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And don’t be thrown off by what the resident says or when he says it. Whenever a resident raises a disability-related reason for violating the lease or community rules, you should treat it as a reasonable accommodation request. Under the FHA, an applicant makes a request for a reasonable accommodation whenever he makes clear that he is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability. The law doesn’t require that requests for reasonable accommodations be made in a particular manner or at a particular time.

Don’t dismiss it as an excuse or ignore the resident’s request for an exception to the rules simply because he doesn’t appear to be disabled. The law covers a variety of physical and mental impairments, characterized by few, if any, obvious symptoms to suggest that a particular person qualifies under the FHA’s disability-related provisions. Federal guidelines permit you to request additional information necessary to evaluate the request if either the disability or the need for the requested accommodation isn’t readily apparent.

The Question: What Should You Do?

1. Nothing, it's obvious that her complaint is merely a ploy to get around your no-pets policy.

2. Send her a warning that she's in violation of your community rules and that she must remove the dog immediately or face eviction proceedings.

3. Contact your attorney to determine how you should respond to the complaint.

The Correct Answer: C

If you receive notice of a formal fair housing complaint filed against your community, it's best to contact a fair housing attorney to oversee your investigation, advise you on the proper response, and communicate with the HUD investigator on your behalf.

Wrong Answers Explained:

A. The case won't go away if you ignore the notice and ensuing HUD investigation.

B. The FHA considers retaliation to be a separate offense, which means that you could be found liable for damages or penalties for retaliation, even if the initial discrimination claim is ultimately found to be groundless.

The FHA bars unequal treatment in the application process, for example, by using different rental procedures or screening criteria—such as income standards, application requirements, application fees, credit analysis, rental approval procedures, or other requirements—because of race or other protected characteristic, according to HUD regulations.

Whatever your policy on criminal background screening, for example, be sure that you apply it consistently—without regard to race and color, or other protected characteristics. Applying it only to applicants who are members of racial or ethnic minorities, but not to white applicants, could lead to fair housing trouble.

Example: In August 2019, the owners and managers of a Tennessee community agreed to pay $42,500 to resolve allegations of race discrimination by denying the application of an African-American applicant because of his criminal record, despite contemporaneously approving the rental applications of two white people with disqualifying felony convictions. The community denied the allegations but agreed to settle the case [U.S. v. Dyersburg Apartments, LTD., Tennessee, August 2019].

Tony Petosa and Nick Bertino - Wells Fargo Multifamily Capital

From both a global and national perspective, we are in the midst of witnessing major change unfold as President Trump takes over the reins from the Obama administration. It is undeniable that material shifts in policy are in the works, social and economic alike. Some of these will likely have an effect on the commercial real estate lending environment, including financing for manufactured home communities (MHCs). The Trump administration is already taking a new approach to banking regulations, which may at some point include working with Congress on the future of the government-sponsored entities (GSEs), Fannie Mae (FNMA) and Freddie Mac, both of which are active lenders to the MHC sector. More immediately, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd- Frank) is under review by the new administration in an effort to scale back regulations enacted during Obama's presidency. And, as if we didn't have enough change going on, many economists are predicting higher interest rates this year.

In 2016, FNMA and Freddie Mac continued to be reliable lending sources for multifamily and MHC properties while having remained in conservatorship since 2008. MHCs in 2016 were again excluded from the annual lending cap placed on the GSEs by their regulator, the Federal Housing Finance Agency (FHFA), and consequently MHC loans were generally priced with interest rate spreads well inside of those for conventional apartment properties. In December 2016, the FHFA announced that MHCs would continue to be excluded from the lending caps in 2017, which came as welcomed news to MHC property owners and lenders alike. Since Freddie Mac and FNMA will not have a limit on the volume of MHC loans they can originate this year, we anticipate they will continue to price MHC loans aggressively.

While we appear to be in a state of business as usual" with the GSEs in the near term

Editor's Note:  MHCO is working on developing a new form - addendum - to meet the new requirements set forth in SB1069.  We hope to have the new form uploaded to MHCO.ORG later next month.

SB1069 modifies portions of the Oregon Landlord Tenant Law to permit the transmission of certain kinds of written notice by electronic mail (“email”). After a landlord and tenant have entered into a written rental agreement, the parties may sign an addendum permitting the service of written notices by email. This addendum must be signed afterthe original rental agreement and after the tenant has begun occupying the premises.

The email addendum must include:

• The email address from which the landlord will be sending and receiving notices.
• The email address from which the tenant will be sending and receiving notices.
• A provision that either party may terminate their agreement to receive email notices or may change the email address from which they send and receive notices, with three-days written notice.
• The following statement:

THIS IS AN IMPORTANT NOTICE ABOUT YOUR RIGHTS

REGARDING RECEIPT OF WRITTEN NOTICES.

By signing this addendum, you agree to receive written notices from your landlord by e-mail. This may include important legal notices, including rent increase and tenancy termination notices. Failure to read or respond to a written notice could result in you losing your housing or being unaware of a change in rent. Signing this addendum is voluntary. Only agree to service of written notices electronically if you check your e-mail regularly.

Email Service of Termination Notice.  Even if the parties agree to email service of written notices as outlined above, landlord and tenant must serve any written termination notices by both email and first-class mail.

Miscellaneous.

ORS 90.160 is amended to specify that notices containing a number of days (e.g. a 10-day notice), counting of the required days begins the day after service of the notice and concludes at 11:59 pm on the last day of the period. However, for notices requiring a certain number of hours, counting of the consecutive hours is to commence immediately upon service. For notices to terminate by 11:59 pm, the day of service is counted from the time of first-class mail and attachment (if allowed under the rental agreement for both landlord and tenant) or first-class mail and email (if allowed under the addendum).

Electronic Return of Funds: After the tenancy begins and the tenant has occupied the premises, the landlord and tenant may agree to an addendum allowing the landlord to electronically return a security deposit, prepaid rent, or the appropriate portion of either to the tenant’s preferred bank account or financial institution. The required written accounting for the security deposit and/or prepaid rent may be returned to the tenant via email if the tenant has executed an email notice addendum as described above.

If a landlord must make repayment of rent to a tenant to avoid waiver under ORS 90.412 or ORS 90.414, the landlord may make that repayment in person, by first class mail, or electronically if allowed by addendum. Rent repayment going to any other non-tenant payor must be made personally or by first class mail.

Nonpayment of Rent. After a nonpayment notice a tenant’s payment will be considered timely if mailed within the notice period, unless the tenant has received their nonpayment notice in person, by first-class mail and attachment, or by first-class mail and email.

The Justice Department recently filed a lawsuit alleging that the owners and managers of residential rental housing in Honolulu, Hawaii, refused to rent to families with children, in violation of federal fair housing law. The lawsuit alleges that the three properties are operated as student housing for post-secondary students.

Specifically, the complaint claims that at least since 2015, the defendants discriminated against families with children by: (1) refusing to rent or to negotiate for the rental of the three properties on the basis of familial status; (2) steering prospective renters with children who inquired about housing away from the properties to a separate property management company; and (3) making discouraging and other discriminatory statements to potential renters with children who inquired about housing, including that the housing wasn’t “suitable” or the right “fit” for families with children.

The Legal Aid Society of Hawaii brought this matter to HUD’s attention after conducting testing that, as the complaint alleges, showed discrimination against families with children in connection with the defendants’ properties. The complaint contains allegations of unlawful conduct; the allegations must be proven in federal court.

“Owners and managers of rental housing must ensure their housing is open to families with children,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “The Fair Housing Act requires it, and the Justice Department will continue both to enforce the Act vigorously and to seek relief for families victimized by unlawful discrimination.”

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

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

Answer: No

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

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

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