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Answer: The tenant application process is one of the least understood by landlords and managers. This lack of familiarity can result in significant liability to park owners. Here is a short primer:

Screening Criteria. The manufactured housing section of Oregon's landlord-tenant law provides that any conditions the landlord applies in approving a purchaser who will live in the community should be disclosed in the existing resident's rental or lease agreement.[1] Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what criteria may be placed in the rental or lease agreement.

If you are changing your screening criteria for existing residents, you may be in violation of Oregon law, since those criteria are supposed to already be in the rental agreement, which, as you know, cannot be unilaterally amended by a landlord - subject only to specific exceptions.

MHCO's rental and lease agreement forms contain a number of criteria that landlords may impose, such as: (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.

Note that in 2013, the Oregon Legislature changed the law as it relates to "criminal history." Now, landlords and managers may not summarily reject a prospective tenant for "any" criminal history. Today, it is limited to:

• Pending criminal charges, or
• Prior criminal convictions, if they resulted from crimes that are:
  • Drug-related;
  • Against persons;
  • Sexual in nature;
  • Fraudulent in nature; or
  • That could adversely affect the property, health, safety, or peaceful enjoyment of the landlord, landlord's agents, or tenants.

To remind landlords and managers, MHCO will be adding these clarifications to its rental and lease agreement forms. In the meantime, landlords and managers should adhere to the new limitations described above.

Although there may be other criteria that landlords and managers may wish to use when deciding whether to accept an applicant, the above list in the MHCO form is very comprehensive, and should be sufficient in imposing adequate guidelines when a resident wishes to sell their home on site. If you want to make a change by adding additional screening criteria, you may only do so for new residents coming into the community - not retroactively for existing residents.

Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check providing necessary verification. Although Oregon law imposes a 7-day or 10-day period[2] within which landlords have to respond to a submitted application, it does not prohibit landlords from imposing a longer period so long as the applicant agrees. Additionally, Oregon law expressly states that the 7-day or 10-day period does not commence if the application is incomplete or inaccurate. Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete - and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned. Accepting an incomplete application or continuing with the process after discovering that the applicant has provided incorrect information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.

Conclusion. Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes. Unfortunately, the desire to have the rental flow commence quickly can result in the process becoming rushed. Landlords and managers should never allow the applicant to rush them. Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed. Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws when one applicant claims they were treated differently than another.

[1] Although the law provides that the screening criteria must be in the rental or lease agreement, they may also be found in the rules and regulations. While there is no problem with this, other than redundancy, landlords should be careful to make sure that the criteria are the same. Similarly, the criteria may also be put in the Statement of Policy, but similar caution should be exercised to make them consistent. My approach is however, to avoid the risk of inconsistency by not repeating the same requirements in multiple documents. If one document gets changed and the others don't there will be an inconsistency.

[2] The longer period exists if the tenant failed to give the landlord at least 10-days advance notice of intent to sell his/her home.

Having a one-size-fits-all approach also can lead to fair housing trouble when it has a discriminatory effect on people protected under fair housing law. One example involves occupancy policies: If they’re too restrictive, they can have a discriminatory effect on families with children. Though it’s generally accepted that two persons per bedroom is a reasonable occupancy policy, that’s only a rule of thumb—and subject to a number of exceptions.

Finally, the law itself offers some exceptions, but it’s important to know whether—and how—they apply to avoid fair housing trouble. For instance, the law generally forbids communities from excluding families with children from living there, but there’s an exception for senior housing communities. To claim the exception, however, communities must meet strict technical requirements—unless you do, you’ll invite a fair housing complaint if you deny housing to families with children.

In this article we will review fair housing requirements and give you seven rules—along with the most common exceptions—to help your community avoid fair housing trouble.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans housing discrimination based on race, color, religion, sex, familial status, national origin, and disability.

The vast majority of fair housing cases are for intentional discrimination—that is, purposely denying housing to people—or treating them differently—because of their race, color, religion, sex, national origin, familial status, or disability. In these cases, the focus is on intent—why the community acted the way it did. If, for example, an applicant accuses you of intentional discrimination for refusing to rent to him based on his race, the community may defend itself by proving that it rejected his application for a legitimate, nondiscriminatory reason: The applicant didn’t satisfy its standard screening criteria, which were consistently required of all applicants.

But the law goes further to outlaw what’s known as “disparate impact” discrimination—that is, housing practices that appear to be neutral, but have an unjustified discriminatory effect on members of protected classes, even if there’s no intent to discriminate. In contrast to claims for intentional discrimination, fair housing claims based on disparate impact aren’t so much concerned with your intent, but on the effects, of your policies or practices. For example, courts have ruled that overly restrictive occupancy policies violate fair housing law because of their discriminatory effect on larger households, which are more likely to be families with children.

RULE #1: Consistency Is the General Rule

EXCEPTION: Understand When the Law Requires You to Make Exceptions

As a general rule, it’s a good idea to establish reasonable, nondiscriminatory rules policies—and to apply them consistently—to counter any perception that your community treats people differently based on race, color, religion, sex, familial status, national origin, and disability. Applying the same policies and rules to everyone helps avoid accusations of conduct made unlawful under the FHA, such as:

• Excluding members of protected classes from living in your community;
• Falsely denying that housing is available to members of protected classes;
• Discouraging members of protected classes from living there;
• Restricting where members of protected classes may live in your community;
• Setting different terms, conditions, or privileges or facilities for members of protected classes;
• Delaying or denying requests for maintenance services for members of protected classes;
• Enforcing community rules more harshly or leniently for members of protected classes;
• Making eviction decisions because of a protected characteristic;
• Making statements expressing a preference for or against members of protected classes; or
• Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right.

Nevertheless, you should learn to recognize when fair housing law requires you to make exceptions to your general policies. The most important are requests for reasonable accommodations or modifications for individuals with disabilities. Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. It’s also unlawful to refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for an individual with a disability to fully use the housing.

RULE #2: You Make the Rules When It Comes to Pets

EXCEPTION: You Can’t Apply Pet Rules to Assistance Animals

Your community, like many others, may have rules about pets. You may forbid all pets, or you may allow only certain types, breeds, and sizes of animals at your community. Fair housing law doesn’t prevent you from regulating whether and when residents may keep pets at your community—as long as you understand that you must make an exception to your pet rules as a reasonable accommodation for an individual with a disability who needs an assistance animal to fully use and enjoy the premises.

That’s because assistance animals are not pets under fair housing law. They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability, according to HUD. Though most requests for assistance animals are for dogs, HUD says that assistance animals may include a wide variety of species—not just dogs—that provide various forms of assistance—including emotional support—with or without specialized training.

Though many communities have policies banning so-called dangerous breeds, most notably pit bulls, HUD says that breed, size, or weight limitations may not be applied to assistance animals. That doesn’t mean that you must allow a resident to keep a dangerous animal—even if it’s an assistance animal. Though you can’t apply a blanket rule against certain dog breeds, you can exclude a specific animal that poses a direct threat to the safety of others.

Example: In October 2017, the Vermont Supreme Court upheld an eviction of a resident who had a dog in violation of the community’s no-pet policy. The resident claimed that she had disabilities and that the dog, which had been living with her for some time, was an emotional support animal.

Though the resident was disabled and had a disability-related need for an emotional support animal, the court ruled that she wasn’t entitled to a reasonable accommodation to keep this dog, Duchess, because it posed a direct threat to the safety of others. The evidence showed that Duchess often exhibited aggressive tendencies and that other residents were afraid of her. The resident, who was unable to restrain the dog, had tried and failed to reduce the potential for aggression that the other residents had reasonably feared. While sympathetic to the resident’s attachment to Duchess, the court said that the landlord was not required to do everything humanly possible to accommodate her disability [Gill Terrace Retirement Apartments Inc. v. Johnson, October 2017].

Though your rules may require pet owners to pay extra pet fees or deposits, you must make an exception to the rules for assistance animals. According to federal guidelines, communities may not require individuals with disabilities to pay extra fees or security deposits as a condition of allowing them to keep assistance animals as a reasonable accommodation. If the assistance animal causes damage, you can charge the resident for the cost of repair—but only if you have a general policy requiring all residents to pay for damages they cause to the premises.

RULE #3: You Can Regulate Parking at Your Community

EXCEPTION: You Must Consider Disability-Related Requests for Special Parking Arrangements

For the most part, it’s up to you to determine whether—and how—to regulate parking at your community. Whatever your policy, however, you should be prepared for reasonable accommodation requests by individuals with disabilities who say they need an exception to your parking policies so they may use and enjoy their home.

A prime example is a request for an exception to parking rules for an individual with a mobility impairment. In general, you should grant reasonable requests from applicants or residents with mobility problems for parking accommodations, such as a designated parking space near a building entrance or a resident’s unit, an accessible parking space, or a space designed for van parking. When there’s a clear relationship between the resident’s disability and the need for the requested parking accommodation, the law requires the community to grant the request unless it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or fundamentally alter the nature of the community’s operations.

Nevertheless, HUD says that the FHA does not require a community to make an exception to parking rules unless there is an identifiable relationship between the requested accommodation and the individual’s disability. The requested parking accommodation must be more than a mere convenience—it must be necessary to allow the resident to live in and fully enjoy the community.

Example: In September 2017, a court ruled against a resident who accused her community of refusing her requests for reasonable accommodations, including her request to reserve the three parking spaces in front of her condo to prevent her neighbors from parking there. The resident claimed that she had a mental disability and that she needed all three parking spaces because she felt unsafe and harassed when strangers parked in front of her home. Allegedly, she rejected the community’s offer to reserve one designated parking space for her, because the installation of a sign to mark the space would block her view and cause psychological distress. She sued, accusing the community of disability discrimination.

Siding with the community, the court ruled that the resident failed to show that her request for three reserved parking spaces were either necessary or reasonable to accommodate her mental disability. She presented a doctor’s note, but it didn’t explain the nature of her disability or why reserving the three parking spaces in front of her unit was necessary to afford her equal opportunity to use and enjoy her dwelling.

The resident also failed to show that reserving these three parking spaces was a reasonable accommodation. The three parking spaces at issue were among the 150 non-reserved parking spaces at the condo complex and all the condo owners had rights to the spaces. Reserving three of them for the resident couldn’t be done without amending the condo documents and reducing the rights of all other owners. The requested accommodation was unreasonable because her unproven need for the spaces was entirely outweighed by the burden that others would suffer if the accommodation were granted [Burrows v. Cubba, September 2017].

RULE #4: You Can Require Applicants to Satisfy Financial Criteria

EXCEPTION: You Must Consider Disability-Related Requests to Modify Financial Requirements

You’re entitled to, and should, determine financial criteria that you apply consistently to all applicants. If you ask some applicants to meet stricter financial requirements than others have to meet, then an applicant may believe he’s being treated differently because of his race or other protected characteristic and claim discrimination under fair housing law.

Nevertheless, you could face a request for an exception to your financial requirements as a reasonable accommodation for an individual with a disability. For example, an applicant with a disability may not qualify financially for a unit in your community, but offer to have someone who will co-sign and promise to pay the rent for him. Depending on the circumstances, refusing to consider such requests for exceptions to your community’s financial requirements could be viewed as denying requests for reasonable accommodations required by fair housing law.

Example: In July 2017, a New York co-op community agreed to pay $125,000 in damages and penalties to resolve a fair housing lawsuit for its alleged refusal to grant a reasonable accommodation to an applicant with a disability.

In its complaint, the Justice Department alleged that the community and its property managers repeatedly denied the application of a 34-year-old man to purchase a one-bedroom unit because of his disabilities, which included serious heart problems, learning disorders, and depression. Allegedly, the man and his family asked that ownership of his unit be placed under a legal trust to help him manage the requirements of cooperative housing, but that the community refused the requests without explanation. As a result, the complaint alleged, the man was forced to continue living in a boarding house with abysmal conditions, grew increasingly depressed, and suffered another heart attack.

“Every member of our society is entitled to equal access to housing and the independence and dignity that it provides,” Acting U.S. Attorney Joon H. Kim said in a statement. “With this resolution, we again emphasize that condos, cooperatives, landlords, and property managers must provide reasonable accommodations to people with disabilities” [U.S. v. 505 Central Avenue Corp., July 2017].

In some cases, disabled applicants have asked for an exemption from financial requirements as a reasonable accommodation, arguing that their disabilities caused them to suffer financial hardships, such as the inability to work. That argument has been rejected by a number of courts, but these can be difficult cases to resolve, so it’s a good idea to get legal advice when confronted by such requests.

RULE #5: You Establish Policies on When and How Rent Is Paid

EXCEPTION: You Must Consider Disability-Related Requests to Modify Rental Payment Policies

You have the right to require residents to pay their rent in a timely manner, but you should consider disability-related requests for exceptions to your policies on how rent is paid. For example, federal guidelines state that a community with a policy requiring payment of rent in person at the leasing office must make an exception for a resident who has a mental disability that makes her afraid to leave her home. According to the guidelines, the community must grant her request to have a friend mail the rental payments as a reasonable accommodation.

Depending on the circumstances, you may also have to consider a disability-related request to change the rental due date. This may come from a resident who relies on disability benefits to pay rent, but who doesn’t receive the check until after the rent is due. If the resident can show that he needs the accommodation because of a disability, then you’ll need documentation to prove that his request is unreasonable because of its impact on your business operations.

Example: In April 2017, a court refused to dismiss a lawsuit accusing a Pennsylvania community and its management company of disability discrimination for allegedly denying a resident’s reasonable accommodation request for the change in his monthly rental due date until after he received his monthly SSDI benefit check. After conducting an investigation, fair housing advocates sued, alleging that the company wouldn’t permit any exceptions to its policies on the rental due date.

The court ruled that the advocates could pursue claims that the company unlawfully denied the resident’s reasonable accommodation request for an exception to the policy requiring rent payments on the first of the month. The company argued that it wasn’t required to grant accommodations related to a disabled person’s financial circumstances, but the advocates argued that SSDI recipients relied on their checks as their primary or only source of income because their disabilities rendered them unable to work. The court said it may be reasonable that the company be required to adjust its rent due date for disabled persons to be afforded equal housing opportunities.

Nevertheless, further proceedings were needed on the community’s claim that the accommodation request was unreasonable. The company argued that the request to change its policy on the rental due date posed an unreasonable financial and administrative burden on the company’s business operations. The company pointed out that it manages more than 35,000 rental units in approximately 140 communities in 10 states. According to the company, its current system of rent collection and handling court proceedings is cost-effective and that the requested accommodation would “fundamentally alter the way” it does business and require a “major and expensive reprograming of software and business procedures [Fair Housing Rights Center in Southeastern Pennsylvania v. Morgan Properties Management Company, LLC, April 2017].

RULE #6: You Can Enforce Reasonable Occupancy Standards

EXCEPTION: General Two Person/Bedroom Standard May Not Be Reasonable in Some Circumstances

As a general rule, fair housing law doesn’t prevent communities from maintaining reasonable occupancy policies, but it’s unlawful to set overly restrictive occupancy standards that have the effect of excluding families with children.

Across the country, communities have come to rely on the industry standard—“two persons per bedroom”—as a reasonable occupancy standard. It comes from HUD in what’s known as the “Keating memo,” which states that the agency considers two persons per bedroom to be a reasonable standard. But, as the memo points out, that’s not a hard-and-fast rule, and HUD will consider other factors, including bedroom size and other “special considerations,” which may make the two person/bedroom standard unreasonable under the circumstances.

In recent years, fair housing advocates have challenged the use of the two person/bedroom standard where state or local occupancy laws may allow more people to live there based on square footage and other factors. It’s too soon to tell how it will all shake out, but for now, communities could face a greater risk of being challenged if they stick with a rigid one-size-fits-all occupancy standard without considering other factors listed in HUD’s Keating memo.

Example: In October 2017, the owner of a Washington community was ordered to pay more than $127,000 in damages for violating federal, state, and local fair housing laws based on familial status by enforcing an occupancy policy allowing only one occupant in studio units.

The case began when an advocacy group conducted fair housing testing at the 96-unit apartment complex where two-thirds of the units were studios, all over 400 square feet. According to the group, its testing confirmed that the community rented the studio units only to single occupants. The group sued, arguing that the community’s occupancy restriction had an adverse discriminatory effect on families with children.

The court agreed, rejecting the community’s claim of legitimate, nondiscriminatory reasons to justify the rule. Among other things, the community argued that the units were too small to accommodate more than one person, but the court pointed out that the city code allowed two people to occupy a studio unit as small as 150 square feet [Fair Housing Center of Washington v. Breier-Scheetz Properties, LLC, October 2017].

RULE #7: You Can’t Refuse to Rent to Families with Children

EXCEPTION: You Can Exclude Children ONLY if You Qualify for Senior Housing Exemption

The FHA prohibits housing discrimination based on familial status—which means the presence of a child under 18 in the household. The law protects families with children, along with anyone else who has legal custody or written permission to have a minor child living with them. It also applies to pregnant women and anyone in the process of obtaining legal custody, such as through adoption or divorce proceedings, of a child or children under 18.

On the whole, familial status is on the same footing as race and any of the other protected classes under fair housing law. Just as it’s unlawful to turn people away because of their race, you can’t turn people away because they have one or more children living with them. It doesn’t matter whether you—or your current residents—would prefer to be living among adults; it’s unlawful to deny housing to people—or to treat them differently—because there’s a child under the age of 18 in the household.

There’s only one exception that would allow you to exclude children from your community—but it applies only to senior housing communities that meet strict legal requirements to qualify as “housing for older persons.” The FHA recognizes three types of housing that may qualify under the familial status exemption as housing for older persons. The most common—55 or older—is also the most complicated: Among other things, 55+ communities must adopt policies and procedures to ensure that at least 80 percent of its units are occupied by at least one person 55 and older.

Senior communities that comply with these and other technical requirements are exempt from the general rules that protect families with children. There’s no middle ground—you either meet those requirements or you don’t. And if you don’t, you’ll likely trigger a fair housing complaint by adopting an “adults-only” policy to prevent families with children from living there.

Example: In September 2017, the owners and manager of three apartment buildings in Washington agreed to pay $95,000 to resolve allegations that they refused to rent to families with children. In its complaint, the Justice Department alleged that a manager told a woman seeking an apartment for herself, her husband, and their one-year-old child that the apartment buildings were “adult only.” Allegedly, the communities advertised their apartments as being in “adult buildings.”

“No family should be denied a place to live simply because they have a child,” added Anna Maria Farias, HUD Assistant Secretary for Fair Housing and Equal Opportunity. “HUD will continue to work with the Justice Department to ensure that property owners comply with their obligations under the nation’s fair housing laws.”

Before any tenant moves into your community the tenant's file should contain the following information:

1. Completed Application
2. Signed Rental Agreement. (Resident is to receive a copy)
3. Signed Rules and Regulations (Resident is to receive a copy)
4. Signed Statement of Policy including Rent History Addendum. (Tenant is to have received a copy of the Statement of Policy prior to signing rental agreement.)
5. Copy of Homeowner's insurance policy with community named as an interested party (for the purpose of being notified of cancellation of insurance. (This is for pets only.)
6. Credit check results
7. Rental check results
8. Criminal check results
9. Application screening fee receipt
10. Pet Agreement - Identify type of pet, name, size. You might consider taking a picture of the pet to include in your file in case you need to identify the pet in the future. Resident must sign the pet agreement. (Resident is to receive a copy)
11. Proof of Age if 55 and older community (photo ID, driver's license)
12. RV Storage Agreement. Identify type of RV (i.e. boat, camper, trailer, etc.) and include license number and description of recreational vehicle. (Resident is to receive a copy)

Any and all notices/correspondence between landlord/manager and resident 

Situation: A condo association with a no-pets policy lets a tenant keep two service dogs to accommodate his disability. After several years of good behavior, the dogs turn into incessant barkers who disturb their neighbors. The association orders the tenant to get rid of them or face eviction.  

You Make the Call: Did the association violate its FHA duty to accommodate the tenant?

Answer: No

Ruling: The Florida state court refuses to grant the tenant an injunction to block the association from enforcing the rule, and the federal court upholds the ruling on procedural grounds [Mercier v. Turnberry Isle S. Condo. Ass’n, 2021 U.S. Dist. LEXIS 243301].

Takeaway: Even service animals that are reasonably necessary to enable disabled prospects and tenants an equal opportunity to use and enjoy a dwelling and public and common use areas must behave and not create an unreasonable nuisance for other tenants. The broader point is that the FHA duty to accommodate reasonable requests for service animals doesn’t preclude you from enforcing rules necessary to ensure your other residents a quiet, clean, and healthy community.

The owners and managers of a Midwest community recently agreed to pay $35,000 to settle a lawsuit filed by the Justice Department, alleging that they violated fair housing law by placing undue conditions on a resident’s request to live with her assistance animal and then refused to renew her lease.

The Backstory: The case is about a resident who moved into an 800-unit community, which allowed pets and assistance animals, but had a “no dangerous breeds” policy that prohibited pit bulls. Before moving in, the resident allegedly had been in treatment for mental health disabilities that stemmed, at least in part, from witnessing the traumatic deaths of her boyfriend and mother. A family member gave her a young pit bull, which her treating psychologist said helped alleviate the symptoms of her disability and was a “major and required part of her treatment program.”

She apparently didn’t mention the dog when she moved into the community later that year. When the community discovered the pit bull, the resident requested a reasonable accommodation so she could keep it as an emotional support animal. Allegedly, the community denied the request and told her to remove it.

What followed were communications involving the resident, community representatives, and their lawyers, and ultimately, a series of court proceedings. During the process, the resident produced documentation from her treating psychiatrist that the specific animal was necessary for her to be able to live there and essential to her recovery from the severe trauma she suffered. In an interview before a court reporter, the psychiatrist said much the same thing.

It was about half-way through the one-year lease term when the parties came to terms. In lieu of granting her requested accommodation, the community allegedly gave her two options: either immediately terminate her lease and get some rent back or keep the dog through the end of the lease, but with conditions. Allegedly, the conditions included obtaining an insurance policy to cover the dog, requiring the dog to wear an emotional support vest whenever he left her unit, and repaying the community for any harm caused by the dog.

According to the resident, she picked the second option, but a few months later, she received notice that her lease would not be renewed. Renewed negotiations were unsuccessful, and she moved out. 

After the resident filed a HUD complaint, the Justice Department sued the community for discrimination and retaliation against the resident on the basis of her disability.

The community denied the allegations, but the parties reached a settlement to resolve the matter. Without admitting liability, the community agreed to pay $35,000 to the former resident and adopt policies, including a reasonable accommodation policy that specifically addressed requests for assistance animals. Under the new policy, assistance animals are not subject to breed restrictions or required to wear vests or other insignia that identify them as assistance animals; residents are not required to pay any fees or obtain insurance as a condition of keeping assistance animals.

Lessons Learned: 

1.   Assistance Animals Are NOT Pets: Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, security deposits, or additional rent charges. Whatever your pet policy, you must consider a request to make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the community. That includes a request to keep a pit bull as an assistance animal—despite any policies banning so-called “dangerous breeds”—unless there’s evidence that the particular animal poses a direct threat to the safety or property of others.

2.   Requests for Assistance Animal Can Come Anytime: Don’t get thrown off because the resident makes a reasonable accommodation only after you discover she’s been keeping an animal in violation of your pet policy. Under fair housing law, reasonable accommodation requests may be made at anytime before or during the tenancy. The timing may be off, but it’s risky to deny the request—or make the resident jump through hoops—to overcome suspicions that she’s trying to get around your rules by falsely claiming a pet is an assistance animal. Instead, follow your standard policies for handling reasonable accommodation requests, including verification of the disability and need for the assistance animal if either or both are not known or readily apparent.

3.   Don’t Impose Extra Conditions to Allow Assistance Animals: Don’t require residents with disabilities to pay pet fees or get extra insurance coverage as a condition of allowing them to keep assistance animals. Conditions and restrictions that communities apply to pets may not be applied to assistance animals, according to HUD, though you do have recourse against residents for damages caused by assistance animals. HUD says you may require a resident to cover the cost of repairs for damage the animal causes to his unit or the common areas, reasonable wear and tear excepted, if it’s your policy to assess residents for any damage that they cause to the premises. Allowing for reasonable wear and tear, you may assess the costs against the standard security deposit charged to all residents, regardless of disability.

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

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

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

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

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

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

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

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

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

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

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

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

You Make the Call: Did the landlord’s credit score minimum policy discriminate?

Answer: Yes

Ruling: The Oregon federal court says the prospect can sue the landlord for “adopting a policy that disproportionately makes housing unavailable to African-Americans.” True, the prospect never actually applied, but based on the testers’ evidence, the court agreed that applying would have just been a “futile gesture” [Owens v. Latitude Props., 2021 U.S. Dist. LEXIS 61054].

Takeaway: Rental policies and practices that appear neutral on their face may be illegal if they have the effect of discriminating against a protected group. This is true even if there’s no intent to discriminate. For example, statistics show that African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionately higher rates than whites with respect to their share of the general population. Thus, while categorically refusing to rent to any person with a criminal record may look like a legitimate safety policy, it has the effect of discriminating against African Americans and Hispanics.

Answer: Landlords should become intimately familiar with ORS 90.680, and then make sure their rules and rental agreements conform to what is allowed. Set forth below is a summary of those portions of the statute that address your questions:

• If the prospective purchaser of a manufactured dwelling or floating home desires to leave the dwelling or home on the rented space and become a tenant, the landlord may require the following:
  • That a tenant give not more than 10 days' notice in writing prior to the sale of the dwelling or home on a rented space;
  • That prior to the sale, the prospective purchaser submit to the landlord a complete and accurate written application for occupancy of the dwelling or home as a tenant after the sale is finalized;
  • That a prospective purchaser may not occupy the dwelling or home until after the prospective purchaser is accepted by the landlord as a tenant;
  • That a tenant give notice to any lienholder, prospective purchaser or person licensed to sell dwellings or homes of the requirements of the resale requirements [Emphasis mine - PCQ];
  • If the sale is not by a lienholder, that the prospective purchaser pay in full all rents, fees, deposits or charges owed by the tenant prior to the landlord's acceptance of the prospective purchaser as a tenant [Emphasis mine];
• If the landlord's rules and/or rental agreement requires prospective purchasers to submit an application for occupancy as a tenant, at the time that the landlord gives the prospective purchaser an application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale[1];
• The following conditions apply if a landlord receives an application for tenancy from a prospective purchaser:
  • The landlord shall accept or reject the prospective purchaser's application within seven days following the day the landlord receives a complete and accurate written application[2];
  • An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation, including any financial data and references, required by the landlord;
• The landlord may not unreasonably reject a prospective purchaser as a tenant. Reasonable cause for rejection includes, but is not limited to:
  • Failure of the prospective purchaser to meet the landlord's conditions for approval;
  • Failure of the prospective purchaser's references to respond to the landlord's timely request for verification within the time allowed for acceptance or rejection;
  • In most cases, the landlord must furnish to the seller and purchaser a written statement of the reasons for any rejection[3];
• The landlord may give the tenant selling the home a notice to repair the home [e.g. for damage or deterioration] under ORS 90.632. The landlord may also give any prospective purchaser a copy of that notice.
  • The landlord may require as a condition of tenancy that a prospective purchaser who desires to leave the dwelling or home on the rented space and become a tenant must comply with the repair notice within the allowed period under ORS 90.632.
  • If the tenancy has been terminated for failure to timely complete the repairs under ORS 90.632, a prospective purchaser does not have a right to leave the dwelling or home on the rented space and become a tenant.

Obviously, the statute was drafted with tenant/purchasers in mind. However, as long as the home remains on the space, the landlord has complete control over the situation. In your case, I suspect the delinquent tenant made no effort to notify the landlord of his planned sale to the dealer. However, that does not prevent him from imposing these requirements on the dealer if he wants to put a tenant in the park.

Going forward, it might be advisable for all landlords who have faced this situation before, to prepare a summary of requirements to give dealers when they purchase homes from tenants already sited in the park. They may want to expressly address this in their rules, so tenants cannot say they didn'tknow. The written summary to dealers should clearly state that if a departing tenant owes monies to the landlord, repayment will be required before occupancy of the home will be permitted by a new resident. [A more difficult question that is not addressed by the statute, ORS 90.680, is whether the landlord may prevent the dealer from removing the home without paying the past due sums. I suspect the answer may be "Yes" a landlord may do so, but it would require my examination of the statutory storage or retaining lien rights, which is beyond the scope of this question. - PCQ]

[1] The terms of the statement of policy, rental agreement and rules and regulations need not be the same as those in the selling tenant's statement, rental agreement and rules and regulations.

[2] The landlord and the prospective purchaser may agree to a longer time period beyond seven day for the landlord to evaluate the prospective purchaser's application or to allow the prospective purchaser to address any failure to meet the landlord's screening or admission criteria. If a tenant has not previously given the landlord the required advance 10 days' notice, the period provided for the landlord to accept or reject a complete and accurate written application is extended to 10 days.

[3] If a rejection is based upon a consumer report (as defined in 15 U.S.C. 1681a) for purposes of the federal Fair Credit Reporting Act, the landlord may not disclose the contents of the report to anyone other than the purchaser. In such cases, the landlord is to disclose to the seller in writing that the rejection is based upon information contained in a consumer report and that the landlord may not disclose the information contained in the report.

Question 1:  An applicant and his pregnant wife want to rent an available one-bedroom unit. You’re concerned about potential noise complaints about a crying baby, but you could be accused of discrimination based on familial status if you tell them that the unit is no longer available. True or false?

a.            True.

b.            False.

Answer 1:A

Reason: 

DO Make Housing Available to Families with Children

DON’T Deny Housing Because There’s a Child in the Household

DO Be Careful About Applying Occupancy Standards When a Child Joins a Household

DON’T Penalize Residents for Having a Baby

You could trigger a fair housing complaint for denying housing to the couple by misrepresenting the availability of the unit because they’re expecting a child. The law banning discrimination based on familial status protects pregnant women in addition to families with children under 18.

Question 2:  A couple with twin toddlers asks about available two-bedroom units. There are three available—two on the ground floor and one on the fourth floor. There’s an obvious danger of children falling from balconies, so it’s okay to tell them only about the two ground-floor units. True or false?

a.            True.

b.            False.

Answer 2:  B

Reason: 

DO Tell Prospects About All Units that Fit Their Needs

DON’T Engage in Unlawful Steering Based on Familial Status

Even if acting out of good intentions, you could be accused of violating fair housing law if you tell them about only the ground-floor units. To avoid accusations of unlawful steering, you should tell them about all available units and let them decide where they’d prefer to live.

Question 3:  Most of your residents have lived at the community for many years. Since most are over 55, you are justified under the senior housing exemption to restrict occupancy to adults and to advertise the building as an “adult” community. True or false?

a.            True.

b.            False.

Answer 3:  B

Reason: 

DO Follow the Rules to Qualify for the Senior Housing Exemption

DON’T Adopt or Enforce Adults-Only Policy

DO Focus Advertising on Property, Not People

DON’T Suggest that Children Aren’t Welcome at Your Community

Even if most of your residents are 55 and older, your community would not qualify for the senior housing exemption unless you comply with all of the law’s technical requirements. Otherwise, your community could be accused of denying housing and discriminatory advertising based on familial status.

Question 4:  A community may not be found liable for housing discrimination for applying occupancy standards limiting all units to two people per bedroom. True or false?

a.            True.

b.            False.

Answer: B

Reason: 

DO Be Prepared to Justify Reasonableness of Occupancy Standards

DON’T Apply Unreasonably Restrictive Occupancy Standards

HUD’s two-person-per-bedroom standard is only a general guideline to determine whether a community’s occupancy standards are reasonable under federal fair housing law. Communities may have to allow more than two people per bedroom based on applicable state or local occupancy standards, the size or configuration of the unit, and other factors. According to federal guidelines, an occupancy policy limiting the number of children per unit is less likely to be reasonable than one that limits the number of people per unit.

Example: In September 2019, HUD charged the owners of a Georgia apartment building with violating fair housing law by refusing to rent to, imposing different rental terms and conditions on, and making discriminatory statements about families with children. In their HUD complaints, fair housing advocates and the mother of two minor children alleged that the owners applied a policy limiting the number of children who could reside in their apartments. Allegedly, the owners’ business voicemail recording announced the policy to persons who phoned looking for housing, and their policy allowed only one child in a two-bedroom unit and two children in a three-bedroom unit.

Answer.   ORS 90.100(38) defines the “Rental agreement” as: “…all agreements, written or oral, and valid rules and regulations adopted under ORS 90.262 or 90.510 (6) embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises. “Rental agreement” includes a lease. A rental agreement shall be either a week-to-week tenancy, month-to-month tenancy or fixed term tenancy. (Emphasis added.)

So technically, “rules” are really a part of the rental agreement. Of the many definitions of terms in ORS 90.100, there is no separate definition of “rules”.  However, they are given different treatment throughout the Oregon Residential Landlord Tenant Agreement.

For example, ORS 90.262 (Use and occupancy rules and regulations; adoption; enforceability; restrictions) explains the intent and purpose behind rules and regulations. It provides:

90.262 (1) A landlord, from time to time, may adopt a rule or regulation, however described, concerning the tenant’s use and occupancy of the premises. It is enforceable against the tenant only if:

      (a) Its purpose is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;

      (b) It is reasonably related to the purpose for which it is adopted;

      (c) It applies to all tenants in the premises in a fair manner;

      (d) It is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant must or must not do to comply;

      (e) It is not for the purpose of evading the obligations of the landlord; and

      (f) The tenant has written notice of it at the time the tenant enters into the rental agreement, or when it is adopted.

      (2) If a rule or regulation adopted after the tenant enters into the rental agreement works a substantial modification of the bargain, it is not valid unless the tenant consents to it in writing.

      (3) If adopted, an occupancy guideline for a dwelling unit shall not be more restrictive than two people per bedroom and shall be reasonable. Reasonableness shall be determined on a case-by-case basis. Factors to be considered in determining reasonableness include, but are not limited to:

      (a) The size of the bedrooms;

      (b) The overall size of the dwelling unit; and

      (c) Any discriminatory impact on those identified in ORS 659A.421.

      (4) As used in this section:

      (a) “Bedroom” means a habitable room that:

      (A) Is intended to be used primarily for sleeping purposes;

      (B) Contains at least 70 square feet; and

      (C) Is configured so as to take the need for a fire exit into account.

      (b) “Habitable room” means a space in a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas are not included. [Formerly 90.330]

The above element of lawful rules bear re-reading, since occasionally, I have seen landlord enforcement actions against tenants attacked for failure to comply with ORS 90.262, especially the portion of the statute that provides rules must be “…reasonably related to the purpose for which it is adopted.”

ORS 90.302(3)(a) (Fees allowed for certain landlord expenses; accounting not required; fees for noncompliance with written rules; tenant remedies) provides that

A landlord may charge a tenant a fee under this subsection for a second noncompliance or for a subsequent noncompliance with written rules or policies that describe the prohibited conduct and the fee for a second noncompliance, and for any third or subsequent noncompliance, that occurs within one year after a written warning notice described in subparagraph (A) of this paragraph. Except as provided in paragraph (b)(H) [unauthorized pet] of this subsection, the fee may not exceed $50 for the second noncompliance within one year after the warning notice for the same or a similar noncompliance or $50 plus five percent of the rent payment for the current rental period for a third or subsequent noncompliance within one year after the warning notice for the same or a similar noncompliance. 

ORS 90.510(2) (Statement of Policy) requires that both the rental agreement and the rules “…shall be attached as an exhibit to the statement of policy.”

Subsection (5) of ORS 90.510 (Statement of Policy) has similar, but not exactly the same language as quoted in ORS 90.262 above:

  (6) Every landlord who rents a space for a manufactured dwelling or floating home shall provide rules and regulations concerning the tenant’s use and occupancy of the premises. A violation of the rules and regulations may be cause for termination of a rental agreement. However, this subsection does not create a presumption that all rules and regulations are identical for all tenants at all times. A rule or regulation shall be enforceable against the tenant only if:

      (a) The rule or regulation:

      (A) Promotes the convenience, safety or welfare of the tenants;

      (B) Preserves the landlord’s property from abusive use; or

      (C) Makes a fair distribution of services and facilities held out for the general use of the tenants.

      (b) The rule or regulation:

      (A) Is reasonably related to the purpose for which it is adopted and is reasonably applied;

      (B) Is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant shall do or may not do to comply; and

      (C) Is not for the purpose of evading the obligations of the landlord.

      (7)(a) A landlord who rents a space for a manufactured dwelling or floating home may adopt a rule or regulation regarding occupancy guidelines. If adopted, an occupancy guideline in a facility must be based on reasonable factors and not be more restrictive than limiting occupancy to two people per bedroom.

      (b) As used in this subsection:

      (A) Reasonable factors may include but are not limited to:

      (i) The size of the dwelling.

      (ii) The size of the rented space.

      (iii) Any discriminatory impact for reasons identified in ORS 659A.421.

      (iv) Limitations placed on utility services governed by a permit for water or sewage disposal.

      (B) “Bedroom” means a room that is intended to be used primarily for sleeping purposes and does not include bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas.

ORS 90.610(3) (Informal dispute resolution; notice of proposed change in rule or regulation; objection to change by tenant) explains how rules are changed:

The landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlord’s bargain with a tenant, by giving written notice of the proposed rule or regulation change, and unless tenants of at least 51 percent of the eligible spaces in the facility object in writing within 30 days of the date the notice was served, the change shall become effective for all tenants of those spaces on a date not less than 60 days after the date that the notice was served by the landlord.

      (4) One tenant of record per eligible space may object to the rule or regulation change through either:

      (a) A signed and dated written communication to the landlord; or

      (b) A petition format that is signed and dated by tenants of eligible spaces and that includes a copy of the proposed rule or regulation and a copy of the notice.

      (5) If a tenant of an eligible space signs both a written communication to the landlord and a petition under subsection (4) of this section, or signs more than one written communication or petition, only the latest signature of the tenant may be counted.

      (6) Notwithstanding subsection (4) of this section, a proxy may be used only if a tenant has a disability that prevents the tenant from objecting to the rule or regulation change in writing.

      (7) The landlord’s notice of a proposed change in rules or regulations required by subsection (3) of this section must be given or served as provided in ORS 90.155 and must include:

      (a) Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change;

Subsection (7) of ORS 90.610 provides the statutory form to follow when changing rules.

In regards to rental agreements, ORS Chapter 90.510(4) mandates the minimal provisions that must appear in the rental agreement:

Every landlord who rents a space for a manufactured dwelling or floating home shall provide a written rental agreement, except as provided by ORS 90.710 (2)(d) [enforceability of oral rental agreements]. The agreement must be signed by the landlord and tenant and may not be unilaterally amended by one of the parties to the contract except by:

      (a) Mutual agreement of the parties;

      (b) Actions taken pursuant to ORS 90.530, 90.533, 90.537, 90.543 (3), 90.600, 90.725 (3)(f) and (7) or 90.727; or

      (c) Those provisions required by changes in statute or ordinance.

      (5) The agreement required by subsection (4) of this section must specify:

      (a) The location and approximate size of the rented space;

      (b) The federal fair-housing age classification;

      (c) The rent per month;

      (d) All personal property, services and facilities to be provided by the landlord;

      (e) All security deposits, fees and installation charges imposed by the landlord;

      (f) Any facility policy regarding the planting of trees on the rented space for a manufactured dwelling;

      (g) Improvements that the tenant may or must make to the rental space, including plant materials and landscaping;

      (h) Provisions for dealing with improvements to the rental space at the termination of the tenancy;

      (i) Any conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

      (j) That the tenant may not sell the tenant’s manufactured dwelling or floating home to a person who intends to leave the manufactured dwelling or floating home on the rental space until the landlord has accepted the person as a tenant;

      (k) The term of the tenancy;

      (L) The process by which the rental agreement or rules and regulations may be changed, which shall identify that the rules and regulations may be changed with 60 days’ notice unless tenants of at least 51 percent of the eligible spaces file an objection within 30 days; and

      (m) The process by which the landlord or tenant shall give notices.

Conclusion.  So, in my opinion, the differences between rules vs. rental agreement, can be generally summarized as follows:

• The contents of what goes into rules, are not specifically described in the Oregon Residential Landlord Tenant Laws – the only general guidance is that they must be fairly applied, and reasonably related to the purpose for which they were enacted.
• The rental agreement must address certain issues, as set forth in ORS 90.510(4), above.
• A violation of either the rules or the rental agreement can result in a for cause notice of termination under ORS 90.630.
• While rental agreements cannot generally[1] be unilaterally changed by the landlord, there is a clear process under the law for amending the rules.
• So while “rules” are technically a part of the overall “rental agreement” between the landlord and tenant, they are the “mortar” that fills in the gaps the rental agreement doesn’t cover. So for example, while the rental agreement may require that tenants conduct themselves in such a manner as to preserve their neighbor’s quiet enjoyment of their spaces, the rules may address more specifics of this duty, such as lawn mowing, leaf blowing, loud parties, etc.
• I frequently see much unnecessary overlap in rules and rental agreements, e.g. covering the same things, or covering them inconsistently. This is unfortunate, since it can create confusion among tenants. My rule of thumb would be that in the event of an inconsistency, you should not try to enforce a specific prohibition in one of the documents, if the other is more lenient. Or to put it another way, in the event of two provisions addressing the same issue, landlords should enforce the more lenient of them.

[1] There are several exceptions relating to changes which, for example, permit landlords to take advantage of newer statutes that give rights not formerly described by the law or found in rental agreements, such as the right to submeter spaces, etc.