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10 Essential Rules for Avoiding Fair Housing Trouble

This month, we highlight 10 essential rules to help you to comply with fair housing law. Housing discrimination has been outlawed for more than 50 years, but all too often communities still find themselves on the wrong side of the law and are forced to pay out thousands—and in some cases millions—in settlements or court awards, civil penalties, and attorney’s fees to get themselves out of fair housing trouble.

In this article, we’ll provide an overview of fair housing requirements and offer 10 essential rules to help you ward off fair housing problems at your community.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status. In a nutshell, the FHA prohibits communities from excluding or otherwise discriminating against prospects, applicants, and residents—as well as anyone associated with them—based on any of these protected characteristics.

The FHA also bans discriminatory statements—including advertising—that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. And the law prohibits retaliation against anyone for exercising his or her rights under fair housing law or assisting others who exercise that right.

FOLLOW 10 ESSENTIAL RULES

TO AVOID FAIR HOUSING TROUBLE

Rule #1: Don’t Discriminate Based on Race or Color

The FHA bans discrimination based on both race and color, two separate but closely related characteristics. In general, race refers to a person’s physical appearance and color refers to a characteristic of a person’s race, so discrimination claims based on color are often coupled with claims based on race.

Be sure to give prospects the same information about availability and the terms and conditions of tenancy, such as screening criteria, rental terms, and any other relevant information. Under the FHA, it’s unlawful to deny housing based on an applicant’s race or color by providing different and false information about terms, conditions, and availability of rental properties.

Example: In September 2019, the owners and managers of two New York apartment buildings agreed to pay $272,000 to resolve allegations of racial discrimination against African American prospects in violation of federal, state, and local fair housing laws. The Fair Housing Justice Center filed the lawsuit based on the results of a two-year investigation involving white and African American testers posing as prospective renters. The complaint alleged that the white testers were repeatedly shown available units and encouraged to apply, while the African American testers were routinely told that no apartments were available for rent.

It’s also important to apply the community’s policies and procedures—including screening criteria—consistently without regard to race, color, national origin, or other protected characteristics. Whatever your policy on criminal background checks, for example, applying it only to applicants who are members of racial or ethnic minorities, but not to white applicants, is a sure way to trigger a fair housing complaint.

Example: In August 2019, the owners and managers of a Tennessee community agreed to pay $42,250 to resolve a race discrimination case alleging that they denied the rental application of an African-American applicant because of his criminal record, despite contemporaneously approving the rental applications of two white people with disqualifying felony convictions.

Tip: If your community has a policy to conduct criminal background checks, check to make sure it passes muster under HUD’s 2016 guidelines on the use of criminal records in conventional and assisted housing communities. The HUD guidance doesn’t prevent communities from screening applicants based on their criminal history, but you could trigger a fair housing complaint if the policy, without justification, has a disparate impact—or discriminatory effect—on minority applicants.

Rule #2: Don’t Discriminate Based on National Origin

The FHA prohibits discrimination based on national origin, which means the geographic area in which a person was born or from which his or her ancestors came. National origin discrimination means treating people differently because they or their family are from outside the United States, or because they have physical, cultural, or linguistic characteristics of persons from a foreign geographic area.

Example: In March 2019, the owners of a Minnesota rental home and a realty company agreed to pay $74,000 to resolve allegations that they refused to rent to a family of five adults and six minor children because they are Native American and Hispanic, and had minor children. HUD’s charge alleged that the housing providers discouraged the family from renting the six-bedroom home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.

“Denying a family housing because of their ethnicity or familial makeup not only robs them of a place to call home, it violates the law,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Tip: In September 2016, HUD issued new “Limited English Proficiency” (LEP) guidance on how fair housing law applies to claims of housing discrimination brought by people because they don’t speak, read, or write English proficiently. Although people with limited English proficiency are not a protected class under the FHA, the law bans discrimination based on national origin, which is closely linked to the ability to communicate proficiently in English.

Rule #3: Don’t Discriminate Based on Religion

The FHA prohibits discrimination based on religion, so it’s unlawful to refuse to rent to people, or to treat them differently, because of their religion. For example, it’s unlawful to show favoritism toward applicants who share your religious beliefs—or bias against—those of other religious faiths.

Example: In December 2019, a California homeowners association (HOA) and its management company agreed to pay $40,000 to resolve allegations that they refused to permit a condo owner to display a religious object, a mezuzah, on her front doorpost because it violated community rules. A mezuzah is a small object placed on the doorpost of many Jewish homes in fulfillment of religious obligations. Allegedly, someone forcibly removed the mezuzah from her doorpost.

“A rule prohibiting the display of a mezuzah effectively makes that housing unavailable for many observant Jews,” said Kevin Kish, director of California’s Department of Fair Employment & Housing. “For that reason, DFEH interprets California fair housing law to require landlords and HOAs to permit residents to display mezuzah outside of their homes.”

Tip: The FHA doesn’t define “religion,” but fair housing experts believe it’s broad enough to prohibit discrimination against individuals who aren’t affiliated with a particular religion or don’t ascribe to particular religious beliefs. Treating people differently simply because they do—or do not—attend religious services or identify with a religious faith could lead to fair housing trouble.

Rule #4: Don’t Discriminate Against Families with Children

Fair housing law prohibits discrimination because of familial status, which FHA defines to mean households with one or more children who are under 18 years of age, where the child is living with:

A parent,
A person who has legal custody (such as a guardian), or
A person who has the written permission of the parent or legal custodian to care for the child.

That covers not only traditional families with children, but also same-sex couples, single mothers or fathers, grandparents, and others who have permission to have a child under 18 living with them. It also includes pregnant women and those in the process of securing legal custody of a minor child, such as a foster or adoptive parent.

There’s a limited exception to the familial status provisions that allows senior housing communities to lawfully exclude children, but it applies only if the community satisfies strict legal requirements to qualify as “housing for older persons.” Otherwise, it’s unlawful to refuse to rent to families with children under 18 by enforcing an “adults-only” policy or adopting rules, such as an age limit, that would prevent children from living there.

Overly restrictive occupancy standards can lead to discrimination claims based on familial status because they limit the housing choices of families with children under 18. In general, the law considers two people per bedroom—regardless of gender—to be a reasonable occupancy standard, but there are exceptions based on the size or configuration of the unit and other factors.

Example: In September 2019, the owners and managers of a single-family rental home in Idaho agreed to pay $15,000 to settle allegations that they discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they have seven minor children. HUD’s charge alleged that when the couple met with the property manager about renting the home, he told them that the owners had set a limit of four children for the home.

“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

The FHA’s familial status provisions also protect pregnant women from discrimination, so it’s unlawful to require residents to move out because of the birth of a child.

Example: In April 2019, the owners and operators of a student housing community in Arizona agreed to pay a $2,000 civil penalty to resolve allegations of discrimination based on sex and familial status. The Tucson Civil Rights Division brought a charge of housing discrimination against the community after viewing an example lease agreement on the apartment complex’s website. Allegedly, a portion of the lease agreement stated that if a female resident became pregnant, then she must vacate the apartment upon or prior to the birth of the child.

Rule #5: Don’t Discriminate Based on Sex

Under the FHA, it is unlawful to discriminate against applicants based on their sex. Making decisions about whether to accept or reject applicants based on their sex can lead to costly fair housing litigation, particularly when combined with allegations of discrimination based on familial status or other protected characteristics.

Example: In June 2018, the owner of a three-unit rental community in South Dakota agreed to a $3,000 settlement to resolve allegations of discrimination based on sex and familial status. The complaint alleged that the owner refused to rent a unit to a woman and her 17-year-old daughter because she would be concerned about any woman being alone there and she had “always rented to bachelors” [U.S. v. Kelly, South Dakota, 2018].

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex, according to HUD, which explains the two main types of sexual harassment:

Quid pro quo harassment occurs when a housing provider requires a person to submit to an unwelcome request to engage in sexual conduct as a condition of obtaining or maintaining housing or housing-related services. HUD offers these examples:

A landlord tells an applicant he won’t rent her an apartment unless she has sex with him.
A property manager evicts a tenant after she refuses to perform sexual acts.
A maintenance man refuses to make repairs unless a tenant gives him nude photos of herself.

Hostile environment harassment occurs when a housing provider subjects a person to severe or pervasive unwelcome sexual conduct that interferes with the sale, rental, availability, or terms, conditions, or privileges of housing or housing-related services. HUD offers these examples:

A landlord subjects a tenant to severe or pervasive unwelcome touching, kissing, or groping.
A property manager makes severe or pervasive unwelcome, lewd comments about a tenant’s body.
A maintenance man sends a tenant severe or pervasive unwelcome, sexually suggestive texts and enters her apartment without invitation or permission.

Combatting sexual harassment remains a top priority for federal enforcement officials, who continue to come down hard on owners and managers accused of sexual harassment against prospects, applicants, or residents.

Example: In August 2019, the owner and manager of rental properties in New York agreed to pay $850,000 to resolve allegations that he sexually harassed numerous female applicants and residents for nearly three decades. In its complaint, the Justice Department alleged that the landlord subjected former residents and prospects to unwanted sexual intercourse, sexual advances and comments, groping or other touching of their bodies without consent, and offers to reduce or eliminate security deposits and rent in exchange for sexual contact. The complaint also accused him of taking or threatening to take adverse action against residents when they refused or objected to his advances.

“The sexual harassment of the vulnerable female applicants and tenants in this case by their landlord is an egregious and intolerable violation of federal civil rights law,” Assistant Attorney General Eric Dreiband said in a statement. “The Department of Justice will continue to pursue any depraved landlords and others who prey upon vulnerable women” [U.S. v. Waterbury, New York, August 2019].

Rule #6: Don’t Discriminate Based on Disability

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

Under the FHA, it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability.

Example: In October 2019, the owner and manager of a California community agreed to pay $50,000 to resolve a fair housing claim by a resident who alleged that her lease was illegally terminated based on her disability. In her complaint, the resident claimed that the community terminated her lease because throughout her tenancy she experienced multiple medical emergencies that required the assistance of an ambulance to transport her to the hospital. Allegedly, the property manager received complaints from other residents about these emergencies.

“Housing providers cannot terminate or decline to renew a lease simply because they disfavor tenants with disabilities,” Kevin Kish, Director of the California Department of Fair Employment and Housing, said in a statement.

Tip: Although the disability rules protect those recovering from past drug addiction, it specifically excludes anyone who is currently using illegal drugs. The law also excludes individuals with disabilities whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. Nevertheless, federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of whether that particular applicant or resident poses such a threat based on reliable objective evidence of current conduct or a recent history of overt acts.

Rule #7: Carefully Consider Reasonable Accommodation and Modification Requests

In addition to the general rules banning disability discrimination, the FHA imposes affirmative duties on housing providers—with respect to reasonable accommodations, reasonable modifications, and accessibility design features—to ensure that individuals with disabilities have the same opportunity as everyone else to have full use of the community.

Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. In general, communities are required to make an exception to the rules, when requested, if it’s both reasonable and necessary to allow an individual with a disability to fully use and enjoy the community. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking spot in a community that doesn’t have assigned parking.

Example: In August 2019, a New Jersey HOA agreed to pay $30,000 to resolve allegations of discrimination against a resident with disabilities by denying her the right to have a dog as an assistance animal. According to the HUD charge, the community allegedly required the resident, who has hearing and sight disabilities, to cage her animal in common areas and use the service entrance when entering and exiting the building with the animal.

“No person with a disability should be denied the reasonable accommodation they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Example: In March 2019, the owners and managers of a San Diego apartment complex agreed to pay $17,000 to resolve allegations that they denied the request of a resident with disabilities for a designated parking space close to the building. The HUD complaint was filed by the resident, who uses a wheelchair, alleging that his request for an assigned parking space in the development’s garage had been denied. He said that the community later allowed him to park in non-assigned accessible spaces in the garage, but it wouldn’t give him the key necessary to enter the garage and to use the elevator. As a result, the resident said that whenever he wanted to enter the garage, he had to wait for another resident to open the gate, then follow that person in so he could use the elevator.

“To a person with mobility limitations, a designated parking space can mean the difference between merely living in a development and truly being able to call a place home,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Tip: The FHA also makes it unlawful to refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing. Reasonable modifications are structural changes to interiors and exteriors of units and to common and public use areas, such as lobbies, main entrances, and parking lots. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area.

Rule #8: Abide by Rules Banning Discriminatory Advertising

Under the FHA, it’s unlawful to advertise or make any statement that indicates a limitation or preference based on race, color, religion, national origin, sex, disability, or familial status. Liability for making discriminatory statements doesn’t require proof of discriminatory intent. Instead, the focus is on whether the statement would suggest a preference to an “ordinary reader or listener.” The rules apply not only to verbal and written statements, but also to all advertising media, including newspapers, magazines, television, radio, and the Internet.

Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children. A fair housing advocacy group filed the HUD complaint alleging that the community posted discriminatory advertisements indicating that children were not allowed and refused to negotiate with fair housing testers posing as families with children.

“It’s hard enough for families to find places to live that meet their needs without being denied suitable housing because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to working to ensure that housing providers comply with their Fair Housing Act obligation to treat all applicants the same, including families with children.”

Rule #9: Watch Out for Potential Retaliation Claims

Under the FHA, it’s unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised a fair housing right—or anyone who assisted others in exercising that right. Because discrimination and retaliation are separate violations under fair housing law, you could face liability for retaliation if you take adverse action against a resident solely because he filed a discrimination complaint against you—even if the discrimination claim is ultimately dismissed.

Watch out for potential retaliation claims when dealing with requests for reasonable accommodations or modifications by or on behalf of individuals with disabilities. The law protects people from retaliation for exercising their right to make disability-related requests.

Example: In March 2019, the owner and manager of a California rental community agreed to pay $6,000 to settle allegations that they refused to remediate mold at the property as a reasonable accommodation for a couple with disabilities and retaliated against them for asking that the mold be removed. In their HUD complaint, the couple alleged that the owners retaliated against them for making the reasonable accommodation request by increasing their rent and issuing a notice terminating their lease.

“Reasonable accommodation requests aren’t requests for special treatment. They are what many individuals with disabilities need to live in the place they call home,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

Rule #10: Abide by Applicable State and Local Fair Housing Laws

To avoid fair housing trouble, it’s important to comply with not only the FHA, but also applicable state or local fair housing laws. Often, these state and local laws extend fair housing protections beyond federal requirements to ban discrimination based on:

Marital status: Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed.

Age: Many state and local laws ban discrimination based on age, though there are significant differences in how the laws apply because of the way they define age.

Sexual orientation and gender identity: Many state and local fair housing laws ban discrimination based on sexual orientation; of those, many, but not all, also cover gender identity or transgender status.

Source of income: Many state and local fair housing laws also cover lawful source of income to ban discrimination against people based on where they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance. Of those, many, but not all, also cover housing subsidies, most notably Section 8 housing vouchers.

Military status: Some state and local laws offer some form of fair housing protection for military status. The laws generally prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

Other protected classes: Some state and local laws ban discrimination based other factors, such as status as survivor of domestic violence, genetic information, HIV status, lawful occupation, political beliefs or affiliation, student status, alienage or citizenship, personal appearance, or arbitrary personal characteristics.

Phil Querin Q&A - Homes on Unstable Ground - Liability?

April 1, 2015

Phil Querin

MHCO Legal Counsel

Answer. Caveat: I am answering this question as a hypothetical situation, and no intent is made to render a legal opinion about an actual situation. Here are my thoughts:

Owner No. 1, who had knowledge of the situation has potential liability to the affected residents and Owner No. 2. Intentional non-disclosure of material information is fraudulent and actionable. While it would be important for Owner No. 1 to disclose the condition to residents, it is a habitability situation, and, given the materiality, not waivable. In other words, unless and until the instability issue is resolved, the space should not be rented out, and Owner No. 1's liability for placing a home on the space is not reduced by disclosing it.

A more difficult issue is whether Owner No. 1 has liability to other residents who are not affected by the unstable ground, but claim that they would not have rented a space in the community had they known of the issue. If, after a thorough evaluation of the entire community, it is determined that the instability is limited exclusively to one area, I submit that disclosure to existing non-affected and new residents is still the wisest course, and likely would entail no liability to Owner No. 1. But non-disclosure leaves open the door for residents, new and existing, to claim that they cannot sell their homes because the community has been stigmatized.

As for Owner No. 1's liability to Owner No. 2, it would be based primarily upon the principle of indemnification. Although much depends upon the terms of sale (e.g. how broad was the "AS-IS" clause?)[1], I would like to say that Owner No. 2 should have no liability to the residents, since he was completely unaware of the adverse condition. But law and life are never so simple.

First, Owner No. 2 now has the absolute duty of providing safe and habitable premises to the residents, i.e. the space and common areas. As a landlord, he assumed this risk, and will likely have direct liability to the residents - even though he had no forewarning of the problem. From a public policy standpoint, the law would say he was in the best position to insure against these risks, as they are a cost of doing business.

However, since Owner No. 1's non-disclosure was a material (e.g. would he have purchased the property had he known?) Owner No. 2 would likely seek recovery against him for the fraudulent concealment.

[1] Although I have seen very broad "AS-IS" clauses in commercial transactions, they are normally couched in terms of the buyer assuming all risks of loss for matters about which neither side is aware. I do not believe the clause can be used to shield a seller from intentional non-disclosure of material issues. In other words, at the time of agreeing to "AS-IS" language in the sale agreement, a buyer has a right to believe the seller has disclosed all material information.

Fair Housing Pitfall: Overly Restrictive Occupancy Standards

August 2, 2023

MHCO

While vital to prevent overcrowding, occupancy standards may violate fair housing rules to the extent they have the effect of excluding families with children.

Spot the Discrimination Mistake

A tenant who shares a one-bedroom apartment with her husband tells the landlord she’s pregnant with the couple’s first child. Along with a smile and warm congratulations, the landlord offers her an eviction notice. Explanation: Once the baby is born, the couple will be over the community’s strict two-person-per-bedroom occupancy standard.

Pitfall: In 1991, HUD issued guidance called the Keating Memo establishing two-per-bedroom as the default standard for reasonable occupancy standards. However, attorneys caution that the most common mistake landlords make with occupancy standards is applying the two-per-bedroom rule on a blanket basis. The reasonableness of a particular occupancy standard depends on the specific situation. Thus, two-per-bedroom may be too restrictive for some situations and not restrictive enough for others.

Example: A Connecticut landlord forced a married couple to move out of their one-bedroom apartment for violating the community’s two-per-bedroom occupancy standard after the wife gave birth. I just followed the Keating Memo, the landlord claimed. But the court didn’t buy it, noting that Keating is a “totality” test that the landlord applied as a blanket rule without considering the other factors the Memo cites, like the size and sleeping area of the bedrooms [Gashi v. Grubb & Ellis Property Management Servs., 801 F. Supp. 2d 12 (D. Conn. 2011)].

Solution: While two-per-bedroom might be the starting point, landlords must consider other factors listed in the Keating Memo to determine how many people can occupy it in safe and habitable conditions, including:

How big the bedrooms are: Rejecting a family of five for a two-bedroom apartment might be unreasonable if at least one of the bedrooms is large enough to accommodate three persons. By the same token, it may be justifiable to refuse to rent a two-bedroom unit to a family of four if one of the bedrooms is too small for two people to share safely and in habitable conditions.
Size and configuration of the apartment: Consider the unit’s overall size and configuration, including other rooms or spaces that can be used as bedrooms. Thus, two-per-bedroom may be too restrictive for an apartment with a den that can be easily converted into a bedroom; but it may be not restrictive enough for an apartment that doesn’t have ample living or dining room space per occupant.
Physical limitations on the property or building systems: Consider the age and condition of the building, including the capacity of water, sewer, sanitation, electrical, HVAC, and other critical building systems. Thus, for example, occupancy standards of less than two-per-bedroom may be justifiable for older buildings with crumbling and fragile infrastructure.
Age of children: Occupancy standards are typically based on the premise that occupants can share bedrooms. However, the age of the child(ren) may challenge the basis of that premise. For example, suppose a couple wants to share a one-bedroom apartment with their child in violation of the landlord’s two-per-bedroom standard (absent other factors):
- Child is a newborn or infant: Rejecting the couple is likely to be unreasonable;
- Child is a teenager: Rejecting the couple is likely to be reasonable.

Caveat: Age doesn’t come into play in determining whether children of different sexes can share a bedroom. The Rule: Whatever your moral views, you can’t require male and female children to have separate bedrooms, regardless of their age. Period.

Revisiting Rules and Regulations in All-Age Communities: Unenforceable Rules Trumped by Familial Status Rights

November 3, 2014

Terry R. Dowdall

The FHAA

In 1988, Congress amended the Fair Housing Act (FHA) to prohibit not just discrimination on the basis of race, color, sex, religion, disability, or national origin, but also included familial status discrimination. Familial status is defined as " one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent or another person having legal custody of such individual or individuals."

Among other provisions, it is unlawful:

"To discriminate against any persons in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... familial status ..."

Thus, a restriction on access or use of common facilities and amenities bases on age of a child (familial status) is a violation of the FHAA, absent compelling business necessity. Any such rule must be proved to be the least restrictive means to achieving a health and safety justification. What does this legalese mean to the community owner in practical terms? A full-blown trial, risks of heavy penalties, damages, and attorney's fees and costs. This is because there is no bright line test for any age-restrictive regulation: the law is bereft of any standards or guidance to make a reasonable, predictable risk-assessment or likelihood of success. Each case depends on the facts and surrounding circumstances. In other words, each case is a test-case. In sum, the penalties are so severe that prudent counsel would admonish all to eliminate age-restrictive rules and regulations.

Children are as protected as any other protected class. Thus, a simple way to test a rule for FHA compliance is this: insert any other protected class in the place of "children" when testing a rule and regulation. For example, a common past rule (and no longer a valid one) is "all children under 14 years of age must be accompanied by an adult resident when in the pool area." Then, how does this sound: "All Methodists must be accompanied by an adult resident ...." Obviously, such a rule is patently violative of the FHA.

It is also a violation of the FHAA to express to agents, brokers, employees, prospective sellers, or renters a preference, (e.g. "... gosh, if I had my druthers, I would rather not rent to families"). Another issue is use of selective advertisements, or denying information about housing opportunities to particular segments of the housing market because of their race, color, religion, sex, handicap, familial status, or

national origin, (example, in an area overwhelmingly populated by non-English speakers, advertising only in English language publications). Other violations will be found where there are ads or statements made regarding applicants, including: "mature person;" stating an aversion to "families with children" or "teenagers in the building;" advertisements stating non more than "one child;" or, stating that the community owner does not "rent to children." Posting "Adult Community: at the entrance to a non-exempt community also violates the FHAA. Use of the word "adult" without more, constitutes a violation of the FHAA. There are no such thins as adult manufactured home communities, and use of the phrase is deemed to chill family applicants from applying for tenancy in them.

The various rules cited by the courts as impermissibly restricting access or denying the use of the communities' facilities and/or areas on the basis of age, included the following. If your rules contain any of the following restrictions, or any rules similar to them, it is strongly advised that a legal advisor conversant with the FHAA (and implanting regulations and judicial and administrative interpretations) be promptly consulted.

Children under the age of fourteen (14) years old shall not be allowed to ride a bicycle on the community streets without the accompaniment of an adult registered to the manufactured home in which they reside;
Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence;
Children shall not be allowed to play on community streets, or in any other common are areas; Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the manufactured home in which they reside;
Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10 a.m. to 12 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12 noon;Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or therapeutic jet pool at any time;
Children under the age of fourteen (14) years old must be accompanied by a registered resident adult to be allowed to ride a bicycle in the community streets;The adult resident host must accompany all guests of their manufactured home who use the recreation building (clubhouse) or any of the recreational facilities of the community;
Children under the age of fourteen (14) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
When using the clubhouse, persons under ten (10) years old must be accompanied by an adult resident;
Use of the billiards room was restricted to residents over eighteen (18) years old;
Use of the spa was prohibited to children under eighteen (18) years old;
Use of the pool by children fourteen (14) years old and under required accompaniment by a resident;
Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host;
Parent or resident child or resident host must accompany children at all times in the pool or pool area.
Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 9 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host;
No one under the age of eighteen (18) years old is permitted in the billiard room at any time;
No one under the age of fourteen (14) years old is allowed to use the Jacuzzi;
At 2 p.m. children are to be out of the pool area;
Children are not to walk around the community without adult supervision;
Minors under sixteen (16) years old are not permitted in the therapeutic pool;
For safety, children are not to ride bicycles, roller skate, skateboard, play in the street, play in RV storage, plan in car wash or wander around the community;
Children under with (8) years old shall be confided to a play area in the rear fenced yard of the family residence.

The court held that these rules were not based on compelling business necessity and did not represent the least restrictive intrusions on familial status rights in promoting a health and safety interest. Having held that these rules were unlawful, the issues remaining for trial in the Plaza Mobile Estates case included damages, punitive damages, civil penalties, injunctive relief and attorney's fees and costs for the private plaintiffs.

While the action had been brought as a class claim (in which all of possibly thousands of affected residents could have been included in damages awards), class certification efforts were defeated, allowing only the named parties to seek damages.

The court's comments regarding the invalidation of these rules is telling and troubling. The court stated the age-restrictive rules were facially discriminatory. In other words, no matter how administered, the rules were invalid as drafted. Even if never enforced , such rules might dissuade a prospective applicant from applying for tenancy. These rules "...treat children, and thus, families with children differently and less favorably than adults-only households." "Describ[ing] parks as 'adult' parks are clear examples of illegal steering. Although they are not outright refusals to sell or rent or families with children, they indicate a preference for adults only and certainly discourage families with children from applying."

Considering the various age restrictive rules, they fall into three categories: (1) absolute prohibitions, (2) adult supervision requirements, and (3) hours of access restrictions.

Absolute prohibitions

The absolute prohibitions include those rules that (1) prohibit all children under 18 (or 21) years old from using the billiard room and from riding bicycles, (2) prohibit all children under 16 (or 18) years old from using the therapeutic pool, (3) prohibit all children under 14 (or 18) years old from using the sauna or Jacuzzi, (4) require all children under 8 years old to be confined to rear fenced yard of family residence, and (5) prohibit all children from playing on community streets and any other common areas.

The court held that absolute prohibitions such as the foregoing are illegal. The regulations are not the least restrictive means to achieve health and safety objectives ("...prohibiting all 'children' from playing in common areas ... cannot be justified"). The same applies with the billiard room ("... it is unclear how a 17-year-old's access to a billiard room is any more hazardous to ... health or safety that a 22-year-old's access").

Supervision restrictions

The fundamental premise adopted by the court is that "[A]ny concerns that defendants may have are not necessarily linked to age, and any concerns about problem behavior can be address with the use of rules." Thus, the court invalidated blanket prohibitions of all 15-year-olds from using the therapeutic pool and all 13-year-olds from using the sauna or Jacuzzi

In certain instances adult supervision might less restrictively advance health and safety concerns ("assuming arguendo that defendants' concerns were more logically linked to the age restrictions, requiring adult supervision rather than imposing an absolute ban is clearly a less restrictive means ..."). But where to set the limit is uncertain. California regulations state:

"Where no lifeguard service is provided, a warning sign shall be placed in plain view and shall state 'Warning – No Lifeguard on Duty' with clearly legible letters at least 10.2 centimeters (4 inches) high. In addition, the sign shall also state 'Children Under the Age of 14 Should not Use Pool Without an Adult in Attendance."

Based on the Plaza Mobile Estates decision, it is needlessly legally risky to impose any supervision requirement. Clearly, a 14 year age limit for an adult supervision is not enforceable, not legal, and constitutes a violation of the FHA, despite former administrative decisions suggesting the contrary and California regulations cited above. Yet, the need for an age limit is strikingly clear. The same rule applies to use of spas and whirlpools. Certainly an adult supervision requirement should be reasonable[1], but eh court has ruled that such concerns are fro the parents, not the management.

A few apparently unassailable precepts

Given that this case raises many more questions than it answers, the ability to promulgate and rely on age-restrictive rules for access and supervision are certainly less than a matter of clarity. While the previous rulings concerning the enforceability of age-restrictive rules are in some doubt, a few precepts can be stated with some reliability. The first is that an outright prohibition of use or access to any facility or amenity cannot be allowed. Setting up selected hours for usage of a facility of amenity cannot be allowed. Less certain is the ability to promulgate rules requiring adult supervision of children of varying ages for use of facilities or amenities. It would appear that no supervision can be mandated for areas such as clubhouse, billiard room, library or common areas.

Establishing minimum age requirements for supervision: A foray into the uncertain

The "14 and under" requirement of California regulations for pool supervision is a should not a must provision. Hence, management cannot require supervision of 14 years of age and under. The only clearly legal position is not to require supervision, and let it be for the parents to take personal accountability and responsibility for their children. The court makes this statement:

"... there is nothing magical about the age 18 or 14 years old if defendants' concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement."

The courts have intervened on occasion to require discrimination against children for their own good and government does so all the time. For example, you cannot vote until you are 18, drink alcohol until you are 21, cannot drive until you are 16.[2] However, housing providers subject to the FHA may not rely on or use the same governmentally-established restrictions in developing their rules and regulations despite the dangers posed by the common area facilities.

Another example: Pedestrian injuries are the second greatest cause of harm to children from five to 14 years of age. See the National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997.[3] However, it is illegal to have a rule and regulations which states that "children are not to walk around the community without adult supervision."

Is it unreasonable to require adult supervision within the common areas of a manufactured home community? It would seem that such a rule is reasonable. However, for a community owner, such a rule violates the FHA. On the other hand the Consumer Products safety Commission urges supervision of children while on a playground for example (Consumer Product Safety Commission, Public Playground Safety Checklist, CPSC Document #327: "10. Carefully supervised children on playgrounds to make sure they're safe"). The federal law states that the parents are responsible for their children, not the management.

Previously sustained rules

The courts have previously allowed the following rules. This information may be largely historical at this juncture, for it remains unclear whether or not they remain viable in light of the Plaza Mobile Estates decision (these rules were sustained under the previous "reasonableness" test, not the "compelling interest" basis test):

Rules which bar use of a pool for children fourteen (14) years of age and less have been upheld because the prohibition implements legislative policy. HUD v. Paradise Gardens, HUDALJ 04-90-0321-1, 1992 WL 406531 (HUDALJ Oct. 15, 1992)
A rule which required children under the age of fifteen (15) years to be accompanied by an adult who is at least eighteen (18) years old when using the swimming pool and exercise equipment. (HUD vs. Trace Corporation 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).
Rules have been sustained for age restricted access as to power tools. "...Respondents may keep the machine shop with industrial power tools accessible only to tenants who are at least fifteen (15) years of age and may require tenant children between the ages of fifteen (15) and eighteen (18) years to be accompanied by an adult who is at least eighteen (18) years old when using the machine shop. Further, Respondent may require all users of the machine shop to hve complete training on the proper use of such tools." (HUD vs. Trace Corporation, 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).]\
In the unpublished decision of United States v. Town Hall Terrace Association, 1997 WL 128353 (W.D.N.Y. 1997), the housing provider made available four pieces of exercise equipment: a multi-purpose with lifting machine, a stationary bicycle, an inclining board and a rowing machine – in its "the fitness center." Until 1992 an express policy restricted the use of the fitness center and its equipment to persons at least eighteen (18) years old. After mid-1992, this threshold was lowered to sixteen (16).[4]
One case allowed for a rule requiring adult supervision of children six (6) and under while biking in a street. U.S. v. M. Westland Co., CV 93-4141, Fair Housing-Fair Lending 15,941 (HUD ALJ 1994)). Another authority states that no child should be permitted in a street on a bicycle until at least ten (10) years of age. ("Cycling should be restricted to sidewalks and paths until a child is age 10 and able to show how well he or she rides and observes the basic rules of the road. Parental and adult supervision is essential and until the traffic skills and judgment thresholds are reached by each child." The National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997).

But under the more recent Plaza Mobile Estates decision, the past allowances provide no basis on which to write your rules and regulations.

Don't blame the court!

However, it is too much to criticize or impugn the court for adhering to the letter of the law, and not legislating by "judicial fiat." The court interprets what the law is and does not legislate. That is the job of Congress and more pointedly in this case HUD (in its rule-making powers). The FHA prohibits discrimination, period. The federal law makes NO exceptions; exceptions to familial status rights is the job of HUD. It is not the court's duty. The court is not the Legislature.

The need for uniform guidelines to inform the housing providers of permissible restrictions

HUD should provide guidance for housing providers and establish bright line tests for common sense age-restrictive rules. HUD should defer to other legislative judgments made for child protection by allowing community owners to replicate existing laws in their rules and regulations. Model regulations for protection of the young could be published. HUD could establish a rule pre-approval procedure.

Community owners just want to comply with the law and provide reasonable requirements for protection of children. But now, even experienced lawyers cannot intelligibly predict the enforceability of any age-restrictive rules. At this time, attaining any ascribed legitimacy of a rule only follows after an expensive legal defense with a heavy burden of proof requiring compelling business necessity. A conciliation agreement binds the complainant. If another resident complains the next day, the conciliation agreement is worthless as a defense to the rule. This is an inconceivably inefficient manner of testing rule validity. The costs to business in such concerns vastly outweigh the benefit to be achieved. The cost to the consumer in spreading the expense of this exercise could be largely obviated if the housing provider had some guidance in defining acceptable rules for promotion of health and safety. The suggestion of administering proficiency tests is a null and void concept. The liability for negligently administering such tests, seeking and paying for qualified testers, and then excluding the non-proficient residents will not be pursued by a single housing provider.

What can we do? Even in the absence of specific rules, educational materials may help parents understand common risks associated with youth. When educational information is provided as an adjunct to an activity rather than a rule restricting an activity, the chance of a claim of discriminatory preference is less likely to be made. For example, when a community owner offers such educational material from organizations who seek better protection of children, (e.g., police departments, charitable organizations, etc.) the community owner is providing a service – disseminating information and facts – not discriminating against children.[5]

You may also consider consulting with HUD in advance of amending rules and regulations. IF HUD even informally opines that a proposed policy is not defensible, or that no comment can be offered, at least the community owner can better assess the risk faced with a new rule and regulation. For example, if a resident complains that a particular resident who has open sores due to infection with the AIDS virus desires to use the swimming pool, can the management require that resident to stay out of the pool?

When faced with the question, the manger called to advise that she was not sure how to proceed. While administrative regulations require a doctor's letter stating that no public health or safety risk was posed by the patient's use of the pool, I consulted with HUD before announcing the management policy.

Finally

All the community owner wants is to know what the law is! What we do know is certain rules, certain practices reflecting what the law is not. But it is grossly unfair to relegate the duty to set standards on management. Having read this article, can you now, safely amend your rules to impose such a rule? No. No attorney can give an absolute assurance that such a rule will be sustained until ruled valid in a court. Until a court actually rules on the validity of the rule, or HUD or DFEH offers guidance on their interpretation of the rule, there can be no assurance of what an will not be permitted in developing age-restrictive rules and regulations. The best policy is to eliminate any and all age restrictive rules and regulations to avoid FHA claims.

Reprinted with permission from Western Manufactured Housing Communities Association (WMA) "Reporter", June 2008.

Terry Dowdall has specialized in manufactured home communities' law since 1978. His firm, Dowdall Law Office, APC is located in Orange County and Sacramento, with a practice limited exclusively to the manufactured housing industry. Mr. Dowdall serves as a legal advisor on WMA's Legislative Committee and has authored publications for the Continuing Legal Education of the State Bar. He is a frequent contributor to the WMA Reporter and facilitator at WMA educational seminars. He can be reached at 714-532-2222 (Orange) or 916-444-0777 (Sacramento).

[1] According to the United States Consumer Product Safety Commission, "...The main hazard from hot tubs and spas is the same as that from pools – drowning. Since 1980, CPSC has reports of more than 700 deaths in spas and hot tubs. About one-third of those were drownings to children under age five. Consumers should keep a locked safety cover on the spa whenever it is not in use and keep children away unless there is constant adult supervision. Hot Tub Temperatures – CPSC knows of several deaths from extremely hot water (approximately 110 degrees Fahrenheit) in a spa. High temperatures can cause drowsiness which may lead to unconsciousness, resulting in drowning. In addition, raised body temperature can lead to heat stroke and death. In 1987, CPSC helped develop requirements for temperature controls to make sure that spa water temperatures never exceed 104 degrees Fahrenheit. Pregnant women and young children should not use a spa before consulting with a physician. ... "CPSC Document #5112 "Spas, Hot Tubs, and Whirlpools Safety Alert".

[2] Municipal curfew regulations abound which restrict children. Los Angeles is typical. No one under 18 years of age is permitted in public places during school hours (" ... present in or upon the public streets, ... or any place open to the public during the hours of 8:30 am and 1:30 pm"). L.A.M.C. 45.04. The same restrictions apply after 10 pm. ("... any minor under the age of eighteen years to be present in or upon any public street, ... between the hours of 10:00 pm on any day and sunrise of the immediately following day; ...."). L.A.M.C. 45.03. Regulations for pool halls E.g. 17 (Midland Mi. Mun. Code Sec. 15-34) and 18 (1063-B. Pool halls. Public Laws of Maine) year age requirement), are commonly promulgated for the health and safety concerns for minors. It is unsafe for a park owner to rely on local or state laws in this respect in drafting rules and regulations.

[3] "[P]edestrian injury is the second leading cause of unintentional injury-related death among children ages 5 to 14. While the majority of pedestrian deaths and injuries are traffic-related, children ages 0 to 2 are more likely to suffer non-traffic-related pedestrian injuries, including those occurring in driveways, parking lots or on sidewalks. Although pedestrian injuries are not as common as motor vehicle occupant injuries, a disproportionate number of the injuries sustained by child pedestrians are severe. Between 25 and 50 percent of child pedestrian injuries require hospital admission. Children ages 5 to 9 are at the greatest risk from traffic–related pedestrian death and injury. Nearly one-third of all children ages 5 to 9 who are killed in traffic crashes are pedestrians").

[4] According to the U.S. Products Safety Commission: "The U. S. Consumer Product Safety Commission estimates that between 1985 and 1989, the latest period for which data are available, there were 1,200 amputations of children's fingers because of contact with exercise bikes. Most children were under the age of five. Many of the injuries occurred when the child's fingers touched the moving bike wheel or the chain and sprocket assembly. The Commission is concerned about the severity of injuries to children, especially because the hazard may not be obvious. Therefore, the commission warns parents always to keep children away from exercise bikes. Never use a bike without a chain guard, and when not using the bike, store it where children cannot get to it. Children's fingers can be amputated if they touch moving parts of exercise bike." Prevent Finger Amputations to Children From Exercise Bikes: Safety Alert: CPSC Document #5028.

[5] For example, educational material exist which explain that young children have peripheral vision which is two-thirds that of an adult; they have difficulty determining the source of sounds; traffic noises and sirens may be confusing; they may not understand that an automobile may seriously hurt or kill them; most children cannot understand a complex chain of events; children believe that all grownups will look out for them; they think that if they can see an adult driving a car toward them, the driver must be able to see them; children often mix fantasy with reality – they may give themselves superhuman powers and o not understand that a moving vehicle can hurt them; they have difficulty judging the speed and distance of oncoming vehicles.

Phil Querin Q&A: Reasonable Accommodation Request and Social Anxiety Disorder

September 24, 2014

The FHAA

Among other provisions, it is unlawful:

Children under the age of fourteen (14) years old shall not be allowed to ride a bicycle on the community streets without the accompaniment of an adult registered to the manufactured home in which they reside;
Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence;
Children shall not be allowed to play on community streets, or in any other common are areas; Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the manufactured home in which they reside;
Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10 a.m. to 12 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12 noon;Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or therapeutic jet pool at any time;
Children under the age of fourteen (14) years old must be accompanied by a registered resident adult to be allowed to ride a bicycle in the community streets;The adult resident host must accompany all guests of their manufactured home who use the recreation building (clubhouse) or any of the recreational facilities of the community;
Children under the age of fourteen (14) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
When using the clubhouse, persons under ten (10) years old must be accompanied by an adult resident;
Use of the billiards room was restricted to residents over eighteen (18) years old;
Use of the spa was prohibited to children under eighteen (18) years old;
Use of the pool by children fourteen (14) years old and under required accompaniment by a resident;
Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host;
Parent or resident child or resident host must accompany children at all times in the pool or pool area.
Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 9 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host;
No one under the age of eighteen (18) years old is permitted in the billiard room at any time;
No one under the age of fourteen (14) years old is allowed to use the Jacuzzi;
At 2 p.m. children are to be out of the pool area;
Children are not to walk around the community without adult supervision;
Minors under sixteen (16) years old are not permitted in the therapeutic pool;
For safety, children are not to ride bicycles, roller skate, skateboard, play in the street, play in RV storage, plan in car wash or wander around the community;
Children under with (8) years old shall be confided to a play area in the rear fenced yard of the family residence.

Considering the various age restrictive rules, they fall into three categories: (1) absolute prohibitions, (2) adult supervision requirements, and (3) hours of access restrictions.

Absolute prohibitions

Supervision restrictions

"Where no lifeguard service is provided, a warning sign shall be placed in plain view and shall state 'Warning - No Lifeguard on Duty' with clearly legible letters at least 10.2 centimeters (4 inches) high. In addition, the sign shall also state 'Children Under the Age of 14 Should not Use Pool Without an Adult in Attendance."

A few apparently unassailable precepts

Establishing minimum age requirements for supervision: A foray into the uncertain

Previously sustained rules

Rules which bar use of a pool for children fourteen (14) years of age and less have been upheld because the prohibition implements legislative policy. HUD v. Paradise Gardens, HUDALJ 04-90-0321-1, 1992 WL 406531 (HUDALJ Oct. 15, 1992)
A rule which required children under the age of fifteen (15) years to be accompanied by an adult who is at least eighteen (18) years old when using the swimming pool and exercise equipment. (HUD vs. Trace Corporation 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).
Rules have been sustained for age restricted access as to power tools. "...Respondents may keep the machine shop with industrial power tools accessible only to tenants who are at least fifteen (15) years of age and may require tenant children between the ages of fifteen (15) and eighteen (18) years to be accompanied by an adult who is at least eighteen (18) years old when using the machine shop. Further, Respondent may require all users of the machine shop to hve complete training on the proper use of such tools." (HUD vs. Trace Corporation, 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).]\
In the unpublished decision of United States v. Town Hall Terrace Association, 1997 WL 128353 (W.D.N.Y. 1997), the housing provider made available four pieces of exercise equipment: a multi-purpose with lifting machine, a stationary bicycle, an inclining board and a rowing machine - in its "the fitness center." Until 1992 an express policy restricted the use of the fitness center and its equipment to persons at least eighteen (18) years old. After mid-1992, this threshold was lowered to sixteen (16).[4]
One case allowed for a rule requiring adult supervision of children six (6) and under while biking in a street. U.S. v. M. Westland Co., CV 93-4141, Fair Housing-Fair Lending 15,941 (HUD ALJ 1994)). Another authority states that no child should be permitted in a street on a bicycle until at least ten (10) years of age. ("Cycling should be restricted to sidewalks and paths until a child is age 10 and able to show how well he or she rides and observes the basic rules of the road. Parental and adult supervision is essential and until the traffic skills and judgment thresholds are reached by each child." The National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997).

But under the more recent Plaza Mobile Estates decision, the past allowances provide no basis on which to write your rules and regulations.

Don't blame the court!

The need for uniform guidelines to inform the housing providers of permissible restrictions

What can we do? Even in the absence of specific rules, educational materials may help parents understand common risks associated with youth. When educational information is provided as an adjunct to an activity rather than a rule restricting an activity, the chance of a claim of discriminatory preference is less likely to be made. For example, when a community owner offers such educational material from organizations who seek better protection of children, (e.g., police departments, charitable organizations, etc.) the community owner is providing a service - disseminating information and facts - not discriminating against children.[5]

Finally

Reprinted with permission from Western Manufactured Housing Communities Association (WMA) "Reporter", June 2008.

[1] According to the United States Consumer Product Safety Commission, "...The main hazard from hot tubs and spas is the same as that from pools - drowning. Since 1980, CPSC has reports of more than 700 deaths in spas and hot tubs. About one-third of those were drownings to children under age five. Consumers should keep a locked safety cover on the spa whenever it is not in use and keep children away unless there is constant adult supervision. Hot Tub Temperatures - CPSC knows of several deaths from extremely hot water (approximately 110 degrees Fahrenheit) in a spa. High temperatures can cause drowsiness which may lead to unconsciousness, resulting in drowning. In addition, raised body temperature can lead to heat stroke and death. In 1987, CPSC helped develop requirements for temperature controls to make sure that spa water temperatures never exceed 104 degrees Fahrenheit. Pregnant women and young children should not use a spa before consulting with a physician. ... "CPSC Document #5112 "Spas, Hot Tubs, and Whirlpools Safety Alert".

[3] "[P]edestrian injury is the second leading cause of unintentional injury-related death among children ages 5 to 14. While the majority of pedestrian deaths and injuries are traffic-related, children ages 0 to 2 are more likely to suffer non-traffic-related pedestrian injuries, including those occurring in driveways, parking lots or on sidewalks. Although pedestrian injuries are not as common as motor vehicle occupant injuries, a disproportionate number of the injuries sustained by child pedestrians are severe. Between 25 and 50 percent of child pedestrian injuries require hospital admission. Children ages 5 to 9 are at the greatest risk from traffic-related pedestrian death and injury. Nearly one-third of all children ages 5 to 9 who are killed in traffic crashes are pedestrians").

[5] For example, educational material exist which explain that young children have peripheral vision which is two-thirds that of an adult; they have difficulty determining the source of sounds; traffic noises and sirens may be confusing; they may not understand that an automobile may seriously hurt or kill them; most children cannot understand a complex chain of events; children believe that all grownups will look out for them; they think that if they can see an adult driving a car toward them, the driver must be able to see them; children often mix fantasy with reality - they may give themselves superhuman powers and o not understand that a moving vehicle can hurt them; they have difficulty judging the speed and distance of oncoming vehicles.

Revisiting Rules and Regulations in All-age Communities: Unenforceable Rules Trumped by Familial Status Rights

By Terry R. Dowdall, Esq.

The federal Fair Housing Amendments Act (FHAA) of 1988 created a new protected class of "familial status." In California, the federal courts have addressed these requirements by ruling that "all age" communities may not discriminate against children, no more than management can discriminate against any other protected class. This article is addressed to the need for continuing concerns over rule and regulation content and enforcement. This guidance comes from a case brought against Plaza Mobile Estates, defended by this office.

The FHAA

Among other provisions, it is unlawful:

Children under the age of fourteen (14) years old shall not be allowed to ride a bicycle on the community streets without the accompaniment of an adult registered to the manufactured home in which they reside;
Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence;
Children shall not be allowed to play on community streets, or in any other common are areas; Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the manufactured home in which they reside;
Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10 a.m. to 12 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12 noon;Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or therapeutic jet pool at any time;
Children under the age of fourteen (14) years old must be accompanied by a registered resident adult to be allowed to ride a bicycle in the community streets;The adult resident host must accompany all guests of their manufactured home who use the recreation building (clubhouse) or any of the recreational facilities of the community;
Children under the age of fourteen (14) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (clubhouse);
When using the clubhouse, persons under ten (10) years old must be accompanied by an adult resident;
Use of the billiards room was restricted to residents over eighteen (18) years old;
Use of the spa was prohibited to children under eighteen (18) years old;
Use of the pool by children fourteen (14) years old and under required accompaniment by a resident;
Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host;
Parent or resident child or resident host must accompany children at all times in the pool or pool area.
Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 9 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host;
No one under the age of eighteen (18) years old is permitted in the billiard room at any time;
No one under the age of fourteen (14) years old is allowed to use the Jacuzzi;
At 2 p.m. children are to be out of the pool area;
Children are not to walk around the community without adult supervision;
Minors under sixteen (16) years old are not permitted in the therapeutic pool;
For safety, children are not to ride bicycles, roller skate, skateboard, play in the street, play in RV storage, plan in car wash or wander around the community;
Children under with (8) years old shall be confided to a play area in the rear fenced yard of the family residence.

Considering the various age restrictive rules, they fall into three categories: (1) absolute prohibitions, (2) adult supervision requirements, and (3) hours of access restrictions.

Absolute prohibitions

Supervision restrictions

A few apparently unassailable precepts

Establishing minimum age requirements for supervision: A foray into the uncertain

Previously sustained rules

Rules which bar use of a pool for children fourteen (14) years of age and less have been upheld because the prohibition implements legislative policy. HUD v. Paradise Gardens, HUDALJ 04-90-0321-1, 1992 WL 406531 (HUDALJ Oct. 15, 1992)
A rule which required children under the age of fifteen (15) years to be accompanied by an adult who is at least eighteen (18) years old when using the swimming pool and exercise equipment. (HUD vs. Trace Corporation 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).
Rules have been sustained for age restricted access as to power tools. "...Respondents may keep the machine shop with industrial power tools accessible only to tenants who are at least fifteen (15) years of age and may require tenant children between the ages of fifteen (15) and eighteen (18) years to be accompanied by an adult who is at least eighteen (18) years old when using the machine shop. Further, Respondent may require all users of the machine shop to hve complete training on the proper use of such tools." (HUD vs. Trace Corporation, 1995 WL 434221 (H.U.D.A.L.J.)(Consent decree)).]\
In the unpublished decision of United States v. Town Hall Terrace Association, 1997 WL 128353 (W.D.N.Y. 1997), the housing provider made available four pieces of exercise equipment: a multi-purpose with lifting machine, a stationary bicycle, an inclining board and a rowing machine – in its "the fitness center." Until 1992 an express policy restricted the use of the fitness center and its equipment to persons at least eighteen (18) years old. After mid-1992, this threshold was lowered to sixteen (16).[4]
One case allowed for a rule requiring adult supervision of children six (6) and under while biking in a street. U.S. v. M. Westland Co., CV 93-4141, Fair Housing-Fair Lending 15,941 (HUD ALJ 1994)). Another authority states that no child should be permitted in a street on a bicycle until at least ten (10) years of age. ("Cycling should be restricted to sidewalks and paths until a child is age 10 and able to show how well he or she rides and observes the basic rules of the road. Parental and adult supervision is essential and until the traffic skills and judgment thresholds are reached by each child." The National Safe Kids Campaign Bicycle Injury Fact Sheet, September, 1997).

But under the more recent Plaza Mobile Estates decision, the past allowances provide no basis on which to write your rules and regulations.

Don't blame the court!

The need for uniform guidelines to inform the housing providers of permissible restrictions

Finally

Reprinted with permission from Western Manufactured Housing Communities Association (WMA) "Reporter", June 2008.

Phil Querin Q&A: Push Back from Resident on Interior and Exterior Inspection of Home

March 27, 2017

Phil Querin

MHCO Legal Counsel

Answer. I remember writing this provision several years ago, and it has survived the test of time - in other words - to my knowledge it has never been set aside or otherwise ruled illegal or unconscionable by any Oregon courts.

The genesis of this provision relates to the change in Oregon law several years ago that prohibited landlords from imposing a "removal on resale" condition when consenting to the sale of older homes in their communities. Essentially, the condition said that if when the resident sought to sell the home to a new buyer, the landlord could consent, but could add the condition that the home had to be removed on resale. In theory, this was designed to permit landlords to incrementally upgrade the age of the homes in their communities.[1]

The law, prohibiting this practice, is found in ORS 90.680(12) which provides that:

A landlord may not, because of the age, size, style or original construction material of the dwelling or home or because the dwelling or home was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code as defined in ORS 455.010:

(a) Reject an application for tenancy from a prospective purchaser of an existing dwelling or home on a rented space within a facility; or

(b) Require a prospective purchaser of an existing dwelling or home on a rented space within a facility to remove the dwelling or home from the rented space.

The quid pro quo for landlords permitting this legislation was twofold:

A law that expressly allowed landlords to impose maintenance requirements to the exterior of homes (ORS 90.632);
A law providing that the failure to enforce the maintenance provision did not constitute a waiver of the right to do so in the future. See, ORS 90.414(1)(c).[2]

While these laws worked well for the exterior of older homes, they did not address the interior, where typically, landlords could impose no updating requirements. However, ORS 90.740 (Tenant Obligations), provided for several things I believed we could incorporate into the MHCO Rental and Lease Agreements. Among other things, the statute provides that residents must:

Keep the dwelling or home, and the rented space, safe from the hazards of fire;
Install and maintain in the dwelling or home a smoke alarm approved under applicable law;
Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;
Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

And since ORS 90.630(1)(a) provides that '_the landlord may terminate a rental agreement *** if the tenant: (a) Violates a law or ordinance related to the tenant's conduct as a tenant... " I felt it was not unreasonable to require that if the resident made any modifications to the home or its heating, cooling or electrical systems, they must comply with all local, state and federal codes and regulations in existence at the time of the modification."

I then consulted with one or more professional inspectors who specialize in manufactured homes, to ask if they could inspect the interior of the home and vet these issues. I was assured they could.

Lest your resident argue that neither they, nor their buyer, wants to pay for this, I would respond that this requirement is not just for their safety, but the rest of the Park's residents. If the home should catch fire, the conflagration could endanger others as well as them.

Lastly, it is my position, which I have vetted with others, that notwithstanding the ORS 90.680(12) proscription against imposing a "removal on resale" condition, it does not apply if the resident has made changes '_to the original construction material of the dwelling or home *** [that] was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code... ."

In other words, it is my belief[3] that if a resident has made changes to the heating, cooling, or electrical systems inside their home, he or she is no longer protected against the prohibition against "removal on resale" condition. So your recalcitrant resident has two choices: (a) Either consent to the interior inspection by a professional, to make sure it is "safe from the hazards of fire" or (b) You can impose a "removal on resale" requirement. And by the way, since you can impose, as a condition of approval, that the new resident has fire and liability insurance, you will want to consider imposing both conditions, and becoming a co-insured on the liability policy. Good Luck!

[1] Tenant lawyers argued that the provision was illegal, since it violated the law prohibiting termination of MHP tenancies without cause. It was the result of this standoff that resulted in the compromise legislation.

[2] When these laws were being negotiated, non-waiver was important to several landlords who had fixed income elderly residents whose homes were in need of exterior maintenance or painting. While they were willing to forego enforcing the maintenance requirements so long as the aged resident was living there, they did not want to waive the right to do so later, if the home was sold, or transferred by inheritance.

[3] You should verify this with your own legal counsel. MHCO's Q&A articles should not be relied upon as "legal advice".

Disrepair, Deterioration & MHCO Form 55

February 22, 2023

Phil Querin

MHCO Legal Counsel

By way of refresher, ORS 90.630 pertains to curable maintenance/appearance violations relating to residents’ spaces. However, if the violation relates to the physical condition of the home’s exterior, ORS 90.632 applies, to address repair and/or remediation that can take more time to cure, either due to the weather, the amount or complexity of the work, or availability of qualified workers.

As a result, SB 277A, which became law on June 14, 2017 (“Effective Date”), will apply: (a) To rental agreements for fixed term tenancies – i.e. leases – entered into or renewed on or after the Effective Date; and, (b) To rental agreements for periodic tenancies – i.e. month-to-month tenancies – in effect on or after the Effective Date.

MHCO has significantly changed its current form No. 55 to address the changes in the new law. The major issue going forward is for managers and landlords to be able to recognize when to use Form No. 55 to address disrepair and deterioration conditions, versus Form No. 43C, which is appropriate for violations relating to maintenance and appearance of the space.

Tip: Although Form 55 is only for use when there is disrepair or deterioration to the exterior of the home itself, the definition of a manufactured dwelling in ORS 90.100 includes “an accessory building or structure,” and that term includes sheds and carports and “any portable, demountable or permanent structure”. Accordingly, even though the damage or deterioration may relate to accessory buildings or structures – and not to the home itself – they too are subject to the new law.

30-day and 60 Repair Periods. If the disrepair or deterioration to the exterior of the home or related structures creates a risk of imminent and serious harm to dwellings, homes, or persons in the Community (e.g. dangerously unstable steps, decking or handrails), there is a 30-day period to repair.

For all other (i.e. non-dangerous) conditions, the minimum period to cure is now 60 days. As before, the new Form 55 provides a place for landlords and managers to specifically describe the item(s) in need of repair.

Trap: If there is imminent risk of harm, and the landlord/manager intends to give the tenant 30 days rather than 60 days, SB 277A requires that they not only describe the item(s) in disrepair, but also describe the potential risk of harm. There is little question but that the failure to do so would invalidate the notice. The new Form 55 prompts users to describe both the violation and the potential risk of harm.

Tip: The new Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. Remember, you cannot expect the tenant to be a mind reader – just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity.

Service of the Notice. Most landlords and managers are familiar with the various methods of effecting service of notices. However, if in doubt, check the statutes. They are contained at ORS 90.155 (Service or delivery of written notice) and ORS 90.160 (Calculation of notice periods). You can never be too careful; a notice giving a single day less than legally required, can result in the case being thrown out.

Statutory Definitions. The new ORS 90.632 defines “disrepair” and “deterioration”, and for the most part, they are quoted in MHCO’s new Form No. 55:

“Disrepair” means being in need of repair because a component is broken, collapsing, creating a safety hazard or generally in need of maintenance. It also includes the need to correct a failure to conform to applicable building and housing codes at the time: (a) Of installation of the manufactured dwelling or floating home onthe site, or (b) The improvements to the manufactured dwelling or floating home were made following installation on the site.

“Deterioration” includes, without limitation, such things as a collapsing or failing staircase or railing, one or more holes in a wall or roof, an inadequately supported window air conditioning unit, falling gutters, siding or skirting, or paint that is peeling or faded so as to threaten the useful life or integrity of the siding. Deterioration does not include aesthetic or cosmetic concerns.

Trap: Note that the definition of “deterioration” refers to “…paint that is peeling or faded so as to threaten the useful life or integrity of the siding.” (Underscore added.) Before requiring a tenant to paint their entire home, it might be prudent to confer with a qualified painter who, if necessary, would be prepared to testify that the poor condition of the paint would likely threaten the useful life or integrity of the siding (at least as to the affected area). This could avoid arguments in the future about whether the entire home or structure actually needed to be repainted. In any event, management should be careful when issuing Form 55 to make sure that: (a) It is not issued for minor repairs bordering on the cosmetic, and (b) Required repairs are not overly burdensome or broad. For example, if one side of the home is exposed to the weather and in need of repainting, there may be little reason to insist that the resident repaint the entire home.

Necessary Repairs. As before, SB 277A requires that management specifically describe what repairs are required to correct the disrepair or deterioration. In the new Form 55 we have included instructions both to the Cause section of form, and also to the Necessary Repairs section. And don’t forget to attach additional pages, documents or photos, if it might be helpful; the more illustrative examples of what is wrong with the home and what repairs are necessary, the less room there is to argue about it later.

Right to Extension of Time. There are three circumstances in which a resident may request an extension of the 60-day compliance deadline. Note however, as discussed above, there is no right to any extension if the adverse condition would pose a risk of serious harm.

Additional 60 days. If the necessary repairs involve exterior painting, roof repair, concrete pouring or similar work, and the weather prevents that work during a substantial portion of the existing 60-day periodto cure;
Additional 60 days. If the nature or extent of the correction work is such that it cannot reasonably be completed within the 60-day cure period due to the type and complexity of the work and the availability of necessary repair persons;
Additional 180 Days (Six Months). If the disrepair or deterioration existed for more than the preceding 12months with the landlord’s or manager’s knowledge, or rent had been accepted over that time.

Tip: The law requires the tenant to make a written request for an extension of time if it is sought in a reasonable amount of time prior to the last day of the 60-day compliance period. There are two issues, however: (a) How long an extension is the tenant asking for – 30 days, 40, 50, or 60? (b) Obtaining an extension also extends the deadline for compliance. An oral extension does not nail down the additional time in writing and may not identify the new deadline. Accordingly, landlords and managers should insist on a written request from their tenants and should consider putting in writing: (a) The amount of time granted; and, (b) The new deadline. That way there can be no confusion about the length of the extension and the outside date that compliance must be completed.

Issue: Does SB277A contemplate that following the request for a 60-day extension, management may agree to less? Possibly, since new law provides that the need for the extra time must be due to certain conditions that prevent that work from occurring during a substantialportion of the existing 60-day period. If confronted with this situation, management should consult with legal counsel.

Notice of Correction. If the tenant performs the necessary repairs before the end of the compliance date, or extended compliance date, they have the right to give the landlord/manager a written notice that the issues have been corrected. There is no fixed time for management’s response as to whether the repairs have been satisfactorily andtimely performed; it is sufficient if it is within a reasonable time following the tenant’s written notice. However, if a tenant gives this notice to management at least 14 days prior to the end of the completion deadline, or extended deadline, their failure to promptly respond is a defense to a landlord’s termination of tenancy.

Sale of Home; Prospective Purchasers. Prior to enactment of SB 277A, Oregon law permitted a tenant to sell their home while the disrepair/deterioration notice was outstanding, permitting the landlord/manager to give a copy of it to the new perspective purchaser, and providing that the sale would not automatically extend the compliance period. Essentially, the new tenant stepped into the shoes of their seller, and became subject to the same notice and time periods.

The practical result of this protocol was that as between the tenant and the prospective purchaser, they could negotiate any price reductions for the necessary work, and the new rental agreement would contain a provision requiring that it be completed within the time prescribed in the original notice, or a permitted extension. That is no longer the case under the new law.

SB 277A now provides that at the time of giving a prospective purchaser the application and other park documents, the landlord/manager must also give them the following:

Copies of any outstanding notices of repair or deterioration issued under ORS 90.632;
A list of any disrepair or deterioration of the home;
A list of any failures to maintain the Space or to comply with any other provisions of the Rental/LeaseAgreement, including aesthetic or cosmetic improvements; and
A statement that the landlord/manager may require a prospective purchaser to complete the repairs,maintenance and improvements described in the notices and lists provided.

Tip: Note that the new law combines not only ORS 90.632 notices relating to damage and deterioration of the home or structures, but also a list of failures to maintain the space and other defaults, including aesthetic or cosmetic improvements. This may or may not include 30-day curable notices under ORS 90.630 for failure to maintain the space. But in both cases (i.e. defaults relating to structures, and those relating to the space), the new tenant appears to get the six-month period to comply.

This represents and interesting shift in Oregon law, and possibly for the better. Many parks historically gave “resale compliance notices” to tenants who were placing their homes up for sale. However, until now, there was some question whether a landlord could “require” as a condition of resale, that the existing tenant make certain repairs – absent having first sent a 30-day notice.[1]Now, under the new version of ORS 90.632, it appears landlords may make that list, and let the tenant/seller know that unless the work is completed before sale, it will be given to the tenant’s purchaser upon application for tenancy.

So, if the landlord/manager accepts a prospective purchaser as a new tenant, and notwithstanding any prior landlord waivers of the same issue(s), the new tenant will be required to complete the repairs, maintenance and improvements described in the notices and lists.

Under Section (10) of the revised statute, if the new tenant fails to complete the repairs described in the notices within six months from commencement of the tenancy, the landlord “may terminate the tenancy by giving the new tenant the notice required under ORS 90.630 or ORS 90.632.” This appears to say that a new tenant who fails to complete the items addressed in the notices and lists within the first six months, will thereafter be subject to issuance of a curable 30-day or 60-day notice to complete the required repairs. Accordingly, this is how the new MHCO Form 55 will read.

What if the landlord had already given the seller a written notice under one of these two statutes, but the compliance period had not yet run at the time of sale? The new statute does not carry over the unused time to the new tenant/purchaser, since under the new law, they will have received essentially the same information upon application, and will now have six months to complete.

Tip: Nonetheless, it is still a good idea to give a detailed 90.632 notice to a tenant before sale. That way, the very same repair issues will be in front of the landlord, existing tenant and prospective purchaser at the same time. It will now become a matter of negotiation between tenant/seller and tenant/buyer as to who will perform the repairs, and when.

Repeat Violations. If one or more of the items that caused issuance of a 30-day or 60-day notice under ORS 90.630 or 90.632 recurs within 12 months after the date of issuance of that notice, the tenancy may be terminatedupon at least 30 days’ written notice specifying the violation(s) and the date of termination of tenancy. In such case, correction of the disrepair or deterioration will not prevent a termination of the tenancy.

Miscellaneous. As under the prior law, a copy of the disrepair and deterioration notice may be given by thelandlord/manager to any lienholder of the tenant’s home.

And during the period of time provided for the tenant to make the necessary repairs, they are still required to payrent up to the termination date appearing in the notice, or, if applicable, any permitted extension period.

Trap: If the rent tendered by the tenant covers days that extend beyond the deadline for compliance, or any permitted extension thereof, it should be returned to them within ten (10) daysafter receipt, pursuant to ORS 90.412(3). This will avoid a waiver of termination of the tenancy described in the notice, should the tenant fail to timely perform the required work.

Conclusion. Members will see that due to the added complexities of ORS 90.632 (e.g. risk of harm vs. non-risk of harm violations, added detail for explanations, prospective tenant disclosures with application, etc.) the new Form 55 is longer than before. However, despite the added length, we believe it remains user-friendly.

[1] This is because ORS 90.510(5)(i) provides that the rental or lease agreement for new tenants must disclose “(a)ny conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

10 Steps to Avoid Liability for Refusing Reasonable Accommodations

December 5, 2022

MHCO

Not all requests for disability accommodations are reasonable. How can you tell which are and which aren’t?

While the COVID-19 pandemic may have kept people at home in 2020, it apparently didn’t keep them from suing for discrimination. There were 28,712 total fair housing complaints in that pandemic year, according to the National Fair Housing Alliance (NFHA). That’s the third highest annual total since 2009, and only 168 complaints fewer than the second-place year of 2019. (Note: NFHA, a national civil rights organization that tracks fair housing litigation across the US, hadn’t published the 2021 statistics as of the date we went to press.)

Continuing historic patterns, disability discrimination was the most common ground of complaint, accounting for 15,664 (54.46%) of all 2020 cases. It’s a pretty good bet that failure to provide reasonable accommodations was at the center of most of these cases.

Bottom line: Statistically at least, if an applicant or resident ever sues you for a fair housing violation, it’ll most likely be for allegedly violating your obligation to provide reasonable accommodations for a disability.

WHAT DOES THE LAW SAY?

Section 3604(f)(1)(B) of the federal Fair Housing Act (FHA) bans discrimination against rental applicants, tenants, or the people associated with them, such as a tenant’s child, because of their disability. It’s also illegal (under Section 3604(f)(3)(B)) to refuse “to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”

According to the U.S. Department of Housing and Urban Development (HUD), “a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations” (if they’re in federally assisted housing). Examples:

A community that doesn’t assign parking spaces makes an exception so that a mobility-impaired tenant will always be able to park near the building entrance;
A community that requires tenants to pay their rent in person each month makes an exception for a tenant with a mental disability that makes her afraid to leave her apartment; and
A community with a no-pets policy makes an exception allowing a sightless tenant to keep a seeing-eye dog in his apartment.

DEEP DIVE:

Reasonable Accommodations vs. Reasonable Modifications

Section 3604(f)(3)(A) of the FHA also bans refusing to allow “reasonable modifications of existing premises.” Like reasonable accommodations, reasonable modifications are reasonable changes necessary to afford a disabled applicant or tenant “full enjoyment” of the premises, but with two key differences:

A reasonable modification is a structural change made to the property, while a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service; and
More significantly, tenants are responsible for the costs of modifications while landlords must pay for accommodations.

You may also have to comply with more stringent accommodations requirements under other laws, including:

If you open all or part of your community to the public, you must make “reasonable modifications” and ensure it’s designed, constructed, and maintained to be fully accessible to the disabled under federal Americans with Disabilities Act (ADA) requirements;
Section 504 of the of the federal Rehabilitation Act of 1973, which imposes stricter discrimination rules on landlords that participate in HUD housing and other federal assistance programs; and
State and local fair housing laws, which are often much stricter than the FHA.

10 STEPS FOR PROPERLY HANDLING

REASONABLE ACCOMMODATION REQUESTS

Complying with your FHA duty to provide reasonable accommodations is one part substance and one part process. The first and most obvious challenge is to determine whether a requested accommodation is reasonable; the part that often gets overlooked relates not so much to the actual decisions you make but how you make them. Accordingly, the game plan below incorporates both challenges.

Step 1: Ensure Requestor Is (or Is Acting on Behalf of) a Disabled Person

Remember that while the FHA bans housing discrimination based on race, color, national origin, religion, sex, familial status, and disability, entitlement to reasonable accommodation applies to just one group: persons with disabilities. In other words, protection from fair housing discrimination doesn’t necessarily equate to the right to accommodation.

DEEP DIVE:

Are Other Protected Classes Entitled to Accommodations?

Although the FHA doesn’t expressly provide it except in the context of disabled persons, the argument has been made that reasonable accommodations are also required when necessary to allow a person protected by the law equal opportunity to “use and enjoy” housing. A notable case testing these principles involved a Chicago condo community whose tenants included the Blochs, a family of strong Jewish faith that posted a religious symbol called a Mezuzah on their door post. For over three decades, nobody said a word about the Mezuzah. But after a repainting, the condo board adopted a new rule banning tenants from posting any mats, signs, or other displays on their door posts. The Blochs requested a religious exemption allowing them to keep their Mezuzah, but the board said no.

The result was years of litigation, culminating in a U.S. Court of Appeals Seventh Circuit ruling denying the board’s motion to dismiss and allowing the Blochs to take their religious accommodations lawsuit to trial [Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009)].

What “disability” means: The FHA defines “disability” broadly as a physical or mental impairment that substantially limits one or more “major life activities.” Protection against discrimination and entitlement to accommodation extends to a person who:

Actually has such a disability;
Is perceived as having such a disability, even if that perception is wrong, such as where a landlord rejects an applicant that it wrongly believes has HIV; and
Has a record of such an impairment, such as a recovered drug addict.

What “major life activities” are: “Major life activities” are those of central importance to daily life, such as walking, seeing, hearing, breathing, performing manual tasks, caring for one’s self, learning, and speaking. Conditions that substantially limit mobility are deemed disabilities, regardless of whether they’re plain to see or due to physical or mental conditions that aren’t readily apparent, such as heart disease, muscle weakness, or breathing ailments.

Step 2: Don’t Reject an Accommodation Because of How or When It’s Requested

You don’t have to make accommodations unless they’re specifically requested. On the other hand, you can’t make a big deal over the timing and formalities of a request. There’s no rule saying that requests must be in writing. Nor do requestors have to use the words “reasonable accommodation,” “fair housing,” “disability,” or any other magic language. All they need to do is make it clear that they’re requesting an accommodation. Note also that an accommodation request can come from either the rental applicant/tenant or a person acting on his or her behalf. According to HUD/U.S. Department of Justice (DOJ) Guidelines (which we’ll refer to as the “Guidelines”), a landlord is on notice “that a reasonable accommodation request has been made if a person, her family member, or someone acting on her behalf requests a change, exception, or adjustment to a rule, policy, practice, or service because of a disability.”

Other key things to keep in mind:

Accommodation requests can be made by rental applicants as well as tenants at the start or at any time during their tenancy;
You can ask requestors to put their requests in writing, but you can’t require them to do so; and
While a family member, guardian, or other third party may request a reasonable accommodation on a disabled person’s behalf, a third party can’t demand an accommodation solely for his or her own benefit, such as an assigned parking space.

Tip: HUD recommends that landlords create forms and procedures that people can use to submit written requests for accommodations. This can facilitate and speed up the processing of requests and “prevent misunderstandings regarding what’s being requested, or whether the request was made.” However, the Guidelines add, landlords “must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the [landlord’s] preferred forms or procedures for making such requests.”

Step 3: Promptly Respond to Accommodation Requests

Don’t ignore an accommodation request, no matter how baseless and frivolous you think it is. While there’s no specific deadline, the Guidelines make it clear that landlords and other housing providers must provide a “prompt response” to a reasonable accommodation request. “An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation,” according to HUD/DOJ.

Step 4: Engage Your Accommodation Process

Engage in an interactive process with the requestor to gather the necessary information about the request and disability (which we’ll discuss under Step 5) and discuss ways to accommodate it. Recognize that failure to reach agreement on an accommodation request is tantamount to a denial. Result: The requestor can file a disability discrimination complaint with HUD or the equivalent state or local fair housing agency, which will then perform an investigation to determine whether there’s “reasonable cause” to believe you violated your accommodation duties. If so, you’ll end up having to defend yourself in a federal court or HUD Administrative Law Judge proceeding.

Example: A Missouri landlord had to shell out $44,000 for denying a tenant’s request to transfer to a unit with fewer stairs to accommodate her mobility-impaired daughter. The landlord flatly refused the request, saying it had no apartments available. In dishing out the fine, the federal court cited the landlord’s failure to even engage the tenant, evaluate the daughter’s medical needs, and explore ways to accommodate them [United States v. Dunnwood, (E.D. Mo.) July 16, 2020].

Strategy: Although the FHA doesn’t expressly require it, HUD recommends that landlords implement formal rules and procedures for handling accommodation requests. Advantages of having a formal accommodations process include:

Ensuring that all accommodations requests get a prompt response and that no requests fall through the cracks;
Enhancing the likelihood of agreement and preventing misunderstandings and miscommunications that can lead to complaints and investigations; and
Generating a paper trail documenting the proper consideration you gave to the request, setting up your legal defense in case complaints and investigations do occur.

Caveat: The Guidelines warn that you can’t refuse to consider a reasonable accommodation request just because the requestor won’t follow your formal procedures or use your preferred forms.

Step 5: Properly Verify the Requestor’s Disability and Need for Accommodation

Let’s turn to how to actually make decisions on particular accommodation requests. The first step is to verify the need for the requested disability accommodation. Normally, you’re not allowed to ask applicants or tenants if they’re disabled or about the nature and extent of their disability. However, the Guidelines give landlords some leeway to gather information about a person’s disability in response to a reasonable accommodation request to the extent the information is necessary to determine three things:

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;
Exactly what accommodation is being requested; and
Whether there’s a “nexus,” or relationship, between the disability and the need for the requested accommodation.

Example: A tenant requested an assigned parking space as an accommodation for his Alzheimer’s Disease. The landlord said no. The California federal court dismissed the tenant’s failure-to-accommodate complaint because of the lack of evidence showing the link between Alzheimer’s and parking and how having an assigned parking spot was an accommodation necessary to “ameliorate” the disease’s effects [Elliott v. QF Circa, Case No. 16-cv-0288-BAS-AGS, June 18, 2018].

Beware: There are limits on what information you can and can’t ask for, depending on what you already know or can easily surmise.

Rule 1: If the person’s disability and need for the accommodation is obvious, or otherwise known to you, you can’t request any additional information about the disability or disability-related need for the accommodation.

Rule 2: If the disability is known or readily apparent to you, but the need for the accommodation is not, you may request only information that’s necessary to evaluate the disability-related need for the accommodation.

OK to request verification: A rental applicant in a building without elevator service wants a ground-floor apartment, claiming she can’t climb steps due to asthma or some other respiratory ailment. Since the claimed disability isn’t readily apparent, the landlord would be justified in asking for verification of the ailment and why she needs a first-floor apartment to accommodate it.
Not OK to request verification: Same scenario but instead of a respiratory ailment, the applicant uses a wheelchair. Since the physical disability (that is, a mobility impairment) and disability-related need for the requested accommodation are both readily apparent, the landlord can’t require the applicant to provide any additional information about the disability or need for a ground-floor apartment.

Strategy: You may be able to get the information you need to verify that the person meets the FHA definition of disability directly from the requestors themselves, such as in the form of credible statements from the individuals, or the fact they have government-issued disability license plates or placards on their vehicle or receive Supplemental Security Income or Social Security Disability Insurance benefits despite being under age 65.

If necessary, the Guidelines say landlords may also seek verification from a doctor or other medical professional, peer support group, non-medical service agency, or reliable third party in a position to know about the individual’s disability. However, they must limit the request to only the information needed to verify the disability and need for the accommodation.

Step 6: Determine If Requested Accommodation Is Reasonable

You need only grant requested accommodations that are reasonable. According to HUD, a request for an accommodation is reasonable if it:

Doesn’t cause landlords to incur an undue financial and administrative burden;
Doesn’t cause a basic or fundamental change in the nature of the housing program available;
Won’t cause harm or damage to others; and
Is technologically possible.

These criteria are critical, so let’s look at them more closely.

Financial and administrative burden. You can’t deem a requested accommodation unreasonable simply because it costs time and money to provide. The burden must be “undue,” based on the accommodation’s costs, the landlord’s financial resources, the benefits to the requestor, and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. Examples of accommodations for disabilities that would impose undue financial or administrative burden would include making structural changes to common areas or completely paving over and reconstructing the entire parking lot for the sake of one tenant.

Fundamental alteration. Accommodations require “fundamental alterations” when they alter the essential nature of a landlord’s operations.

Example: A tenant with a severe mobility impairment asks his landlord to transport him to the grocery store and help him with his grocery shopping. The request wouldn’t be a reasonable accommodation to the extent that the landlord doesn’t provide any transportation or shopping services for any of its tenants, according to the Guidelines.

Harm or damage to others. You don’t have to make accommodations that would endanger the health and safety of others or pose the risk of unreasonable damage to property, such as by making an exception to a no-pets policy to allow a tenant to keep a full-grown elephant or camel in her apartment as a “therapy animal.”

Detrimental to other disabled persons. Accommodations aren’t reasonable if they require you to deprive other disabled applicants or tenants an equal opportunity to use and enjoy their own apartments. For example, you don’t have to force one mobility-impaired tenant to vacate a ground-floor apartment or give up a reserved accessible parking space in favor of another tenant who’s “more disabled.” If resources are limited, create a waiting list for granting requests as things open up in the order you receive them based on which disabled tenant has been waiting the longest.

Technologically impossible. Accommodations aren’t reasonable if they’re technologically impossible. Thus, for example, the owner of a three-story prewar urban brownstone building wouldn’t have to—and probably wouldn’t be able to—install an elevator just so a mobility-impaired tenant could continue living on the third floor.

Strategy: It’s a good idea to consult an attorney for advice before notifying the requestor of your decision if, for whatever reason, you determine that a requested accommodation is unreasonable.

Step 7: Consider Alternative Accommodations If Request Is Unreasonable

The accommodations process shouldn’t end simply because you conclude that a requested accommodation is unreasonable. Before you reject the request, dig deeper and ask yourself this question: Is there some other change you can make or action you can take that would enable the requestor to more fully use and enjoy his or her home?

Example: Let’s go back to the example above where a disabled tenant’s request that a landlord drive him to the grocery store would be deemed an unreasonable accommodation to the extent such services aren’t offered to any tenants. Even though the landlord can deny the request, it should consider alternatives that would meet the tenant’s needs without forcing a fundamental alteration of operations. For example, maybe it can alter its parking policy to allow a local volunteer to park her car close to the tenant’s apartment so she can drive him to the store and help him shop for groceries.

You can also offer easier or cheaper alternatives to those who make reasonable requests. However, if an accommodation is reasonable, the requestor isn’t obligated to accept any of your suggested alternatives.

Step 8: Don’t Charge Accommodation Request Fees or Deposits

The Guidelines state that you can’t make individuals with disabilities pay extra fees or deposits as a condition for receiving a requested accommodation. That includes charging an administrative fee for processing an accommodation request. If an accommodation is reasonable, you must pay the associated costs out of your own pocket and not charge the requestor a fee or deposit to defray the associated expenses.

Example: A Pennsylvania seniors housing provider had to shell out $80,000 to settle discrimination claims brought by mobility-impaired tenants and fair housing agencies, including for allegedly charging disabled tenants as much as $350 for designated parking spaces necessary to make their apartments accessible [Clover Group, May 2020].

Similarly, if an accommodation is reasonable, you must provide it without imposing financial or other conditions, such as by requiring tenants to pay “pet deposits” or carry extra insurance coverage for their service animals.

Example: A Minnesota apartment community paid $35,000 to settle claims of placing undue conditions on a tenant’s request for a service animal by requiring her to:

Buy an insurance policy covering the dog and listing the landlord as a co-insured;
Make the dog wear a special emotional support animal vest at all times outside the apartment; and
Sign an “indemnification and hold harmless waiver” covering the landlord against any harm the dog caused [United States v. Brooklyn Park 73rd Leased Housing Assoc., LLC, (D. Minn., Jan. 22, 2016)].

Step 9: Don’t Retaliate Against Persons for Requesting Accommodations

You can’t evict, reject, or take any other adverse action against any person for requesting a reasonable accommodation. You can be liable even if retaliation is just one motive for a decision—for example, evicting a tenant for not paying rent and for requesting an accommodation.

Example: A Tennessee landlord evicted a disabled tenant after he requested reasonable modifications (removal of a concrete parking bumper) and accommodations (two assigned parking spaces). The tenant filed a complaint with HUD, claiming the eviction was retaliatory. Rather than risk a trial, the landlord paid $52,500 to settle the claims [United States v. Fairfax Manor Group, LLC, (W.D. Tenn., March 19, 2018)].

Step 10: Keep Requestor’s Personal Information Confidential

The personal information you collect to process an applicant or tenant’s request for a disability accommodation is protected by privacy laws. Result: You must keep the information confidential and secure, use it only for purposes of processing the accommodation request, and not disclose it to others except when you’re legally required to do so, such as when a court issues a subpoena requiring you to disclose the information. These privacy obligations apply regardless of whether you ultimately grant or deny the accommodation request.

Phil Querin Q&A: Resident Violates Rules with Multiple Pets

August 3, 2021

Phil Querin

Querin Law

MHCO Legal Counsel

Question: It has recently come to our attention that a tenant is in violation of our two-pet policy, as she has admitted that she has 4 small dogs living in her home. When we speak with her through her door, the smell of dog urine is overwhelming. We have mailed her a letter explaining that this is rules violation and asked that she remove two of the pets by a certain date. Our letter warned that if she failed to comply, she would be sent a 30-Day Notice to Vacate.

She stated she would keep the two extra dogs and claim them as service animal. This week she gave us a letter from her nurse practitioner stating she needed the pets for a medical condition. What are our options? We would like to serve her a 30 Day Notice to Vacate for Cause (violating our 2 pet policy). However, she has been speaking with advocacy groups that tell her we have no right to make her get rid of the two “service animals.”

We feel that it is our responsibility as landlords to consistently enforce our community rules, but also don't want to get dragged into costly litigation just to lose in the end due to federal regulations of some kind.

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.