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Situation: A Michigan landlord rejected an otherwise qualified African-American applicant after an online check revealed that he had been convicted of a felony in connection with a domestic disturbance four years earlier. While acknowledging the conviction, the applicant insisted that he was fully rehabilitated. But the landlord stubbornly refused to budge from the community’s policy of not accepting anyone with a criminal conviction while stressing that it doesn’t “consider cases individually.” The applicant and a local fair housing group sued for racial discrimination. The landlord moved for summary judgment, claiming that the statistics about arrest and incarceration rates of African Americans nationwide were too general to prove disparate impact in a particular community.   

You Make the Call: Did the applicant have a valid claim for racial discrimination under the FHA?

Answer: Yes

Ruling: The Michigan federal court rejected the motion and allowed the applicant to take his claims to trial. “Even countrywide statistics may be sufficient to plead a disparate impact claim where a challenged policy has a clearly disproportional effect on a protected class,” the court reasoned. Besides, the applicant also cited state and county statistics showing the same disproportionate rates of minority arrests and incarceration [Lyman v. Montclair at Partridge Creek, LLC, 2023 U.S. Dist. LEXIS 166464].

Takeaway: As a landlord, you have a responsibility to ensure your community is safe and secure. But while a blanket exclusion based on criminal history might look like a legitimate, nondiscriminatory safety policy, in the view of HUD and many courts, it has a discriminatory impact based on race. By the same token, HUD and DOJ guidelines also say that landlords can reject or evict a person that poses a “direct threat” to the health and safety of other tenants. Rule: Having a criminal record isn’t automatic proof that a person is a direct threat. You must do an individualized assessment of each case based on:

• How long ago the conviction occurred;
• The nature of the crime for which the person was convicted—arrests without a conviction don’t count;
• Evidence of rehabilitation; and
• Other evidence related to whether the person poses a threat to safety.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination against individuals with disabilities, including the refusal to make reasonable accommodations in rules, policies, practices, or services when they’re necessary to provide individuals with disabilities an equal opportunity to use and enjoy their home at the community.

The reasonable accommodation provisions come into play whenever an individual with a disability wants to use an assistance animal in communities that either prohibit or impose restrictions or conditions on pets at the community. Like all reasonable accommodation requests, the determination of whether an individual has a disability-related need for an assistance animal involves an individualized assessment, according to HUD.

Federal fair housing law broadly defines “disability” to mean physical or mental impairments that substantially limit one or more major life activities. That covers a wide variety of physical and psychological impairments—many of which aren’t obvious or apparent—as long as the impairment is serious enough to substantially limit a major life activity, such as seeing, hearing, walking, or caring for oneself.

Assistance animals are not pets under fair housing law, according to HUD. 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. You can’t charge an extra fee or pet deposit as a condition of granting a reasonable accommodation for an assistance animal.

Don’t get confused by the different rules under the Americans with Disabilities Act (ADA), which governs the types of animals used by individuals with disabilities in places that are open to the public, such as restaurants, hotels, and other venues. With one limited exception, the ADA permits only individually trained service dogs—and excludes emotional support animals.

But the FHA, which governs multifamily housing communities, is much broader than that. Fair housing law allows not only service dogs, but also any type of animal that provides assistance or emotional support to an individual with a disability. Breed, size, or weight limitations may not be applied to an assistance animal, according to HUD. Assistance animals don’t have to be individually trained or certified—and they all have the same legal standing—regardless of what type of assistance they provide to an individual with a disability.

8 RULES FOR HANDLING REQUESTS

FOR ASSISTANCE ANIMALS

Rule #1: Adopt Pet Policy Subject to Exceptions for Assistance Animals

Fair housing law doesn’t prevent you from having a pet policy—as long as you don’t use it to keep out assistance animals. 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, pet deposits, or additional rent charges. Whatever your policy on pets, it’s unlawful to deny an exception for an assistance animal needed by an individual with a disability to fully use and enjoy the community.

Example: In July 2019, HUD charged a Maine community and one of its agents with discrimination for denying a veteran with disabilities the right to keep his assistance animal. In his HUD complaint, the veteran alleged that he called the community in response to an ad on Craigslist. When he told the agent that he had a disability-related need to live with his assistance dog, the agent allegedly responded, “absolutely not,” and she regretted allowing a prior tenant to live with his assistance dog because other tenants then wanted to get pet dogs.

“No person with a disability should be denied the accommodation they need, especially individuals who served in the Armed Forces to defend our freedom,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work to ensure that housing providers meet their obligation to comply with this nation’s fair housing laws.”

Rule #2: Don’t Make Snap Decisions About Requests for Assistance Animals

Anytime someone asks for an exception to your pet policy to keep an assistance animal, you should treat it as you would any other request for a reasonable accommodation. The reasonable accommodation rules kick in anytime anyone says he needs or wants something—including an assistance animal—because of a disability. The law doesn’t require that a request be made at a particular time or in a particular manner. The person doesn’t have to mention fair housing law or use the words “reasonable accommodation.”

When you receive a request for an assistance animal, HUD says there are two relevant questions:

1. Does the person seeking to use and live with the animal have a disability—that is, a physical or mental impairment that substantially limits one or more major life activities?
2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks with services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to both questions is “no,” then HUD says that fair housing law doesn’t require you to make an exception to your pet policy and the reasonable accommodation request may be denied.

If the answer to both questions is “yes,” however, you’re required to make an exception to your pet policies to permit an individual with a disability to live with and use an assistance animal at the community, unless doing so would impose an undue financial or administrative burden or would fundamentally alter the nature of the community’s services.

The request may also be denied if the animal is a direct threat to your property or the health and safety of others. But HUD warns that you can’t make that decision based on speculation about the animal’s size or breed—you have to look into the specifics of the particular animal involved. It can get complicated, so don’t make snap decisions about whether to bar an animal on that basis without reviewing all the facts.

Rule #3: Request Documentation When Needed to Evaluate Request

Don’t deny a request just because you’re uncertain about whether the person seeking the accommodation has a disability or a disability-related need for an assistance animal. Though fair housing law generally forbids housing providers from making disability-related inquiries, there’s an exception for reasonable accommodation requests when either the disability—or the disability-related need for the requested accommodation—isn’t obvious or apparent.

Just remember: You can’t ask questions about an applicant’s disability or disability-related need for an assistance animal if both are known or readily apparent. The classic example is a request by a blind or visually impaired applicant to keep a guide dog. Since both the disability and the need for the animal are readily apparent, you can’t ask for documentation about the applicant’s disability or disability-related need for the dog.

You may request information from a resident with a known or obvious disability—but only if his need for the assistance animal isn’t readily apparent. As an example, federal guidelines point to a request by an applicant who uses a wheelchair to keep a dog as an assistance animal. The applicant’s disability is readily apparent, but the need for the assistance animal isn’t obvious, so you can ask the applicant to provide information about the disability-related need for the dog—as long as you don’t go overboard by asking for too much information.

Rule #4: Ask for Verification If Resident Doesn’t Have Apparent Disability

Be careful about how you handle requests for assistance animals from applicants or residents who don’t have an obvious or apparent disability. Under fair housing law, all individuals with disabilities are equally protected—whether they’re physical or mental, obvious or not–so don’t let outward appearances affect how you treat them.

If the resident’s disability isn’t readily observable, you may ask for reliable disability-related information that’s necessary to verify that the resident has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal. You can’t ask the resident for information about what his disability is or what the animal does to assist him—only for confirmation that there is a disability and that the animal is needed because of that disability.

In general, verification may come from a doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability—even the resident himself, under certain circumstances. But you can’t ask applicants or residents for access to medical records or medical providers—or for detailed or extensive documentation about their physical or mental impairments.

For example, HUD says that communities may ask applicants who want a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support, according to HUD.

Editor's Note: For model forms you can use to verify an applicant or resident's need for an assistance animal, see “Use Forms to Verify Resident’s Need for  Assistance Animal,” which appeared in our June 2018 issue.

Rule #5: Consider Requests for Emotional Support Animals

Treat requests for emotional support animals the same as any other request for a service dog or any other type of assistance animal. Fair housing law allows people with disabilities to have assistance animals that perform work or tasks, or that provide disability-related emotional support.

Example: In April 2019, the Justice Department sued the owner and property manager of a seven-unit rental property in New York City for refusing a reasonable accommodation to allow a resident with psychiatric disabilities to live with an emotional support German Shepherd in his unit. According to the complaint, the resident was a retired law enforcement officer and September 11th first responder who required an emotional support dog to assist him with his disabilities. The complaint alleged that the community sought to evict him for living with an emotional support dog and, after discontinuing the eviction action in which each side was supposed to pay its own attorney’s fees, the community allegedly retaliated and harassed him by billing him for its attorney’s fees related to its unsuccessful eviction attempt [U.S. v. Higgins, April 2019].

Example: In March 2019, the owner and property manager of a 232-unit housing cooperative in New York City agreed to pay $70,000 to settle allegations that they violated fair housing law by refusing to allow a resident with disabilities to keep an emotional support beagle in his unit. The Justice Department filed the complaint, alleging that the resident had disabilities and requested a reasonable accommodation to keep an assistance dog in his unit. According to the complaint, the community effectively denied the request by issuing a notice of default stating that he violated his lease by harboring a dog in his unit. A few months later, the complaint alleged that the community notified him that his tenancy would be terminated because he kept a dog in his unit [U.S. v. 118 East 60th Owners, Inc., March 2019].

Rule #6: Don’t Put Too Much—or Too Little—Stock in Online Certifications

Knowing the rules on disability verification is essential to avoiding the common mistakes that lead to complaints involving requests for assistance animals. It’s particularly important now that so many applicants or residents can go online and find a quick “certification” process to say their dog is a certified assistance animal.

Example: In November 2018, a court dismissed claims against a Florida homeowners association for denying a resident’s request for an assistance animal. In his complaint, the resident alleged that he was disabled as a result of a 2009 auto accident and bought a Rottweiler puppy in 2017 to serve as a service dog allegedly on the advice of his doctor. When he received a notice of violation stating that Rottweilers weren’t permitted, the resident said he informed the community that the puppy was a service animal. Instead of completing a medical release and form to verify his accommodation request, he allegedly produced service dog identification cards purchased online, his handicap parking placard, and copies of his disability checks. Allegedly, the community denied his reasonable accommodation request because he didn’t provide documentation of his disability or need for a service dog. 

He sued, but the court dismissed the case because the resident failed to prove that he had a disability under fair housing law. The only information about his disability was in his complaint. Although he alleged permanent mobility impairments from his 2009 car accident, he failed to present evidence of his injuries or limitations. And the community presented photos of him riding a scooter, and standing and walking unaided, which contradicted his allegations of disability [Fitzsimmons v. Sand & Sea Homeowners Association, November 2018].

When an applicant provides you with an online certification that he needs an assistance animal, it’s necessary to determine whether it meets the requirements that it’s reliable and from someone familiar with the applicant’s disability. Don’t automatically assume that an online certification wasn’t issued by any recognized group, or a medical or mental health provider, and deny the request.

You still have the obligation to consider, respond, and act on the request—even when you suspect that the online verification doesn’t provide you with all the information you need to act on the accommodation request. Unless the applicant has an obvious disability, you may request confirmation from her treating mental or medical health professional to verify that the applicant is under the provider’s care and treatment and that the provider has diagnosed a medical or mental condition that renders the patient disabled. You may also request confirmation from the treating doctor or mental health provider that the animal is prescribed to assist with the disability.

If the applicant or resident is unwilling to cooperate or obtain the proper medical or mental health provider’s assistance in verifying the information, then you may have grounds for denying the request. But this is a difficult area, so it’s important to get legal advice before taking any adverse action.

Rule #7: Consider Requests for Dogs Otherwise Excluded Under Pet Policies

Carefully consider requests for assistance animals—even if it’s for an animal that’s generally prohibited under your pet policies. It’s common for communities to allow only certain types of pets or to exclude animals based on their size or breed. But remember—these limits don’t apply to assistance animals. HUD says that breed, size, and weight restrictions may not be applied to an assistance animal.

Example: In February 2019, the owner and manager of an apartment building in Manhattan agreed to pay $100,000 to settle allegations of disability discrimination for refusing to rent a unit to an applicant with a psychiatric disability and her fiance because she had a large assistance animal.

According to the complaint filed by the Justice Department, the couple expressed interest in renting a unit, but they had a “service animal” that was “probably over the permitted weight limit” for the building. After they submitted forms requesting a reasonable accommodation, the manager allegedly notified them that the community would permit them to have a dog up to 50 pounds as a reasonable accommodation but their current dog—a 120-pound Cane Corso—was too large, so it would be best if they didn’t pursue their application for an unit in the building [U.S. v. Glenwood Management, February 2019].

It can get complicated when it comes to breed restrictions. Many communities have policies restricting certain dog breeds, most notably pit bulls, but HUD says that breed restrictions don’t apply to assistance animals. To comply with fair housing law, you must assess whether the particular animal in question poses a direct threat; otherwise, you may be accused of denying a reasonable accommodation by excluding an assistance animal based on its breed.

It’s another matter if your community is subject to a local ordinance banning pit bulls or other “dangerous breeds.” If allowing the dog would violate local law, then you may have grounds to deny the request, but this is another gray area where it’s a good idea to get legal advice before taking action on the request.

Example: In April 2019, the Nebraska Supreme Court ruled against a resident who claimed that the city violated fair housing law by denying his reasonable accommodation request to keep his pit bull as an emotional support animal despite its ordinance banning pit bulls and other “dangerous dogs.”

The lawsuit was filed by a resident who was partially paralyzed and had a pit bull as an emotional support animal. That same year, the city adopted an ordinance banning pit bulls and other dangerous dogs but grandfathered in dogs registered with the city before the law took effect. The resident failed to register the dog on time, so an enforcement officer said he’d have to get rid of the dog.

After obtaining documentation from his doctor, the resident sued the city for violating fair housing law. Rejecting the city’s argument that it was exempt from the FHA, the court issued an order that the ordinance was invalid as applied to the resident’s retention of the dog in his home.

On appeal, the state’s highest court reversed in part, ruling that the resident failed to prove that the requested accommodation was necessary. Assuming that he needed an emotional support dog, he failed to prove that other dogs not covered by the ordinance couldn’t provide comparable therapeutic benefit with regard to his disability. Fair housing law didn’t give him a right to his preferred option [Wilkinson v. City of Arapahoe, April 2019].

Rule #8: Don’t Ban Assistance Animals from Common Areas

Don’t impose unreasonable limits that prevent residents with disabilities from bringing their assistance animals into common areas. HUD says that residents with disabilities may use assistance animals in all areas of the premises where persons are normally allowed to go unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of your services.

Example: In February 2019, a court ruled that a Nevada homeowners association had to pay a couple $635,000 for refusing to grant the wife’s disability-related reasonable accommodation request to bring her assistance animal, a Chihuahua, into the clubhouse.

The court ruled that the FHA applied because access to the clubhouse was necessary for the couple’s enjoyment of their home. The dog qualified under the ADA as an assistance animal because it assisted the wife with acute pain attacks and with retrieving her walker. The dog was not disruptive, threatening, or harmful to the other residents in the community or in the clubhouse, so the accommodation to allow the dog to accompany the wife into the clubhouse was clearly a reasonable accommodation of the wife’s disability.

The court assessed punitive damages against some of the parties involved in denying the wife’s accommodation requests. Among other things, the court said they:

• Continued, in a harassing and malicious manner, to request documentation about the wife’s need for the dog’s assistance even after sufficient documentation was provided regarding her disability and the ways in which the dog assisted her;
• Actively and wantonly prevented the couple from using the clubhouse once documentation was provided;
• Sent or directed to be sent communications on behalf of the board portraying the couple as litigious and untruthful and knew that these communications would contribute to a hostile, threatening, and intimidating living environment; and
• Failed to discourage other residents from harassing and threatening the couple at open meetings and through anonymous letters.

The court further found that they acted with personal animus toward the couple, which fueled the antagonism among the community [Sanzaro v. Ardiente Homeowners Association, LLC, February 2019].

Nevertheless, you don’t have to tolerate bad behavior by individuals with disabilities—or their assistance animals—when they’re in common areas. You may expect them to have their assistance animals under their control, for example, by requiring them to be leashed unless doing so would interfere with the animal’s ability to perform disability-related tasks. You may establish rules to require residents with assistance animals to pick up and dispose of the animal’s waste and to hold them accountable if the animal becomes disruptive or acts aggressively toward other residents.

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

The key is to recognize that a manufactured home community is not just a business enterprise; it is also a small town. The residents expect you to be, from time to time, something of a mayor, judge, law enforcer, mediator and diplomat - as well as bill collector and manager of buildings and grounds.

Simply stated, resident relations is the measure of how well, or poorly, the manager and resident get along in the rental community. Developing and maintaining good, positive relations is an important, on-going management challenge and opportunity. Positive resident relations are one of the most attractive features of well-managed manufactured home communities.

The results of good resident relations are:

1. It makes community living easier and more pleasant for management and residents.

2. It promotes a positive and enjoyable living environment which, in turn, generates community pride.

3. It encourages resident referrals. This is the most economical form of community promotion available.

4. It helps develop a good local reputation for the community in particular and the manufactured housing industry in general.

5. It discourages the need or desire for rent control and/or landlord-tenant legislation.

The right attitude in resident relations is the same as any personal relationship - whether with a friend, spouse, job supervisor, or community manager. In fact, developing positive resident relations is the Golden Rule of successful property management. This means being positive, fair, helpful, and communicative with residents and staff alike. Additionally, in all management matters, "Be firm, but fair - diplomatically" and "Be friendly to all, but friends to none." The community's rules ,regulations and statement of policy can be the keystone to good resident relations. If well designed, the rules and regulations as well as the statement of policy reinforce the community's image; if well written, they diminish chances of misunderstanding; if well understood, they reduce property damage and resident problems."

Positive resident relations is the Golden Rule of successful property management. Adopt that attitude and adopt the measures suggested. Developing good resident relations will come easily. Just remember to communicate accurately, briefly, clearly and concisely in everything you say and write.

By:  The Oregonian Editorial Board

Printed 9-16-18

Portland's elected officials are doing their part to promote the $652.8 million regional housing bond going to voters this November. They have contributed to  the campaign, offered their heartfelt support in public meetings and signed on as official endorsers for the bond.

But if they really want to help get and keep families housed, they should focus on how their own policies stand in the way. Because regardless of the bond's success or failure, the duration and severity of this housing crisis hinge on whether leaders encourage the market as a whole to add more housing or quash it.

Unfortunately, a sweeping proposal being developed by Portland City Commissioner Chloe Eudaly falls squarely in the latter category.

Eudaly announced months ago that her office was looking at the process with which landlords screen potential tenants. The intent, policy director Jamey Duhamel told The Oregonian/OregonLive Editorial Board, is to ensure fair rental practices while helping needy renters, whose monthly income, criminal background, or credit history would typically turn off potential landlords.

The motivation seems understandable. The method, however, leaves much to be desired. Eudaly's eight-page proposal as currently drafted is heavy-handed, overly complicated and forces so much financial and legal risk onto landlords that many may opt to leave the rental business altogether. And the bigger question remains: How do these policies make housing any more affordable?

Among the many concerns in the latest version released: landlords aren't allowed to require that applicants show a monthly income of more than twice the monthly rent, even though three times monthly rent is more typical as assurance that a tenant can afford the payments. 

Landlords must go through an extensive and confusing matrix of questions in evaluating whether an applicant's criminal history merits a denial. And landlords must issue a written explanation to tenants who are denied after being vetted. The "notice of denial" must detail the reasons for turning down the applicant and establish that they are "highly and substantially more probably to be true than not that the applicant as a tenant will adversely affect the substantial, legitimate, non-discriminatory interest of the landlord."

It's not just a daunting set of poorly-written requirements. It's also an invitation to rejected applicants to sue.

Duhamel said Eudaly's office is focusing on how to "fine-tune" the proposal, which is tentatively scheduled to go before the City Council next month, to ease the administrative burden. But the flaws in the policy aren't going to be fixed by fine-tuning. The problems are baked into the fundamental assumptions underlying the policy.

For example, the screening proposal seems to assert that the city - not landlords - should get to decide how much financial risk landlords should bear. Citizens have not and should not hand over that kind of authority to city commissioners who believe their policy choices trump an individual's financial autonomy.

It also fails to consider that there are many landlords and affordable-housing groups that already accept tenants with criminal histories or credit problems. They do so not by following a rigid list of criteria but after considering the mix of tenants or other location-specific issues that make a tenant more suitable in one building than another.

And it neglects to address the underlying reason that people are struggling to find affordable places to live - a lack of housing on every income level caused by years of underbuilding. Instead, such onerous mandates on landlords - with limited ways to protect against the risk - could prompt some to drastically raise rent when units become vacant or take the property out of the rental market entirely.

Duhamel said that, in her opinion, only a handful of landlords would likely get out of the business altogether, dismissing "what if" concerns as "fearmongering." But she acknowledges the city has no data on how a previous policy - mandatory relocation assistance to tenants whose leases are not renewed - may have affected the rental market.

Others, who admittedly represent the landlord viewpoint, say it has definitely led to the loss of many rentals. Since the beginning of the year, 30 landlords who used the Garcia Group property management firm decided to sell their properties, owner Ron Garcia told The Oregonian/OregonLive Editorial Board. That's a tenth of the ownership portfolio, he said, and many of the properties were condos or single-family homes that likely went to buyers seeking to occupy, rather than rent, the property.

The region's housing crisis is real with thousands of homeless people living on the street and many more on the brink as wages don't keep pace with rent. But landlords' screening policies aren't the reason Portland is in a housing crisis. Leaders should focus on the true culprit - the need for more housing at all income levels - and make sure they don't unwittingly become an accomplice.

-Helen Jung for The Oregonian/OregonLive Editorial Board

WHAT DOES THE LAW SAY?

Section 3604(f)(1)(B) of the federal Fair Housing Act (FHA) bans discrimination against rental applicants, tenants, or the people associated with them, such as a tenant’s child, because of their disability. It’s also illegal (under Section 3604(f)(3)(B)) to refuse “to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”

According to the U.S. Department of Housing and Urban Development (HUD), “a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations” (if they’re in federally assisted housing). Examples:

• A community that doesn’t assign parking spaces makes an exception so that a mobility-impaired tenant will always be able to park near the building entrance;
• A community that requires tenants to pay their rent in person each month makes an exception for a tenant with a mental disability that makes her afraid to leave her apartment; and
• A community with a no-pets policy makes an exception allowing a sightless tenant to keep a seeing-eye dog in his apartment.

DEEP DIVE:

Reasonable Accommodations vs. Reasonable Modifications

Section 3604(f)(3)(A) of the FHA also bans refusing to allow “reasonable modifications of existing premises.” Like reasonable accommodations, reasonable modifications are reasonable changes necessary to afford a disabled applicant or tenant “full enjoyment” of the premises, but with two key differences:  

• A reasonable modification is a structural change made to the property, while a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service; and
• More significantly, tenants are responsible for the costs of modifications while landlords must pay for accommodations. 

You may also have to comply with more stringent accommodations requirements under other laws, including:

• If you open all or part of your community to the public, you must make “reasonable modifications” and ensure it’s designed, constructed, and maintained to be fully accessible to the disabled under federal Americans with Disabilities Act (ADA) requirements;  
• Section 504 of the of the federal Rehabilitation Act of 1973, which imposes stricter discrimination rules on landlords that participate in HUD housing and other federal assistance programs; and
• State and local fair housing laws, which are often much stricter than the FHA.

10 STEPS FOR PROPERLY HANDLING

REASONABLE ACCOMMODATION REQUESTS

Complying with your FHA duty to provide reasonable accommodations is one part substance and one part process. The first and most obvious challenge is to determine whether a requested accommodation is reasonable; the part that often gets overlooked relates not so much to the actual decisions you make but how you make them. Accordingly, the game plan below incorporates both challenges.

Step 1: Ensure Requestor Is (or Is Acting on Behalf of) a Disabled Person

Remember that while the FHA bans housing discrimination based on race, color, national origin, religion, sex, familial status, and disability, entitlement to reasonable accommodation applies to just one group: persons with disabilities. In other words, protection from fair housing discrimination doesn’t necessarily equate to the right to accommodation.

DEEP DIVE:

Are Other Protected Classes Entitled to Accommodations?

Although the FHA doesn’t expressly provide it except in the context of disabled persons, the argument has been made that reasonable accommodations are also required when necessary to allow a person protected by the law equal opportunity to “use and enjoy” housing. A notable case testing these principles involved a Chicago condo community whose tenants included the Blochs, a family of strong Jewish faith that posted a religious symbol called a Mezuzah on their door post. For over three decades, nobody said a word about the Mezuzah. But after a repainting, the condo board adopted a new rule banning tenants from posting any mats, signs, or other displays on their door posts. The Blochs requested a religious exemption allowing them to keep their Mezuzah, but the board said no.

The result was years of litigation, culminating in a U.S. Court of Appeals Seventh Circuit ruling denying the board’s motion to dismiss and allowing the Blochs to take their religious accommodations lawsuit to trial [Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009)].

What “disability” means: The FHA defines “disability” broadly as a physical or mental impairment that substantially limits one or more “major life activities.” Protection against discrimination and entitlement to accommodation extends to a person who:

• Actually has such a disability;
• Is perceived as having such a disability, even if that perception is wrong, such as where a landlord rejects an applicant that it wrongly believes has HIV; and
• Has a record of such an impairment, such as a recovered drug addict.

What “major life activities” are: “Major life activities” are those of central importance to daily life, such as walking, seeing, hearing, breathing, performing manual tasks, caring for one’s self, learning, and speaking. Conditions that substantially limit mobility are deemed disabilities, regardless of whether they’re plain to see or due to physical or mental conditions that aren’t readily apparent, such as heart disease, muscle weakness, or breathing ailments.

Step 2: Don’t Reject an Accommodation Because of How or When It’s Requested

You don’t have to make accommodations unless they’re specifically requested. On the other hand, you can’t make a big deal over the timing and formalities of a request. There’s no rule saying that requests must be in writing. Nor do requestors have to use the words “reasonable accommodation,” “fair housing,” “disability,” or any other magic language. All they need to do is make it clear that they’re requesting an accommodation. Note also that an accommodation request can come from either the rental applicant/tenant or a person acting on his or her behalf. According to HUD/U.S. Department of Justice (DOJ) Guidelines (which we’ll refer to as the “Guidelines”), a landlord is on notice “that a reasonable accommodation request has been made if a person, her family member, or someone acting on her behalf requests a change, exception, or adjustment to a rule, policy, practice, or service because of a disability.”

Other key things to keep in mind:

• Accommodation requests can be made by rental applicants as well as tenants at the start or at any time during their tenancy;
• You can ask requestors to put their requests in writing, but you can’t require them to do so; and
• While a family member, guardian, or other third party may request a reasonable accommodation on a disabled person’s behalf, a third party can’t demand an accommodation solely for his or her own benefit, such as an assigned parking space.

Tip: HUD recommends that landlords create forms and procedures that people can use to submit written requests for accommodations. This can facilitate and speed up the processing of requests and “prevent misunderstandings regarding what’s being requested, or whether the request was made.” However, the Guidelines add, landlords “must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the [landlord’s] preferred forms or procedures for making such requests.”

Step 3: Promptly Respond to Accommodation Requests

Don’t ignore an accommodation request, no matter how baseless and frivolous you think it is. While there’s no specific deadline, the Guidelines make it clear that landlords and other housing providers must provide a “prompt response” to a reasonable accommodation request. “An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation,” according to HUD/DOJ.

Step 4: Engage Your Accommodation Process

Engage in an interactive process with the requestor to gather the necessary information about the request and disability (which we’ll discuss under Step 5) and discuss ways to accommodate it. Recognize that failure to reach agreement on an accommodation request is tantamount to a denial. Result: The requestor can file a disability discrimination complaint with HUD or the equivalent state or local fair housing agency, which will then perform an investigation to determine whether there’s “reasonable cause” to believe you violated your accommodation duties. If so, you’ll end up having to defend yourself in a federal court or HUD Administrative Law Judge proceeding.  

Example: A Missouri landlord had to shell out $44,000 for denying a tenant’s request to transfer to a unit with fewer stairs to accommodate her mobility-impaired daughter. The landlord flatly refused the request, saying it had no apartments available. In dishing out the fine, the federal court cited the landlord’s failure to even engage the tenant, evaluate the daughter’s medical needs, and explore ways to accommodate them [United States v. Dunnwood, (E.D. Mo.) July 16, 2020].  

Strategy: Although the FHA doesn’t expressly require it, HUD recommends that landlords implement formal rules and procedures for handling accommodation requests. Advantages of having a formal accommodations process include:

• Ensuring that all accommodations requests get a prompt response and that no requests fall through the cracks;
• Enhancing the likelihood of agreement and preventing misunderstandings and miscommunications that can lead to complaints and investigations; and
• Generating a paper trail documenting the proper consideration you gave to the request, setting up your legal defense in case complaints and investigations do occur.

Caveat: The Guidelines warn that you can’t refuse to consider a reasonable accommodation request just because the requestor won’t follow your formal procedures or use your preferred forms.

Step 5: Properly Verify the Requestor’s Disability and Need for Accommodation

Let’s turn to how to actually make decisions on particular accommodation requests. The first step is to verify the need for the requested disability accommodation. Normally, you’re not allowed to ask applicants or tenants if they’re disabled or about the nature and extent of their disability. However, the Guidelines give landlords some leeway to gather information about a person’s disability in response to a reasonable accommodation request to the extent the information is necessary to determine three things:

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

Example: A tenant requested an assigned parking space as an accommodation for his Alzheimer’s Disease. The landlord said no. The California federal court dismissed the tenant’s failure-to-accommodate complaint because of the lack of evidence showing the link between Alzheimer’s and parking and how having an assigned parking spot was an accommodation necessary to “ameliorate” the disease’s effects [Elliott v. QF Circa, Case No. 16-cv-0288-BAS-AGS, June 18, 2018].  

Beware: There are limits on what information you can and can’t ask for, depending on what you already know or can easily surmise.

Rule 1: If the person’s disability and need for the accommodation is obvious, or otherwise known to you, you can’t request any additional information about the disability or disability-related need for the accommodation.

Rule 2: If the disability is known or readily apparent to you, but the need for the accommodation is not, you may request only information that’s necessary to evaluate the disability-related need for the accommodation.

• OK to request verification: A rental applicant in a building without elevator service wants a ground-floor apartment, claiming she can’t climb steps due to asthma or some other respiratory ailment. Since the claimed disability isn’t readily apparent, the landlord would be justified in asking for verification of the ailment and why she needs a first-floor apartment to accommodate it.
• Not OK to request verification: Same scenario but instead of a respiratory ailment, the applicant uses a wheelchair. Since the physical disability (that is, a mobility impairment) and disability-related need for the requested accommodation are both readily apparent, the landlord can’t require the applicant to provide any additional information about the disability or need for a ground-floor apartment.

Strategy: You may be able to get the information you need to verify that the person meets the FHA definition of disability directly from the requestors themselves, such as in the form of credible statements from the individuals, or the fact they have government-issued disability license plates or placards on their vehicle or receive Supplemental Security Income or Social Security Disability Insurance benefits despite being under age 65.

If necessary, the Guidelines say landlords may also seek verification from a doctor or other medical professional, peer support group, non-medical service agency, or reliable third party in a position to know about the individual’s disability. However, they must limit the request to only the information needed to verify the disability and need for the accommodation. 

Step 6: Determine If Requested Accommodation Is Reasonable

You need only grant requested accommodations that are reasonable. According to HUD, a request for an accommodation is reasonable if it:

• Doesn’t cause landlords to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available;
• Won’t cause harm or damage to others; and
• Is technologically possible.

These criteria are critical, so let’s look at them more closely.

Financial and administrative burden. You can’t deem a requested accommodation unreasonable simply because it costs time and money to provide. The burden must be “undue,” based on the accommodation’s costs, the landlord’s financial resources, the benefits to the requestor, and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. Examples of accommodations for disabilities that would impose undue financial or administrative burden would include making structural changes to common areas or completely paving over and reconstructing the entire parking lot for the sake of one tenant.  

Fundamental alteration. Accommodations require “fundamental alterations” when they alter the essential nature of a landlord’s operations.

Example: A tenant with a severe mobility impairment asks his landlord to transport him to the grocery store and help him with his grocery shopping. The request wouldn’t be a reasonable accommodation to the extent that the landlord doesn’t provide any transportation or shopping services for any of its tenants, according to the Guidelines.

Harm or damage to others. You don’t have to make accommodations that would endanger the health and safety of others or pose the risk of unreasonable damage to property, such as by making an exception to a no-pets policy to allow a tenant to keep a full-grown elephant or camel in her apartment as a “therapy animal.”   

Detrimental to other disabled persons. Accommodations aren’t reasonable if they require you to deprive other disabled applicants or tenants an equal opportunity to use and enjoy their own apartments. For example, you don’t have to force one mobility-impaired tenant to vacate a ground-floor apartment or give up a reserved accessible parking space in favor of another tenant who’s “more disabled.” If resources are limited, create a waiting list for granting requests as things open up in the order you receive them based on which disabled tenant has been waiting the longest.

Technologically impossible. Accommodations aren’t reasonable if they’re technologically impossible. Thus, for example, the owner of a three-story prewar urban brownstone building wouldn’t have to—and probably wouldn’t be able to—install an elevator just so a mobility-impaired tenant could continue living on the third floor.   

Strategy: It’s a good idea to consult an attorney for advice before notifying the requestor of your decision if, for whatever reason, you determine that a requested accommodation is unreasonable.

Step 7: Consider Alternative Accommodations If Request Is Unreasonable

The accommodations process shouldn’t end simply because you conclude that a requested accommodation is unreasonable. Before you reject the request, dig deeper and ask yourself this question: Is there some other change you can make or action you can take that would enable the requestor to more fully use and enjoy his or her home?

Example: Let’s go back to the example above where a disabled tenant’s request that a landlord drive him to the grocery store would be deemed an unreasonable accommodation to the extent such services aren’t offered to any tenants. Even though the landlord can deny the request, it should consider alternatives that would meet the tenant’s needs without forcing a fundamental alteration of operations. For example, maybe it can alter its parking policy to allow a local volunteer to park her car close to the tenant’s apartment so she can drive him to the store and help him shop for groceries.

You can also offer easier or cheaper alternatives to those who make reasonable requests. However, if an accommodation is reasonable, the requestor isn’t obligated to accept any of your suggested alternatives.

Step 8: Don’t Charge Accommodation Request Fees or Deposits

The Guidelines state that you can’t make individuals with disabilities pay extra fees or deposits as a condition for receiving a requested accommodation. That includes charging an administrative fee for processing an accommodation request. If an accommodation is reasonable, you must pay the associated costs out of your own pocket and not charge the requestor a fee or deposit to defray the associated expenses.  

Example: A Pennsylvania seniors housing provider had to shell out $80,000 to settle discrimination claims brought by mobility-impaired tenants and fair housing agencies, including for allegedly charging disabled tenants as much as $350 for designated parking spaces necessary to make their apartments accessible [Clover Group, May 2020].

Similarly, if an accommodation is reasonable, you must provide it without imposing financial or other conditions, such as by requiring tenants to pay “pet deposits” or carry extra insurance coverage for their service animals.

Example: A Minnesota apartment community paid $35,000 to settle claims of placing undue conditions on a tenant’s request for a service animal by requiring her to:

• Buy an insurance policy covering the dog and listing the landlord as a co-insured;
• Make the dog wear a special emotional support animal vest at all times outside the apartment; and
• Sign an “indemnification and hold harmless waiver” covering the landlord against any harm the dog caused [United States v. Brooklyn Park 73rd Leased Housing Assoc., LLC, (D. Minn., Jan. 22, 2016)].

Step 9: Don’t Retaliate Against Persons for Requesting Accommodations

You can’t evict, reject, or take any other adverse action against any person for requesting a reasonable accommodation. You can be liable even if retaliation is just one motive for a decision—for example, evicting a tenant for not paying rent and for requesting an accommodation.

Example: A Tennessee landlord evicted a disabled tenant after he requested reasonable modifications (removal of a concrete parking bumper) and accommodations (two assigned parking spaces). The tenant filed a complaint with HUD, claiming the eviction was retaliatory. Rather than risk a trial, the landlord paid $52,500 to settle the claims [United States v. Fairfax Manor Group, LLC, (W.D. Tenn., March 19, 2018)].

Step 10: Keep Requestor’s Personal Information Confidential

The personal information you collect to process an applicant or tenant’s request for a disability accommodation is protected by privacy laws. Result: You must keep the information confidential and secure, use it only for purposes of processing the accommodation request, and not disclose it to others except when you’re legally required to do so, such as when  a court issues a subpoena requiring you to disclose the information. These privacy obligations apply regardless of whether you ultimately grant or deny the accommodation request.

Answer. ORS 90.545(Fixed Term Tenancies) provides that unless you take action not less than 60 days prior to the end of the term, the lease becomes a month-to-month tenancy on the same conditions as the original lease. 

The only exception to this is for the landlord to submit a proposed new lease to the tenant at least 60 days prior to the ending date of the term. Any provisions that are new, i.e. not in the prior lease, are to be summarized in a written statement; the same applies if the landlord is going to create new community rules. Remember, however, that if there are substantive changes to either or both of these two sets of park documents, you may also have to issue a new Statement of Policy under ORS 90.510,[1]which is a summary explanation of certain park policies provided to new and existing residents.

If you introduce new lease terms or new rules, they must “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or are the same as those offered to new or prospective tenants in the community.”

Note, however, that the new lease terms or rules cannot relate to the “…age, size, style, construction material or year of construction of the manufactured dwelling” *** and cannot “…require an alteration of the manufactured dwelling *** or new construction of an accessory building or structure.

The tenant must accept or reject the proposed new lease at least 30 days prior to the ending of the term by giving written notice to the landlord.

So, your choice on expiring leases under ORS 90.545 is: (a) To do nothing, in which case the lease morphs into a month-to-month tenancy on the same terms as the earlier lease, or (b) Introduce a new lease and/or rules that “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or are the same as those offered to new or prospective tenants in the community.”

You do not have an option to notnon-renew the tenant at the end of a lease term.  This is not to say that you are limited in termination  for cause under: ORS 86.782(6)(c) (foreclosure trustee sale),90.380(5) (dwelling posted asunsafe by gov’t),90.392 (termination for cause),90.394 (termination forfailure to pay rent),90.396 (termination on 24-hour notice),90.398(termination drugs, alcohol),90.405 (termination, unpermitted pet),90.440(termination in group recovery facility)or90.445 (termination for criminalact).  

As to the summary, the statute simply says that “(t)he landlord shall include with the proposed agreement a written statement that summarizesany new or revised terms, conditions, rules or regulations.” (Emphasis added.)

However, since you will have many changes to the new lease, you ask about two possible alternatives: Either to send the new lease to the tenant: (a) and inform him/her it has numerous updates and they should read it as if it were a completely new edition; or (b) “…offer a redline version which they wouldn’t be able to read.”

ORS 90.130 provides:

Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.”

I read that to mean that good faith compliance is satisfactory in this case. Since ORS 90.545 does not elaborate about the written summary, I would opt for an approach that gives you more coverage rather than less. Both of your alternatives, especially (a) standing alone, could be attacked by residents as insufficient since it really doesn’t comply – if the goal is to inform and educate residents about the new changes. Alternative (a) is too little, and (b) is too much.

My view is that you don’t have to detail every single change, just the material ones that aid in understanding the nature and scope of the new provisions. Stylistic changes that do not alter the substance of the new text don’t need to be addressed. As to material changes, they should be summarized.

I would give the new lease to the residents together with a marked redline showing the material changes.[2]I would then include a distillation of the material changes in the new lease into categories and short summaries.

For example:

• Rule No. ___, Late Fees: they are going to increase from X$ to $Y;
• Rule No. ___, Pets: There will be a fine for pet violations;
• Rule No. ___, Mediation: Adds mediation rules under the recently enacted SB 586 Sec. 7 et seq. (2019) and provides that Landlord has the duty to mediate if requested by Tenant. See,https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/SB586;
• Rule No. ___, Occupants: Tenants must now notify manager within X days of the person coming into the park and obtain a Temporary Occupancy Agreement.

Be sure the notice invites residents to contact the park manager if they have any questions. I believe this approach meets the spirit and intent of ORS 90.545, and is in good faith compliance with the law.  

Lastly, before sending out the notice, enlist the help of someone who is not privy to the changes, and ask them to read your summary. If they understand it (without your coaching), then send. If not, I would re-work the language until it is clear. The goal is to avoid ambiguity in the summary; but if reasonable minds can differ as to the meaning of the new summary, it is, per se’ambiguous, and needs to be clarified before sending.

When any existing resident intends to sell their manufactured home the resident must do the following:

1. Give the landlord a written 10-day notice of their intent to sell their manufactured home. (Note: The 10 days will run parallel with the 7 day application process - i.e. if the resident notifies the landlord of intent to sell the home and does not give the 10 day notice, then the application process time to approve or reject will take 10 days rather than 7 days.)
2. The existing resident must advise the prospective purchaser that they have to fill out an application with the landlord and be approved.
3. Do not move anyone into the manufactured home that has not been approved through the tenant screening and approval process.

If you are aware of a sale and do not have the purchaser fill out an application, or fail to advise the seller and prospective purchaser in writing that the application has been rejected within 7 days after they fill out the application, then the purchaser can move into the mobile home under the same condition of the rental agreement of the seller. Basically, they assume the existing rental agreement you have with the seller of the manufactured home.

If a prospective tenant refuses to provide you with the necessary information for you to qualify them, then it is an automatic denial of the applicant.

It is important that an application is filled out and you check out the person carefully. You should check them out the same as you do any prospective resident. You do not have to approve the person just because they are buying an existing home in the park. If they have a bad credit or rental history, they can be refused as a prospective tenant. This does not necessarily kill the sale of the mobile home. They can still purchase the home, they just cannot keep it in the park. You need to provide a written rejection to both the seller and prospective purchaser within 7 days. You need to advise them why they were not accepted. If you denied them for credit reasons, give the applicant the name and phone number of the company who provided you with the report. Advise the applicant that they can call them if they have any questions regarding the report.

It is important that you advise anyone that has a "For Sale" sign on their manufactured home that they do the three things listed at the beginning of this section. Failure by the prospective resident to fill out an application or the landlord's failure to advise them that they do not qualify can be a very costly mistake in the event they move in and then you give them notice. It makes for ill feelings for everyone involved.

If a resident sells their home and the new owner of the home has not filled out an application prior to moving into the home, you do not need to accept them as a resident. You have no contract with them and you can request them to remove the home from the park. DO NOT ALLOW PROSPECTIVE TENANTS TO MOVE IN BEFORE THE SCREENING PROCESS HAS BEEN COMPLETED, AND THE APPLICANT HAS BEEN APPROVED AND SIGNED, AND RECEIPTED FOR THE STATEMENT OF POLICY, RULES AND REGULATIONS AND RENTAL AGREEMENT. DO NOT ACCEPT RENT FROM ANYONE THAT YOU HAVE NOT APPROVED TO LIVE IN THAT HOME. If you accept rent before you qualify them then you may have established them as a tenant. Simply tell them that you cannot accept the rent until they fill out an application and are accepted by the landlord. DO NOT HAVE ANYONE SIGN A RENTAL AGREEMENT UNTIL YOU HAVE RUN CREDIT, RENTAL AND CRIMINAL CHECKS ON THEM AND THEY HAVE BEEN ACCEPTED. If any of the reports come back unfavorable there is nothing you can do about it because you have established them as a tenant by signing the agreement/lease. 

Inaccuracies

Question: What happens if a community denies housing based on a screening report that contains inaccurate information about an applicant's criminal history?

Answer: When the denial takes place, Richer explained that it's the community's responsibility as a user of consumer reports under the FCRA to provide the applicant with an "adverse action" notice, which would direct him to the screening company that provided the information to the housing provider.

The applicant has the right to a free disclosure of the contents of the report and to dispute any inaccurate and non-updated information found within the report. The screening company then has 30 days to verify that the information is accurate and belongs to that consumer. If the information can't be verified, it would be removed from the report. The applicant would get a corrected copy of that report and could also request that a corrected version of the report be sent to the original inquirer (the community).

This is one reason for having a very active appeal process, Williams said. If you get the wrong person's record, which does happen occasionally, the appeals process allows the person to come forward and show that that is not his record and it was a mistake, and allow you to undo the rejection immediately.

Look-Back Period

Question: How far back should we go in considering criminal convictions? When should the look-back period start-on the date of conviction or the date the applicants left incarceration?

Answer: Depending on the status of the record (conviction, pending case, etc.), the look-back period date may vary, Richer said. The look-back period could start on the date of release from incarceration, but remember: That information may not be readily available in some states, so it can be challenging to base your look-back period on that particular date. You may want to craft a policy that includes multiple types of dates based on the information available from the criminal source, Richer said.

Every company needs to decide this for itself, Williams said, but you could include the date of conviction, and also the date of release-with the same or lower look-back period. For example, you could set the look-back period to be seven years from conviction of the crime, and three or four years from release from incarceration (or whatever number of years you choose). In states where you may have difficulty getting that data, Williams said that it will be something to work out with your screening company.

Question: How do we determine what is considered a reasonable look-back period?

Answer: To determine a reasonable look-back period for your community, Richer recommends consulting with your legal counsel, your resident screening provider, and perhaps peer communities. Some of the recommended best practices include longer look-back periods for more serious crimes (that would include incarceration) and shorter look-back periods for less serious crimes or misdemeanors. Several AmRent customers have selected up to 20-year look-back periods for very serious crimes, seven to 10 years for serious crimes, and three to five years for less serious crimes.

Question: How would you handle convictions for serious crimes, such as murder or rape, when the recidivism rate is so low, but the danger posed of that low percentage of offenders is extremely high?

Answer: Many housing providers are considering the safety, reputational, and financial risk when making these decisions, Richer said. Although the recidivism rates for murder and rape may be lower than other crimes (according to some statistics), you'll have to determine what legitimate, substantial, and non-discriminatory interest would be achieved with a policy that restricts housing based on the reputational risk of admitting a person with one of these crimes in his past.

It may be prudent to apply a reasonable look-back period that includes incarceration time, Richer suggested. In addition, your individualized assessment process might consider the amount of time since release from incarceration, evidence of criminal events since release, housing and employment history, as well as rehabilitation programs. This particular category has been challenging for many communities to reconcile.

Pending Charges

Question: What should we do if the criminal record shows there are pending charges against an applicant?

Answer: Pending charges are different from records of arrest, but Richer and Williams warned that they still should be handled carefully with respect to the new HUD policy guidance. One option would be to treat applicants with pending charges somewhat similar to the way you would treat them if they had a conviction on those charges. Serious consideration should be given to the risk associated with the criminal offense and the impact to the community. It can get tricky when the charges are not severe, so you should consult with your legal counsel.

FAQ: Rehabilitation Program

Question: If an individual has completed a rehabilitation program, should we allow residency?

Answer: Your company policy might consider rehabilitation program completion as one factor in your individualized assessment process, Richer explained. The completion of a rehabilitation program alone might not be sufficient to mitigate all the risk associated with a particular crime. You might also consider how long ago the crime occurred and if the applicant has committed other related or non-related crimes since the original crime or after the rehabilitation program.

Conditional Approval

Question: Can a criminal background check be approved with conditions-for example, accepting the application, but with a condition that the applicant can't be arrested for that offense during the calendar year?

Answer: Accepting an applicant with conditions is one of the best practices suggested under the HUD policy guidance, Richer said. When considering whether to do so, you'll need to consider how you'll monitor future criminal activity and complete the eviction process once the applicant becomes a resident (all at a cost to you). Richer said you should consult with your legal counsel whether the benefit of this condition outweighs the administrative burden and costs of managing the enforcement.

Postponing Access to Criminal Records

Question: What is the reasoning behind the recommendation to run criminal reports after other screening has been completed?

Answer: The thought process is if you are not "viewing" criminal records until other qualifying criteria have been met (such as credit, rental history, employment verifications, and the like), then you will reduce the number of times that you are disqualifying applicants for housing based on previous criminal histories, Richer said. You are also likely to reduce the frequency of individualized assessments, which are time-consuming, costly, and require judgmental review of the applicant's circumstances surrounding the criminal record.

UPDATE: Thanks to John VanLandingham for reminding me that pursuant to the recently enacted Senate Bill 970, ORS 90.303 was amended to provide that when evaluating an applicant for tenancy, the landlord may not consider: (a) A criminal conviction for possession of marijuana; nor (b) Possession of a medical marijuana card, or status as a medical marijuana patient. This new law becomes effective on January 1, 2020. ~ PCQ

Answer.  This applicant seems to believe he makes the rules. Please remind him otherwise. Regardless of the guest policy, you know he has a “lengthy criminal record” so you need to exercise extreme care in permitting him into the park under any circumstances.  

I do have some questions:

• It is unclear to me whether all his criminal history is over 10 years old, or just some of it. If all of it is over 10 years ago, the cuts in his favor.
• You did not describe the nature or severity of the crimes. Are they misdemeanors or felonies? Repeat offenses? 
• Crimes against persons or property? The former warrant more careful attention.
• Lastly, and perhaps most critical to any analysis is whether this person is a member of a protected class. Ex-cons are not, per se’ a protected class. If he is not, there is little he can do from a fair housing standpoint. However, this is not to say you can drop your guard. The main rule-of-thumb to always follow is to be consistent. 

On April 4, 2016, the U.S Department of Housing and Urban Development (“HUD”) issued its “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions” (hereinafter, the “Memo”). The full text of the 10-page Memo can be found here. Not surprisingly, it follows the June 25, 2015 ruling by the U. S. Supreme Court, in the Texas Dept. of Housing vs. Inclusive Communitiescase, which upheld the much-debated concept of “disparate impact” under the Fair Housing Act, as amended (the Act”).   

At footnote 43 of the Memo, the following appears: 

***see Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven yearswithout reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record). (Emphasis added.) 

Does this mean that six or seven years is the maximum look-back that landlords can make when screening someone’s criminal background? I submit that for non-violent crimes, this is not an unreasonable review period. But in cases of crimes to the person, and most significantly, rape and child molestation, I agree a ten-year period is not unreasonable. 

However, the Memo is not to be read to say that anyconviction over seven years may not be taken into consideration when screen potential tenants or temporary occupants. Its purpose is to “…issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result.”  

 Here are some tenant screening tips I’ve suggested in past articles:  

1. Beware of testers, calling over the phone and asking if you will rent to persons with a criminal background.Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address.  

1. Ultimately, landlords should plan on making adjustments in their rules and application process.   

1. Do not have a rule or policy that treats an arrest, with no conviction, the same as a conviction.If you currently have such a rule, it should not be enforced. 

1. Do not have a blanket guideline providing, for example, that conviction for any crime is an automatic denial. 

1. Be sure that all rules or policies concerning criminal records are uniformly enforced – no exceptions.  However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violent crimes over the past five years. 

1. If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these other criteria, then the rejection can be based on that, rather than a criminal background report, thus avoiding the disparate impact issue entirely. 

1. In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before deciding to reject a prospective tenant based upon criminal history. For example: 

·     How long ago was the conviction? (A single conviction over 6-7 years old, in most cases should probably not be used as the basis for a denial (excluding registered sex offenders, or those convicted of violent crimes). 

·     What has the person been doing since their release? 

• Has the person been convicted once, or on multiple occasions? 
• What was the nature and severity of the crime?  

1. Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (notmere possession) of a federally defined controlled substance ispermissible and not subject to a disparate impact claim.In other words, a landlord or manager may legally base the refusal to rent based upon a conviction for manufacture or distribution is nota violation of the Act, based upon disparate impact. Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’” 

1. ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all of them. And where there is similarity, Oregon law does not go as far as the Memoon the issue of criminal records and disparate impact. Oregon’s statute provides: 

(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168(Oregon’s eviction statutes – PCQ)if the action: 

       (a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application. 

      (b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application. 

(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application. 

(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is: 

     (a) A drug-related crime; 

     (b) A person crime; 

     (c) A sex offense; 

     (d) A crime involving financial fraud, including identity theft and forgery; or 

     (e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect: 

     (A) Property of the landlord or a tenant; or 

     (B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent.  

1. Landlords should notassume that compliance with ORS 90.303 means that a denial of tenancy automatically avoids a disparate impact claim.  Landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  Thus, compliance with state law, but non-compliance with federal law, can still result in a disparate impact claim under the Fair Housing Act, as amended. 

Here are some considerations to keep in mind: 

1. The Memo and ORS 90.303 bothprohibit screening applicants for arrests, regardless of the conduct that led to the arrest; 

1. ORS 90.303 says that an arrest which has not been dismissed but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (i) When the matter will be resolved, e.g. a week, a month, or a year? (ii) What was the charge? (iii) If convicted, would the applicant automatically be denied? As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds.If so, there is no need to rely upon a landlord’s criminal background policy at all. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases.  

1. ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo. 

1. Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred or require an evaluation of what the applicant had been doing since the conviction. (e. g. evidence of rehabilitation). In the past, earlier Landlord-Tenant Coalitions could not reach agreement on whether to use a five- or seven-year standard in the statute3, nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this issue.  

Conclusion.  Landlords could be forgiven for feeling they are caught on the horns of a dilemma. If they follow Oregon statutes, it may not be enough. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines” based upon anecdotal information.  

Perhaps most unsettling is the fact that today, a landlord’s good faith effort to comply with the tenant application process is not enough. Instead, unintentional discrimination, now known under the more benign title, “disparate impact”, has become a basis for Fair Housing claims. Yet unlike statutes, which can provide distinct guidance, disparate impact is more of a conceptthan a law, since it ignores one’s intent, and looks instead to the perceived long-term consequences of certain actions based upon empirical statistics, academic writings, analysis, surveys, demographics and footnotes. Is this something landlords can or should be expected to fully appreciate and understand when evaluating a person for tenancy?  

So, to your two questions:

1. Can you still deny the temporary occupant based on a criminal record from 10 years ago, I would say yes, if the crimes were violent/sexual in nature, were repeated, and during the intervening years, the applicant had not exhibited any stability or rehabilitation. (Note, if the applicant is a member of a protected class, you probably should consult with your lawyer first.)
2. Can he “couch surf”? If your decision is to decline him as a temporary occupant, using the above screening criteria, you certainly don’t want him in the community under any other category. Just say No and let any residents who would aid him in this work-around know that.

Remember this: In the final analysis the decision is easy. Which would you rather defend against: (a) an angry ex-con, or (b) the parents of a child harmed by the ex-con you allowed into the community because he tried to make you bend to his rules?

UPDATE: Thanks to John VanLandingham for reminding me that pursuant to the recently enacted Senate Bill 970, ORS 90.303 was amended to provide that when evaluating an applicant for tenancy, the landlord may not consider: (a) A criminal conviction for possession of marijuana; nor (b) Possession of a medical marijuana card, or status as a medical marijuana patient. This new law becomes effective on January 1, 2020. ~ PCQ

Answer. Based upon recent news reports, it appears that, subject to certain exceptions,[1] there will be no effort by the federal Department of Justice to seek out and charge violators of the Controlled Substances Act in those states where the medical or recreational use of marijuana is legal.

Thus, it appears that when it comes to enforcement of park rules and regulations, Oregon landlords are on their own; neither the feds, nor the state, will go after persons with lawfully issued medical marijuana cards. Furthermore, if a tenant has a valid card, then arguably he or she has some medical condition that has authorized its issuance. Is the landlord obligated under the Fair Housing laws to make a "reasonable accommodation" for their medical condition, and permit the tenant to continue their use or grow operation? If properly done, the answer is likely "No." Here's why:[2]

In January 20, 2011, the U.S. Department of Housing and Urban Development ("HUD") issued a Memorandum, the subject of which was "Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing." While the Memo was limited to federal public and assisted housing, it can be regarded as a helpful - though perhaps not a "final" resource - on the issue.[3] It is very complete and helpful for all landlords. It can be found at this link. Here is what the Memo directs:

Public housing agencies '_in states that have enacted laws legalizing the use of medical marijuana must therefore establish a standard and adopt written policy regarding whether or not to allow continued occupancy or assistance for residents who are medical marijuana users. The decision of whether or not to allow continued occupancy or assistance to medical marijuana users is the responsibility of PHAs, not of the Department."

Thus, HUD appears to be leaving it up to the state public housing authorities to decide whether the refusal to permit on-premises use of medical marijuana constitutes a fair housing violation. Between the lines, it appears that HUD will not directly investigate such claims, leaving it up to public housing agencies on the state level.

While HUD's pronouncement is directed toward "public housing" is would be hard to believe private housing would be treated any differently. Oregon fair housing law is "substantially equivalent" to federal fair housing law. So, generally speaking, on the issue of medical marijuana, as goes the federal law, so goes state law.

However, in the 2010 case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court held that employers do not have a legal duty to allow employees to use medical marijuana on the job. This case addressed many unanswered questions on the use of medical marijuana in Oregon from an employment perspective. In a subsequent article [found here] by the Fair Housing Council of Oregon it appears that the rationale of the Emerald Steel Fabricators case is helpful for landlords declining to admit new residents with medical marijuana cards - so long as they have an existing policy against the use and cultivation of marijuana in the community.

Thus, it appears that in Oregon, on both the federal and state levels, enforcement agencies are taking a laissez-faire approach to the medical marijuana issue. This means that landlords have it within their control, with little fear of fair housing/reasonable accommodation claims, to enact rules and regulations prohibiting the on-premises medical or recreational use of marijuana.

However, I do not believe the proscription should be retroactive to tenants holding legal medical marijuana cards who have already signed their rental agreements or leases. Like you, I believe that a court would not be favorable to your situation.

It appears that your resident's medical marijuana card is in order. It must valid and current for Oregon. A California card, for example, would not suffice. [See, State v. Berrenger, 2010].

Conclusion. Yours is a difficult situation. For existing tenants I believe you can legally institute a "no marijuana" policy against recreational and medical use. However, making it retroactive as to persons already holding medical marijuana cards, would be a difficult proposition, since they did not bargain for that when they became residents or when they received their card.

In some instances, and this may not be one, I have seen situations where the resident, under the guise of holding a medical marijuana card, is also selling the drug illegally to others. This situation is most apparent when there are late night visits by unknown persons for short periods of time. If this situation presents itself, and neighbors complain, you may have recourse by issuing a 30-day curable notice of termination for violating ORS 90.740(4)(j) for disturbing the neighbors' peaceful enjoyment. You do not have to raise the marijuana use, just the noise and disruption. Upon a second similar violation within six months of the date of issuance of the first notice, you can issue a 20-day noncurable notice.

[1] The exceptions are: The distribution of marijuana to minors; Directing revenue from marijuana sales to gangs and cartels; Diverting marijuana from states where it is legal to other states where there are no laws allowing for marijuana use; Using legal sales as cover for trafficking operations; Using violence and or firearms in marijuana cultivation and distribution; Driving under the influence of marijuana; Growing marijuana on public lands; Possessing marijuana or using on federal property.

[2]Note: This answer is not intended to constitute legal advice. Readers should consult their own legal counsel to determine how to proceed in these cases, as the correct outcome depends upon the specific facts of each situation.

[3] Note that Oregon has its own set of fair housing laws.