 

A: Call your lawyer – today.  It may be fixable but failing to follow this process allows affected tenants to obtain injunctive relief to prevent a sale to a third-party purchaser (which could cause you to be in breach with that third party purchaser) and to recover significant penalties. Bottom line is to be aware of your responsibilities and follow the statute.
 

Q: What do I do after I've completed the process?

 

A: You must file an affidavit certifying that you've complied with the process and that you have not entered a contract for the sale or transfer of the park to an entity formed by or associated with the tenants. The purpose of this affidavit is to preserve the marketability of title to parks. Additionally, there is a requirement that you notify the Housing and Community Services Department who the new owner is.

 

Q:  Are there exceptions to this statute?

A: Yes. The exceptions are listed in ORS 90.848. The most common exception is any sale or transfer in which the facility satisfies the purchaser’s requirement to make a like-kind exchange under section 1031 of the Internal Revenue Code. In other words, if you receive an unsolicited offer from a potential purchaser who is attempting to satisfy a 1031 exchange you are not required to give your tenants an opportunity to compete to purchase.

Bill Miner is currently Partner in Charge of the Portland office of Davis Wright Tremaine. DWT is a full-service law firm with 500 attorneys on both coasts and in Shanghai, China. The Portland office consists of approximately 80 attorneys and over 80 staff. He works with clients to resolve their legal problems through pre-litigation counseling, litigation, and mediation. He tries cases in state and federal courts and through private arbitration. His experience includes defending and prosecuting business torts; breach of contract claims; disputes between and among members of limited liability companies; residential and commercial real estate matters, including landlord-tenant, title, lien, and timber trespass disputes; and probate and trust cases. He is a frequent and popular speaker at MHCO seminars and conferences. You can reach Bill at: http://www.dwt.com/people/WilliamDMiner/

 

 

Background

 

Emergency Period. The Covid-19 pandemic hit Oregon in Spring, 2020; Governor Brown declared a State of Emergency and a temporary ban on evictions (FEDs) in March, 2020. The Oregon legislature then extended the eviction moratorium by enacting a series of bills, beginning with HB 4213 in June 2020 and ending with SB 282 in May of 2021.[1]

 

Collectively, the legislative bills created an “Emergency Period” where landlords were prohibited from terminating tenancies or evicting tenants for non-payment of rents, charges, and fees. The Emergency Period lasted from April 1, 2020 to June 30, 2021. All unpaid rents charges and fees from the Emergency Period are known as “nonpayment debt.” All tenants were required to pay their current rent beginning July 1, 2021.

 

Grace Period: Along with the Emergency Period, the Oregon Legislature also defined a “Grace Period,“ which was a time during which Landlords were prohibited from terminating or evicting a tenant based on the outstanding non-payment debt remaining from the Emergency Period. Tenants had from June 30, 2021 to February 28, 2022 to pay off their nonpayment debt.

 

Safe Harbor Period. In June and December 2021, the legislature passed SB 278 and SB 891. Together the bills provided for what is called a “Safe Harbor” for tenants who were still having difficulty paying their rent. The bill prevents Landlords from terminating tenancies or evicting tenants who are seeking rental assistance. The rental assistance programs established by Oregon can provide up to 12-month of back-rent and three months of prospective rent to tenants who qualify. The Oregon rental assistance program will close to applications on March 14, 2022. Landlords are prohibited from terminating or evicting for non-payment until they either receive notice that the tenant’s application has been denied, or June 30, 2022, whichever comes first.[2]

 

What Now?

 

Continuing Safe Harbor. While there are a number of actions that a landlord may now take to address nonpayment debt owed by tenants, they are still protected from eviction if they have applied for rental assistance. 

• If a landlord receives written proof of application for rental assistance, they may not:
  • Issue a termination notice for nonpayment; or 
  • Initiate/continue an FED action based on nonpayment. This prohibition lasts until the landlord receives notice that the application is no longer pending.
• The last day a landlord may receive notice of an application for rental assistance is June 30, 2022. 
• All Safe Harbor protections expire on October 1, 2022. 
• The Oregon Emergency Rental Assistance Program will close on March 14, 2022 at 11:59 pm. [It is uncertain if there will be additional funds offered after this date.]

 

Nonpayment of Rent Terminations. Termination notices for nonpayment of rents, charges, and fees accrued during the Emergency Period (April 1, 2020 to June 30, 2022) are now permitted. Landlords must still use the 10-day or 13-day nonpayment notice until October 1, 2022.[3] If the rental unit is a park-owned home, the landlord may also use a 30-day for-cause termination notice under ORS 90.392.

 

Termination notices no longer need to include language stating: “eviction for nonpayment of rent, charges and fees that accrued on and after April 1, 2020, and before June 30, 2021, is not allowed before February 28, 2022;” and “Information regarding tenant resources is available at www.211info.org.”

 

Note: Landlords must still send the Notice of Protection Against Eviction for Nonpayment form with any notice requiring payment of money to the landlord (e.g.,. notice of termination for nonpayment, and summons for a nonpayment eviction complaint). (See, MHCO Form 111)

 

Notices to Tenant – Balance Due. Notices to tenants regarding outstanding debt due are no longer required to state that “eviction for nonpayment of rent, charges and fees accrued from April 1, 2020 to June 30, 2021, is not allowed before February 28, 2022.”

 

Collection of Nonpayment Debts. Landlords may now file a civil action in court to recover the nonpayment balance accrued during the Emergency Period (April 1, 2020 to June 30, 2022). Debts may also be sent to collection agencies. [Note: Landlords are prohibited from reporting any Emergency Period debt (April 1, 2020 to July 1, 2021) to a consumer credit reporting agency.]

 

Application of Payments. The eviction moratorium bills temporarily changed the order in which landlords apply tenant payments. As of March 1, 2022 payments must be applied as outlined in ORS 90.220(9), unless otherwise altered by the rental agreement. The order of payments is: 

 

• First – outstanding rent from prior periods;

• Second – current rents; 
• Third – utility/service charges; 
• Fourth – late fees; and
• Fifth – all other fees/charges owed under the rental agreement.

Nontenant Guests. Landlords may once again enforce restrictions on nontenant guests, including assessing fees or terminating a tenancy for violations. [Note: removal of any nontenant guests who had entered into a Temporary Occupancy Agreement with the landlord is subject to the terms and expiration of that agreement.]

 

Statute of Limitations. Section 7 of Oregon House Bill 4212 enacted certain Covid-related tolling (i.e., “suspension”) provisions for nonpayment of rent claims under ORS 12.125 (Actions arising under rental agreement). March 1, 2022 marked the end of the tolling period. Landlords now have one year (i.e., to March 1, 2023) to recover outstanding nonpayment debt accruing during the Emergency Period.[4]

 

The tolling of the statute of limitations under the Eviction Moratorium bills only applies to debt generated duringthe Emergency Period. The language of the legislations specifically designates that it applies to “claims by a landlord based on a tenant’s nonpayment or nonpayment balance.” 

 

“Nonpayment” is a defined term in the legislation and specifically means “nonpayment of a payment that becomes due during the emergency period” and “nonpayment balance” refers to “all or a part of the net total amount of all items of nonpayment by a tenant during the emergency period.” (Italics added.)

 

Rents, charges or fees arising before April 1, 2020 and after July 1, 2021 do not appear to be protected by the tolling of the statute of limitations in the Eviction Moratorium Bills. However, landlords should check with their own  attorneys to verify whether the statute of limitations provisions enacted by HB 4212 may apply to actions accruing before or after the Emergency Period. 

 

Oregon’s State of Emergency is set to expire April 1, 2022, after which time there should be a 90-day window in which certain claims may be brought.[5]

 

Ongoing Tenant Screening Prohibitions. When screening prospective tenants, landlords are prohibited from considering FED actions and unpaid rents, charges and fees – including nonpayment of judgment debt and debt referred to a collection agency – that arose between April 1, 2020 and March 1, 2022. 

 

Tenants may also apply to have their FED judgments set aside and sealed for eviction actions arising between April 1, 2020 and March 1, 2022. These screening prohibitions and moratorium-related judgment set-asides will expire in 2028.

 

Landlords Receiving Federal Funding. If a landlord is receiving federal funds (affordable housing, federally backed mortgage, HUD) they must assure that they are complying with any rules set down by the proper federal agency, or other covid-related federal programs like the CARES Act. Commonly these rules require a 30-day nonpayment notice and additional federally-mandated disclosures. Check with your attorney to assure you’re in compliance with federal tenant protections, if applicable.

 

Partial Payments and Waivers. Acceptance of partial payments of rent during the Grace Period did not constitute waiver under the Eviction Moratorium legislation. However, that provision expired on March 1, 2022. While Oregon landlord-tenant law does address waiver (ORS 90.412 to 414) and the effect of partial acceptance of rent (ORS 90.417) it does not directly address situations created by the Covid pandemic. 

 

The current statutes are clear that acceptance of partial rent may, under certain circumstances, constitute a waiver of the right to terminate for nonpayment of rent. ORS 90.417(4) may provide some guidance. There are two ways to avoid acceptance as a waiver: 

 

• The landlord accepts partial payment before issuing a notice of termination for nonpayment because the tenant agreed to pay the balance by a set date. The tenant must then fail to pay the balance. If so, then the landlord’s notice of termination is served no earlier than if no rent had been accepted, AND the notice must provide that the tenant can cure by paying the balance by a time set by statute or by agreement of the parties; or

 

• The landlord accepts partial payment after issuing a notice of termination but enters into a written agreement with the tenant that acceptance does not constitute waiver. The agreement may also provide that the landlord may terminate and evict without further notice if the tenant does not pay the balance by the agreed-upon date.

 

Since the statutes do not specifically address situation created under the Eviction Moratorium, it is currently unclear how the courts will address the waiver issue. If the landlord is inclined to accept partial payment or create a payment plan, it is suggested that an express non-waiver provision be included. Landlords may also consider terminating for-cause. Landlords should consult with their own legal counsel before accepting past-due rent arising after the end of the Grace Period.

 

[1] The bills were as follows: HB 4213 (June 2020), HB 4401 (December 2020), SB 282 (May 2021).

[2] June 30, 2022 is the last day a tenant can provide proof of application for assistance. Protection under the Safe Harbor itself ends on September 30, 2022. 

[3] The 10 or 13-day notice will revert to a 72 or 144-hour notice on October 1, 2022 (SB 891, Section 8, (3))

[4] For a more detailed discussion of the effect of HB 4212’s tolling provisions, see: https://www.osbplf.org/blog/inpractice/covid-19-state-of-emergency-extended-through-december-31-2021/

[5] Section 7(1) of HB 4212 states: “If the expiration of the time to commence an action or give notice of a claim falls within the time in which any declaration of a state of emergency issued by the Governor related to COVID-19, and any extension of the declaration, is in effect, or within 90 days after the declaration and any extension is no longer in effect, the expiration of the time to commence the action or give notice of the claim is extended to a date 90 days after the declaration and any extension is no longer in effect.” (Emphasis added.) 

Case #1: Landlord May Be Liable for Tenant-on-Tenant Harassment

Landlords are clearly liable for the sexual, racial, and other discriminatory harassment committed by their employees and other agents. But does that liability extend to third parties they don’t directly control?

Situation: A tenant directs a steady stream of racial and ethnic harassment against her neighbors. The abuse is mostly oral, but it’s constant and egregious, including a steady diet of the “N” word and other appalling nicknames and epithets. Despite constant complaints, the homeowners association doesn’t do anything to stop her. A local fair housing advocacy organization sues the association for racial harassment.

You Make the Call: Does the organization have a valid harassment claim against the association?

Answer: Yes

Ruling: The Indiana federal court rules that the organization has a valid legal claim for harassment and rejects the association’s motion for summary judgment [Fair Hous. Ctr. of Cent. Ind., Inc. v. Vicki New, 2021 U.S. Dist. LEXIS 241159, 2021 WL 5988397].

Takeaway: While the courts have split on the issue, the Vicki ruling follows the majority view that a landlord may be directly liable for discrimination by a tenant against another tenant, if it:

• Knows or should know of the conduct;
• Is in a position to take action to stop the harassment—as the homeowners association was in this case; and
• Doesn’t take any action to curb the harassment.

 

Answer: ORS 90.572 provides that if allowed by the rental agreement, a landlord using submeter billing may require tenants to pay a utility or service charge billed by a utility or service provider to the landlord for utility or service provided directly to the tenant’s space as measured by a submeter. But the statute adds that the charge may consist of only the cost provided to the tenant’s space as measured by the submeter, at a rate no greater than the average rate billed to the landlord by the utility or service provider, not including any base or service charge;

 

However, at Subsection 2(g), the statute provides that the utility or service charge assessed to the tenant may consist of a pro rata portion of the cost to read water meters and to bill tenants for water if:

• The third-party service reads the meters and bills tenants for the landlord; 
• The third-party service charge does not include any other costs (e.g., costs for repairs, maintenance, inspections or collection efforts); and 
• The landlord allows the tenants to inspect the third party’s billing records as provided in ORS 90.582 (Posting of water bills).[1]

 

So, it appears from a strict reading of the statute (though not the legislative history), if the third-party service’s charge is solely for the cost: (a) to read water meters, and (b) to bill tenants for water, it is permissible as a pro rata expense – i.e., it is limited to reading the meters and billing the tenants.

 

Accordingly, it would seem prudent for management to review its third-party charges to make sure that they are clearly defined, and that what is passed on to tenants is only a pro rata portion of those two items, i.e., (a) and (b). If the “direct costs” appear to include other services, charges, or fees – or they are not clearly allocated to (a) and (b) alone, they may be subject to attack. For third-party providers, they too may want to revisit how their charges are defined. 

[Note: This discussion is subject to what the legislative history of this statute reflects - keeping in mind that drafted legislation may or may not accurately reflect the legislative history that preceded it. The Answer above is limited to an interpretation of the statutory language only.]

 

Situation: A tenant claims she needs an emotional support animal for a mental disability and asks the homeowners association board for an exemption from the community’s no-pet policy. Since the tenant’s disability isn’t readily apparent, the board asks her for verification. She provides a medical note listing her diagnosis. Although the disease is an officially recognized illness, the board wants more information about the disability and how it affects her “major life activities.” When she refuses to provide the information, it moves to evict her.  

You Make the Call: Did the board’s request for more information about the disability go too far?

Answer: No

Ruling: The Kentucky court dismisses the tenant’s failure-to-accommodate lawsuit without a trial. The tenant’s disability wasn’t obvious, and the board had a legitimate right to request additional information about its impact on her ability to engage in “major life activities” in making an accommodations decision [Commonwealth Comm'n on Human Rights v. Fincastle Heights Mut. Ownership Corp., 633 S.W.3d 808, 2021 Ky. App. LEXIS 104, 2021 WL 4484981].

Takeaway: Although you’re not allowed to ask privacy-invasive questions about a person’s disabilities, HUD guidelines give landlords leeway to gather limited information in response to a reasonable accommodations request to the extent the information is necessary to determine three things:

1. The person meets the FHA definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities;
2. Exactly what accommodation is being requested; and
3. Whether there’s a “nexus” or relationship between the disability and the need for the requested accommodation.  

Situation: A fair housing organization sues an assisted housing facility that offers elderly residents limited housekeeping and communal dining but no medical services and denying two accommodations to a deaf rental prospect:

• Providing him with an American Sign Language (ASL) interpreter; and
• Installing a strobe doorbell outside his unit.  

You Make the Call: Which, if either refusal, violates the facility’s duty to make reasonable accommodations?

Answer: Only the refusal to provide the doorbell violates the facility’s duty to make reasonable accommodations.

Ruling: The Arizona federal court renders a split decision. It grants the facility summary judgment on the ASL interpreter claim but okays trial on the doorbell claim [Southwest Fair Housing Council v. WG Chandler Villas SH LLC, 2021 U.S. Dist. LEXIS 53677, 2021 WL 1087200].

Takeaway: Accommodations aren’t reasonable if they require landlords to provide fundamental changes to their services or assume undue financial burdens. The request for an interpreter is unreasonable because it requires the facility to establish a new service it didn’t offer any of its tenants. But the doorbell was relatively cheap to install and required no changes to the facility’s service offerings.