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Beginning, then developing the process

In promoting positive, ongoing relationships with residents, we must remember to treat each of them as a valued customer. Expressing interest in their concerns and meeting their needs when problems arise can accomplish this. Contented residents create fewer problems than unhappy individuals, which in the long run affect the owner's bottom line. Rent control is often a result of poor resident relations. Additionally, loss of your valuable time and expensive legal cost can be saved through positive resident relations.

Development of good resident relationships does not just happen, as it is an ongoing process that you have to continually work at. Sound communication skills are a necessity in dealing with residents.

The development of resident relations begins during your first meeting with the resident. We have all heard how important first impressions can be and in this case it is definitely true. It is important to start off courteous and have a positive attitude at all times. Residents want to be treated fairly and with respect. Positive first impressions also include how you are dressed and the professionalism displayed in your mannerisms.

There are three key aspects of communication to consider when dealing with your residents than can lead to positive relationships: verbal communication, nonverbal communications, and written communications.

Verbal Communication

Verbal communication comes down to controlling the tone of your voice and being a good listener. Often the most important factor is not what you say, but how you say it. For example, if you remain calm, with no anger in your voice, you probably can defuse an agitated resident. To help eliminate misunderstandings you must respect the compliant or the message given to you, then clarify it so that both sides understand what is being said. Let the resident know you are listening to them and make them aware that they are being heard.

Nonverbal Communication

Nonverbal communication can sometimes reveal more about what you are saying than words you actually speak. Gestures, postures, appearance and facial expressions are examples of nonverbal communication that you should be aware of. Also, it is important that you maintain eye contact with the resident while he or she is speaking. This indicates to them that you are paying attention to what they are saying and that you are interested.

Written Communication

Written communication will play an important role in developing good resident relations. This is an effective way to get across a message or make a point. Your correspondence should be in a short, concise manor and preferably no longer than one page. You should be direct and courteous; avoid being rude, negative or accusatory. Whenever possible, start and end your correspondence with a neutral or positive statement.

While written communication is necessary, it should be not substituted for face-to-face contact. We often see owners and managers try to avoid speaking directly with residents by sending them a written notice or violation letter. The problem with written communication like this is you cannot get all the facts and there may be a reasonable explanation of a violation of which you were unaware. This makes you look uninformed and leaves a negative impression on the resident. Giving residents positive feedback can also help in developing better relationships. If a resident maintains a nice clean space, you should tell them. This lets them know you care and encourages them to continue the positive behavior. After a resident complies with a request to clean up their space, let them know how great it looks and how much you appreciate their cooperation.

In Conclusion

Good resident relations require a well thought-out plan and a commitment on your part to make it work. If you understand your residents and always show a caring, positive attitude when dealing with their concerns, you will see favorable results. Development, and use of good communication skills will make the process much easier and lead to a smoother running community with fewer problem.

Example: In June 2020, HUD announced that it reached a $200,000 settlement with a public housing authority in Alabama after a HUD compliance review identified racial discrimination in the housing authority’s rental policies, waiting lists, and transfer requests with regard to its senior residents. HUD reported that its review showed that the housing authority discriminated against elderly Black applicants who applied for housing at more desirable properties by repeatedly skipping over them on the wait list even though they were next to receive a unit. Allegedly, Black applicants were also steered to less desirable units at one of the housing authority’s racially and ethnically concentrated properties. The housing authority denied the allegations but agreed to settle the case.

Example: In May 2020, the Justice Department filed a lawsuit against the owners and managers of multifamily housing communities in Georgia, alleging that they violated federal fair housing law by intentionally discriminating on the basis of race against African-American applicants for housing.

The lawsuit alleged that from at least 2012 to 2018, the defendants steered African-American housing applicants who were elderly or had a disability away from a predominantly white housing complex to a predominantly African-American housing complex, which was inferior in appearance, location, and amenities to the predominantly white community. Both complexes were located in the same city in Georgia. The complaint also alleged that the defendants subjected African-American residents who are elderly or have a disability to less favorable rental terms, conditions, and privileges as compared to similarly situated white residents, and denied African-American applicants more desirable units at the predominantly white community. The complaint contains allegations of unlawful conduct, which must be proven in federal court.

“Congress enacted the Fair Housing Act in 1968 to protect Americans from the racially motivated violence and discrimination that has stained our nation’s history. More than five decades later, our nation regrettably continues to suffer the scourge of racial bias,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “The Department of Justice will continue to fight to protect the rights of all Americans to rent and own their homes without regard to their race.”

DEEP DIVE:

What Is Steering?

According to HUD regulations, unlawful steering includes:

• Discouraging prospects from renting a unit because of a protected characteristic of the prospect or the people living in the community;
• Exaggerating drawbacks or failing to inform any person about desirable features of a unit or the community because of a protected characteristic;
• Telling the prospect that he wouldn’t be comfortable or compatible with existing residents of the community because of a protected characteristic; or
• Assigning applicants to a particular section of a community or floor of a building because of a protected characteristic.

MHCO Note: At the time of this printing, the Federal Trade Commission still has the effective date for enforcement of the Red Flags Rule as December 31, 2010. Exemptions for specific industries have been granted as late as the first week of December 2010. MHCO and MHI are conducting research on this topic and will be providing additional information as it becomes available. The Federal Trade Commission link is http://www.ftc.gov/bcp/edu/microsites/redflagsrule/index.shtml and contains a lot of information that should be of interest to community owners and manufactured home community retailers. If you are subject to the new rule there is a template developed by the FTC for businesses at low risk for identity theft at this site. While we are still looking into this and monitoring developments in the Congress, it is likely that if a community owner is not billing for utilities, is not providing loans for residents purchasing homes, and is not acting as a retailer selling homes, they are not probably covered by the Red Flags Rule.

The "Red Flags" Rule: What You Need to Know

As of June 1, 2010 the Federal Trade Commission has begun enforcement of the 'Red Flags' rule which mandates creditors and financial institutions to implement identity theft prevention programs. It's important to spend some time discussing the rule, including what it is and what it means for you

The "Red Flags" Rule - In Plain English

The full title is this: "Identity Theft Red Flags and Address Discrepancies under the Fair and Accurate Credit Transactions Act of 2003" (FACT). It amends the Fair Credit Reporting Act (FCRA). The rule was written specifically for companies making loans, such as banks and commercial lending institutions, but a portion of it extends to rental property owners and managers since both rely on consumer reports (e.g. credit) that (1) ask for sensitive information, such as social security numbers, and (2) could turn up address discrepancies. The philosophy behind this rule is simple: sensitive information must be kept secure to prevent identity theft, and a discrepancy in address could indicate fraud.

The rule requires that "reasonable" policies be in place to prevent identity theft and to verify a person's identity when an address discrepancy is reported. In the case of address discrepancy, if the property manager can't work out the discrepancy, the rule says he/she is not to rent to this individual.

What the Red Flags Rule Means for Rental Owners & Property Managers

While the rule has caused some confusion, compliance is straightforward. More than likely, you're probably already in compliance since the only thing that rental owners or property managers have to show is that they have a "reasonable" process in place for preventing identity theft and for checking IDs, verifying IDs, and following up/asking about any discrepancies.

For example, how do you destroy electronic and paper records that contain sensitive information? Or how about this: if someone gives one address on his or her rental application, but the license lists another address, what's your policy for handling this situation? As long as you have reasonable policies in place, you're in compliance.

Do I need to create a special report if I suspect fraud?

The other commonly asked question about the Red Flags rule (beyond "how do I comply") is this: do we need to report suspected fraud? The answer - for better or worse - is no. If you believe someone is trying to perpetrate a fraud, there's no requirement beyond not renting to this individual.

Still Unsure About the Red Flags Rule? Contact Your Screening Partner

Laws, rules, and amendments result in legitimate questions and concerns, so we understand people's trepidation regarding the Red Flags rule. While it's true that you're likely already in compliance, it can't hurt to contact your screening partner and ask to review with them your policies and systems.

For full details, visit the FTC website at http://www.ftc.gov/redflagsrule

The information in this article should not be construed as legal advice. Always consult an attorney for questions regarding legal matters and compliance.

ScreeningWorks is a service of RentGrow, Inc. the resident screening experts (www.ScreeningWorks.com).

For more information please contact info@screeningworks.com or 888-401-7999.

Look for more information on this issue in future issues of MHCO's "Community Update". 

Answer A: First, the MHCO Lease cited above addresses this. Not fixing the leaks, which are their responsibility to do, is a violation. Secondly, ORS 90.740(f) requires that tenants “(u)se electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems. The tenant is using the water system in an unreasonable manner when they refuse to fix the leaks.

ORS 90.630 (Termination by Landlord) provides, in relevant part, the following:

 (1) Except as provided in subsection (4) of this section, 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 tenant not less than 30 days’ notice in writing before the date designated in the notice for termination if the tenant:

      (a) Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;

      (b) Violates a rule or rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing….

ORS 90.630 goes on to explain that you may issue a 30-day written notice of termination, allowing the tenant to fix the leaks within 30 days and avoid termination. If they fail to do so, you may file for eviction. If they cure, but the problem occurs again within six months following the date of your earlier 30-day notice, you may terminate the tenancy within 20 days, and there is no opportunity to cure. MHCO has the necessary forms.

Be sure you have papered your file to support your contention that these are water leaks for which the tenant is responsible, and then specifically describe the violations (there are two of them, one under the Lease, and the other under the statute)  in the Notice. 

Answer B:  This question is same as the prior one and the answer is the same (although the placement of the requirement may not be in the same location, depending on the date of your lease or rental agreement). Just make sure you have the evidence (e.g. plumber statement) before acting, and that you adequately identify the problem and solution in the Notice. 

Answer A: First, the MHCO Lease cited above addresses this. Not fixing the leaks, which are their responsibility to do, is a violation. Secondly, ORS 90.740(f) requires that tenants “(u)se electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems. The tenant is using the water system in an unreasonable manner when they refuse to fix the leaks.

ORS 90.630 (Termination by Landlord) provides, in relevant part, the following:

 (1) Except as provided in subsection (4) of this section, 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 tenant not less than 30 days’ notice in writing before the date designated in the notice for termination if the tenant:

      (a) Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;

      (b) Violates a rule or rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing….

ORS 90.630 goes on to explain that you may issue a 30-day written notice of termination, allowing the tenant to fix the leaks within 30 days and avoid termination. If they fail to do so, you may file for eviction. If they cure, but the problem occurs again within six months following the date of your earlier 30-day notice, you may terminate the tenancy within 20 days, and there is no opportunity to cure. MHCO has the necessary forms.

Be sure you have papered your file to support your contention that these are water leaks for which the tenant is responsible, and then specifically describe the violations (there are two of them, one under the Lease, and the other under the statute)  in the Notice. 

Answer B:  This question is same as the prior one and the answer is the same (although the placement of the requirement may not be in the same location, depending on the date of your lease or rental agreement). Just make sure you have the evidence (e.g. plumber statement) before acting, and that you adequately identify the problem and solution in the Notice.

HUD also found that the problem exists in both the home buying and rental markets. Specifically, the report found that, as compared to white renters who contact a rental agent:

• African Americans are told about 11 percent fewer units and shown 4 percent fewer units;
• Latinos/Hispanics are told about 12 percent fewer units and shown 7 percent fewer units; and
• Asian Americans are told about 10 percent fewer units and shown 7 percent fewer units.

Surprised? How can this continue to happen in a country where housing discrimination and segregation have been illegal since 1968, you may wonder.

Part of the answer is that while overt discrimination has become relatively rare, more subtle forms of discrimination continue to thrive. And as they continue over time, they perpetuate institutional segregation. Of course, these subtle forms of discrimination are every bit as illegal as the overt kind. The problem is that they’re also much harder to detect and root out. And because these forms of discrimination are so subtle, it’s easy for property owners, managers, and leasing agents who are otherwise committed to equal housing principles to engage in them unintentionally and inadvertently.  

This month’s lesson deals with one of the most widespread and pernicious forms of subtle discrimination: steering. First, we’ll explain what steering is and how it occurs. And then we’ll set out seven rules to ensure that your leasing agents don’t engage in conduct that constitutes steering. We’ll finish up the lesson with the Coach’s Quiz so you can see how well you learned the material.   

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans discrimination on the basis of race, color, religion, sex, handicap (disability), familial status, or national origin. (To avoid having to list these traits over and over again, we’ll refer to them collectively as “protected characteristics”). Also keep in mind that federal FHA requirements are minimum standards and that many states have adopted their own fair housing laws that extend protections to other protected characteristics, which may include:

• Sexual orientation;
• Gender identity;
• Source of income;
• Criminal record;
• Political belief;
• Creed; and/or
• Military status.

Forms of unlawful discrimination include, among other things:

• Refusing to sell, rent, or negotiate for the sale or rental of, or otherwise make available, or deny housing to a person on the basis of protected characteristics [FHA, Section 3604(a)];  
• Offering different and less favorable terms, conditions, or privileges of the sale or rental of housing due to a person’s protected characteristics [FHA, Section 3604(b)];
• Making notices and statements or engaging in advertising for the sale or rental of housing that indicate a preference on the basis of protected characteristics [FHA, Section 3604(c)]; and
• Making discriminatory misrepresentations about the availability of housing [FHA, Section 3604(d)].

Steering may run afoul of any one or combination of Sections 3604(a), (b), (c), and/or (d), depending on the situation. It occurs when a landlord tries to influence rental prospects’ choice in housing based on their protected characteristics. Steering is illegal because it limits prospects’ choices and denies them the opportunity to buy or rent the housing they choose. Practiced on a wider basis, steering also maintains or creates segregation across apartment communities, neighborhoods, towns, cities, and wider communities.

Part of what makes steering so widespread is how easy it is to conceal. And those very same qualities make it easy to commit accidentally. Nobody would object to the principle that housing providers refrain from trying to influence a person’s housing choices on the basis of protected characteristics. But applying this no-influence principle to real-life situations is very tricky. After all, aren’t leasing agents supposed to provide prospects with information about the apartment so they can decide whether it’s suitable for them?

Steering is all about balancing these competing dynamics. Nobody is suggesting that leasing agents be banned from providing information and answering questions about a property so that prospects can decide whether renting it is right for them. The key to avoiding steering is ensuring that leasing agents don’t carry out these information-sharing responsibilities in a way that influences the prospect’s decision on the basis of his or her particular race, color, etc. And that’s easier said than done. The seven lessons below will enable you to help your leasing agents steer clear of steering.   

7 RULES FOR HELPING LEASING AGENTS AVOID STEERING

Rule #1: Don’t Tell Prospects Where to Rent Based on Protected Characteristics

Steering isn’t always subtle. Sometimes it’s as obvious as a punch in the face. The two most common forms of overt steering:

• Making verbal remarks like “we don’t lease to Black people” or “we don’t have anything suitable for kids or people with disabilities”; and
• Displaying apartments on the basis of protected characteristics such as not showing any units on “adults-only” floors to prospects with young kids.

While these things are enough to make any fair-minded landlord cringe, regrettably, they still happen. And rest assured that if any of your leasing agents were to engage in that kind of conduct, fair housing testers will eventually catch them. At that point, you’ll be looking at not just liability but also potential punitive damages running into six- or even seven figures.

Example: An Atlanta real estate firm and its leading agent had to pay $160,000 to settle steering charges for showing white testers homes in predominately white neighborhoods and Black testers homes in Black neighborhoods. The smoking gun: The agent allegedly told one tester, “I wasn’t sure where to take you because I couldn’t tell over the phone whether you were white or Black.”

Rule #2: Don’t Try to Influence Prospects’ Choices Based on Protected Characteristics

A more common form of steering is to say things to discourage prospects from renting from you (or where in the building to rent from you) or encouraging them to rent from somebody else on the basis of their protected characteristics. Examples of things leasing agents should never say (all of which come from actual HUD cases where landlords were found guilty of steering):

• “I think there are other apartment communities in town that cater more to kids”;
• “We have a few apartments in the back of the building for people with wheelchairs”; and
• “I wouldn’t be comfortable renting in this neighborhood if I were a young single woman.”

Rule #3: Don’t Tell Prospects Where They’d Be “Comfortable”

Notice the word “comfortable” in the last bulleted example above. One of the most common forms of steering is seeking to influence prospects’ choices based on where they’d be most comfortable. The problem is what the word “comfortable” implies.

The critical assumption that’s dangerous to make and even more poisonous to act upon is that people are more “comfortable” and “compatible” with people of their own race, color, etc. Accordingly, telling prospects that they’d be uncomfortable in your community or more comfortable somewhere else suggests that you’re trying to influence them on the basis of their protected characteristics. This conduct constitutes illegal steering even when leasing agents genuinely believe they’re acting in the prospects’ best interests.

Another variation on the theme is seeking to protect residents from discriminatory neighbors, for example, by deliberately not telling a Jewish family about an otherwise suitable vacancy to protect them from the virulently antisemitic neighbor next door. Giving bigots, racists, anti-Semites, and the like veto power over who can lease from you makes you a co-conspirator in discrimination.  

Rule #4: Don’t Answer Discriminatory Questions or Heed Discriminatory Demands

In some cases, the impetus for steering comes not from the leasing agent but the prospect considering the property. One form of this is when a prospect asks questions about, say, the race or color of residents in the community—for example, where a white prospect asks, “Are there any Black people living here?” A more subtle way to pose the question is for prospects to ask a leasing agent, “Do you think I’d be comfortable (there’s that word again) in this community?”

Prospects who ask these kinds of questions are probably either: (1) testers sent to monitor your community’s compliance with the FHA; or (2) genuine racists or bigots. In either case, make sure that leasing agents don’t take the bait. Specifically, make sure they understand that discussing the protected characteristics of other residents with a prospect is a form of illegal steering, even when the prospect brings up the topic.

Note that the same principles apply when a prospect makes discriminatory demands, such as insisting on being shown only units on floors where none of the residents are of a particular race, color, etc.

The best practice for these situations is to have the leasing agent politely decline to answer the discriminatory question or heed the discriminatory demand and tell the prospect of your community’s commitment to fair housing and refraining from discrimination. It’s also a best practice to script the leasing agent’s “we-don’t-discriminate” reply. Language to consider:

“I’m sorry but I’m afraid I can’t answer that question. Please understand that ABC Community is an equal housing opportunity provider committed to complying with all federal, state, and local fair housing laws. ABC does not discriminate against any person because of race, color, religion, national origin, sex, familial status, disability, or [other personal characteristics protected by state or local fair housing law].”

In some cases, the leasing agent may even be able to explain why the prospect’s question or demand is discriminatory and persuade him or her to rephrase or retract it.   

If instead of a direct question about a protected class, prospects ask whether they’d be comfortable renting from you, instruct leasing agents to turn the question around and ask the prospect what he or she means by “comfortable.” If the prospect’s response is nondiscriminatory and not based on the characteristics of the people in the community or neighborhood, the leasing agent can proceed to answer the question. But if the prospect’s response suggests any discriminatory biases, such as, “I’m comfortable with young people” or “I’m uncomfortable around kids,” they should refuse to answer and recite the above statement.  

Rule #5: Don’t Limit Prospects’ Choices Based on Their Kids’ Safety

Leasing agents must understand that it’s not their responsibility to try to talk prospects out of making unsound decisions about where to rent. This instinct of leasing agents to want to protect prospects against themselves is most likely to manifest itself when prospects want to rent apartments that would be unsafe for their young children—for example, units located on an upper floor or right next to a pool with no lifeguard.

A 1992 in-house legal memorandum from HUD’s Fair Housing Division clearly states that denying or trying to discourage families with children housing on the basis of safety is illegal steering. According to the memo, the FHA requires “housing providers to make all units, including units on upper floors and units with balconies, available to families with children.” It also bans the practice of making families with children sign waivers of liability not required of other residents.

Example: In 2017, the U.S. Department of Justice (DOJ) accused the owner and operator of a New Hampshire community of using the safety argument to steer the mother of an infant child away. According to the complaint, the community had a safety policy of placing families with children under the age of 10 in first-floor units only. And since no first-floor units were available, they turned the mother away rather than showing units that were available on the upper floors. Rather than risk a trial, the owner and operator agreed to shell out $25,000 to settle the case.

While ruling out the practice of not showing apartments to families with children on the basis of safety, the HUD memo goes on to say that it’s okay for housing providers to make “factual statements about perceived hazards of their property,” as long as:

• Those statements are “truthful and not misleading”;
• The statements don’t indicate a “preference, limitation, or discrimination” based on familial status; and
• An “ordinary listener” wouldn’t interpret the statements as discouraging families with children from deciding to live in the apartment community or building.

Coach’s Tip: The 1992 HUD memo also clarifies that the FHA doesn’t ban housing providers from imposing “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” such as requiring adult supervision of young children using a swimming pool without a lifeguard.

DEEP DIVE

Steering & Schools

While it might seem like the most natural and innocent thing in the world, discussing neighborhood schools with rental prospects can be a steering liability minefield. That’s because phrases such as “a school with low test scores” or “communities with declining schools” have become code words for racial and other differences to the extent there’s a correlation between the quality of the schools and the racial or ethnic composition of the neighborhood. Similarly, praising the schools in one neighborhood while discretely saying nothing about the schools in another may have the same steering effect.

With this in mind, the National Association of Realtors (NAR) has devised best practices for avoiding steering when discussing schools. And while the recommendations are targeted to real estate brokers, many of them also work for leasing agents on how to avoid steering when talking to prospects about the quality of schools in the neighborhood, including:

• Offer facts, not opinions or personal judgments;
• Keep a list of websites and other sources of objective information about the schools in your area to which you can refer prospects so they can make their own judgments; and
• Ask prospects to clarify their criteria; for example, if they ask whether the schools are “good,” have them describe the standards they believe makes a school good so you can point them to appropriate sources of information.

Rule #6: Don’t Exaggerate a Property’s Drawbacks

Another common way to exert improper influence is to draw attention to or exaggerate the drawbacks or flaws of your property. Such behavior, which runs contrary to the leasing agent’s mission to make your community look good, is powerful evidence of a motive not to rent to the prospect. And when that prospect has one or more protected characteristics, it strongly suggests that discrimination is the driving force behind that motive.

Example: The owner of an Arizona community is determined to maintain a peaceful and quiet “adult” community to attract retirees. Recognizing that categorically refusing to rent to prospects with children is illegal, the owner comes up with a plan to discourage them from doing so by creating a list of all the things that make the property unsuitable for young children. It then instructs leasing agents to go through the list with all prospects that have young kids. Result: The owner—and leasing agents who actually implement the plan—have committed illegal steering.  

Rule #7: Don’t Direct Prospects to Particular Buildings or Areas Based on Protected Characteristics

One particularly egregious, institutional, and still common form of steering is to assign prospects or residents to a particular section of a community or floor of a building because of a protected characteristic. Examples can range from limiting all residents with wheelchairs and/or families with children under a particular age to the ground floor to actual segregation and maintaining separate buildings for Black and white residents. If you don’t believe these things actually happen nowadays, we can cite literally dozens of cases to persuade you otherwise. Here are just a couple of recent examples:

Example: In May 2020, the DOJ filed a lawsuit against a Georgia management company for allegedly steering elderly and disabled African-American rental prospects away from Cedarwood Village, a predominantly white housing complex for elderly persons and persons with disabilities, and to Cedartown Commons, a predominantly Black general occupancy complex.

Example: In January 2021, the DOJ charged a Massachusetts housing authority of steering African-American prospects away from three overwhelmingly white properties that it manages and steering white applicants from two of its disproportionately Black properties in an effort to keep all of these communities racially segregated [United States v. J & R Associates (D. Mass.)].

TIME OUT!

Give Your Marketing Materials an FHA Audit

You may be engaging in steering without realizing it by including language or images in your marketing materials that indicate preferences on the basis of protected characteristics. Statements like “No Children” or “Singles Only” are obvious examples. However, indications of discriminatory preference may be far more subtle, such as characterizing a property located in a predominately white area as being “traditional” or even noting that it’s located next to a particular church. Here’s a list of marketing Do’s and Don’ts that comes straight out of HUD guidelines:

Steer Clear of Discriminatory Marketing

Answer. As far as I know, there are no laws that "require" the posting of certain things. I will try to summarize - off the top of my head - two types of information: (1) Things that can be posted without risk of liability; and (2) Things that should not be posted due to potential liability. Remember, these are just my opinions; your own attorney may or may not agree.

(1) Things that can be posted without risk of liability.

• General information about the community, such as maps of the community and space numbers, location of common facilities, etc.
• Safety information, such as permitted speeds, water hazards, emergency phone numbers such as police and fire, etc.
• Publically available information such as location of services, schools, places of worship, libraries, etc.
• If you are a 55+ community, you definitely want that promoted, since one of the requirements to qualify is holding yourself out as a 55+ community, with signs and rules, e.g. a generic definition of what it means and entails. This explanation should be reviewed and approved by your legal counsel.
• If you are a family community, you should say so, including a generic definition of what it means and entails. This explanation should be reviewed and approved by your legal counsel.
• General fair housing-type posters, including, perhaps, pamphlets. It is best if you can secure these through so recognized fair housing organization, such as the Fair Housing Council of Oregon or HUD.

(2) Things that should not be posted due to potential liability.

• Do not post the names of tenants or any other personal non-public information.

• Copies of bad checks - Murphy's Law says the drafter could have some reasonable explanation or bank error, etc.
• Unless it is vetted by your attorney, I don't encourage posting a long list of "Don's" such as unleashed pets, etc. I say this because it can give the wrong picture of management. If you have them covered in the rules, that's enough - no need to shout.
• You'll notice above that I said "General fair housing-type posters," etc. There are several reasons: (a) There are many protected classes, and some municipalities have certain ordinances that add others. You don't want to inadvertently miss one or more. (b) Too much information detracts from the message, which is that you follow the fair housing laws. (c) Since there is always a risk of testers coming to the office, you don't want to open up a discussion about specific protected classes, etc.

On screening criteria I would give a cautious "yellow" light. Remember there always exceptions and if made, it exposes you to complaints from others seeking the same exception. If there are some simple, basic, criteria, e.g. 55+ rules, OK, so long as there is a proviso stating that they are general in nature, and other restrictions or limitations may apply - and direct the reader to the community rules. So not post any limits regarding occupancy, since the number of permitted occupants in a home can be dependent on the size and number of bedrooms, and federal law is different that Oregon law. Do not include income formulas, etc., since source of income, e.g. is protected, and you don't want to post incorrect information.

If you have a community-wide "no marijuana" policy, I'm generally OK with posting it, but make it's vetted by your attorney.

Do You Need an Attorney?

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

Strict Compliance

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

The Prevailing Attorney Fees Trap

To underscore the importance of making sure the notice is correct before filing in Court, consider this scenario: Your tenant is late in paying the rent. You quickly fill out and mail a 72-hour notice, wait six days and then file in Court. At the first appearance (discussed below) you learn that the tenant is represented by legal counsel who has filed an answer alleging that the notice is defective. You are now faced with the prospect of having to go to an attorney to find out just exactly what is wrong with your notice. To your dismay, you learn that you sent the notice out on the 7th of the month, rather than the 8th.[1] You were one day too early. While this might seem to be a technical and unimportant mistake - the tenant still got five full days after the 7th of the month - it is not. In legal parlance, the defect is "jurisdictional," meaning that the Court has no alternative but to dismiss the case. To make matters worse, since the tenant's attorney filed an answer in Court, the tenant is the "prevailing party" and you must pay his or her legal fees.

Use of Current Legal Forms (MHCO has over 60 Forms Available to Members)

Too many times landlords and managers fall into the trap of using outdated legal forms - or worse - they hand-draft their own notices. This can be fatal in Court. As noted above, the Courts enforce strict compliance with the statutes. The use of a hand-drafted notice is fraught with pitfalls: The number of days to correct the default might be incorrect, the statement of the default might be insufficient, or the description of the landlord's remedies might be overstated.

Equally dangerous is the use of old forms that have become outdated due to changes in the law. Landlords and managers should always note the date appearing at the bottom of the form. If the date of the form precedes the most recent legislative year (e.g. 1997, 1999, 2001, etc.) you should check with the forms provider (e.g. MHCO) to make sure that there have not been any changes to the form.

For example, the 30-day termination for cause notice used to state that if there was a repeat violation within 6 months from the date of expiration of the 30 days, the landlord could issue a non-curable 20-day notice of termination. However, due to a change in the statute, the 6-month period is now measured from the date of issuance of the 30-day notice. In other words, the time within which the landlord may evict for a repeat violation is now measured from a different (and earlier) time period than before. Use of the old form today would incorrectly state the landlord's right to terminate, and arguably be defective.

The First Appearance

Experienced landlords and managers know full well that the first appearance is the time that many, if not most, FEDs are settled. If the default is nonpayment of rent, the landlord and tenant can simply enter into a stipulated payment arrangement providing that if it is not followed by the tenant, the landlord may come back to court and upon filing of the necessary papers, have the judge issue the judgement of eviction.

Pursuant to statute, the first appearance must occur within approximately one to two weeks following the filing of the FED complaint and payment of fees. It is imperative that the landlord or his representative appear at that time. The failure to do so will result in an automatic dismissal. Generally, the Court is more than willing to allow the parties to negotiate a resolution - such as a repayment of rent schedule - that will avoid setting the matter for trial.

Landlords and managers are encouraged to take the first appearance process seriously. If the case can be resolved at this juncture, all parties should strive to do so. If the landlord has a tenant that they fully intend to evict, i.e. no settlement can be structured because of the seriousness of the violation, the facts should be fully discussed with an attorney before the first appearance. Once the case has gone beyond that point and the tenant has secured an attorney, it may be too late. If there is a defect in the notice, for example, it is far better to settle the case early, or unilaterally dismiss it and start over, than to have the matter set for trial and take the risk that the tenant's attorney or the Court will spot the defective notice.

Pick Your Shots

As I have repeatedly emphasized, don't go into Court on a weak case. If the tenant has any sort of network within the community, it is a certainty that at least three things will occur: (1) The tenant will try to have all of his friends and neighbors testify against the landlord; (2) if you lose the case, you can fully expect that some of the tenants who have followed the dispute will try to "test" the landlord's resolve to go back into Court on related issues, and (3) if you ever have to bring another action against the same tenant, he will argue that your claim is "retaliatory,"- in other words, that you are selectively prosecuting him.

Always make sure that you have sufficiently "papered" your file. In most cases, it is helpful to precede a 30-day notice with one or more correction notices or letters requesting voluntary compliance. In this manner the Court will see that you have "walked the extra mile" with the tenant. You do not want to be accused of acting precipitously without having given the tenant fair warning of the consequences of non-compliance.

Conclusion

As noted, the FED process can be daunting to the uninitiated. Sometimes the best lesson is to lose in Court. But the cost of losing is frequently more than financial - it can threaten the landlord's ability to effectively run the community. If in doubt, the safest course of action is to first seek the assistance of those who have been there before you.

[1] You must wait seven full days from the date rent is due, before sending out the notice. If rent is due on the 1st, this means that the earliest you may send out the notice is on the 8th.

Answer: Normally, I don't like to equivocate, but here, I'm going to have to do so. I suspect this answer might be quoted to the OHCS as a reason for declining to cooperate, so want to be careful how I answer. So rather than give a definitive "Yes" or "No" I'm going to give you some things to think about, before turning over documents to anyone other than a bona fide applicant who wants to rent a space. 1. Ask yourself: "How am I benefited by turning over my documents and forms?" From where I sit, I see no benefit. OHCS is not applying for tenancy. If they can explain to you what good comes to your park by turning over forms that you or MHCO paid to have developed, I might change my mind. 2. Ask yourself: "What can they do if I decline?" OHCS describes its services and functions as follows: "Oregon Housing and Community Services is Oregon's housing finance agency, providing financial and program support to create and preserve opportunities for quality, affordable housing for Oregonians of lower and moderate income. The current agency was created in 1991, when the legislature merged the Oregon Housing Agency with State Community Services. The coordination between housing and services creates a continuum of programs that can assist and empower lower-income individuals and families in their efforts to become self-reliant. OHCS administers federal and state antipoverty, homeless and energy assistance, and community service programs. OHCS also assists in the financing of single-family homes, the new construction or rehabilitation of multifamily affordable housing developments, as well as grants and tax credits to promote affordable housing." These are all worthwhile and laudable goals. But I don't see anything on their website [here] suggesting that they are an enforcement or regulatory agency. So, it appears that a polite refusal to share the forms and other documents you use to operate your community will not be met by any sanction. If they can explain to you what they will do if your refuse to cooperate, and it appears they could visit upon you and your community a parade of unpleasant horribles, I might change my mind. 3. Ask yourself: "Well, if they are not a regulatory or enforcement agency, can there be any harm in cooperating?" In looking at their website, it is clear that part of their mission is to: '_create and preserve opportunities for quality, affordable housing for Oregonians of lower and moderate income." Oregon law protects against discrimination in the sale, leasing or renting of housing, bases upon "source of income." [See, ORS 459A.421.] Today, there is a case pending before the United States Supreme Court, which will address whether discrimination arising from "disparate impact" is a violation of the Fair Housing laws. What is "disparate impact?" It means that you, as a landlord or manager, can be held to have discriminated against a member of a protected class - not because of any intent to do so - but merely because your rules, policies, or procedures in the application process, affect them more harshly than other people not in the class. It is clear from their website and stated mission, that fair housing is an important issue with the folks at OHCS. That's a good thing. But my mission is to protect - through education - MHCO's members with good risk management procedures. My experience has been that most alleged violations of fair housing laws are inadvertent, sometimes through the use of testers. That being the case, my concern in voluntarily turning over forms and documents used in managing your community, someone at OHCS might see a policy, rule, or screening criteria, that they interpret as a per se' violation of state, federal, county or city housing laws. [To put a fine point on this, go to the Fair Housing Council of Oregon's chart here, identifying the plethora of laws you are already expected to comply with, depending on the location of your community.] While I do not see that OHCS could do anything to you if they saw a potential violation, I certainly could see the documents, or information gleaned from them, being turned over to private or public entities that could do something, either through civil action or regulatory action. So, if OHCS can explain to you (a) why they need the information; (b) what they would do if they did see something they didn'tlike; and (c) what assurances they can give you that they will not turn the documents or information over to a third party for some sort of enforcement action. It they can provide you with such assurances, I might change my mind. As I have said above, OHCS's aspirational goals are laudable, and we should have no issue with them. If you want to assist in those goals, you should financially contribute to their cause. But you must also be prudent in your management decisions, balancing the risks versus the benefits, of cooperation. I see no benefits, but I do see great risks.