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Solution: There are five steps you can take to minimize discrimination risks when dealing with undocumented aliens: 

1. Don’t make U.S. citizenship or immigration status a qualifying criterion for renting unless you have a legitimate, nondiscriminatory, and documented business justification for doing so—for example, because state or municipal law requires it;
2. Be consistent in applying whatever screening policy you do adopt;
3. Ask for the right form of verification of citizenship and/or immigration status (discussed below);
4. Apply your normal screening standards to immigrants; and
5. Don’t use an applicant or tenant’s immigration status as a bargaining chip.

How to Verify Immigration/Citizenship Status. 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, i.e., 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 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.

You Make the Call

Which of the following would be a legitimate reason to reject applicants who aren’t U.S. citizens?

a.         Being a U.S. citizen is required for leasing property under HUD program rules and/or state or local law 

b.         A non-U.S. citizen is generally less likely to pay rent on time each month

c.          Non-U.S. citizens are totally judgment proof

Answer:

a. The fact that HUD program rules and/or state or local laws require landlords to verify that applicants are U.S. citizens before accepting them is a legitimate, nondiscriminatory justification.

Wrong answers explained:

b.         The assumption that noncitizens are less likely to pay rent is just that—an assumption, and one based on stereotypes. Consequently, it’s not justification for requiring applicants to be U.S. citizens.

c.          The reason c. is wrong is that it’s overstated. While evicting or suing a noncitizen for lease violations poses challenges, it’s not accurate to characterize immigrants as “judgment-proof.” In fact, persons in the U.S. illegally are likely to be far more amenable to threats of litigation.

Answer: As to your question regarding the assessment of a late fee, here is what ORS 90.260(1) provides:

(1)A landlord may impose a late charge or fee, however designated, only if:

(a)The rent payment is not received by the fourth day of the weekly or monthly rental period for which rent is payable; and

(b)There exists a written rental agreement that specifies:

(A)The tenant's obligation to pay a late charge on delinquent rent payments;

(B)The type and amount of the late charge, as described in subsection (2) of this section; and

(C)The date on which rent payments are due and the date or day on which late charges become due. (Underscored text in italics are mine.)

I know of no other statute that directly addresses this issue. So assuming that:

• Your Rental Agreement makes it clear that the rent check must be received on or before the fourth of the month;
• The type and amount of late charge; and
• The date (a) rent payments are due (e.g. the first of the month), and (b) when the late charge would be due (e.g. the fifth of the month, or later),

I would conclude that you may assess a late charge where residents mail in their rent checks, but they are not received until the fifth of the month or later.

However, a word of caution: If you are going to institute this policy, it must be done uniformly and consistently for all residents. I suspect that some folks may believe that by mailing their checks on the fourth (based upon the postmark), their rent payment is timely, i.e. no late charge will be assessed. You want to make sure your residents understand that since they have the option of manually delivering their rent to the manager's office (or presumably dropping it into a box when the office is closed), that selecting the use of the mails requires that the rent is received - not simply deposited in a mailbox - could result in the assessment of a late charge if the check is received on the fifth or later.

Note, that ORS 90.394(4) provides:

(4) Payment by a tenant who has received a (72-hour or 144 hour) notice *** is timely if mailed to the landlord within the period of the notice unless:

(a)The notice is served on the tenant:

(A)By personal delivery as provided in ORS 90.155(Service or delivery of written notice) (1)(a); or

(B)By first class mail and attachment as provided in ORS90.155 (Service or delivery of written notice) (1)(c);

(b)A written rental agreement and the notice expressly state that payment is to be made at a specified location that is either on the premises or at a place where the tenant has made all previous rent payments in person; and

(c)The place so specified is available to the tenant for payment throughout the period of the notice. (Underscored text in italics are mine.)

Although this statute does not expressly say that proof of mailing is determined by the postmark (and I have not researched this based upon Oregon case law), for purposes of the payment of property taxes in Oregon, as well as state and federal income taxes, the postmark date is what is relied upon in determining whether the payment was timely. In other words, by analogy (without the benefit of legal research), I would conclude that timely mailing, based upon the postmark, does work for payment of rent following the issuance of a 72-hour or 144-hour notice of nonpayment under ORS 90.394. To be absolutely certain, however, you should obtain a legal opinion, based upon legal research, from your own attorney.

As to the second part of your question, i.e. what costs and fees you may assess to a resident, who tenders rent after the expiration of a 72-hour or 144-hour notice, if the eviction is actually file, the answer is contained in ORS 90.255:

In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, prevailing party means the party in whose favor final judgment is rendered. (Underscored text in italics are mine.)

ORCP 68(A)(1) Provides:

Attorney fees. "Attorney fees" are the reasonable value of legal services related to the prosecution or defense of an action.

ORCP 68(A)(2) Provides:

Costs and disbursements. "Costs and disbursements" are reasonable and necessary expenses incurred in the prosecution or defense of an action, other than for legal services, and include the fees of officers and witnesses; the expense of publication of summonses or notices, and the postage where the same are served by mail; any fee charged by the Department of Transportation for providing address information concerning a party served with summons pursuant to subparagraph D(4)(a)(i) of Rule 7; the compensation of referees; the expense of copying of any public record, book, or document admitted into evidence at trial; recordation of any document where recordation is required to give notice of the creation, modification, or termination of an interest in real property; a reasonable sum paid a person for executing any bond, recognizance, undertaking, stipulation, or other obligation therein; and any other expense specifically allowed by agreement, by these rules, or by any other rule or statute. The court, acting in its sole discretion, may allow as costs reasonable expenses incurred by a party for interpreter services. The expense of taking depositions shall not be allowed, even though the depositions are used at trial, except as otherwise provided by rule or statute. (Underscored text in italics are mine.)

Based upon the above, it is my opinion that the cost of the private company you employ to prepare the eviction complaint, would not normally be recoverable, even if you filed the complaint. Without addressing whether this is the "unlawful practice of law", I will note that if you paid your attorney to perform this service, it would be recoverable as attorney fees, if the complaint was filed. The only exception might be if you had a specific provision in your Rental Agreement that expressly permitted it as a recoverable court cost. I say "might", since the court has a certain amount of discretion in the matter of the amount of costs, fees, and disbursements it will award, and may or may not permit it.

If you file the eviction, but reach a settlement with the resident for payment of your court costs, attorney fees, and disbursements, you may have to enter into a Stipulated Judgment of Restitution, permitting the resident to pay these additional costs over a period of time.

If no eviction is filed, i.e. the resident tenders rent after the running of the 72-hour or 144-hour written notice of nonpayment, but before the filing of a complaint in court, you cannot condition your acceptance upon the simultaneous payment of late charges. And since you have not filed in court, the best you can expect is to recover late charges through the use of a 30-day notice under ORS 90.630(1). Additionally, remember that if the resident is a serial later payor, you may issue a 20-day non-curable notice of termination, under the 3-strikes provisions of ORS 90.630(8).

Answer: Yes, there are a few new laws plus a few new twists on existing laws. In a shameless plug, I encourage all park owners renting RV spaces to attend my RV Law Seminar at the MHCO Annual Convention. The RV seminar is on Monday, October 20th at 3:30.

Liability Insurance

One of the new laws we'll cover is the tenant liability insurance statute. This new law allows landlords to require RV tenants to obtain and maintain liability insurance during their tenancy. The amount of coverage may not exceed $100,000. To implement this policy, landlords can give RV tenants a 30-day notice informing them of this requirement. New RV tenants can be required to obtain insurance as long as you notify them in writing when they apply for tenancy.

If you have long-term RV tenants, it might be worthwhile to make liability insurance a requirement in your park. It adds another layer of protection for you as a landlord if a tenant does something causing major damage or injury in the park. (NOTE: The law does not apply to mobile home park tenants.) There are some restrictions on the insurance requirement, which we will cover in more detail at the RV seminar.

Noncompliance Fees Charged to RV Tenants

There have been a few changes to the laws which allow a landlord to charge tenants a noncompliance fee for certain violations. These fees can be a useful tool in getting tenants to follow the park rules without having to issue an eviction notice. Landlords can charge fees for (1) late utility payments, (2) failing to pick up pet waste, (3) failing to clean up garbage, (4) parking violations, (5) improper use of vehicles on the premises, (6) smoking in non-smoking areas, and (7) keeping unauthorized pets. The fees can't be charged without first giving a written warning and there are several other restrictions that we will cover at the RV seminar.

Section 8 Rental Payments

A new law now makes it unlawful for you as a landlord to refuse to rent to Section 8 tenants for that reason alone. The rationale is to give low income tenants the opportunity to rent anywhere regardless of how they make their income. While this doesn'tusually arise in RV park rentals, all landlords should be aware of the new law.

Prior Evictions, Arrests of Crimes

RV tenant applicants now cannot have their evictions considered if the case was dismissed or a judgment entered in the applicant's favor. Eviction cases 5 or more years old at the time of the rental application similarly cannot be considered in evaluating the applicant.

The law also specifies that only certain types of crimes can be considered in evaluating an applicant: (1) Drug related crimes, (2) crimes against another person, (3) sex offenses, (4) financial fraud, and (5) a "catchall" provision that includes any crime that might affect the landlord's or other tenants' property or safety. Arrests in the person's past on any of these issues that did not result in a conviction cannot be considered. However, pending arrests that have not been adjudicated at the time of the application may be considered.

RV Restroom Requirements

While not a new law, Oregon law requires that parks provide bathroom facilities to "vacation or recreational" campers. Less clear is whether parks are obligated to keep or install restrooms if they only rent to long-term residential RV tenants. At the RV seminar we will explore this issue and how it might affect your park - particularly if you have a mixed-use park of both RVs and mobile homes.

Upon reaching the ending date, fixed term tenancies will automatically renew to a month-to-month tenancy upon the same terms and conditions (except duration and rent).

In order to renew or extend a fixed term tenancy, (and avoid rolling into a month-to-month tenancy), the landlord must submit the proposed new lease agreement to the tenant at least sixty (60 days prior to the end of the lease term. The landlord is to include with the proposed lease agreement a written statement summarizing the new or revised term, conditions or rules and regulation.

If the landlord fails to submit a proposed new lease agreement the tenancy renews as a month-to-month tenancy.

The new or revised terms, conditions, rules and regulations must:

1. Fairly implement an existing statute or ordinance adopted after the creation of the existing agreement.
2. Be the same as those offered to new or prospective tenants.
3. Be consistent with the rights and remedies provided to tenants under ORS Chapter 90.
4. Not relate to age, size, style, construction material or years of construction contrary to ORS 90.632(2)Not require an alteration of the manufactured dwelling or accessory, building or structure.

The tenant must accept or reject the proposed new rental agreement at least thirty (30) days prior to the end of the lease term.

If the tenant fails to accept or unreasonably rejects the proposed new lease agreement, the fixed term tenancy terminates on the last day of the lease term without further notice.

If the tenancy terminates for failure to renew by the tenant, and the tenant surrenders and delivers possession of the premises to the landlord, the tenant is entitled to substantially the same rights and responsibilities as a lien holder under ORS 90.675(18) (the abandonment statute) except that the term of the storage agreement may not exceed six (6) months. (Note: this is not technically an "abandonment" the lien holder's rights are delayed until the end of the tenant's storage agreement.)

Fixed termed tenancies entered into before the effective date of this 2001 Act are not made invalid because their duration is less than two years. However, upon renewal or extension in accordance with the Act, the lease agreement must comply with minimum two (2) year requirement. 

Answer: No

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

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

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

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

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

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

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

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

Question 1: When tenants request an assistance animal, are they required to put a deposit down like everyone else who requests for a pet to be admitted to housing?

Answer 1: No, you can’t charge a deposit for an assistance animal. So don’t charge the deposit until you've made the decision that it's not an assistance animal.

Question 2: If someone has paid a pet deposit and later needs to reclassify their pet as a support animal, must we refund the pet deposit?

Answer 2: Generally, yes. If you decide to approve the animal as an assistance animal, you should refund the deposit.

Question 3: We have verified that a tenant’s Rottweiler is her assistance animal. But Rottweilers are a restricted breed under our property's insurance policy. What should we do?

Answer 3: HUD has told us that if your carrier won't insure you if you allow a Rottweiler on site, and you’re unable to obtain comparable insurance from some other carrier, then that would be a defense to not allowing the Rottweiler. It would not be a defense to not allowing an assistance animal at all, but not allowing that particular breed. The problem is the burden is on you, the housing provider, to show that: (1) your insurance carrier is going to drop you; and (2) you cannot obtain comparable insurance. It's your burden, but it is a potential defense.

Question 4: If a tenant who’s requesting permission for an assistance animal provides verification from a credible source, but it's dated a few years back, is this acceptable? What is the rule for backdated verifications?

Answer 4: There isn't a rule; it's just a reasonableness issue. If the tenant has gotten a new animal, then you should ask the tenant to update the verification letter. If it's the same animal and it's a legitimate letter other than the date, then it’s probably good enough.

Answer: Under the Fair Housing Act ("the Act") housing providers including landlords, are required to make reasonable accommodations to the rented facilities and common areas, if requested by a handicapped tenant or their legal occupant ('the requestor").

Landlords are entitled to obtain reasonable information from the requestor in order to assist in determining whether the requested accommodation is reasonably necessary because of the disability. If a person(s) disability is obvious, or otherwise known to the landlord, and if the need for the requested accommodation is readily apparent or known, then the landlord may not seek any additional information about the requestor's disability or the disability-related need for the accommodation. This law also applies to the use of assistance animals.

A "reasonable accommodation" is a reasonable change, exception or adjustment to a rule, policy practice or service that will enable a handicapped person to have an equal opportunity to use and enjoy the rented facilities and common areas. There must be an identifiable relationship between the requested accommodation and the person's disability. Landlords are not required to make requested accommodations if doing so would impose an undue financial or administrative burden upon them or fundamentally alter the nature of the landlord's operations. With respect to a person, a "handicap" means: (a) one with a physical or mental impairment which substantially limits one or more major life activities; (b) one with a record of such impairment; or (c) one who is regarded as having such an impairment. [Juvenile offenders, sex offenders, persons who illegally use controlled substances and those with a disability whose tenancy would constitute a direct threat to others, or result in substantial physical damage to the property of others, are generally not protected under the Act.]

If a landlord refuses a requested accommodation, the requestor is encouraged to have a discussion with the landlord concerning an alternative accommodation. This is a summary only and not intended to constitute legal advice. For more information, landlords, tenants and legal occupants of tenants are encouraged to consult with their attorney or a Fair Housing expert if they have any questions regarding their rights and responsibilities.

My first reaction is that what the resident is requesting is not appropriate for several reasons [and not simply because other residents do not have computers and cannot access Facebook]. Here is a sampling:

• He is asking for information that goes to business/management issues that may not be appropriate for sharing with residents, either because it is not available, it is subject to change, it may not be known, etc. Even if it is appropriate for discussion at the general meetings, I can see this forum moving in the direction of demanding more and more information than management is willing to share. The test for content is, I suppose, whether it would be a topic of discussion at open meetings.
• There should be one time and place for these meetings, and if you are not going to give up open meetings at scheduled times, then the Facebook approach is not only duplicative, but risks creating two lines of communication, one at the public meetings and the other over the Internet. You should limit the meetings to the open forum.
• Anonymity is a dangerous format for questions, since he could simply begin making up his own questions, turning the Facebook forum into an opportunity for his own private inquisition.
• I don't think I would like to see my residents' questions spread across the Internet, for business reasons. Resident meetings are not open to the public, as far as I know. Why would you do so with an Internet forum?
• Clearly, what he wants is not what the other residents want - his request for the accommodation ignores their wishes and your needs as a manager. In other words, it is administratively impossible.
• I'm sure with time I could come up with a host of other objections.

You should, of course, take this request seriously. While you want to briefly explain why you are unwilling to participate in this process, you don't want this to get into a lengthy dialogue on the matter. For example, what if you gave three reasons for declining his request? Then he files a Fair Housing claim, and you then give five reasons? It appears that you just made up two new ones. Accordingly, anything you say should be couched in "Here are some - but not necessarily all - of the reasons I cannot grant your request. The shorter the better. No need to get into a lengthy letter writing campaign.

You should definitely make a counter-proposal for the kind of accommodation you can grant - e.g. have someone take minutes of the open meetings (not recordings). He and everyone else can have the minutes for review. If anyone wants to raise a question or comment about the minutes, they may do so at the following meeting. He can select a proxy - i.e. another resident - to relay his questions and concerns at the meetings he does not want to attend.

Lastly, it appears that the rest of the residents want you present - his demand seems to want to subordinate everyone's needs to his. That is not the concept behind a "reasonable accommodation." It comes from the landlord to the requestor - not from the residents. Granting him what he wants/needs by taking minutes and allowing the proxy, reaches a far better balance for everyone involved. The residents have open meetings and he has access through the minutes and his proxy.

Answer: I think the first order of business would be to research the different types of security cameras, and their range of use. You need to know what features they all have.

I do not know what you mean when you say that you "have always told the residents that we do not provide security... ." It's one thing to remind residents of their own responsibility to protect their property, and another to have posted signage saying so. You should develop a written policy, circulate it and post it.

Also, you don't say whether you have a separate storage charge for use of the RV storage lot. Nor do you say whether access is limited, e.g. through a gate. Generally, when one (e.g. a landlord) provides separate storage facilities, you can expect some degree of liability to attach unless access is controlled, e.g. by a security fence.

My initial reaction to the idea of security cameras is generally good, subject to the following caveats:

- If it is not monitored, tenants should know that, so they do not have unrealistic expectations of the system's efficacy.

- Make sure that the system is visible with warning signs; I would expect that most security camera companies provide such signage.

- Make sure the tenants understand the limitations of the surveillance; I would want to have written disclaimers to all residents that they store their RVs at their own risk.

- I would even have a short written and signed agreement of understanding with tenants before allowing them to use the facilities.

This area of the law is known as "bailments", i.e. when someone provides storage of personal property to another. Think of places where you can check your hat or coat. Even the little ticket they give you has visible disclaimers. And even thought the bailment is free, it can create liability for the bailee (the one storing the property) unless adequate precautions are taken, and there is - or is not - a written disclaimer that is given to the bailor (the one delivering the property).

Lastly, consider this; you are now on notice that thefts can occur from the storage area, even with good lighting. Perhaps you might consider installing additional surveillance not only around the storage area, but elsewhere in the park (with appropriate signage) as well. Residents should be vigilant and notify management if they see suspicious activity or strangers.

Answers to Questions Nos. 1 and 2. Under the Fair Housing Act ("the Act") landlords are required to make reasonable accommodations to the rented facilities and common areas, if so requested by a handicapped tenant or their legal occupant. This law applies to the use of assistance animals.

A "reasonable accommodation" is a reasonable change, exception or adjustment to a rule, policy, practice or service that will enable a handicapped person to have an equal opportunity to use and enjoy the rented facilities and common areas. There must be an identifiable relationship between the requested accommodation and the person's disability. Landlords are not required to make requested accommodations if doing so would impose an undue financial or administrative burden upon them or fundamentally alter the nature of the landlord's operations. In order to address the request, Landlords are entitled to obtain information that is necessary to evaluate it for a reasonable accommodation. With respect to a person, a "handicap" means: (a) one with a physical or mental impairment which substantially limits one or more major life activities; (b) one with a record of such impairment; or (c) one who is regarded as having such an impairment. Juvenile offenders, sex offenders, persons who illegally use controlled substances and those with a disability whose tenancy would constitute a direct threat to others, or result in substantial physical damage to the property of others, are generally not protected under the Act. If the landlord refuses a requested accommodation, the requester is encouraged to have a discussion with the landlord concerning an alternative accommodation. This is a summary only and not intended to constitute legal advice. For more information, landlords, tenants and legal occupants of tenants are encouraged to consult with their attorney or a Fair Housing expert if they have any questions regarding their rights and responsibilities.

Note: MHCO has Form No. 15 which permits residents to make reasonable accommodation requests.

I think my first step (which may have already occurred prior to the rule changes, is determine the extent of the problem for emergency vehicles along the narrow streets. Does a single car slow or restrict access to emergency vehicles? In short, how problematic is it for a single car to be parked along the street? Does it create any danger to the community, its drivers, or the emergency vehicles? Once you have that baseline, you will have a sense about the safety of making a reasonable accommodation by permitted on-street parking.

Secondly, if I were to permit anyone to park on the street (assuming the safety issue is properly vetted), I think I would insist that they have a handicapped parking permit. That way, anyone parking on the street without a permit would be easier to spot. (Although you should consider whether the permit is expired or being abused, or in the name of the car's owner.)

The handicapped caretaker is not your direct responsibility - she was hired by your resident. I do not believe convenience is the litmus test here - it's whether the rule prevents her from performing her tasks, and coming and going to the site. I think the biggest problem, and one you've not mentioned but certainly are thinking, is this could become a slippery slope. The more cars you permit to park on the street, the more others will try the same thing. At this point, I believe I'd take the position that if the parking area can accommodate two cars, then that's where they should park - even if it means shuffling them around, handicapped or not.

I do not believe handicapped caretaker has standing to request a reasonable accommodation, since he/she is not a tenant or occupant of the home. But I have not research this issue; you should verify this with your own attorney.

As for the non-handicapped caretaker, a little walk to and from the guest parking is not the end of the world. "Convenience" for a non-handicapped person is not a basis for a reasonable accommodation under the ADA, Fair Housing law, or common sense.