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Answer: First, remember that if the resident who is occupying the home is NOT the owner of the home, the manufactured housing section of the Oregon landlord-tenant law (ORS 90.505 et seq.) does NOT apply. This means that the applicable law is that which applies to tenants in apartments and single family homes. This portion of the landlord tenant law is more landlord-favorable - at least in terms of timing. MHCO is currently in the process of developing a form for abandoned personal property, other than manufactured homes located inside of parks.

In this case, ORS 90.425 applies. Although this is the abandonment law, it is limited to such things as personal property, motor vehicles, RVs, and manufactured homes not located in a park. If you have ever done an abandonment of a home in your community, ORS 90.675 applies. Although the protocols are much the same, there are some material differences. Here is a summary of the law addressing your question:

1. Automobiles.
   1. You must determine if there are any lienholders;
   2. You must also determine if the owner of the vehicle is different that the deceased resident;
   3. You must send a written abandonment letter[1]:
      1. By first class mail to the deceased tenant at the premises[2];
      2. Personally deliver or send it by first class mail to any heir, devisee, personal representative or designated person, if actually known to the landlord; and
      3. Sent it by first class mail to the attention of an estate administrator of the Department of State Lands.
   4. The letter must give the heir, devisee, or personal representative of designated person, not less than 45 days to notify the landlord of their intent to claim the vehicle(s), and allow them not more than 15 days (or such longer period as agreed to by the parties) to actually pick it/them up.
   5. If the recipient does not pick up the vehicle(s), the landlord may sell it/them at a public or private sale, or if the reasonable current fair market value is $1,000 or less or so low that the cost of storage and conducting a public sale probably exceeds the amount that would be realized from the sale, may sell certain items and destroy or otherwise dispose of the remaining personal property.
   6. The vehicle(s) may be stored at the space, or stored at a commercial storage company, or other place of safekeeping;
   7. NOTE: This is an abbreviated version of the process, and should not undertaken without expert assistance.
2. All Other Personal Property
   1. The written notice of abandonment must be sent to the same persons as for the vehicle(s);
   2. The heir, devisee, or personal representative of designated person must be given not less than five (5) days if the notice is personally delivered, or eight (8) days if mailed, to notify the landlord if they intend to pick up the personal property, and not more than fifteen (15) days (or such longer period as agreed to by the parties) to actually pick it up.
   3. If the personal property is not picked up, the same protocol applies as fore vehicle(s);
   4. The personal property may be stored at the space, or stored at a commercial storage company or other place of safekeeping[3];

A word of caution: Until the letter is sent, both of the abandonment statutes, ORS 90.425 and ORS 90.675, are not clear about the landlord's legal responsibility for "safekeeping" of a resident's abandoned property. However, there is no question that the landlord does have that responsibility once the abandonment has been declared by issuance of the letter.

This means that you can secure the personal property, either by removing it from the home, or, in this case, with the owner's consent, secure it in the home, and prohibiting access. The reason I bring this up is because you mentioned that the foster brothers gained access to the home and apparently removed what they wanted.

Yet, ORS 90.425(21) provides:

(d) The landlord shall allow a person that is an heir, devisee or personal representative of the tenant, or an estate administrator of the department, to remove the personal property if the person contacts the landlord within the period provided by [ORS 90.425(25)], complies with the requirements of this section and provides the landlord with reasonable evidence that the person is an heir, devisee or personal representative, or an estate administrator of the department. (Emphasis added.)

(e) If neither an heir, devisee nor personal representative of the tenant, nor an estate administrator of the department, contacts the landlord *** the landlord shall allow removal of the personal property by the designated person of the tenant, if the designated person contacts the landlord within that period and complies with the requirements of this section and provides the landlord with reasonable evidence that the person is the designated person.

(f) A landlord who allows removal of personal property under this subsection is not liable to another person that has a claim or interest in the personal property. (Emphasis added.)

Subsection (f) is as important for what it doesn'tsay, as what it does, i.e. the landlord's failure to follow the statute could result in liability, e.g. to the heirs, etc., whose property was released to persons not so entitled.

So the take-away here is this: In the case of residents living alone, park records should be updated to determine (a) if there is a will; and (b) who should be notified in the event of death or disability.

And lastly, rather than allowing various persons entry into the home of a deceased resident, it is more prudent to immediately send out an abandonment letter, which gives you automatic power to "secure" the decedent's personal property, until the proper persons can be identified to remove it.

If the resident owned the home, you would have proceeded under ORS 90.675 (for abandoned homes in a park), which is much the same as ORS 90.425 (for personal property only), except that in the case of abandoned homes in parks, the 45-day letter gives the estate 30 days to remove the home or enter into a storage agreement, for its resale; and since the home is subject to a personal property tax, the tax assessor and/or collector would have to be notified with the 45-day letter.

[1] The information contained in this letter is much the same as that when a manufactured home is abandoned in a park. See, ORS 90.425(5).

[2] The notice must refer to the heir, devisee, personal representative, designated person or estate administrator of the department, instead of the deceased resident.

[3] If the deceased resident owned the home, the personal property could be stored there, as well.

Measure 91 – High Times for Oregonians.  According to OregonLive.com, here, there are 23 states that currently have medical marijuana laws on the books. Oregon was one of them. On November 4, 2014, Oregon joined a smaller group of pot-friendly states (Washington, Colorado, Alaska, and the District of Columbia), to permit the recreational use of cannabis.[1]  I will leave it to the wordsmiths to explain how the term “recreational use” found its way into our lexicon when discussing the use of marijuana.  “Recreation” is the last thing one thinks about when taking a toke – or so I’m told….  

State and Federal Laws. The Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., says that marijuana is illegal to grow, process, distribute, and possess, even when state law authorizes its use. Furthermore, federal law supersedes state law where there is a direct conflict between them.  That would seem to suggest that federal law, being more restrictive, would trump Oregon law.  However, this is not the case.

HUD and the Oregon Bureau of Labor and Industries, both of whom enforce fair housing violations, including discrimination based upon disabilities, have taken a laissez faire, or “hands off” approach, i.e. they are not enforcing the laws at the current time.  Accordingly, it is my belief that on both a state and federal level, landlords may properly prohibit growing, processing, distribution and possession of marijuana, even though the user holds a valid medical marijuana card. This opinion was extensively covered in my two articles, here and here.

How Are Landlords Affected by Measure 91?  Now that Oregon has legalized recreational use of pot, how does this change the equation for community owners?  The short answer is that it does not change the issues.  If anything, dealing with the use of recreational pot is the easy part.  The substance can be controlled, should an owner so desire, by a rule change, prohibiting the cultivation, processing, sale or use of marijuana within the community. 

The issues surrounding the legal use of medical marijuana, i.e. by card-carrying tenants, remains the same, i.e. can a park owner prohibit it?  I believe the answer is “Yes.”  But before explaining how, let’s look at the new law that everyone is toking talking about.

Oregon’s New Marijuana Law. An interesting article gleaned from a website called “The Daily Chronic” contains and interesting, though not exactly unbiased, analysis of Measure 91, here.  What follows is a short summary taken from the longer article:

·      It passed by 57% to 43%;

·      Public consumption of pot is prohibited;

·      The Measure does not go into effect until July 1, 2015;

·      Until that time, possession of less than one ounce of marijuana remains a misdemeanor and is subject to a fine of up to $650;

·      You must be 21 or older to possess marijuana;

·      Homemade cannabis extracts (when made with solvents)[2] are prohibited, i.e. one may not produce, process, keep, or store them;

·      Up to 1 ounce of cannabis extracts are permitted, but only if they are obtained through a licensed retailer;

·      Cultivation of up to four plants per household is permitted,[3] but they may not be visible from a public space;[4]

·      The Oregon Liquor Control Commission (“OLCC”) is in charge of regulating commercial cannabis cultivation, processing and retail sales;

·      Of course, there is a tax levied on sales. It is paid by the producers;

·      There are four types of businesses Measure 91 will license:

o   Producers, who will cultivate the pot;

o   Processors, who purchase it from the producers and convert it into assorted products with names, colors, flavors, and scents, reminiscent of the UC Berkley campus circa 1968;

o   Wholesalers, who purchase the pot and pot products for sale to retailers; and

o   Retailers, who will sell directly to consumers.

Sample Policy.  As mentioned above, I believe that community owners may both prohibit the cultivation, processing, retailing, selling and use of pot, inside the community, regardless of whether the user has a lawfully issued marijuana card.  This can be done prospectively, by including the prohibition in the Statement of Policy, the rules, and/or the rental agreement.  It can also be done by a rule change that affects the residents already in the community.  However, I do not believe it may or should be done retroactively to those legal card holders already in the community. Here is a sample policy:

Sample Cannabis Policy For A Rules Change

[To be enacted pursuant to ORS 90.610(3)]

Background. Under the Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., it is illegal to manufacture, distribute, and possess marijuana, even when state law authorizes its use. In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342.  Federal law supersedes state law where there is a direct conflict of laws.  The Federal Fair Housing Amendments Act provides that a disability does not allow the illegal use of a controlled substance under the Controlled Substances Act.

Our Policy. All Residents, their guests, invitees, contractors, employees, and others coming to the resident’s home, space, or common areas in the Community, are subject to the following rules regarding the manufacture, processing, distribution, sale or use of cannabis, or  for any purpose, including medical purposes.

Prohibition.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.

Reasonable Accommodation.  This Community will not agree to make a reasonable accommodation for this prohibition, including medical purposes, to any residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Laws.

Violation. Violation of this policy shall constitute a breach of the terms of Resident’s right of occupancy, and entitle Management to issue Resident a thirty (30) day curable notice of violation under ORS 90.630(1).  A repeat violation will result in a twenty (20) day non-curable notice of violation under ORS 90.630(4).  Resident is responsible for informing their guests, invitees, contactors, employees or others coming to Resident’s home, space or common area guests of this Policy and for ensuring compliance.  Notwithstanding the preceding, Management reserves the right, upon its sole discretion, to issue Resident a non-curable 24-hour notice of violation under ORS 90.396 if Resident’s violation of this policy could reasonably result in danger to the health, safety or welfare of others in the Community. 

Effective Date.  This Policy shall apply from and after _______________________ (“Effective Date”), until modified or amended.  It shall not be applied retroactively to any current Resident whose legal use of cannabis, or cannabis products or extracts for medical purposes, preceded the Effective Date.

The above sample policy can be added as an Addendum to Rental or Lease Agreements and given to prospective tenants, as well. It is sufficient to insert into the Statement of Policy, the following:

Marijuana.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.  This Community will not agree to make a reasonable accommodation for this prohibition, including for medical purposes, to any Residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Act.

[1] The World Health Organization defines cannabis here, as follows: Cannabis is a generic term used to denote the several psychoactive preparations of the plant Cannabis sativa. The major psychoactive constituent in cannabis is ∆-9 tetrahydrocannabinol (THC). Compounds which are structurally similar to THC are referred to as cannabinoids. In addition, a number of recently identified compounds that differ structurally from cannabinoids nevertheless share many of their pharmacological properties. The Mexican term 'marijuana' is frequently used in referring to cannabis leaves or other crude plant material in many countries. The unpollinated female plants are called hashish. Cannabis oil (hashish oil) is a concentrate of cannabinoids obtained by solvent extraction of the crude plant material or of the resin.

[2] For those truly interested in the extraction process using solvents, go to the following link, here.

[3] In other words, a four member household (all 21 or over) would not qualify for 16 plants.  The same rule applies to the right to possess up to one ounce of extracts. There is no multiplier effect.

[4]  I suspect that in community where the backyards are fenced, growing would be permitted so long as they were obscured from the streets and sidewalks.

Do You Need an Attorney?

Oregon, unlike our neighbor to the North, does not require landlords to obtain the use of an attorney to appear in FED court. The necessary summons and complaint can be obtained from the courthouse and they can be filed and served quickly. This has its advantages and disadvantages: It is good insofar as it keeps the cost of the process down, but it is bad if the owner or manager fails to strictly follow all of the legal procedures required by the statutes. Accordingly, for the inexperienced manager or new owner, it is strongly, recommended that guidance first be sought, either through the MHCO, from an experienced attorney, or by consulting with a knowledgeable community management company.

Strict Compliance

Since the FED process is designed to be a "summary" or quick proceeding, the law imposes upon those seeking its assistance, i.e. owners and managers, the duty to strictly comply with all of the requirements set out in the statutes. This means, for instance, that the written notice that must precede the filing of the complaint (e.g the 72- hour nonpayment of rent notice or the 30-day notice of termination for cause) must be properly filled out to the letter. Since the notice is required to be attached to the FED complaint, and thereby becomes a part of it, if the notice is defective in any respect, the Court can unilaterally dismiss it - thus forcing the landlord or manager to start all over again. It is for this reason that before actually filing the summons and complaint which starts the FED court process, the plaintiff should closely review the notice to make sure it complies with the law.

The First Appearance

At the time the summons and complaint for eviction are filled out, a "first appearance date" will be inserted in the summon. This date is the time for both landlord and tenant to appear before the court. At that time, if the matter cannot be mediated or resolved, the tenant has to inform the judge whether he/she will either move out at a designated time, or request a trial to contest the eviction proceeding. If the tenant wants to fight the eviction, the judge will usually require that they promptly file an answer setting forth their legal defenses, and set the matter for trial. Experienced landlords and managers know full well that the first appearance is the time that many, if not most, evictions are settled. If the default is nonpayment of rent, the landlord and tenant can simply enter into a stipulated payment arrangement providing that if it is not followed by the tenant, the landlord may come back to court and upon filing of the necessary papers, have the judge issue the judgment of restitution. It is imperative that the landlord or his/her representative appear at the first appearance. The failure to do so will result in an automatic dismissal of the eviction, and the landlord will have to start all over.

The Judgment of Restitution

As noted above, the judgment of restitution is the equivalent of the court's order in favor of the landlord's complaint for eviction, and requires that the tenant vacate the premises - which in a manufactured housing community, is the space upon which the home is situated. In most cases, the court will insert a date in the judgment of restitution that will give the tenant a reasonable time to remove their belongings. Once that date has expired, however, the tenant has no further right to come upon the premises. Under the abandonment statute, assuming that the tenant voluntarily vacates the space, after seven (7) days of the tenant's absence following the date of issuance of the judgment of restitution, to commence the abandonment procedure, which is legally initiated by issuance of the 45-day letter to the tenant and other parties required by law. During this 45-day period (assuming there is no lienholder), the tenant may contact the landlord to make arrangements for removal of the home. However, such removal is conditioned upon payment of all "storage charges" which cannot exceed the existing rents. However, as discussed below, the landlord may not require the payment of accrued storage charges prior to removal of the home if the tenant was forced to vacate the space as a result of the landlord's executing upon the judgment of restitution.

Execution Upon a Judgment of Restitution

Sometimes the tenant may refuse to move, even when the court has given them a firm date to do so in the judgment of restitution. In such cases, the landlord must go to the clerk of the court to obtain a notice of restitution giving the tenant four (4) days to move out. The notice of restitution is mail and personally served (or attached to the front entrance) by the sheriff or a civil process server. After execution of the four (4) day period, if the tenant has still not vacated, then the landlord must ask the sheriff to execute upon the judgment of restitution originally granted by the court at the conclusion of the eviction trial. The means that the sheriff will go to the premises, remove the occupants and post a trespass notice on the home, advising the tenants that any further entry will result in arrest and prosecution. Although the abandonment law does not require the landlord to wait seven more days before commencing an abandonment, it does prohibit the landlord from recouping any accrued storage charges, should the tenant elect to remove the home following receipt of the 45-day abandonment letter. It is for this reason that landlords should only seek execution upon the judgment of restitution when absolutely necessary - i.e. when the tenant simply refuses to voluntarily vacate following the court's issuance of a judgment of restitutio

[1] The only exception would be if, prior to the tenant's abandonment, the landlord and tenant entered into a written agreement whereby the tenant waived his/her rights under the abandonment statute. See, ORS 90.675(21)(A).

Answer. Many manufactured housing communities in Oregon have large trees. While Oregon law has imposed the duty of general tree maintenance on the residents, there is little question but that most do not have the expertise, skill or financial means to provide the type of maintenance that may be required for large older trees. With this in mind, the MHCO encouraged the Landlord-Tenant Coalition to craft a bill that fairly and clearly allocated the responsibility for tree maintenance in a realistic manner. Landlords are in a better position than residents to obtain and afford good liability insurance, since it is a standard cost of doing business. Moreover, there was concern that under the existing law, some park owners might not regard the issue of tree maintenance as their problem. In reality, however, it is. Injury or death resulting from falling limb or tree that should have been trimmed or removed is surely going to result in potential liability to the park owner. Accordingly, the statute allocates the risk in a more realistic and practical manner: Normal maintenance for trees on a resident's space remains with the resident. However, if the tree has certain features that make it a "hazard tree" then responsibility shifts to the landlord - unless the resident planted the tree. This delineation should help both landlords and residents understand their respective responsibilities. Here is a summary of the current law: 1. Definitions. - "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side. - "Hazard tree" means a tree that: _ Is located on a rented space in a manufactured dwelling park; _ Measures at least eight inches DBH; and _ Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future. 2. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act. 3. Resident Duties re Trees Located on Space. A resident shall maintain and water trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees. - "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future. - "Removing a tree" includes: _ Felling and removing the tree; and _ Grinding or removing the stump of the tree. 4. Landlord Duties re Hazard Trees. - Landlord shall maintain a hazard tree that was not planted by the current resident if the landlord knows or should know that the tree is a hazard tree; - Landlord may maintain a tree on the rented space to prevent the tree from becoming a hazard tree; _ Must provide residents with reasonable written notice and reasonable opportunity to maintain the tree themselves. - Landlord has discretion to decide whether the appropriate maintenance of a hazard tree is removal or trimming. - Landlord is not responsible for: _ Maintaining a tree that is not a hazard tree; or _ Maintaining any tree for aesthetic purposes. - A landlord must comply with the access provisions of ORS 90.725 before entering a resident's space to inspect or maintain a tree. [Generally, 24-hour notice. - PCQ] - Subject to the preceding, a resident is responsible for maintaining the non-hazard trees on the resident's space at the resident's expense. _ The resident may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the resident's space at the resident's expense; _ If the arborist determines that the tree is a hazard, the resident may: - Require the landlord to maintain the tree as a hazard tree; or - Maintain the tree at the resident's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report. 5. Tree Obstructing Removal of Home From Space. If a manufactured home cannot be removed from a space without first removing or trimming a tree on the space, the owner of the home may remove or trim the tree at the owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the home. 6. Use of Landscape Professional. The landlord or resident that is responsible for maintaining a tree must engage a landscape construction professional with a valid landscape license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more. 7. Access to Resident's Space [ORS 90.725]. - An "emergency" includes but is not limited to: _ A repair problem that, unless remedied immediately, is likely to cause serious physical harm or damage to individuals or property; _ The presence of a hazard tree on a rented space in a manufactured dwelling park. - An "unreasonable time" refers to a time of day, day of the week or particular time that conflicts with the resident's reasonable and specific plans to use the space. - "Yard maintenance, equipment servicing or grounds keeping" includes, but is not limited to, servicing individual septic tank systems or water pumps, weeding, mowing grass and pruning trees and shrubs. - A landlord or a landlord's agent may enter onto a rented space to: _ Inspect or maintain trees; _ A landlord or the landlord's agent may enter a rented space solely to inspect a tree despite a denial of consent by the resident if the landlord or the landlord's agent has given at least 24 hours' actual notice of the intent to enter to inspect the tree and the entry occurs at a reasonable time. _ If a landlord has a report from an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture that a tree on the rented space is a hazard tree that must be maintained by the landlord under this Act, the landlord is not liable for any damage or injury as a result of the hazard tree if the landlord is unable to gain entry after making a good faith effort to do so. - If the resident refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement pursuant to ORS 90.630 (1) and take possession in accordance with the Oregon eviction statutes. In addition, the landlord may recover actual damages. 8. Statement of Policy. It shall include the facility policy regarding the planting of trees on the resident's rented space. [See ORS 90.510] Conclusion. It sounds as if your solution was a good one and everyone was satisfied with the outcome. Your question did not specify whether the tree was a "hazard tree." If it was, then my question to you would have been: Did you develop a tree policy for your park? By the fact that you're asking this question, I assume you have none. Even if you did, it would be hard to apply it retroactively. With the recent snow storms of February, perhaps community owners will become more mindful of these issues. The first order of business is to take a survey of the hazard trees, and then develop a program for safety maintenance. Lastly, of course, park owners should always have a good policy of liability insurance for $1,000,000 or more that covers this type of situation. Fortunately, no one was injured in your situation, but if so, the solution might not have been so easy.

It was a brutal legislative session that will always be remembered for the passage statewide rent control (SB 608). Unconscionable that the majority party leaves opponents 90 - seconds to testify in opposing significant legislation after unlimited time for panel after panel of 'experts' in support. When in power they all do it - Democrat and Republican - not a pretty thing to watch.

MHCO thanks everyone who made the effort to show up at the Capitol, e-mail legislators, call legislators, attended public hearings or attended MHCO 'lobby day' at the Capitol. You help make our voices heard - we are very appreciative of your efforts and they did make a difference. Thank you!

Before we get to the final Legislature Update of the 2019 Legislative Session here are two quotes to remember as we head into the post 2019 Oregon Legislative wilderness:

Senator Shemia Fagan (D-Portland): "For many renters, for many families SB 608 (rent control) does not do enough or does not come soon enough and those voices are important too and I want to lift those up. 'Street Roots' (a weekly alternative newspaper establish in 1998 that is sold by and for the homeless in Portland)in it's editorial on Senate Bill 608 said, "SB 608 is truly the least we can do. So, legislators should pass it so we have a better benchmark and then we expect them to keep fighting." ... and I agree! (Senate floor speech, February 12, 2019).

Representative Julie Fahey (D-West Eugene & Junction City): "This year, Oregon passed SB 608(rent control), an anti-price-gouging measure that will cap rent increases at about 10%. SB 608 will absolutely help mobile home park residents in Oregon, but I worry that 10% is still too highfor seniors on fixed incomes and low-income Oregonians."(April 29, 2019 District Newsletter).

Final 2019 Oregon Legislative Update (7-1-19)

SB 586C Landlord-Tenant Coalition Bill

Covers 5 issues:

1. Floating home tenancies in marinas: Adds floating home tenancies in marinas to the programs provided by the Manufactured Communities Resource Center of the Housing & Community Services Department - which will necessitate changing its name to include a reference to marinas - and requires that marina landlords, like MH park landlords, register with MCRC and get continuing education credits and pay the annual registration fee. It requires that marina tenants, like MH park tenants, pay the $10 annual special assessment (with their property taxes) that supports MCRC. And it makes other, related changes reflecting the special circumstances of marina living.

2. Sub-metering of water: Clarifies and simplifies the process for landlords to recover for the cost of water/sewer/storm water to encourage more landlords to switch to recovery for that cost other than through the rent. And to promote transparency and understanding by tenants, requires a landlord who wants to change the billing method to first meet with tenants and, for switching to sub-meters, to do a three-month trial billing period.

3. Dispute resolution and enforcement: Current law already provides for voluntary mediation of MH park landlord/tenant disputes through MCRC. The bill will allow the parties to invoke mandatory mediation. It provides that a landlord or tenant may require the other party to participate in at least one promptly-scheduled mediation session regarding most disputes -

with some exceptions - involving landlord/tenant law before the filing of an eviction or other lawsuit. Mediations will generally be performed by the existing network of Community Dispute Resolution Centers. Enforcement: The bill also authorizes a four-year pilot program to provide legal representation to tenants - advice, negotiation, litigation - through an OHCSD grant capped at $100,000 per year. An advisory committee will monitor both elements and report to the 2021 and 2023 legislatures. Both the grant and the advisory committee have four year sunsets, 1/1/2024..

4. Termination of tenancies; noncompliance fees: Improves the process for landlords to require cure of separate and distinct violations of a rental agreement, as consistent with law applicable in apartment landlord/tenant law since 2005, and simplifies and clarifies the termination statute language. Allows landlords to better utilize an existing statute regarding noncompliance fees.

5. Maintenance of trees on MH park spaces: Current law already allows landlords to maintain trees on a tenant's space to prevent a tree from becoming hazardous or from causingdamage or injury, after notice to the tenant. The bill requires landlords, in that notice, to specify which, if any, tree that the landlord proposes to remove, in order to minimize mistaken removals.

HB 2164 A

Extends several tax expenditures for six years: manufactured dwelling park capital gain subtraction, manufactured dwelling park closure credit.

HB 2333 C

Allows option to obtain title, but not registration, from Department of Transportation for recreational vehicle qualifying as park model recreational vehicle and meeting other criteria.

Provides that recreational vehicle having title issued by Department of Transportation does not qualify as structure. Requires owner to surrender Department of Transportation title for recreational vehicle if converting recreational vehicle to use as structure. Makes recreational vehicle converted to use as structure subject to state building code. Requires seller of new recreational vehicle to provide purchaser with written information listing specified living area systems. Requires that information state for each listed system whether items or components comprising system are covered by warranty and, if so, extent and length of warranty. Removes recreational vehicle construction from regulation by Department of Consumer and Business Services. Changes definition of "recreational vehicle."

This legislation will clarify the appropriate titling of park models that are quickly becoming an affordable means for providing housing for people throughout the State of Oregon. There is currently no clear path for the titling of these homes from a governing agency. Without the clear ownership documentation, lenders are reluctant to loan on the units so there is no current financing options for prospective owners/residents.

HB 2896 B

Directs Oregon Housing and Community Services (OHCS) to establish a loan program for nonprofit corporations to support the preservation and affordability of manufactured dwelling parks. Specifies loan eligibility and preservation requirements for loan recipients. Requires OHCS to report to the Legislative Assembly each odd-numbered year. Appropriates $3 million from the General Fund for administration and funding of the program. Takes effect on 91st day following adjournment sine die.

Editor's Note:  The following article was provided by Northwest ark Brokerage. For more information on manufactured home communities for sale or an assessment of your community call Bill Jackson of Northwest Park Brokerage at (206) 652-4100 or email Bill at: billj@nwparks.com.  

*****

Everybody is wondering what type of year 2020 will shape up to be.  Elections, international unrest, political infighting, tariffs, taxes and a laundry list of other issues has kept everyone guessing.  None of us know what the future will bring, but in the housing industry two things will help us stay healthy and grow steadily – low interest rates and a strong economy.  

CAP RATES. From what we have seen recently CAP rates can vary greatly, depending on the age and quality of the park/community and its location. 

Low interest rates combined with rising Net Operating Incomes are minimizing CAP rates in most areas of the country.  Coastal metropolitan areas account for lower CAP rates than other regions, where quality, larger communities are demanding CAP rates in the 4% range, and some have been sub-4%.  Buyers target high caliber parks in this CAP rate range, and they sell within weeks of listing.  This is something we haven’t seen before but there is limited inventory available for buyers targeting quality larger communities, and as private housing costs rise out of reach for many residents, demand for manufactured housing communities will continue to compress CAP rates.  If you are a potential seller of a larger quality community, we would love to talk to you.  We have the buyers.  Older communities in rural areas on septic systems and wells have seen CAP rates as high as the 7% range, but if they can be converted to central, local utilities they have a potential and there is still a strong demand for these properties.

INTEREST RATES.  In December the Federal Reserve signaled that it wants to hold off on further interest rate cuts for a while.  At its last meeting the Fed kept the federal funds rate between 1.5% and 1.75%.  Fed Chair Jerome Powell has been in his current position since November 2, 2017 and he expects that the economy will remain stable, but again emphasized that the future path of Fed actions will depend on many different possible events.  

The bond market has also been very stable, as rates have changed very little over the past few months.  The yield curve – the gap between rates on short-term and long-term bonds has maintained its historically normal upward sloping line.  This indicates that investors are not worried much about a possible recession occurring this year or next. 

If the economy slows the Fed will have a much smaller margin of error.  If market turmoil develops (think war or trade challenges) then the Fed will likely cut rates at least one more time.  However, that could result in the Fed gradually raising rates in 2021 according to a variety of economists and prognosticators. 

THE ECONOMY. Most economists seem to agree that the 2020 economy will look much like the 2019 economy.  Long gone are the days of 2007-2009 where real estate foreclosures and bank closures (remember Washington Mutual?) where the daily headline.  Today businesses are by-in-large doing well, unemployment is low, liquidity is plentiful, the stock market is steadily setting new records and many economists believe things will actually get even better in 2021.  The biggest area of uncertainty remains international trade and if that clears up 2020 might even be better than expected.

The “demand side” of the economy will be a little subpar, giving a small break to the supply side.  But when spending improves the supply limitations of low labor force growth and slow productivity growth will diminish, leading to increasing demand for products and services and a demand-supply balance.  Households are growing their incomes slightly more than they are growing their spending.  As a result, the savings rate is moving slowly upward.  That’s ideal, as a higher savings rate puts the economy on a more sustainable path.

Finally, the growth of income and spending has not been as great in 2019 as in 2018 because job gains are lower.  That results from the tight labor market.  Businesses would hire more if they could find additional qualified workers.  Wages have not risen much, so the income growth rate is lower than back in 2018.  However, the jobs picture is solid, leading to good incomes and a positive attitude among most consumers.  Look for them to continue growing their spending moderately in 2020 and into 2021.

Oregon Legislature

Senate Bill 586 Becomes Law on January 1, 2020

When Senate Bill 586 became law on 01/01/20 it amended several landlord-tenant laws.  Most industry representatives feel the new mediation aspects of this Bill are the most important. Notably, the provision that requires mandatory mediation if either the landlord or the tenant initiates a request for mediation.  They are most likely to be disputes relating to compliance with the rental agreement or modifications in the rules or regulations within the community. 

Interestingly, there are a number of types of disputes excluded from mandatory mediation, unless both parties agree otherwise.  They include facility closures, facility sales, rent increases, rent payments and/or amounts due, unauthorized occupants, disputes involving domestic violence or sexual assaults and disputes arising from termination of tenancy under ORS Chapter 90 (Oregon’s Residential Landlord-Tenant Law). 

If a community has a mediation policy, it must include a detailed process and format to initiate mediation, the names and contact information for mediation services made available by the Housing and Community Services Department, a clause stipulating that all communications during the mediation process be held in strict confidence, and it may include specific disputes between the landlord and one or more tenant, or a dispute between two or more tenants. 

All parties must participate in the mediation by making a good faith effort to schedule mediation within (30) days after it is initiated, attending and participating in the mediation process and cooperating with reasonable requests of the mediator. 

Californians Are Moving North

A new study by United Van Lines shows California is ranked among the top 10 of “most moved from states” last year, coming in at number 7.  One of the hot spots people are moving to?  Boise, Idaho.  According to the Boise Valley Economic Partnership, in a span of about five years approximately 7,200 Californians have moved to the Boise area.  And if you have visited Boise recently you can attest to this fact by navigating their increasing crowded roadways, bustling restaurants and newly constructed hotels, motels and shops. 

Forbes Magazine recently named Boise as the fastest growing metro area in the US, crediting the area’s robust tech sector and job growth.  The median home price is Boise is $332,698.  In San Francisco?  $1,325,000. 

Gas prices in Boise are a dollar less than in California and most of the other typical items that make up a family’s cost of living are all significantly less in Idaho.  Also, manufacturers are attracted to the Treasure Valley because of the favorable climate and geological attributes.  Boise is not an area where floods, earthquakes, tornados and hurricanes are a threat, and large companies find that very appealing when investing in large brick-and-mortar factories, data centers and distribution hubs.

Oregon is experiencing the same migration, but it’s been going on much longer.  Californians disproportionally move to southern and central Oregon when compared to other parts of the country.  Southern Oregon has been growing at a rate of about 5% per year, but 12% of net migration is from California.  Most other Californians move to the Portland area and the Willamette Valley.  On average 39,320 Californians move to Oregon annually.  But an average of 19,523 Oregonians also make the move south, leaving Oregon with a net gain of 19,797 new residents from California every year.  Also, in central Oregon, Bend has seen a net gain in population from Washington state in recent years.  This is unusual, but in each of the past few years, central Oregon has gained population from all parts of Washington including the Seattle area and SW Washington. 

THE NORTHWEST BENEFIT

All of this data bodes very well for the housing industry and in particular the manufactured housing industry.  There is a severe housing shortage in Oregon and the Boise, Idaho region, as well as parts of Washington state.  Manufactured housing can provide a quick, affordable, well built and energy efficient housing solution to all these former Californians looking for a better life up north.  This is evidenced by recent reports of increased new and pre-owned manufactured home sales and production. Retailers and manufactures report solid 4th quarter sales and production results in Oregon, Washington and Idaho. 

CrossMod – A New Class of Manufactured Home

The Manufactured Housing Institute – MHI – recently introduced the official name for the new class of manufactured homes.  “CrossMod is a reflection of the industries commitment to elevate the industry by bringing the quality and innovation that can be found in all off-site built housing, including Manufactured Homes, Modular Homes and now CrossMod homes, to even more home buyers” MHI said in a prepared statement.   The term was developed with involvement from multiple professional agencies and teams of industry participants to serve as a mark of distinction for this new HUD code home category. 

“As housing affordability challenges continue to grow, families of all economic backgrounds are searching for attainable, high-quality homes that do not create an unsustainable financial burden.  CrossMod homes are place on a permanent foundation, qualify for conventional financing, help challenge exclusionary zoning ordinances and are virtually undistinguishable from higher-price, site-built options.  Best of all, this new class of off-site built home can be appraised using comparable site-built homes.” 

MHI partnered with market research firm Landor to test a variety of names directly with over 1,000 consumers.  Their impression of the term CrossMod included “modern and sleek”, “combines different models and styles”, “sounds secure and safe” and is an “innovative and smart home”  While just 9% of respondents said they would consider purchasing a manufactured home, 46% said they would purchase a CrossMod. 

Find out more at www.manufacturedhousing.org  

Financing a Manufactured Home Community

The latest interest rates for manufactured housing community financing or refinancing on West Coast remain at or near these rates, which continue to fluctuate and have remained steady in the past few weeks.  Here are some of the lowest rates available for $1 - $10 Million:

Three-year fixed 4.40%, five-year fixed 4.161%, seven-year fixed 4.255%, ten-year fixed, 4.366% and fifteen-year fixed at 4.322%.  ARM’s are as low as 2.9%.  Rates can be found as high as 5.483% for 20-year fixed rate loans and underwriting requires complete and detailed historical operation data. Rate locks are available up to 90-days prior to close in most cases. 

The larger REIT’s and investment funds continue to offer and expand a variety of tax-saving and tax-deferred structures to sellers interested in something other than a 1031 tax-deferred “up leg” exchange or an all-out cash transaction.  Resident purchases are also on the rise.

4th Quarter Production Rises

According to official statistics compiled on behalf of the U.S. Department of Housing and Urban Development (HUD) and verified by the Manufactured Housing Association for Regulatory Reform (MHARR), HUD Code manufactured home production increased in October of 2019 according to the latest reports.  Just released statistics indicate that HUD Code manufacturers produced 9,415 homes in October 2019, up a strong 9.6% from the 8,588 new HUD Code manufactured homes produced during October of 2018. 

On a cumulative basis industry production for 2019 totaled 79,912 HUD Code homes, a decline of 3.6% from the 82,942 HUD Code homes produced during the same period in 2018. While this marks a decline in year-over-year production and shipments and margin has narrowed and industry experts are predicting stronger production and shipment numbers in 2020 as a result of newly introduced products and increased consumer awareness of the affordability and quality of today’s manufactured home. 

For more information on manufactured home communities for sale or an assessment of your community call Bill Jackson of Northwest Park Brokerage at (206) 652-4100 or email Bill at: billj@nwparks.com

Answer: The following answers should not be regarded as "legal advice" since this column is intended to be purely educational and for general information purposes. You need to consult your own attorney for a legal opinion. - You are correct about the law; the limited dealer's license is just for park owners with abandoned homes. There is no provision for dealers with a limited license to sell new homes. According to the law, you need a regular dealer's license. See, ORS 446.696, 446.701 and 446.706. - I am troubled that the DFCS said they thought it was OK for you to sell new homes under a limited license, since limited licenses are for abandoned homes which are (presumably) pre-owned. Having said that, if you wanted to proceed on the DFCS's advice, I suspect that if some official later objected, they would have a hard time taking any punitive measures you're your noncompliance. Of course, you never know. The IRS gives out information all the time, and following their advice is no defense to a violation. Why don't you ask if they will put their verbal statement in writing? - I agree that the law says a dealer under a regular license (as opposed to a limited license) may sell new and used homes (so long as he/she discloses that they will sell used homes in the application). - Note that you do not need a MLO license to sell homes. You may use a real estate broker to list and sell your new homes. The fact that they are sited at your park and later sold does not make them "resales." However, to offer or negotiate the financing terms of a purchase money loan, you would need the services of an Oregon licensed MLO (i.e. a mortgage broker or mortgage banker). The real estate brokers can handle the transaction, write it up, etc., but cannot advertise or negotiate specific financial terms were you to carry the paper. - However, if you are going to require that the buyers secure their own financing (i.e. you are not going to "carry the paper"), I see no reason that you need to worry about MLOs, since you will be selling for cash. You will not be taking payments over time. It will be the buyer's lender who will be acting as the MLO (i.e. the mortgage broker or mortgage banker), and negotiating the terms of the purchase money loan to the buyer. - My reading of Oregon administrative rule 441-446-0203 prohibits dealers from acquiring an ownership interest in a park only appears to apply if you are going to offer or negotiate the terms of a residential mortgage loan, i.e. engage in MLO activities or are doing so under an exemption under the MLO laws. Since buyer financing is going to occur via third-party lenders, I do not believe you are prohibited as a "dealer" from owning an interest in a manufactured housing community. - From my perspective, you would be much safer to have someone with a full dealer's license handle the sales program. The real estate licensee can list the homes, find the buyers, write up the transactions (making them subject to third-party financing, etc.). The dealer can handle the transaction from there. Footnotes: Footnote 1: 446.696 Renewal of dealer license. A manufactured structure dealer license is valid for three years, but the Director of the Department of Consumer and Business Services may adjust the term of an initial license for the purpose of establishing uniform expiration dates. A dealer may renew a license as provided by the director. The director may renew a license only if the dealer: (1) Delivers to the director a bond or letter of credit that meets the requirements under ORS 446.726. (2) Provides evidence acceptable to the director that the dealer obtained a corporate surety bond as provided in ORS 86A.227 if the dealer employs or intends to employ a mortgage loan originator, as defined in ORS 86A.200, or is otherwise subject to ORS 86A.200 to 86A.239. (3) Certifies to the director in a form and manner the director specifies by rule that the dealer has independently verified that every individual the dealer hired or intends to hire as a mortgage loan originator meets the requirements set forth in ORS 86A.200 to 86A.239 and in ORS 86A.186. (4) Pays the fee specified in ORS 446.721 for renewal of a manufactured structure dealer license. (5) Submits a completed application for renewal in a form approved by the director that includes: (a) The name and residence address of the dealer. If the dealer is a firm or partnership, the application must include the names and addresses of the members of the firm or partnership. If the dealer is a corporation, the application must include the names and addresses of the principal officers of the corporation and the name of the state in which the corporation is incorporated. (b) The name under which the business will be conducted. (c) The street address, including city and county in Oregon, where the business will be conducted. (d) If the location of the dealership is being changed at the time of renewal: (A) For a business that will be conducted in a residential zone, a statement by the dealer that all manufactured structures sold or displayed at that address will meet any architectural and aesthetic standards regulating the placement of manufactured structures in that residential zone. (B) For a business that will offer for sale new manufactured structures that are recreational vehicles greater than eight and one-half feet in width, a certificate from the applicant stating that the applicant will maintain a recreational vehicle service facility for those recreational vehicles at a street address provided in the application. (e) Information the director requires to efficiently regulate manufactured structure dealers and dealerships or other relevant information the director requires. [2003 c.655 _29; 2009 c.863 _30] Footnote 2: 446.701 Issuance of temporary manufactured structure dealer license. (1) If a licensed manufactured structure dealer dies or becomes incapacitated, the Department of Consumer and Business Services may issue a temporary manufactured structure dealer license to the executor, administrator or personal representative of the estate of the dealer or to an agent of the dealer approved by the department. A temporary license issued under this subsection expires after six months, but the department may extend the license for good cause. The department may not extend a temporary license if the license has been suspended or the licensee placed on probation by the department. (2) A person issued a temporary manufactured structure dealer license must deliver to the department a bond or letter of credit that meets the requirements under ORS 446.726. A bond or letter of credit covering a license term of less than one year must be for the sum otherwise required for each year a license is valid and must be renewed if the term is extended. The temporary manufactured structure dealer is responsible for ensuring that, during the term of the temporary license, the dealership and its employees comply with ORS 446.661 to 446.756. and rules adopted thereunder. This subsection does not relieve a manufactured structure dealer licensed under ORS 446.691 or 446.696 from liability for a violation arising out of actions or omissions by the dealer. (3) Notwithstanding ORS 446.731: (a) Issuance of a temporary manufactured structure dealer license does not, by itself, affect the rights or interests of any creditors of the dealer in dealership assets or inventory. (b) Issuance or expiration of a temporary license is not a transfer of interest for purposes of ORS 446.736. (4) A person obtaining a temporary manufactured structure dealer license must pay the applicable fee specified in ORS 446.721 for issuance of a temporary manufactured structure dealer license. [2003 c.655 _29a] Footnote 3: 446.706 Limited manufactured structure dealer; licensing. (1) A person who holds a limited manufactured structure dealer license issued under this section may sell during a calendar year up to 10 manufactured dwellings located at a manufactured dwelling park identified in the license. The manufactured dwellings sold under a limited manufactured structure dealer license must be dwellings that: (a) Have been abandoned as described in ORS 90.675 at any manufactured dwelling park. If the manufactured dwelling is not subject to sale by the limited manufactured structure dealer under ORS 90.675 (10), the dealer must have the certificate of title or registration for the dwelling transferred to the dealer prior to offering the dwelling for sale; or (b) Have been purchased by the park owner from a person holding title, and at the time of purchase by the park owner, were sited in the manufactured dwelling park identified in the license. (2) Notwithstanding ORS 90.525, if a limited manufactured structure dealer sells a manufactured dwelling that was abandoned at a manufactured dwelling park other than the park where the dwelling is being sold, the sale terms for the manufactured dwelling must require that the dwelling is to be sited under a rental agreement at the park where sold for at least 12 months following the sale. (3) Except as provided in ORS 446.741, the Director of the Department of Consumer and Business Services shall issue a limited manufactured structure dealer license to a person if the person: (a) Owns or operates a manufactured dwelling park as defined in ORS 446.003; (b) Submits a completed application for a limited manufactured structure dealer license in a form approved by the director; (c) Delivers to the director a bond or letter of credit that meets the requirements under ORS 446.726, except that the bond or letter of credit must be in the sum of $15,000 for each year that the license is valid; (d) Delivers to the director a corporate surety bond that meets the requirements specified in ORS 86A.227 if the person employs or intends to employ a mortgage loan originator, as defined in ORS 86A.200, or is otherwise subject to ORS 86A.200 to 86A.239; (e) Certifies to the director in a form and manner the director specifies by rule that the person has independently verified that every individual the person hired or intends to hire as a mortgage loan originator meets the requirements set forth in ORS 86A.200 to 86A.239 and in ORS 86A.186; (f) Is 18 years of age or older or is legally emancipated; and (g) Pays the fee specified in ORS 446.721 for issuance of a limited manufactured structure dealer license. (4) If the person is a firm or partnership, the application for a limited manufactured structure dealer license must include the names and residence addresses of the members of the firm or partnership. If the person is a corporation, the application must include the names of the principal officers of the corporation and residence addresses of the officers and the name of the state under whose laws the corporation is organized. If the person is the owner of a manufactured dwelling park, the person may submit a joint application on behalf of the person and a named park operator employed by the person. If the person is the operator of a manufactured dwelling park, the application must include the name and signature of the park owner. (5) A limited manufactured structure dealer license is valid for use at a single manufactured dwelling park. The manufactured dwelling park location must be specified in the license application. A limited manufactured structure dealer may not employ a salesperson. (6) A limited manufactured structure dealer license is valid for two years, but the director may adjust the term of an initial license for the purpose of establishing uniform expiration dates. (7) Notwithstanding subsection (6) of this section, the limited manufactured structure dealer license for the person expires immediately if the person ceases to be an operator or owner of the manufactured dwelling park at which the license may be used. The owner of a manufactured dwelling park shall immediately notify the director if a person licensed under this section ceases to be an owner or operator of a manufactured dwelling park at which the license may be used. (8) Notwithstanding subsections (6) and (7) of this section, if a licensed person ceases to be an operator of the manufactured dwelling park, the park owner may apply to have a corrected license issued to a new operator employed by the owner. A corrected license issued under this subsection is valid for the unexpired portion of the original license term. The director shall charge the fee specified in ORS 446.721 for issuing a corrected license. (9) A limited manufactured structure dealer may renew a license as provided by the director. The director shall renew a license only if the dealer: (a) Submits a completed application for renewal in a form approved by the director; (b) Delivers to the department a bond or letter of credit that meets the requirements described in subsection (3) of this section; and (c) Pays the fee specified in ORS 446.721 for renewal of a limited manufactured structure dealer license. [2003

1. ADVERTISING. Advertising is one of the most common ways landlords find people to place in rental properties. When advertising, landlord clients should describe property attributes and/or amenities, not what they are or are not looking for in a resident. Landlords should not say "great for a young couple" as it may be considered discriminatory to families with children. Nor should landlords say "safe" or "exclusive" as this may imply they only rent to certain groups. At the end of the advertisement, landlords should use either the fair housing logo or a disclaimer such as "This community does not discriminate on the basis of race, color, religion, national origin, sex, disability or familial status." Photographs need to be carefully considered before use in advertising and only after speaking with an attorney.

2. STEERING. "Steering" occurs when a landlord attempts to direct a resident, for whatever reason, to a specific area of the property. To help avoid claims of "steering" by a prospective resident, landlords should show all available properties to prospects, let the prospect decide what to see and what to skip, and finally present only facts about the property and the community, not about other residents or neighbors. Landlords should never say "you would really like this particular apartment because it is nice and quiet with few children around", or "there are lots of other children in the same age group as your own" as both statements may be considered a violation of fair housing law. Failing to show a handicapped person the recreational areas (on the assumption the prospect would not use those facilities) may create potential liability. However, if a prospective resident expressly states they are not interested in seeing a specific area it is okay to skip that area. Even if asked, landlords should never comment on the "types" of persons who live in the community.

3. SCREENING/APPLICATIONS. Fair housing claims arise frequently as a result of the application and screening process. Landlords should have a written rental policy detailing the criteria necessary for approval to live in their property. The rental policy should include occupancy guidelines, availability policy, rental criteria (i.e. employment history/income, credit standards, etc.) with an explanation of what the criteria are, an outline of the application process and that your client adheres to all applicable fair housing laws. Questions included on the application should not ask about physical or mental disabilities, and landlords should limit questions about drug/alcohol use and lawsuits. Asking questions regarding prior evictions, prior money judgments, bankruptcy and why prospective residents are leaving their current landlord are acceptable and may provide important information. Once a written policy is created, the landlord should expect strict adherence and compliance with the written policy. Additionally, landlords need to keep good records of each applicant or inquiry. However, if an applicant requests a deviation from the written policy based on a disability, the landlord should consult you immediately before making a decision.

4. OCCUPANCY STANDARDS. In 1996 Congress enacted a law based upon a 1991 HUD memo stating that a 2-person-per-bedroom occupancy standard was acceptable in most situations. This is by no means a hard and fast rule with regard to the number of occupants for a particular residence. This figure can change depending on how the property is laid out. More occupants may be allowed if there are unusually large living spaces or bedrooms, and fewer occupants if the opposite holds true. Many fair housing experts believe that infants do not count when calculating occupancy standards.

5. APARTMENT RULES. It is absolutely acceptable for a landlord to have a set of "house rules" for all residents to live by. The house rules should be basic and non-discriminatory. Rules should be written so they are applicable to all residents and not just specific groups of residents. Rules stating "Children shall not roughhouse in the hallway" may be discriminatory. Using general terms such as "Residents or guests" should keep the rule unbiased, fair and applicable to all residents. Rules must be enforced uniformly against all residents and records regarding rule violations need to be kept. The records should include the time/date and manner of the violation, how the landlord became aware of the violation and what actions were taken to enforce the rule. As a special note, pool rules should be carefully scrutinized to insure they do not discriminate against children. A rule saying "no children under 4 in the pool area" is discriminatory, while a rule saying "children under 12 must be supervised by an adult over 18" is likely not discriminatory. As always, landlords should consult you for specific state or local laws on these issues as well.

6. REASONABLE ACCOMODATION. A reasonable accommodation is at the resident's request and when a client voluntarily makes exceptions to their standard rules/policies to accommodate the resident's disability. The requested accommodation must be reasonable and should not present an undue burden on the landlord. If the accommodation is not reasonable or if it would impose an undue hardship on the landlord, the request may be denied. If the request is denied a letter should be sent to the resident explaining the denial, the facts behind the denial, how those facts were discovered and offering to meet with the resident. Landlords should not offer to make an accommodation to a resident but should wait for a resident to request the accommodation. Offering an accommodation before it is requested may subject your client to a claim of discrimination.

7. REASONABLE MODIFICATION. This should not be confused with a reasonable accommodation. Landlords may require a resident to pay for modifications to the property and require that those modifications be removed when the resident vacates the property. If the modification were for something that federal law already requires a landlord to have in place then the landlord would be responsible for the cost of the modifications. Landlords should check with you to determine where financial responsibility for common-area modifications lay, and whether the resident would be responsible for both the installation and removal of the modifications. As with accommodations, the modifications must be reasonable.

8. RECORD KEEPING. Landlords need to keep records on all prospective residents, in addition to current/past residents. Landlords can create a system of guest cards or logs with relevant information (i.e. date/time of visit, properties shown, prospective move-in date, etc.) as well as a log of all calls made by prospective residents, even if the resident never comes to see the property. Records regarding available properties also need to be kept and updated every time there is a change in availability. Additionally, all applications should be retained, even if the applications were rejected or withdrawn. Landlords should contact you regarding how long the records should be saved in order to comply with changing requirements in federal and state law, as well as what types of records to maintain. Being able to produce consistent records showing nondiscriminatory application of written screening criteria in every case can usually successfully defend a Fair Housing claim.

9. EMPLOYEE TRAINING. Landlords need to ensure that there is a written policy to avoid claims for harassment, particularly sexual harassment. Every time a new employee joins the staff there should be a training meeting about fair housing laws and how to comply with them. The meeting should include copies of all memos regarding policies about how to comply with fair housing, what can happen to the landlord for a violation and what will happen to the employee who violates fair housing.

10. EVICTION. Landlords should not be afraid to evict a resident for legitimate reasons because of a fear of a fair housing violation claim. The rules set by the landlord apply to all residents equally. When contemplating an eviction for other than non-payment of rent advise your client to ask themselves the following two questions: (1) Has there been a serious violation of the lease agreement? (2) Do you and have you evicted other residents for the same type of problems or behavior? If the answer to these questions is yes, then an eviction would be warranted under the circumstances. Resident files should contain records of all complaints against the resident and what has been done in response to each of the complaints. HUD has historically looked for five types of documentation when dealing with fair housing claims. Landlords should document and include in resident files the following information: (1) warning letters/eviction notices, (2) written complaints by third parties, (3) written logs kept by management, (4) police records and (5) photographs. Resident file documentation needs to be consistent for all residents. This documentation may prove there was a legitimate reason, unrelated to any fair housing claims, for evicting the resident.

All information contained in this article is consistent with the Fair Housing Act (42 U.S.C.A. 3601 et seq.) Information was also obtained from the Federal Housing and Urban Development website ( http://www.hud.gov).

Kristi Bunge is a partner with the law firm of Springman, Braden, Wilson & Pontius, PC in Denver, Colorado, a firm that handles more than 500 evictions each month. Ms Bunge focuses on representing landlords in eviction and collection matters. Ms Bunge also represents property managers and Associations, advising them on Community Association issues.

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Act, if they have a disproportionately "adverse impact" on certain members of a protected class, i.e. those falling into the following groups: Race, color, religion, sex, disability, familial status or national origin.  The simplest explanation of how disparate impact works is by the following example: 

A landlord may be found to have discriminated against a prospective tenant, not because of an intentional discriminatory act, such as rejecting him or her based upon race or religion, but unintentionally, because the landlord relied upon a perfectly legal basis, except that it had a disproportionately adverse impact on members of a protected class.  Proof of the “disproportional impact” is usually based upon some statistical correlation showing that a certain class of protected persons are impacted more than others. In other words, unintentional discrimination can be found to be a violation of the Act.

According to the Memo (footnotes omitted): 

Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability). Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).

The purpose of the Memo is to issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result. 

MHCO has closely reviewed the Memo and will be providing further guidance shortly. In the meantime, this article is a “heads-up” to landlords and managers regarding the use of criminal background checks in light of the Memo. It is preliminary only, and not intended as “legal advice”. MHCO members should consult their own legal counsel for advice relating to their particular situation. 

Summary of Thoughts and Suggestions.  Here are some tips based upon information from the Memo: 

1. 1.    Beware of testers, calling over the phone and asking if you will rent to persons with a criminal background. Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address. 

1. 2.    Ultimately, members should plan on making adjustments in their rules and application process.  MHCO will elaborate on this further in a future article.

1. 3.    Do not have a rule or policy that treats arrests, with no conviction, the same as a conviction. If you currently have such a rule, it should not be enforced.

1. 4.    Do not have a blanket guideline providing, for example, that conviction for any crime is an automatic denial.

1. 5.    Be sure that all rules or policies concerning criminal records are uniformly enforced – no exceptions.  However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violence over the past five years.

1. 6.    If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these criteria, then the rejection can be based on that, thus avoiding the use of criminal background reports and disparate impact issues entirely.

1. 7.    In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before making a decision to reject a prospective tenant based upon criminal history. For example:

1. 1. a.    How long ago was the conviction? (Convictions over 6-7 years old, with no further convictions, in most cases should probably not be used as the basis for a denial (excluding registered sex offenders, or those convicted for violent crimes).

1. 1. b.    What has the person been doing since release?

1. 1. c.    Has the person been convicted once, or on multiple occasions?

1. 1. d.    What was the nature and severity of the crime? 

1. 1. 8.    Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (not mere possession) of a federally defined controlled substance is immune from a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent to a prospective tenant based upon his or her conviction for manufacture or distribution will not result in a violation of the Act, based upon disparate impact. Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

1. 1. 9.    ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all. And where there is similarity, Oregon law does not go as far as the Memo on the issue of criminal records and disparate impact. Oregon’s statute provides:

(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168 (Oregon’s eviction statutes – PCQ) if the action:

      (a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application.

      (b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application.

(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application.

(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is:

     (a) A drug-related crime;

     (b) A person crime;

     (c) A sex offense;

     (d) A crime involving financial fraud, including identity theft and forgery; or

     (e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect:

         (A) Property of the landlord or a tenant; or

         (B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent. 

1. 1. 10.    Readers should not assume that compliance with ORS 90.303 means that a denial of tenancy could not result in a disparate impact claim.  In other words, landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  

Here are some considerations to keep in mind:

1. 1. a.    The Memo and ORS 90.303 both prohibit screening applicants for arrests, regardless of the conduct that led to the arrest;
   2. b.    ORS 90.303 says that an arrest which has not been dismissed, but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (a) When the matter will be resolved, e.g. a week, a month, or a year? (b) What was the charge? (c) If convicted, would the applicant automatically be denied?  As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds. If so, there is no need to rely upon the community’s criminal background policy to vet an applicant. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason, versus a stronger one, can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases. 
   3. c.    ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo.
   4. d.    Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred, or require an evaluation of what the applicant had been doing since the conviction. (i.e. evidence of rehabilitation). The General Landlord-Tenant Coalition could not reach agreement on whether to use a five or seven year standard in the statute, nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this. Footnote 34 of the Memo cites to the following authority, which mentions six to seven years: 

“(S)ee, Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven years without reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record).”

Conclusion.  Landlords and managers could be forgiven for feeling they are caught in a dilemma. If they follow Oregon law, it may not be enough – but at least the statutes are black and white. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines”. Perhaps most unsettling, now a good faith effort to comply with the tenant application process is not enough. Unintentional discrimination, now known under the more benign title, “disparate impact”, is more of a concept than a law, since it does not depend upon one’s overt actions,  - however well intended - but upon the long term “consequences” of those actions based upon inferred and empirical statistics derived from academic writings, analysis, surveys, footnotes, and demographics. Is this something landlords and managers can or should be expected to fully appreciate and understand?  The best we can do today is to keep alert to the issue. MHCO will have more on this minefield in coming articles.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) makes it illegal to discriminate on the basis of race, color, religion, sex, familial status, national origin, or disability. The vast majority of undocumented alien discrimination cases involve exclusion of people who aren’t legal citizens of the U.S. The question: Is this legal?

Damned If You Do: How the FHA Applies to Undocumented Aliens

Notice that citizenship and immigration status aren’t on the list of FHA “protected classes.” In January 2003, the U.S. Department of Housing and Urban Development issued a memo clarifying that the FHA “does not prohibit discrimination based solely on a person’s citizenship status.” Nor does the law bar discrimination based on “immigration status or resident alien” status, the HUD memo adds. In other words, people who are in this country illegally can’t sue for discrimination under the FHA if that’s the sole reason they experience discrimination.  

However, there’s more to the story. Undocumented aliens and non-U.S. citizens who get excluded may have valid grounds to sue for other forms of discrimination, including religion, race, and especially national origin. Rule: FHA protections extend to every person in the U.S., regardless of their immigration or citizenship status. Stated differently, a person doesn’t have to be a U.S. citizen to sue for discrimination.

Example: A Virginia townhouse community rejected a resident alien couple because they weren’t U.S. citizens. The couple sued, and the federal court ruled that they had a valid FHA claim for national origin discrimination. A citizenship requirement may be part of a wider scheme to exclude persons based on their national origin, the court reasoned [Espinoza v. Hillwood Square Mut. Ass'n, 522 F. Supp. 559 (E.D. Va. 1981)].

Of course, the same principles could apply to other protected classes. Thus, for example, a citizenship requirement may also constitute discrimination on the basis of race, color, religion, sex, familial status, national origin, or disability.

Refusing to rent to non-U.S. citizens may also violate other federal civil rights laws. For example, people who aren’t U.S. citizens may be permanent legal residents with “Green Cards” who enjoy nearly all the same rights as citizens to live and work in the country.

In addition to federal laws, landlords must comply with any stricter requirements under state and local fair housing laws. And immigration status is a protected class in some states and municipalities. For example, California makes it illegal to inquire into an applicant’s immigration status; New York City bans discrimination on the basis of “alienage or citizenship status.”

DEEP DIVE

Anti-Harboring Laws

Federal and some states’ immigration laws make it a crime to “harbor” undocumented aliens. However, most courts have ruled that the laws don’t penalize landlords for simply renting housing to people without regard to their immigration status.

Example: In February 2017, a Texas federal appeals court ruled against two landlords who were willing to rent to persons regardless of immigration status but feared they might be prosecuted for “harboring” illegal aliens under state law. The lower court agreed and issued a temporary ban on Texas’s enforcement of the law. But the appeals court lifted the ban and dismissed the case, saying there’s a distinction between “harboring” and simply renting to an undocumented alien [Cruz v. Abbott, February 2017].

Damned If You Don’t: The Liability Risks of Not Screening Applicants’ Immigration/Citizenship Status

Here’s where things get tricky. While screening on the basis of immigration or citizenship status is problematic for conventional housing, it’s actually required for some forms of federally assisted housing. Thus, for example, landlords participating in the Section 8 program are obligated to ask and confirm that applicants and tenants are permanent U.S. citizens or hold some other lawful immigration status.

There are also states and municipalities where landlords are required to verify applicants’ immigration status or face severe penalties, including stiff fines and loss of their business license to operate.

Bottom Line: It’s crucial to consult an attorney and be aware of the fair housing requirements of your particular jurisdiction in determining your policies and protocols for screening and leasing to immigrants.

7 RULES FOR AVOIDING DISCRIMINATION AGAINST IMMIGRANTS

Once you sort out the basic legal landscape, you need to establish clear policies on leasing to undocumented aliens and train your leasing and management staff to implement them consistently. Here are the seven rules to cover in your training.

Rule #1: Ensure Nondiscriminatory Justification for Citizenship Screening

Technically, unless you live in a state or municipality that prohibits it, screening applicants’ citizenship and/or immigration status isn’t illegal; it might even be required. However, there are risks you must avoid if you adopt such a policy.

First, you need a legitimate, nondiscriminatory and documented business justification for making citizenship or immigration status a qualifying criterion. Doing it because the law requires it is one example. But also keep in mind that the vast majority of undocumented aliens in the U.S. belong to a minority racial, religious, and/or nationality group. Accordingly, stereotypes about undocumented aliens being troublemakers or not paying rent open the door to discrimination on the basis of religion, race, and national origin. Thus, for example, refusing to rent to immigrants because they “can’t keep a steady job” may be deemed a pretext for excluding certain nationalities, particularly in properties located near the Mexican border or on the West Coast where there are large numbers of Asian immigrants.

Rule #2: Apply Screening Policy Consistently

Whatever screening approach you adopt, you must apply it consistently. Just having a principled and justified policy requiring rental applicants to verify their U.S. citizenship won’t protect you if you follow it in some cases but not others. The 2003 HUD memo uses the following example to illustrate the fair housing liability risks of an inconsistent citizenship or immigration status screening policy.  

Example: A person from the Middle East applies for an apartment. Because he’s from the Middle East, the landlord requires him to provide additional information and forms of identification and refuses to rent him the apartment. Later, somebody from Europe applies for an apartment at the same complex. Because the person is from Europe, the landlord rents him the apartment without making him complete additional paperwork or verify the information on the application and rents the apartment. This would be disparate treatment on the basis of national origin.  

Implementation Strategy: The only way to ensure the consistency necessary for compliance is to have clearly written policies that explain why you screen for citizenship and/or immigration status along with procedures and protocols for implementing them. What you must guard against, above all, is allowing leasing staff to ask questions or make decisions about whether to screen particular applicants based on their appearance, accent, apparel, etc.

Rule #3: Ask for the Right Kind of Proof

If you do decide to screen for citizenship and/or immigration status, you need specific procedures and protocols to do it properly. You don’t have to take applicants at their word and have the right to request information enabling you to verify their status. Again, consistency is the key. If you ask one applicant for documentation, you must ask all applicants for it. You must also be careful to request the right information. Acceptable proof depends on whether you’re seeking to verify an applicant’s status as a citizen, immigrant, or nonimmigrant:

• Citizenship: Acceptable proof of U.S. citizenship includes a valid current U.S. passport, birth certificate, or certificate of naturalization;
• Legal immigrant: Proof of legal immigrant status—that is, noncitizens who have the right to permanently remain in the U.S., include a Permanent Resident Card (a.k.a., “Green Card”) and an official Social Security number;
• Legal nonimmigrants: Legal nonimmigrants are persons who are allowed to be in the U.S. on a temporary basis for specific reasons. Such applicants should have a non-U.S. passport from their native country along with a Form I-94 (a.k.a., Arrival Departure Record, or Entry Permit listing when they entered the U.S. and how long they have a right to stay). They also need a visa, such as an F-1 visa for students, unless they’re from one of the countries that has signed a visa waiver agreement with the U.S.

Rule #4: Apply Your Normal Screening Standards to Immigrants

There’s no rule requiring landlords to make special concessions for applicants based on their citizenship or immigration status. In other words, you may require verification of identity (such as a driver’s license, passport, or other form of government ID), financial and rental history, and other legitimate qualifications that you use to screen any other applicant.

It’s standard practice to ask applicants for Social Security numbers (SSNs). This is okay, especially since many screening companies require an SSN to perform tenant screening, such as credit and criminal background checks. But don’t automatically reject applicants because they don’t have SSNs. Explanation: Not having an SSN doesn’t necessarily mean the applicant is in the country illegally. Noncitizens need to get SSNs only if they want to work in the U.S. And tenant screening companies may still be able to vet their qualifications even without an SSN using alternative information, such as the applicant’s name, date of birth, and last known address.

Also, note that unauthorized immigrants may obtain drivers’ licenses in at least 16 states and the District of Columbia (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Massachusetts, Nevada, New Jersey, New York, Oregon, Utah, Vermont, Virginia, and Washington).

Coach’s Tip: Contact an immigration attorney, the U.S. Bureau of Citizenship and Immigration Services (BCIS), or State Department if you’re unclear about documentation requirements or have questions about the documentation of legal immigration that an applicant presents to you.

Rule #5: Don’t Make Ability to Speak English a Rental Criterion

In September 2016, HUD issued guidance confirming what several courts had previously ruled—namely, that excluding applicants or tenants based on their limited English proficiency (LEP) violates the FHA. Explanation: Statistically, most LEP people come from a country other than the U.S. Thus, disqualifying people because they’re LEP has the effect of discriminating on the basis of national origin (and, in some cases, race and/or religion). Discriminatory practices to avoid include:

• Imposing an English-speaking language-related requirement on people of certain races or nationalities;
• Posting ads that contain blanket statements, such as “all tenants must speak English”; or
• Immediately turning away applicants because they’re not fluent in English.

Example: In 2013, HUD ordered a Virginia property management company to pay $82,500 to settle allegations of not letting a Hispanic woman apply for an apartment. According to the complaint, the company refused to give her a rental application because she didn’t speak fluent English even though she brought along a bilingual person to act as translator. HUD investigators also found that the company actually had a written policy requiring all prospects to be able to communicate with management in English without help from others [Travsiňa v. Virginia Realty Company of Tidewater, Inc., FHEO Case Numbers 03-11-0424-8].

Strategic Pointer: It’s imperative to ensure that leasing, management, and other staff remain calm, patient, poised, and professional at all times when dealing with LEP people. Giving in to frustration, even if it’s just a momentary and isolated lapse, may result in comments and actions that serve as Exhibit A in an intentional discrimination case against you.

Example: In 2017, the owner and manager of a California community had to shell out $20,000 to settle claims of national origin discrimination against Latino tenants. The turning point came when a local fair housing group joined the case bringing along evidence showing that the manager repeatedly made statements about not liking having Latino tenants at the community because they didn’t speak English.

For more guidance on this topic, see the Coach’s July 2021 issue, How to Avoid Discriminating Against People with Limited English Proficiency.

Rule #6: Don’t Use Tenant’s Immigration Status as a Bargaining Chip

Citizenship and immigration status liability issues can arise not only during the leasing process but also in the context of dealing with current tenants. One common example is seeking to use that status to extort a rental or other concession from the tenant. In 2012, HUD issued guidance (in the form of FAQs) clarifying that it’s “illegal to coerce, intimidate, threaten, or interfere with a person’s exercise or enjoyment of” FHA rights. “This includes threats to report a person to U.S. Immigration and Customs Enforcement (ICE)” to get them to move out or accept unfavorable treatment, or in retaliation for reporting housing discrimination to HUD.

Example: A married couple sued their landlord for threatening to report them to federal immigration authorities if they didn’t move out within a matter of days. They also claimed the landlord threatened to report their attorney to the California Bar for illegally advocating on behalf of tenants it perceived to be undocumented. In April 2020, the landlord agreed to pay $250,000 in damages and attorney’s fees to resolve the allegations of national origin discrimination [DFEH settlement announcement, April 22, 2020].

Rule #7: Protect Immigrant Tenants from Harassment

Immigrant tenants may become a target for harassment, intimidation, and abuse by property staff and neighboring tenants. Regrettably, the emergence of immigration as a divisive political issue in recent years has made such behavior a more widespread problem in the context of not only rental housing but many other aspects of social activity. And to the extent it’s typically based on a tenant’s national origin, race, or religion, landlords that engage in or allow others to engage in such harassment are at risk of liability for interfering with tenants’ use and enjoyment of the property they lease.

Strategic Pointer: Preventing harassment is the bare minimum. Achieving true compliance requires a shift in culture, one in which nationality, racial, and religious differences are not only tolerated but appreciated and respected, if not actively embraced. Staff training should strongly emphasize professionalism and the need to respect the diverse ethnic and cultural differences among prospects, applicants, and tenants.

To accomplish this requires cultural sensitivity and awareness of how well intentioned and seemingly innocent acts and statements may be considered offensive to persons of different national, ethnic, or religious backgrounds.

Example: Training of maintenance and other staffers who may enter into a tenant’s apartment should emphasize that removing one’s shoes before entering another person’s home is an essential protocol of respect in some cultures.

Also train staff to avoid asking people about their accents or where they come from. While such questions might be the product of genuine curiosity or desire to engage on a personal level, they may also be construed as a form of illegal inquiry, especially if they’re accompanied by clumsy or insensitive remarks.

Example: In an attempt to make casual conversation, a real estate broker married to a Brazilian woman asked the wife of a married couple where she was from. What the broker didn’t know was that the wife, who was from Venezuela, felt as if she had just been denied a rental at another property because of her national origin. “Here we go again,” she thought when the broker asked the question. She was convinced that they had just lost a rental opportunity because of her national origin and that it was happening again. The couple filed a discrimination complaint. Result: The broker was found liable for discrimination and ordered to pay $76,500. The Massachusetts appeals court upheld the ruling—although it did reduce the damages [Linder v. Boston Fair Housing Commission, February 2014].