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WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability.

In general, fair housing law targets housing practices that exclude or otherwise discriminate against anyone because of his or her race or other protected class. Owners, managers, and individual employees all may be held liable for discriminatory housing practices, including:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures;
• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms;
• Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
• Assigning residents to a particular section of a community or floor of a building;
• Providing different housing services or facilities, such as access to community facilities; and
• Failing to provide or delaying maintenance or repairs.

In addition, the FHA prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right. It’s also unlawful to advertise or make statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status.

FROM THE COURTS

HARASSMENT: Community Accused of Ignoring Tenant-on-Tenant Racial Harassment

In December 2019, a federal appeals court ruled that a New York community could be liable under the FHA for failure to do anything to stop an alleged campaign of racial harassment against an African-American resident by his neighbor. Last year, the Coach highlighted a previous ruling in this case, but the opinion was later withdrawn without explanation.

ALLEGATIONS: In his complaint, the resident alleged that his next-door neighbor began a relentless campaign of racial harassment, abuse, and threats directed toward him several months after he moved to the community.

After the first incident, the resident said he feared for his safety and contacted the police. In response, officers in the hate crimes unit visited the site, interviewed witnesses, and warned the neighbor to stop threatening the resident with racial epithets. According to the resident, he filed a police report, and a police officer told the management about the neighbor’s conduct. Allegedly, the management did nothing.

A few months later, the resident said he called the police and filed another police report. This time, the resident said he provided written notice to management about his neighbor’s racial harassment and provided contact information for the police officers responsible for investigating the neighbor. Allegedly, the management still took no action.

Nevertheless, the neighbor’s conduct allegedly persisted to the point that the police arrested him for aggravated harassment. The resident said he again notified management of the continued racial slurs directed to him and the fact that the neighbor had been arrested for harassment.

A month later, the resident said he contacted the police and sent the management group a third letter complaining about his neighbor’s continued harassment. After receiving the letter, according to the complaint, the management group advised the site manager “not to get involved,” and the management group declined to respond or follow up.

Allegedly, the neighbor was allowed to stay in his unit until his lease expired. A few months later, the neighbor pleaded guilty to harassment and a court entered an order of protection prohibiting him from contacting the resident.

The resident sued, accusing the owner and manager of violating fair housing law by failing to take action to address a racially hostile housing environment created by his neighbor. A district court ruled against the resident and dismissed the case.

DECISION: Reversed; case sent back for further proceedings.

REASONING: The resident was entitled to pursue his claims under the FHA against the community for intentionally discriminating against a resident by failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment.

At this stage of the proceedings, the court was required to read the complaint in the light most favorable to the resident. If everything he said were true, the resident’s complaint adequately alleged that the owners and managers engaged in intentional racial discrimination. Specifically, the complaint alleged that the owners and managers discriminated against the resident by tolerating and/or facilitating a hostile environment, even though they had authority to “counsel, discipline, or evict [the neighbor] due to his continued harassment of [the resident],” and also had “intervened against other tenants at [the site] regarding non-race-related violations of their leases or of the law.”

In other words, the court said, the resident adequately alleged that the owners and managers were actually aware of the neighbor’s criminal racial harassment of the resident—harassment so severe that it resulted in police warnings and the arrest and eventual conviction of the neighbor—“and that management intentionally refused to address the harassment because it was based on race even though they had addressed non-race-related issues in the past, including, it was reasonable to infer, tenant-on-tenant harassment” [emphasis in original]. Accepting these allegations as true, the defendants subjected the resident to conduct that the FHA forbids.

In further proceedings, the defendants may be able to show that they tried and failed to address the resident’s complaints. Or it may unfold that the management also declined to address other, similar complaints unrelated to race, or that they were powerless to address the neighbor’s conduct. But the resident was entitled to further proceedings to resolve these issues [Francis v. King Park Manor, Inc., December 2019].

TREND TAKEAWAY: Federal fair housing law bans not only sexual harassment, but also harassment based on race, national origin, or other protected characteristics. As a general rule, community owners may be liable for illegal harassment by managers or employees when they knew or should have known about it but failed to do enough to stop it.

You should take all necessary steps to prevent—and address—discrimination or harassment at the community. Aside from ensuring that your policies and procedures conform to fair housing law, you can reduce the likelihood of a complaint by properly training and supervising all employees—not only managers and leasing staff, but also maintenance workers and anyone else who interacts with the public. And be particularly careful when hiring and supervising outside contractors or anyone else who could be considered your agent.

You don’t have only your employees or other staff member to worry about—you could face liability for tenant-on-tenant harassment under certain circumstances. According to HUD regulations, communities may be liable under the FHA for failure to take prompt action to correct and end a discriminatory housing practice by a third party, where the community knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third party depends upon the extent of your control or any other legal responsibility you may have with respect to the third party’s conduct.

Example: In November 2019, HUD announced that it reached an $80,000 settlement to resolve allegations that the owners and management agent of an apartment complex in Savannah, Ga., subjected African-American residents to repeated instances of racial harassment by white residents, which included verbal attacks and physical assaults.

The case came to HUD’s attention when three African-American residents filed complaints claiming that the owners of the property refused to investigate and address their claims that white residents had subjected them to racial harassment and verbal and physical assaults, including attacks by dogs. The residents also alleged that the property’s management ignored their maintenance requests and delayed the maintenance requests of other African-American residents. The housing provider denied discriminating against the residents but agreed to settle their complaints.

Under the terms of the agreement, the owner and management company agreed to pay $20,000 to each of the three residents who filed complaints and create a $20,000 fund to compensate other residents who may have been subjected to racial harassment. The owners also agreed to provide annual fair housing training for the staff and on-site management at the community.

“No one should ever have to face threats or be subjected to physical violence in the place they call home because of their race,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “The agreement we’re announcing today is a reminder to housing providers everywhere that HUD is committed to ensuring that they meet their obligation to comply with the nation’s fair housing laws” [Conciliation/Voluntary Compliance Agreement with Oglethorpe Square Apartments, LP, of Savannah, GA, and Gene B. Glick Company, Inc., of Indianapolis, IN].

DISABILITY: Is Community Required to Grant Reasonable Accommodation Request for Exception to Minimum Income Standards?

In September 2019, a federal appeals court ruled that a Florida housing provider may be required to accept other forms of income as a reasonable accommodation to allow an applicant with a disability to qualify for housing.

ALLEGATIONS: In his complaint, the applicant alleged that shortly after graduating from high school, he was in a wrestling accident that left him completely paralyzed. His housing was inadequate to accommodate his quadriplegia because it wasn’t wheelchair accessible. After seeing an ad about Habitat for Humanity, a nonprofit that builds new homes for low-income individuals, he decided to apply.

When he met with a representative, he learned that Habitat imposed a minimum gross annual income requirement of $10,170, presumably to ensure that potential homeowners would be able to pay their mortgages. According to the applicant, his disability prevented him from working, so his main source of income was a Social Security Disability Insurance stipend of $778 per month, which equates to a gross annual income of $9,336. Given the fixed amount of his SSDI, he asked Habitat to consider one of two other sources of income toward its requirement—either the $194 per month in food stamps or the $100 per month he received from his father—either of which would be enough to get him over the minimal income threshold. After reviewing his application, Habitat allegedly said it couldn’t accept either of the two additional sources of income.

After efforts to negotiate a compromise were unsuccessful, the applicant sued Habitat for violating the FHA by denying his reasonable accommodation request to accept either his food stamps or familial support as income for purposes of qualifying for the housing.

After pretrial proceedings, both parties asked the court for judgment without a trial. Siding with Habitat, the court dismissed the case, ruling that the applicant’s accommodation request wasn’t necessary under the FHA because it was related solely to his financial condition, not his disability.

The applicant appealed.

DECISION: Reversed in part; sent back for further proceedings.

REASONING: The applicant was entitled to further proceedings on his claim that Habitat violated fair housing law by denying his reasonable accommodation request to consider supplemental forms of income for purposes of qualifying for housing.

To establish liability for failure to accommodate under the FHA, the applicant had to show that:

1.       He was disabled within the meaning of the FHA;

2.       He requested a reasonable accommodation;

3.       The requested accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling; and

4.       The housing provider refused to make the requested accommodation.

The first and fourth elements of the claim were undisputed—no one disputed that the applicant was disabled, or that Habitat refused to accommodate his request to consider his supplemental sources of income. At issue were the middle two: whether the accommodation he requested was “reasonable” and whether it was necessary to afford him an equal opportunity to use and enjoy a dwelling. In earlier proceedings, the lower court skipped the first question and decided the case solely on the basis of the second.

To determine whether his request was reasonable, the first step was to determine whether the applicant demonstrated that his requested accommodation was of a type likely to be reasonable in the run of cases. The court ruled that he did—he wasn’t asking Habitat to lower its minimum-income requirement or accept anything less than usual in terms of payment or interest. Instead, the applicant, who was unable to work, asked Habitat to accept proof that he brought in the same amount of money as any other Habitat homeowner, but in a different form.

That shifted the burden to Habitat to show that the applicant’s request was unreasonable by imposing an undue burden on Habitat or fundamentally altering Habitat’s program. Further proceedings were needed to resolve this issue.

The second question was whether the applicant’s requested accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling. Under fair housing law, a “necessary” accommodation is one that alleviates the effects of the disability. An accommodation addressing an inability to demonstrate wages earned could in some cases be necessary—that is, could alleviate the effects of a disability. Consequently, the lower court should have considered whether the applicant’s inability to demonstrate the minimum required income through W-2 wages was an effect of his disability.

A separate, but related issue was whether the requested accommodation was necessary to afford him an equal opportunity to enjoy the dwelling. He wasn’t entitled to an accommodation that would put him in a better position than a member of the general public. The applicant said he wasn’t asking Habitat to lower its income requirements or pay anything less than other applicants—his accommodation request involved only the form of payment, not the amount. In contrast, Habitat said that he was seeking an advantage that wasn’t available to other applicants. Further proceedings were needed to determine whether the requested accommodation would provide the applicant with an opportunity to enjoy a dwelling that would otherwise—due to his disability—elude him [Schaw v. Habitat for Humanity of Citrus County, Inc., Florida, September 2019].

TREND TAKEAWAY: Carefully consider requests by individuals with disabilities for reasonable accommodations to your financial screening requirements. In general, you don’t have to excuse individuals with disabilities from meeting minimum income standards or verifying their income, but you may have to be flexible when it comes to how they satisfy those requirements.

Example: In June 2019, a court ruled that an Arkansas community had to pay damages for denying a reasonable accommodation request by a disabled woman and her mother who couldn’t produce the documentation required under the community income-verification policies. In lieu of the necessary paperwork, the woman submitted documentation from the Social Security Administration showing the mother’s retirement benefits and her disability benefits, along with income received from a rental property, but the community wouldn’t accept the alternative documentation to verify their income. The court ruled that the community violated fair housing law by denying an accommodation that was both reasonable and necessary for an equal opportunity to use and enjoy a dwelling [Edwards v. Gene Salter Properties, Arkansas, June 2019].

SETTLEMENTS

CRIMINAL SCREENING POLICIES: Landmark $1.1M Settlement Reached in Fair Housing Case Challenging Alleged Criminal Record Ban

In November 2019, the owners and operators of a 900-unit apartment complex in Queens, N.Y., agreed to pay $1,187,500 to settle a lawsuit alleging that the community violated the FHA by refusing to rent to people with criminal records.

The lawsuit was filed by the Fortune Society, a New York not-for-profit organization that provided housing and other services to formerly incarcerated individuals. In its complaint filed in 2014, Fortune alleged that when it tried to rent apartments for its clients at the community in 2013 and 2014, the community refused because of its policy of prohibiting anyone with a criminal record from living there. Fortune alleged that the policy unlawfully discriminated because it disproportionately barred African Americans and Latinos from housing without considering each potential tenant’s individual history and circumstances.

The settlement follows a July 2019 court ruling denying the community’s request for judgment without a trial. The court rejected claims that Fortune itself wasn’t harmed by the policy and so didn’t have standing to pursue the case. The court ruled that further proceedings were needed to determine whether the community had a ban on applicants with criminal histories, and if so, what were the contours of that ban. Further proceedings were also needed to resolve conflicting expert testimony as to whether any criminal record ban, as applied at the community, had a discriminatory effect on any protected class, including people of color [Fortune Society v. Sandcastle Towers Housing Development Fund Corporation, New York, July 2019

The owners of the community at the time the lawsuit was filed have sold the building and don’t currently own or rent real estate.

According to a statement by Fortune’s attorneys, Relman, Dane & Colfax, the settlement sends a powerful message to other landlords that they must evaluate each applicant as an individual instead of automatically rejecting those with a criminal history. This is critical because obtaining affordable housing is central to successful reintegration for the hundreds of thousands of Americans–disproportionately people of color–released from confinement every year.

TREND TAKEAWAY: Familiarize yourself with the 2016 HUD guidelines on how federal fair housing law applies to the use of criminal records in both conventional and assisted housing communities. The guidelines spell out how HUD will evaluate fair housing complaints in cases where a community refuses to rent or renew a lease based on an individual’s criminal history. 

DISABILITY: Landlord Accused of Violating Resident’s Privacy by Telling Neighbors About Her Request for an Assistance Animal

In July 2019, the owner of a multifamily rental housing community in Santa Monica, Calif., agreed to pay $14,000 to resolve allegations that she violated fair housing law by disclosing confidential disability-related information about a resident’s request for an assistance animal to her neighbors.

In its complaint, the city claimed that a resident with a disability requested a reasonable accommodation to the community’s general policy against pets and included a letter from a medical professional with her request.

The landlord allegedly sent a group email to all the other residents in the building, in which she disclosed the resident’s request, indicated that a disability was involved, and claimed that the resident had a “psychological therapist” who had sent the landlord a letter. Allegedly, the landlord concluded by asking the other residents to report “anything annoying” about the assistance animal to her. The emails went to 10 people other than the disabled resident.

About six weeks later, the landlord emailed the resident to insist on coming into her home to inspect her bedrooms and meet the “comfort” animal. According to the complaint, none of the justifications for a landlord’s entry into a tenant’s home existed. Allegedly, the resident was in shock and distress over the landlord’s tactics.

After the resident filed a fair housing complaint with local authorities, the Public Rights Division of the Santa Monica City Attorney’s Office sued the landlord, alleging disability discrimination and harassment under federal, state, and local law. Specifically, the city claimed that the landlord violated the fair housing rights of a resident with a disability by violating her privacy, making a discriminatory statement, attempting to turn other residents against her, and entering her unit without justification.

Without admitting liability, the owner agreed to a settlement. Under the stipulated judgment with permanent injunction, the court ordered the landlord to pay $14,000 to the city to satisfy all penalties, fees, and costs of investigation and prosecution. The court order also required the landlord to obtain fair housing training and barred her from disclosing any information about a resident’s disability to a third party [City of Santa Monica v. Honda, California, July 2019].

TREND TAKEAWAY: When a resident makes a disability-related reasonable accommodation request, be careful about what you say about it to the neighbors. It doesn’t matter whether it’s for an assistance animal, a reserved parking spot, or something else—you could stir up fair housing trouble if you disclose disability-related information about the resident to her neighbors. According to federal guidelines, information gathered to evaluate reasonable accommodation requests must be kept confidential and must not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable accommodation request or unless disclosure is required by law (such as a court-issued subpoena requiring disclosure).

ENFORCEMENT NEWS

HUD Calls for Investigation into Websites Selling Assistance Animal Documentation

In November 2019, HUD Secretary Ben Carson called for an investigation into certain websites selling assistance animal documentation. In a letter to Chairman of the U.S. Federal Trade Commission (FTC) Joseph J. Simmons and Director of the Bureau of Consumer Protection Andrew Smith, Carson asked the FTC to investigate these websites for compliance with federal laws that protect consumers from unfair and deceptive acts or practices.

The letter stated: “Housing providers, fair housing groups, and disability rights groups have brought to HUD’s attention their concern that certain websites may be misleading consumers with disabilities into purchasing assistance animal documentation that is unreliable and unnecessary. According to these groups, the websites also may be selling assistance animal documentation to people who do not have disabilities substantially limiting a major life activity, enabling such people to claim that their pets are assistance animals in order to evade housing providers’ pet restrictions and pet fees. HUD shares these concerns” [emphasis in original].

The FHA requires housing providers to grant reasonable accommodations for individuals with disabilities that affect major life activities when it may be necessary for such individuals to have equal opportunity to enjoy and use a dwelling. One type of reasonable accommodation is an exception to a housing provider’s rules regarding animals to permit individuals with disabilities to keep assistance animals that do work, perform tasks, or assist individuals with disabilities. Documentation, such as a note from a healthcare professional, is helpful and appropriate when a disability is not obvious and not already known.

The FHA doesn’t require assistance animals to be “registered” or “certified,” nor, in HUD’s opinion, does certification or registration provide any benefit to the consumer with a disability who needs an assistance animal. “Certifications, registrations, and other documentation purchased over the internet through these websites are not necessary, may not contain reliable information, and, in HUD’s FHA enforcement process, are insufficient to establish an individual’s disability-related need for an assistance animal,” according to the letter.

In the letter, HUD offered to provide the FTC with examples of websites that sell the type of documentation described in the letter, “including at least one website that contains the seals of HUD and other federal agencies in an effort to imply that their products are endorsed by the federal government.”

“These certificates are not an acceptable substitute for authentic documentation provided by medical professionals when appropriate,” Carson said in a statement. “These websites that sell assistance animal certificates are often also misleading by implying that they are affiliated with the federal government. Nothing could be further from the truth. Their goal is to convince individuals with disabilities that they need to spend hundreds of dollars on worthless documentation to keep their assistance animal in their homes.”

HUD Assistant Secretary for Fair Housing and Equal Opportunity, Anna Maria Farías, explained, “Websites that sell verification for assistance animals take advantage of persons with disabilities who need a reasonable accommodation to keep their assistance animal in housing. This request for FTC action reflects HUD’s ongoing commitment to protecting the housing rights of persons with disabilities.”

“The Fair Housing Act provides for the use of assistance animals by individuals with disabilities. Under the law, a disability is a physical or mental impairment that substantially limits at least one major life activity or bodily function,” added HUD’s General Counsel Paul Compton. “These websites are using questionable business practices that exploit consumers, prejudice the legal rights of individuals with disabilities, dupe landlords, and generally interfere with good faith efforts to comply with the requirements of the Fair Housing Act.”

• Fair Housing Act: 42 USC §3601 et seq.

Answer. By all means. The bases for terminating a tenancy are found in ORS 90.630; there are several. It provides that '_the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the resident not less than 30 days' notice in writing before the date designated in the notice for termination if the resident. Among others, the following are listed:

• If the resident violates a law or ordinance related to the resident's conduct as a resident, including but not limited to a material noncompliance with ORS 90.740 (Resident obligations); and

• If the resident violates a rule or rental agreement provision related to the resident's conduct as a resident and imposed as a condition of occupancy.

The definition of a "law" is a state statute. The section of the landlord-resident law (ORS 90.100) does not expressly define "ordinance" but does define "building and housing codes" to include '_any law, ordinance or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises or dwelling unit."

Elsewhere, a good definition of an ordinance is the following:

An ordinance is a law enacted by a municipal body, such as a city council or county commission (sometimes called county council or county board of supervisors). Ordinances govern matters not already covered by state or federal laws such as zoning, safety and building regulations. (See, http://www.lectlaw.com/ def2/ o045.htm)

So, do you need to expressly provide in your rules or rental agreement that residents must obey all state laws and local ordinances? No. In legal parlance, ORS 90.630 is "self-executing", i.e. it is effective by its own terms. [1]

However, if you are using the MHCO Lease or Rental Agreement, the forms contain text that expressly states what ORS 90.630 already provides. This is the "belts and suspenders" approach to park management.

So if a resident has a pet, you want to make sure they comply with all of the local ordinances as well as any specific rules and regulations you may have - even if the rules and regulations are stricter than the local ordinances.[2] In order to avoid unpleasant surprises, I suggest you prepare a separate "Pet Policy" handout for residents, prospective and current, making sure that it correctly states exactly which ordinances you intend to apply,[3] together with all park rules that are not already covered by the applicable laws.

[1] To be clear, however, if the park is located in Deschutes County, you may not enforce a Jefferson County ordinance unless you have incorporated that ordinance in your rules, either directly or by reference. As I said above, you may impose rules that are stricter than those found in your local jurisdiction, but you have to expressly include them in your rules.

[2] Note that if you have not been enforcing current laws, ordinances or park rules regarding pets, you may run into some push-back if you have not enforced them previously, e.g. pet size, breed, or number. Certainly, if a resident has one pet, and your pet policy is set at one, you want to make sure that you keep all non-violating residents at that number. In my opinion, your failure to enforce a rule, law or ordinance against one resident who has two pets, does not mean you may not enforce it against other residents with only one, on a going forward basis.

[3] Out of an abundance of caution, I would identify all the important ordinances, either verbatim or carefully summarized, but make it clear that this Pet Policy is for "informational purposes only", and is not to be construed as being in lieu of the actual law or ordinance. Always include the citation to the law or ordinance you are summarizing or quoting.

The renting of spaces by manufactured homes in a manufactured home community is governed by the Oregon Residential Landlord and Tenant Act in Chapter 90 of the Oregon Revised Statutes. The Act requires that a written rental Agreement, Statement of Policy and Rules and Regulations be provided to each tenant renting a space in a manufactured housing community. This agreement, which includes or incorporates the community rules and regulations, becomes the contract that governs the relationship between the landlord and the tenant. Much of what you may or may not be able to do in your community will be addressed in the rental agreement.

Although many residents in your community may have rental agreements that are 5 or 10 years old, residents moving in to your community must be given a current rental agreement that conforms with the most recent amendments of Residential Landlord and Tenant Act and Federal Fair Housing Act. MHCO form '5A', "Manufactured Dwelling Space Rental Agreement/Dispute Resolution Addendum" (for month to month tenancies) and MHCO form '5B', "Manufactured Dwelling Space Lease Agreement/Dispute Resolution Addendum" are available through MHCO or you may have a rental agreement drafted by your attorney.

The Oregon Legislature occasionally adopts revisions to the Landlord and Tenant Act. Landlords and managers should make sure that they are utilizing the most current Rental Agreement. Rental Agreements generally may not be changed after execution, with the exception of mutual agreement of the parties; rent increases; and statutory changes (requirements of revised laws will apply even though not stated in the pre-existing agreement). ORS 90.510(4).

The MHCO Rental Agreement is designed to meet the current requirements of Oregon State Law. The Rental Agreement, which is intended for use in all classifications of parks, can be changed or altered to suit individual situations. In either event, you should consult with your attorney in order to insure that the agreement you choose meets all the legal requirements. It is important to remember that the tenant cannot be required to waive any rights that are granted to the tenant/resident by Oregon State Law.

The Rental Agreement should be completed and signed by both the landlord and the tenant/resident PRIOR to the home being moved into the community or PRIOR to the tenant/resident occupying a home already sited in the community. 

Answer: There is no need to create a new rental agreement unless there is a good reason. A “good reason” might be because the existing rental agreement is old and outdated. But if you are to use a new rental agreement for the existing and new tenant, the existing tenant will have to agree, since technically you cannot “force” the existing tenant to sign a new one.

If that is not an issue, just have the new tenant sign an addendum to the existing rental agreement. I think that is cleaner that having the new tenant just sign and date the existing rental agreement. (This isn’t fatal in just signing the existing document – it is just my preference for a clean paper-trail.)

If using an addendum, all it needs to say is that the new tenant agrees to be bound by all (a) existing rules and regulations currently in place, the existing Statement of Policy, and all pending notices such as rules changes, utility changes, and related documents, which the new tenant confirms they have read and understand. You should make sure that you list all such documents in the addendum, just to make sure there is no confusion by the new tenant about what they are signing on to. You and the new tenant should then date and sign the addendum, giving him or her a copy and keeping one for the file.

As for whether this new tenant will be subject to the rent increase you have planned in six months, the answer is “Yes.”  There is a common misconception that MHP landlords cannot increase rent during the first year of tenancy. While it is true that rent cannot be increased during the first year of a non-MHP tenancy[1] (i.e., where the tenant does not own the home, or it is an RV) that limitation does not apply to MHP tenancies where the tenant owns their home. See, ORS 90.600, the MHP rent increase statute. It does not contain any limitations on increases within the first year of tenancy.

Caveat: If you have park-owned homes or RVs in spaces, the one-year prohibition of ORS 90.323 (3)(a) does apply.

[1] See, ORS 90.323 (3)(a).

APPLICATION OF PORTLAND’S NEW TENANT ORDINANCES

TO MANUFACTURED HOUSING COMMUNITIES

By

Phillip C. Querin, MHCO Legal Counsel

July 1, 2019

Discussion: The Portland Ordinance, 30.01.085 (“Portland Renter Additional Protections”) here, has identified the occurrence of certain events that now require landlords to pay Relocation Assistance (“RA”) to tenants. 

[Reference below to the “Ordinance” will refer to 30.01.085; references to the state law, ORS Chapter 90, will be referred to as the “Act”; and references to the new state law governing rent increases, will be referred to as “SB 680”.]  

The Ordinance applies to all rented Dwelling Units[1]within Portland’s city limits, whether they are managed by an owner, a sublessor, or property management company.  However, not all properties that list Portland as their mailing address are located within the city limits. 

“Portland Maps”is the official city site used to determine properties subject to the RA policy. See, https://www.portlandmaps.com/. To verify the location of a rental property, click on the Portland Maps link and enter the property address. Once it appears, there are related several links, one of which is “Jurisdiction”. If the Jurisdiction link states "Portland," the rental property is subject to the mandatory RA policy, unless otherwise exempted, as discussed below.

EVENTS TRIGGERING RELOCATION ASSISTANCE

1. No-Cause Eviction
   1. Landlord must pay Relocation Assistance (“RA”) to Tenant at least 45 days before termination of the tenancy
2. Increase of 10% or more in Rent or “Associated Housing Costs”[2]
   1. Tenant must give written notification to Landlord requesting RA within 45 days of Rent Increase Notice
      1. Landlord must pay RA within 31 days of Tenant’s request for RA
3. Substantial Change of Lease Terms
   1. Tenant must give written notification to Landlord requesting RA within 45 days of substantial change
      1. Landlord must pay RA within 31 days of Tenant’s request for RA
4. Non-Renewal of Lease
   1. Landlord must pay RA to Tenant at least 45 days before termination of the tenancy

Note:  With the exception of No. 2 (Rent increases of 10% or more) and No. 3 (Substantial Change of Lease Terms) the two remaining events do notrequire the tenant to make a written request for RA. Payment is simply expected to occur within the required time from the triggering event. 

AMOUNT OF RELOCATION ASSISTANCE

1. $2,900 for a studio or single room occupancy (“SRO”) Dwelling Unit
2. $3,300 for a one-bedroom Dwelling Unit
3. $4,200 for a two-bedroom Dwelling Unit 
4. $4,500 for a three-bedroom or larger Dwelling Unit. 

Note:The only time RA will be payable by a landlord in a manufactured housing community is if they are the owner of (a)a manufactured home or (b)an RV that is being rented out. Presumably, the amount of the RA would be based upon whether it is an SRO or a 1, 2, or 3-bedroom unit. 

Note:  If a Landlord is paying RA required under the Act, and Relocation Assistance is alsorequired by the Ordinance for the same Termination Notice, the Relocation Assistance required by the Ordinance may be reduced by the relocation assistance required by the Act if both payments are paid at the same time and as a single payment.[3]

TENANT’S RECEIPT OF RELOCATION ASSISTANCE AFTER RENT INCREASE OF 10% OR MORE

1. Following receipt of the RA, the tenant has 6 monthsfrom the date of the increase to either: 
   1. Pay it back, and thereafter become obligated to pay the increased rent in accordance with notice of increase; or 
   2. Provide the landlord with a notice to terminate the rental agreement in accordance with the Act.  

1. In the event the tenant fails to pay the RA back to the landlord or provided the landlord with the termination notice on or before the expiration of the six-month relocation period, the tenant will be in violation of the ordinance.

Note:A violation of any law or ordinance is also breach under the MHCO rental agreement or lease, for which landlord may issue a 30-day curable notice under ORS 90.630. Accordingly, it appears this would be one method of commencing recovery of the RA should the tenant fail to terminate and repay the RA. The other would be to file a claim in the county Small Claims Court.

Note:The other three triggering events for RA assume the tenancy is terminated, so tenant has no option to accept or reject the landlord’s action - therefore no repayment issue. However, in the event of a substantial change in the lease terms, it would seem possible that the landlord and tenant might  reach agreement to continue the lease under the amended terms, in which case, the tenant would be required to return the RA, just the same as a rent increase of 10% or more.

EXEMPTIONS FROM PAYING RELOCATION ASSISTANCE

Relocation Assistance does not apply to the following, so long as the Landlord has submitted a required exemption application form to Portland Housing Bureau for which it has issued an exemption acknowledgement letter, a copy of which the Landlord must be provided to the Tenant:

1. Rental agreement for week-to-week tenancies; 
2. Tenants that occupy the same dwelling unit[4]as the landlord;
3. Tenants that occupy one dwelling unit in a Duplex where the Landlord’s principal residence is the second Dwelling Unit in the same Duplex;
4. Tenants that occupy an Accessory Dwelling Unit that is subject to the Act in the City of Portland so long as the owner of the Accessory Dwelling Unit lives on the site;
5. A Landlord who temporarily rents out their principal residence during an absence of not more than 3 years;
6. A Landlord who temporarily rents out their principal residence during the Landlord’s absence due to active duty military service;
7. A Dwelling Unit where the Landlord is terminating the Rental Agreement in order for an Immediate Family member[5]to occupy the Dwelling Unit;

8.    A Dwelling Unit regulated or certified as affordable housing by federal, state or local government is exempt from paying Relocation Assistance for a Rent increase of 10 percent or more within a rolling 12-month period:
a. so long as such increase does not increase a Tenant’s portion of the Rent payment by 10 percent or more within a rolling 12-month period; or 
b. in Lease Agreements where the Rent or eligibility is periodically calculated based on the Tenant’s income or other program eligibility requirements and a Rent increase is necessary due to program eligibility requirements or a change in the Tenant’s income.
This exemption does not apply to private market-rate Dwelling Units with a Tenant who is the recipient of a federal, state, or local government voucher;
Note:This exemption applies to Rent Increases and does not apply to Termination Notices;

1. A Dwelling Unit subject to the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;
2. A Dwelling Unit rendered immediately uninhabitable not due to the action or inaction of a Landlord or Tenant; 
3. A Dwelling Unit rented for less than 6 months with appropriate verification of the submission of a demolition permit prior to the Tenant renting the unit;
4. A Dwelling Unit where the Landlord has provided a Fixed Term Tenancy and notified the Tenant prior to occupancy, of the Landlords intent to sell or permanently convert the Dwelling Unit to a use other thanas a Dwelling Unit subject to the Act.

Note:Remember that before being entitled to an exemption, the landlord needs to provide a copy of the Portland Housing Bureau’s acknowledgment letter to the Tenant.

LANDLORD DUTIES FOLLOWING PAYMENT OF RELOCATION ASSISTANCE

1. Landlord must include a Notice of Tenant’s Rights and Obligations (the “Notice”) and the eligible amount of Relocation Assistance with issuance of the following:
   1. Termination Notice;
   2. AnyRent Increase Notice;
   3. Relocation Assistance payment.

Note:MHCO has developed a form for the Notice.

1.  Landlord must notify the Portland Housing Bureau of all payments to tenants of Relocation Assistance within 30 days of making such payments.  

ADDITIONAL LANDLORD LIABILITY FOR VIOLATION OF ORDINANCE

1. Any Tenant claiming to be aggrieved by a Landlord's noncompliance with the above regulations in the Ordinance, “has a cause of action in any court of competent jurisdiction for Damages and such other remedies as may be appropriate.”
2. Damages include the following:
   1. An amount up to 3 times the monthly Rent; 
   2. Actual damages; 
   3. Relocation Assistance; and
   4. Reasonable attorney fees and costs. 

______________________________________________________

TENANT SCREENING

Discussion: Effective March 1, 2020, the City of Portland’s new screening ordinance (30.01.088 Screening Criteria for Applicants for DwellingUnits) – hereinafter the “Code” – will become law. The administrative rules have not yet been written. The latest draft from the office of Commissioner Eudaly is date February 20, 2019. It is set out below. The Housing Bureau was unable to give me a copy of the final draft. Below is a summary of the February 20, 2019 draft; it is believed that some of the more draconian provisions of the Ordinance were either deleted or softened. 

Note: I have said repeatedly that when screening applicants, a criminal history should be the very last reason to deny an applicant. For example, if the applicant could be denied for financial incapacity, prior references, evictions, etc. it becomes irrelevant whether they have a criminal record. Only use the criminal history as a last resort. 

1. Procedures.In addition to the protections set forth in the Act and Sections 30.01.085 and30.01.087 of the Code, the following procedures and guidelines apply to Landlords when screening an Applicant for residential tenancy in a Dwelling Unit (as defined in theAct).
2. Definitions. For purposes of this Ordinance, unless otherwise defined herein, capitalized terms have the meaning set forth in theAct.
   1. Applicant: An applicant for a Dwelling Unit covered by theAct.
   2. Supplemental Evidence: Any written information in addition to the application, that the Applicant believes to be relevant to the Applicant’s predicted performance as atenant.
   3. Head(s) of Household: Person or persons listed on a lease as the party or parties responsible for paying theRent.
   4. ADACompliant:
   5. OccupancyAgreement:
      1. Applications,Generally.
   6. First-come,First-served
   7. Completed applications must be received and processed on a first-come,first-servedbasis.
   8. All completed applications must be time-stampedto indicate the date and time that an Applicant submitted the application (the “SubmissionDate”).
   9. For applications received during an advertised open application period, a Landlord must provide an Applicant with a written or electronic receipt within one (1) business day of the Submission Date that accurately reflects the Submission Date and assigns the Applicant a queuenumber.
   10. A Landlord is exempt from the requirements of this subsection whenevera lottery system or coordinated access system is used to lease up new residential buildings with rent regulations of 80% AMI orlower.
   11. A Landlord must include the following with everyapplication:
   12. Notice to Applicants of the right to request a reasonable accommodation at any point before, during or after the applicationprocess;
   13. Notice that a Landlord may not deny an application solely because ofa reasonable accommodation request or because of the nature of the accommodationrequested.
   14. Notice to Applicants of their rights under this Section 30.01.088 by including a link to Portland Housing Bureau’s (“PBH”) website and a printed copy of the noticethat PHBcreates.
   15. A complete description of the applicable screeningcriteria.
   16. An opportunity on the application for an Applicant to indicate their disabilitystatus.
   17. A Landlord may only screen Head(s) of Household. Co-applicants that are not responsible for paying the Rent may be screened for criminal history and rental history (only for violation notices issued to the household for conduct of the co- applicant within the last year that demonstrates they created a hostile, unsafe,or harassing environment for other tenants or engaged in discriminatory conduct), pursuant to procedures and guidelines in this Section30.01.088.
   18. May require co-applicants not responsible for paying the Rent to signan Occupancy Agreement if the household application isapproved.
   19. A Landlord that owns less than fifty (50) Dwelling Units within the City of Portland, may refuse acceptance of a completed application only if the Applicant has a verifiable pattern of Rental Agreement violations with the Landlord and the mostrecent of such Rental Agreement violations occurred within the last 365 days.
   20. Any Applicant that self-identifies as mobility challenged on an applicationwithin the first 8 hours of an open application period must be given first priority for any vacant Dwelling Unit that is advertised as ADACompliant.
   21. Any application received earlier than the advertised open application period will be put in the queue immediately following the first 8 hours. If the Dwelling Unit is advertised as ADA Compliant, and the Applicant indicates as mobility challenged, they will still receive placement preference immediately following any other preference application received during the advertised open application period.
3. Advertisement of DwellingUnits.
   1. When publicly advertising for specific vacant Dwelling Units, a Landlord must specify an opening date and time when applications will be accepted and cannot accept applications for those specific units outside of the advertisedperiod.
   2. Except as otherwise prevented from complying due to the format requirements of an advertising service, screening criteria required by a Landlord, or a website address to the criteria, must be included in any public advertisement for available Dwelling Units as well as included on theapplication.
   3. Except as otherwise prevented from complying due to the format requirements of an advertising service, all public advertisements must also include if the Dwelling Unit is ADACompliant.
   4. When advertising newly vacant Dwelling Units, the open application period must be published at least 72 hours prior to the start of the open applicationperiod.
4. Identification.
   1. A Landlord must accept any of the following as forms of identification, or combination thereof, that verify the full name, date of birth, and picture of the applicant:
   2. Valid Social Security Number (SSNCard);
   3. Valid Permanent Resident Alien Registrations ReceiptCard;
   4. ImmigrantVisa;
   5. Individual Taxpayer Identification Number(ITIN);
   6. Non-ImmigrantVisa;
   7. Any other government-issued identification;or
   8. Any other non-government document or combination of documents that would allow verification ofidentity.
   9. A Landlord may not reject an application as incomplete due to the lack of aSocial Security Number(SSN).
   10. A Landlord may not inquire about the immigration status of an Applicantor require that any Applicant provecitizenship.
   11. Income.
   12. A Landlord may not require an income greater than two times the amount ofRent for the Dwelling Unit when costs for utilities are part of theRent.
   13. A Landlord may not require an income greater than two and a half times the amount of the Rent for the Dwelling Unit when costs for at least three essential utilities (such as garbage, sewer, water, or heat) are required to be paid separately by aTenant.
   14. Calculation of the income to rent ratio under thissection:
   15. Must include all sources of an Applicant’s income, including, but not limited to, wages, rent assistance (non-governmental only),verifiable family or friend assistance for at least three months of tenancy, and monetary publicbenefits;
   16. Must subtract from the Rent amount any portion of Rent covered byan Applicant’s local, state, or federal government rent voucher or housing subsidy before calculating the rent ratio;and
   17. Must apply cumulatively among Heads of Household when more thanone adult applies as a group.
   18. A Landlord may include a requirement for a guarantor (family member, friend, non-profit, or government agency as identified by the Applicant) or an Additional Deposit as described in Section 30.01.087 when the Applicant’s income ratio as calculated in the section above falls at or below two times the amount of theRent.
   19. To the extent that a Landlord requires a guarantor or Additional Deposit, the Landlord must allow the Applicant to choose between the twooptions.
   20. A Landlord may not require family or friend guarantor to have income greater than three times the current Rent but can require verifiable employment,verifiable residence within the United States, and no active collections activity for delinquent property or utilitydebt.
   21. A Landlord may not require a guarantor to sign a contract longer than thelength of the initiallease.
   22. ThresholdCriteria.
   23. A Landlord may forgo the mandatory individualized assessment as described in Section H if they adopt a screening-criteria that meets, or is more permissivethan, the thresholds described in the followingsection:
   24. Applicants will not be denied for the followingconditions:
   25. Criminalhistory:
   26. Any arrest that did not result in conviction, unless the resulting charge is pending at the time that theApplicant submits theapplication;
   27. Participation in or completion of a diversion or a deferralof judgmentprogram;
   28. Any conviction that has been judicially dismissed, expunged, voided orinvalidated;
   29. Any conviction for a crime that is no longer illegal in the state ofOregon;
   30. Any conviction or any other determination or adjudication in the juvenile justicesystem;
   31. Any criminal conviction for misdemeanor offenses where the dates of sentencing are older than threeyears;
   32. Any criminal conviction for felony offenses where the dates of sentencing are older than sevenyears;
   33. Credithistory:
   34. Credit score at least500;
   35. Lack of credit history, unless the applicant in bad faith withholds credit history information that mightotherwise form the basis fordenial;
   36. Adverse accounts under$1000;
   37. Property debt from damages in previous tenancyunder

$500;

• Bankruptcy filed by the applicant isclosed;
• Bankruptcy for Chapter 13 filed by the applicant is in an active repaymentplan;
• Medical or education/vocational trainingdebt.
• Rentalhistory:
  • An action to recover possession pursuant to ORS 105.105 to 105.168 if theaction:
    • Was dismissed or resulted in a general judgment for the Applicant before the applicant submits the application;
    • Resulted in a general judgment against the Applicant that was entered three or moreyears before the Applicant submits theapplication;
    • Resulted in a general judgment against the Applicant that was entered fewer than threeyears before the Applicant submits the applicationif:
      • The termination of tenancy upon which the action was based was without cause (no-cause eviction) pursuant to ORS 90.427(Termination of Periodic Tenancies);or
      • The judgment against the Applicant was a default judgment due to a failure toappear, if the Applicant presents credible evidence to the Landlord that the Applicant had already vacated the unit upon which the action was based at the time that notice of the action wasserved.
      • Any information that the Landlord obtains from a verbalor written rental reference with the exception of defaults in Rent, three or more material violations of a Rental Agreement within the last year that resulted in notices issued to the Tenant, outstanding balance due to the Landlord, or lease violations that resulted in a termination with cause.;or
      • Lack of rental history, unless the Applicant in bad faith withholds rental history information that mightotherwise form the basis fordenial.
• If an Applicant provides any Supplemental Evidence regarding criminal historyat the time, they submit their completed application, then the Landlord has to doan

individualized assessment as described in Section H if they intend to deny the application based on criminal history.

1. IndividualizedAssessment.
   1. A Landlord that chooses not to adopt the threshold criteria as set forth above, must conduct an individualized assessment before denying an Applicant for any criteria they haveestablished.
   2. Any Applicant that believes that they may have barriers to any advertised screening criteria shall be allowed to provide, at the time of application submission, all Supplemental Evidence they believe provides a positive offset to thebarriers.
   3. A Landlord has an obligation to consider any such SupplementalEvidence submitted by the Applicant including, but not limited to, thefollowing:
      1. Six or more consecutive months of job or incomestability;
      2. Completion of secondary education or job trainingprograms;
      3. Current enrollment in secondary education of job trainingsprograms;
      4. Current probation or paroleoversight;
      5. Certificate of GoodStanding;
      6. Current payment plan towards creditdebt;
      7. Completion of Rent Well or another tenant educationprogram;
      8. Six or more consecutive months of positive rental payments within thelast year;
      9. Completion of creditcounseling;
      10. Current participation in creditcounseling;
      11. Current participation with a legal or non-profit advocate to clearpast collections;
      12. Legitimate explanation of lack of verifiable credithistory.
      13. The presence of domestic violence as contributing factor to rental issues of concern;
      14. Current payment plan toward outstanding debts owed previouslandlord;
      15. Current case management or peer support services;or
      16. Any other evidence that the Applicant believes has a tangible impact to the specific barriers identified in an Applicant’shistory.
   4. If a Landlord receives the following types of Supplemental Evidence, a Landlord should assume that the presentation of such Supplemental Evidence is a request for a reasonable accommodation under the Fair Housing Act. An applicant reserves the right to use the following information as a request for Individualized Assessment aswell:
      1. Completion of drug or alcoholtreatment;
      2. Current enrollment in a drug or alcohol treatmentprogram;
      3. Completion of psychologicalcounseling;
      4. Current participation in psychological counseling;or
      5. Current case management or peer support services related to disabilityor mentalhealth.
   5. In addition, a Landlord must consider the information from the individualized assessment and Supplemental Evidence in light of the following before denying anApplicant:
      1. The nature and severity of thebarriers;
      2. The number and type of thebarriers;
      3. The time that has elapsed since the date the barriers occurred;and
      4. The age of the individual at the time the barrieroccurred.
2. Appeals.
   1. An Applicant that is denied for residential tenancy by a Landlord using the threshold criteria as described in Section G must have the opportunity toappeal that denial directly to the Landlord basedon:
      1. Incomplete or inaccurate information identified during thescreening process,or
      2. Additional supplementalevidence.
   2. An Applicant must be allowed 30 days, from the date the denial was issued, to request an appeal and submit all evidence related to theappeal.
   3. A Landlord is not required to hold the Dwelling Unit for the Applicant duringthe pendency of the appealprocess.
   4. If the appeal results in the denial being overturned, a Landlord must give the Applicant preference for future vacancies on the same property (with similar screening criteria and similar income ratio) if they apply within the first 4 hoursof an open application period, for up to 3 months from the date of the original appeal determination.
      1. If a denial is successfully appealed, a Landlord must provide a datedletter, signed by the Landlord, documenting the successful appeal that includes specifics about which properties qualify for thepreference.
      2. An Applicant who receives a letter of a successful appeal must attachthat letter to future applications with the same Landlord to receive preference, for up to 3 months from the date of the original appealdetermination.
      3. An Applicant who successfully appeals a denial cannot be charged a screening fee for future applications with the same Landlord, for up to3 months from the date of the original appealdetermination.
      4. If more than one Applicant provides a letter of a successful appeal during an open application period, the Applicants will receive preference inorder of the dates on the letter, with oldest date getting firstpreference.
      5. If there is a conflict between an appeals preference and an accessible unit preference, the accessible unit preference is first, only superseded by an Applicant with both an accessible unit preference and an appealspreference.
      6. If an Applicant applies with an appeal preference, the Landlord may require the Applicant to self-certify that no conditions have changedsince their originalapplication.
   5. A Landlord has the discretion to also maintain a wait list and contact preference applicants (in the order their appeal letter is dated), before advertising a vacant Dwelling Unit to the generalpublic.
3. Denials-General.
   1. An application can be denied without a Landlord first conducting an individualized assessment when an Applicant does not meet basic criteria requirements such as incomplete application, identification, income, or an Applicant has purposefully withheld or misrepresented requiredinformation.
   2. If an Applicant applies as part of a family or group, a Dwelling Unit can be denied to that Applicant individually but not the family or group as a wholeunless they no longer qualify for the income ratio or occupancystandards.
4. Denials-ThresholdCriteria.
   1. When denying an application based on Threshold Criteria, above, a Landlord must provide a written “Notice of Adverse Action” compliant with the Act, the Applicant within two weeks of thedenial.
   2. A Notice of Adverse Action can be provided to the Applicant by either a Landlord or a screeningcompany.
   3. A second denial after an appeal as described in Section I can be written ina manner at the discretion of theLandlord.
5. Denials-IndividualizedAssessment.
   1. When denying an application after performing an Individualized Assessment, a Landlord must provide a written “Notice of Denial” to the Applicant within two weeks of the denial thatincludes:
      1. The specific adverse information that matches the screening criteria information as provided with the application, including detailed information received from a rental reference if it is the basis of thedenial;
      2. The Supplemental Evidence, if any, that the Landlord considered and whether it influenced the decision of the Landlord to deny theapplication;
      3. An explanation of the legitimate, non-discriminatory business interestof the Landlord that justify denial of the application, and how the Supplemental Evidence provided did not address theinterest.
   2. A Notice of Denial can only be issued to the Applicant by theLandlord.
6. AdditionalDeposit.
   1. A Landlord may request an additional security deposit as set forth inOrdinance Section

30.01.087 as an alternative to issuing a Notice of Adverse Action or a Notice of Denial.

1. To request an additional security deposit, a Landlord must provide a written “Notice of Conditional Approval” to the Applicant that contains the same information as required in a Notice of Adverse Action or a Notice of Denial (depending on the screening process used) and additionally contains thespecific amount being requested as well as the ability for an Applicant to choose a payment plan as set forth in Section30.01.087.
2. If a Landlord requests an Additional Deposit as a condition of offsetting a low-income ratio, the Landlord does not need to issue a Notice of Conditional Approval but must follow the code as set forth in Section30.01.087.
3. ScreeningFees.
   1. A Landlord must return a screening fee, or communicate approval or denial of residential tenancy, to an Applicant within two weeks of the final determination of theapplication.
   2. If using a professional screening company exclusively, the screening feecharged by the Landlord cannot be more than what is charged by the screeningcompany.
   3. If using a professional screening company in addition to screening work by the Landlord, fees cannot exceed 25% above what is charged by the screening company.
   4. If a Landlord screens independently without the use of a professional screening company, fees cannot exceed 10% above what is charged by the average professional screening company in the Portland-Metroarea.
4. ModificationRequests.
   1. An Applicant that experiences disabilities cannot be denied housing based ona denial of reasonable modificationalone.
   2. If an Applicant’s modification request is denied, the Applicant must be allowed 24 hours to request an alternative modification that meets theirneeds.
   3. If the second modification request is denied, the Applicant must be allowed another 24 hours to request an alternative modification that meets theirneeds.
   4. If no reasonable modification can be made in the Dwelling Unit the Applicant applied for, then the Applicant may still accept the Dwelling Unit if they meet the eligibilitycriteria.

1. Exemptions.
   1. Any Dwelling Unit that is subject to a partnership or referral agreement betweena Landlord and a non-profit service provider or government agency working to place low income or vulnerable tenants into housing is exempted from this Section.
   2. Any Dwelling Unit not rented or advertised to the general public,(including online platforms with or without a fee), are exempted from thisSection.
   3. Any Dwelling Unit otherwise complying with state or federal loan or funding requirements is exempted from the parts of this Section in conflict with theloan or fundingrequirements.
   4. Any Dwelling Unit shared with a Landlord or sub-leaser as their primary residence is exempted from thisSection.
2.   Damages. Any Applicant claiming to be aggrieved by a Landlord’s noncompliance with the foregoing has a cause of action in any court of competent jurisdiction for Damages and any such other remedies as may beappropriate.
3.  

SECURITY DEPOSITS

Discussion: A new set of draft rules on security deposits (Ordinance No. 30.10.087) was marked as “Exhibit A” to the February 20, 2019 draft of the screening ordinance (Ordinance No. 30.10.088). It is also believed that the administrative rules for this Ordinance have not been written yet, as they have not been posted on the City’s website. Below is a summary of these rules, that are offered with the proviso that the final draft may be different. 

1. Additional Protections. The following additional protections regarding security deposits apply to Tenants that have a Rental Agreement or a Dwelling Unit covered by theAct.
2. Last Month’s Rent. If a Landlord requires, as a condition of tenancy, last month’s Rent, a Landlord may not collect more than an amount equal to one-half of a month’s Rent as a security deposit. 
   1. If a Landlord does not require last month’s Rent, a Landlord may not collect more than an amount equal to one month’s Rent as a security deposit. 
   2. If an Applicant receives a Conditional Approval asdefinedinSection30.01.088,aLandlordmayrequestanamountequaltoone-halfofamonth’s Rent as a security deposit in addition to the other amounts previously listed in this subsection. 
   3. A Landlord must allow a Tenant to pay such additional security deposit in installments over a 2-6-month period and in amounts as requested by theTenant.
3. Security Deposit.To the extent that a Landlord withholds an amount from a security deposit to repair damages to the premises beyond ordinary wear and tear, “ordinary wear and tear” shall mean deterioration that occurs without deliberate or negligent destruction, damage, or removal of any part of the premises, equipment, furnishings or appliances by the Tenant, a member of the Tenant household or other persons on the premises with the Tenant’s consent.

4.    Carpet Damage. To charge for carpets, a Landlord must take into consideration the cost only of the contiguous area where the carpet is required to be replaced due to damage and may not take into consideration the original expense of the carpet for the entire Dwelling Unit. 

a.   A Landlord may not chargeforinteriorpaintingofaresidence,exceptwhatisnecessarytorepairspecificdamagemade to a wall beyond ordinary wear and tear and to repaint walls that were painted by the Tenant without permission. 

b.   Basic cleaning is presumed to be ordinary wear andtear and nothing in this Subsection shall be construed to mean that a Landlord may charge for cleaning costs that do not address damage or filth beyond ordinary wear andtear.

5.    Landlord’s Movable Property.For purposes of determining the amount reasonably necessary to repair damaged, movable property in the Dwelling Unit, such movable property is presumed to depreciate at a rate of 3.6% per annum over a period of 27 years. 

a.   A Landlord may provide documentation demonstrating why a different calculation is justified for determining a reasonable amount necessary to repair an item of damaged, movable property. 

b.   Before executing the Rental Agreement, a Landlord must provide the Tenant with a list of movable property in the Dwelling Unit along with the depreciated value of each item at the time of move-in (the “Commencement Date”).

1. Condition Report.Within one week of the Commencement Date, a Tenant may complete and submit to the Landlord, a condition report (on a form provided by the Landlord) noting any and all damage in the Dwelling Unit (the “Condition Report”). 
   1. If the Tenant submits a Condition Report to the Landlord within one week of the Commencement Date, such Condition Report shall be the proof of the condition of the Dwelling Unit on the Commencement Date in order to assess damage beyond reasonable wear and tear at move out (the “Termination Date”). 
   2. If, after the first week, the Tenant has not completed a Condition Report, a Landlord must complete a Condition Report and provide a copy to the Tenant. 
   3. Any damages noted in the Condition Report completed by the Landlord upon move-in must also be documented in photographs and provided to the Tenant. 
   4. IfanydamagenotedintheConditionReportissubsequentlyrepaired,theLandlordmustrevisethe Condition Report to reflect such repair, have it initialed by the Tenant, and provide a copy of the revisedConditionReport.
   5. IfeitherpartydisagreeswithanydamagenotedontheConditionReport, they must write the nature of their disagreement on the Condition Report, initial, and provide a copy to the otherparty.

7.    Final Inspection.Within one week of the Termination Date of which the Landlord had notice, the Landlord shallconductawalk-throughoftheDwellingUnittodocumentanydamagebeyondordinarywear andtearnotnotedontheConditionReport(the“FinalInspection”).

a.   ATenant,and/ortheTenant’s representative, has the right to be present for the Final Inspection, but may choose not to participate. The Landlord must give notice of the date and time of the Final Inspection at least 24hours in advance to theTenant.

8.    Damage Withheld From Security Deposit.Any damage for which a Landlord intends to withhold a portion of a Tenant’s security deposit must be documented in writing and include proof of depreciated value for movable property in the Dwelling Unit including, but not limited to, original receipts or demonstration of a similar make and model, and visual damage must be documented in photographs and provided to the Tenant at the same time as the written accounting required under ORS 90.300 (12)(Security Deposits). 

a.   To the extent that a Landlord seeks to charge labor costs greater than $200 to a Tenant, the Landlord must provide documentation demonstrating that the labor costs are reasonable and consistent with the typical hourly rates in the metropolitan region. 

b.   A Landlord may not charge for damage noted on the ConditionReport.

1. Deposit of Security Deposit.Within 2 weeks of receipt of a security deposit, a Landlord must deposit the money in a separate checking, savings, money market, or client trust account and provide the bank institution name and account number in writing to the Tenant. If the account bears interest, the Landlord is required to pay such interest in full, minus an optional 5% deduction for administrative costs, to the Tenant unless it is used to cover any claims for damage. 
   1. For interest bearing accounts, the Landlord must provide a receipt of the account and any interest earned at the Tenant’s request, no more than once per year. 
   2. A Landlord may pool multiple security deposits in a single account so long as the account is separate from the Landlord’s personal funds, is not accessed except to deposit and withdraw Tenant deposits, and Landlord can provide an individual accounting of each Tenant deposit and the interest earned thereon. 
   3. A landlord shall have six (6) months from the effective date of this Subsection to comply with the above requirements.
2. Notice of Rights.Contemporaneously with the delivery of the written accounting required by ORS 90.300 (12)(Security Deposits), the Landlord must also deliver to the Tenant a written notice of rights regarding security deposits (“Notice of Rights”). 
   1. Such Notice of Rights must specify all of Tenant’s right to damages under this Section. 
   2. The requirement in this Section may be met by delivering a copyof this Section to the Tenant along with contact information for the nearest Legal Aid Services of Oregon office or the Oregon StateBar.
3. Written Account of Tenant Rent Payment History.Within 5 business days of receiving or giving a notice of any kind that terminates a tenancy, a Landlord must provide a written accounting of the Tenant’s Rent payment historythat covers the tenancy for the term or the prior two years, whichever islonger.

12. Rental History Form.Within 5 business days of receiving or giving a notice of any kind that terminates a tenancy, a Landlord must provide a completed Rental History Form as provided by Portland Housing Bureau.

1. Violation of Ordinance.A Landlord that fails to comply with any of the requirements set forth in this Ordinance No. 30.01.87 shall be liable to the Tenant for the security deposit, a penalty in the amount equal to two times the security deposit, as well as attorney fees and costs (collectively, “Damages”).
   1. Any Tenant claiming to be aggrieved by a Landlord’s noncompliance with the foregoing has a cause of action in any court of competent jurisdiction for Damages and any such other remedies as may beappropriate.

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[1]ORS 90.100(12) provides that a “Dwelling unit” regarding a person who rents a space for a manufactured dwelling or recreational vehicle or regarding a person who rents moorage space for a floating home as defined in ORS 830.700, but does not rent the home, means the space rented and not the manufactured dwelling, recreational vehicle or floating home itself.

[2]  "Associated Housing Costs." include, but are not limited to, fees or utility or service charges, means the compensation or fees paid or charged, usually periodically, for the use of any property, land, buildings, or equipment. For purposes of Portland’s rent increase ordinances, housing costs include the basic rent charge and any periodic or monthly fees for other services paid to the Landlord by the Tenant, but do not include utility charges that are based on usage and that the Tenant has agreed in the Rental Agreement to pay, unless the obligation to pay those charges is itself a change in the terms of the Rental Agreement. [See, https://www.portlandoregon.gov/citycode/28481#cid_708924]

[3]Note: Charges to a landlord for exceeding the Oregonrent cap laws, or for other violations under the recently enacted SB 608, are notidentified as “relocation assistance”. That law provides at Section 1: “(9)(a) If a landlord terminates a tenancy in violation of subsection (3)(c)(B), (4)(c), (5),(6) or(7)ofthissection: (A)Thelandlordshallbeliabletothetenantinanamountequaltothreemonths’rent inadditiontoactualdamagessustainedbythetenantasaresultofthetenancytermination; and (B)Thetenanthasadefensetoanactionforpossessionbythelandlord. (b)Atenantisentitledtorecoveryunderparagraph(a)ofthissubsectionifthetenant commencesanactionassertingtheclaimwithinoneyearafterthetenantkneworshould haveknownthatthelandlordterminatedthetenancyinviolationofthissection.”

[4]Under Portland City Code 33.910 a “Dwelling Unit” is abuilding, or a portion of a building, that has independent living facilities including provisions for sleeping, cooking, and sanitation, and that is designed for residential occupancy by a group of people. Kitchen facilities for cooking are described in Section 29.30.160 of Title 29, Property and Maintenance Regulations. Buildings with more than one set of cooking facilities are considered to contain multiple dwelling units unless the additional cooking facilities are clearly accessory, such as an outdoorgrill. Under ORS 90.100(12), which is used elsewhere in the Portland City Code, a “Dwelling Unit” “…means the space rented and not the manufactured dwelling, recreational vehicle or floating home itself. 

[5]Per the City’s Administrative Rules, the term “Immediate Family” means “…parent, foster parent, step parent, parent in law, sibling, foster sibling, step sibling, sibling in law, grandparent, grandparent in law, child, step child, foster child, grandchild,aunt, uncle, niece, or nephew.An Immediate Family member cannot be an Ownerof the Dwelling Unit, their spouse, or their domestic partner. The Immediate Familymember must have reached the age of majority (18)or be a legally recognized emancipated minor.”

Answer:  I find no statutory authority giving tenants a legal right to access the records maintained by the landlord or manager. There is nothing in the Oregon Landlord-Tenant Act allowing this.

By “records” I am referring to those maintained by the landlord or manager regarding tenant performance, conduct, complaints made by or against a tenant, and related information. And this only makes sense. No one would file a written complaint against another tenant if that tenant could legally access it and retaliate. And few managers would freely document events or run-ins with a tenant if that person could immediately demand copies of the report. These documents are legitimate “business records” kept in the ordinary course of the Park’s management and part of its legal responsibilities.

However, copies of those documents describing the tenant’s legal responsibilities, such as the rental agreement, lease, rules, or Statement of Policy, may certainly be requested by a tenant who lost or misplaced their copies. But this cannot be done repeatedly to harass the landlord. A copying charge may be assessed.

In litigation between landlord and tenant, including evictions, the tenant may legally demand that the landlord turn over copies of managements file if the content was directly related to the litigation. But if the landlord or manager opposed the request, the Court would have to decide. The issue would depend upon whether the records sought were directly related to some issue in the litigation.

When the prospective resident returns a complete and accurate written rental application, you should provide the applicant the following:

• A copy of the rules and regulations (if not provided earlier)
• Rental agreement form
• Statement of policy (if not provided earlier)
• Rent history of the space
• Criminal check authorization
• Resident applicant screening fee should be acquired prior to accepting the individual as a resident. "Application Screening Fee and Receipt" form is to be signed by a manager when applicant's fees are accepted.
• The landlord must give written notice of what the tenant screening or consumer credit report entails, the landlord's charge for the screening, and the applicant's right to dispute the screening service or credit reporting agency's information if the application is denied based on the credit report.
• Minimum Criteria Standards

At this point the above documents are to be provided to the prospective applicant. However, only the application, the criminal check authorization and the applicant screening fee notice and receipt should be signed by the tenant. The other documents are not to be signed until the application and background checks are completed and the applicant is approved. The additional documents that are provided when the applicant returns the rental application are provided to the prospective tenant for their information so that they may be aware of the facts and make the housing choice that is right for them. 

Answer: The applicable statute is ORS 90.304. In summary, it provides as follows:

1. If you require an applicant to pay a screening charge and the application is denied (or if the applicant makes a written request following your denial of an application) you must promptly provide the applicant with a written statement of one or more reasons for the denial.

2. Your statement of reasons for denial may consist of a form with one or more reasons checked off. MHCO has such a form. The reasons for rejection under the statute include, but are not limited to, the following:

- Rental information, including:

o Negative or insufficient reports from references or other sources;
o An unacceptable or insufficient rental history, such as the lack of a reference from a prior landlord;
o A prior eviction action for possession under ORS 105.105 to ORS 105. 168 that resulted in a general judgment of restitution in the landlord's favor; and
o The inability to verify information regarding a rental history.

- Criminal records, including:

o An unacceptable criminal history;
o The inability to verify information regarding criminal history.

- Financial information, including:

o Insufficient income;
o Negative information provided by a consumer credit reporting agency; and
o Inability to verify information regarding credit history.

- Failure to meet other written screening or admission criteria in your lease or rental agreement. (See Footnote 1)

- The dwelling unit has already been rented.

3. If you fail to comply with these provisions, the applicant may recover from you $100.

Footnote 1: The MHCO Lease (MHCO Form 5B) and Rental (MHCO Form 5A) forms list the screening criteria which a landlord may impose when the resident is seeking to sell their home to an applicant who wants to become a resident in the community. They are the following: (a) unsatisfactory rental references; (b) the absence of any prior tenant history or credit history; (c) unsatisfactory credit history; (d) unsatisfactory character references; (e) any criminal history; (f) insufficient income to reasonably meet the monthly rental and other expense obligations under this Agreement; (g) presence of pets or the number, type or size of pets; (h) if the Community is an age 55+ or 62+ Community, reasonable evidence verifying that at least one occupant is age 55 or 62, or over, as the case may be; (i) evidence that the prospective tenant has provided LANDLORD with falsified or materially misleading information on any material items; (j) if the prospective tenant refuses to sign a new written rental or lease agreement; (k) the number of additional occupants; or, (1) adverse information contained in the public record.