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We all know that 80% or more of a community homesites must be occupied by at least one 55+ person, and that documented proof of age must be consistently required to qualify for 55+ status under HOPA. Let's not forget that the requirements also mandate the re-survey.

What do the Regulations say? "...The procedures described in paragraph (b) [routinely determining the occupancy of each unit, including the identification of whether at least one occupant of each unit is 55 years of age or older] ... must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place once every two years ...."

For example, there were objections to the re-survey mandate on the grounds it was too burdensome. HUD stated that owners would not be unduly burdened by the update requirements since the information "will be readily available in the files."

This comment reflects that the survey requirement can be fulfilled by preparation of a summary of names and ages of the homeowners based on existing file information (assuming the files are up to date). One might annotate a rent roll with resident ages and satisfy the requirement. HUD emphasizes that "...the re-survey does not require that all supporting documents be collected again - only that the community confirm that those persons counted as occupying dwellings for purposes of meeting the 80% requirement are, in fact, still in occupancy."

It is also clear that the survey is a "summary" and not required to include underlying documentation (remember the POA must be obtained for approval of tenancy and kept in the resident's file): "[Only the overall survey summary is required to be available for review, not the supporting documentation. The word 'summary' has been added to this section").

Compilation of the "Summary"

In review of the files to compile the required "summary," it is possible that some files may be missing POA (Proof of Age) documentation. Missing POA reflects inconsistent conformance to a required age verification policy. This can be fatal to defending a "55+" status. Yet, there are plausible reasons why POA may be absent. Perhaps a resident's tenancy commenced before the date of enactment of the Fair Housing Amendments Act of 1988 (September 12, 1988): this was the last date to "grandfather" underage residents excluded from the calculation of the 80-20 requirement; perhaps the Xerox copier did not work on the day identification was checked; perhaps the applicant's age was so obvious that documentation was overlooked; perhaps the POA was misplaced. None of these explanations will "wash" with fair housing enforcers. Now is the time for review of this information. Supplementing resident files may bolster a defense of the "55+" status by proving the 80-20 ratio, but cannot substitute for consistent conformance to a policy of seeking POA documentation. HUD's requirements are crystal clear: "The housing facility or community must establish and maintain appropriate policies to require that occupants comply with the age verification procedures required by this section."

Should you seek missing POA information?

Yes. In a large scale review of resident files by fair housing enforcers, the main objective for review of proof of age may be to establish the 80-20 ratio: Proof of age in the file may itself be seen as evidence of adherence to collection of required data: even after-acquired information reflects, at least, compliance with the 2-year survey requirement. Proof of age includes

the following: driver's license (an expired or out-of-state license seems 'ok'), birth certificate, passport, immigration card, military identification, any other state, local, national, or international official documents containing a birth date of "comparable reliability." This may include birth certificates, baptismal or marriage documents, perhaps, and other public records.

What if the tenant refuses to provide proof of age?

New purchaser: Of course, refusal to supply proof of age when applying for tenancy is a basis for denying a tenancy application. The regulations also allow for a declaration from a member of the household over 18 years of age, stating that at least one person in the homesite is at least 55 years of age. This after-acquired information is permissible for the survey, but again does not bolster evidence of conformance to proof of age documentation required for tenancy approval.

HUD provides a skeletal sample of certification. This can also be used as part of the tenancy application alone or better yet as a backup to production of proof of age. The sample reads as follows: "I, (name), am 18 years of age or older and a member of the household that resides at (housing facility or community), (unit number or designation). I hereby certify that I have personal knowledge of the ages of the occupants of this household and that at least one occupant is 55 years of age or older." Actual proof of age should be obtained at the application stage to avoid false reporting - no defense to a failure to achieve the 80-20 ration.

The regs also allow for other proof of age if an existing resident refuses to provide it. HUD states that "[I]f the occupants ... refuse to comply with the age verification procedures, the [management] may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older. Such evidence may include: (1) Government records or documents, such as a local household census; (2) Prior forms or applications; or (3) A statement from an individual who has personal knowledge of the age of the occupants. The individual's statement must set forth the basis for such knowledge and be signed under the penalty of perjury."

Thus, the survey could be supplemented by including a sworn declaration or affidavit by any person with personal knowledge of the age of the resident's age. In past cases where proof of age was critically important, private investigation of public records to obtain that information has been conducted to provide such knowledge. Remember however, that obtaining proof of age "after the fact" shows compliance with the 2-year survey requirement, but does not substitute for a consistent practice of securing the required information at the time of processing the tenancy application.

HUD gives the following example as acceptable: "the owner of a mobile home park where the residents own the coach but rent the land requires a statement of whether at least one occupant is 55 years of age or older before any sublease or new rental." In other words, the qualification procedure can be instituted within the application process itself. HUD states such an example ("All new leases, new purchase agreements, or new applications contain a provision directly above the signatory line for leases, asserting that at least one occupant or the swelling will be 55 years of age or older. In addition the community surveys all current residents for their occupancy status in compliance with the 55 - or-older requirements"). Actual proof of age should always be required with submission of the tenancy application as well.

Conclusion

The continuing survey requirement is mandatory. Whether failure to comply will be fatal to the assertion of "older persons" status is unknown, but this survey requirement is part of the "intent" prong of operating an "older persons" community. In sum, it is time to compile the summary for your park.

(Reprinted with permission from MHI)

Do you operate a 55 & Older Community?

Do you have the necessary MHCO Forms for 55 & Older Communities?

MHCO has the Resources You Need!

If you are one of the many members of MHCO who own and operate a 55 & Older manufactured home community - MHCO has the resources you need to keep that community compliant with current HUD rules.

• Addendum to the Rent/Lease Agreement for Age 55 & Older Communities (MHCO Form 71A)
• 55 & Older Community - Occupation Determination and Age Verification (MHCO Form 71B)
• 55 & Older Community HUD Verification of Occupancy Survey (MHCO Form 71C)

These are excellent tools to use in the effective management of your 55 & Older community. Get the most out of your MHCO membership by purchasing and using MHCO Forms. 

Answer. The hazard tree legislation is relatively new; it was passed by the Oregon Legislature in 2013. Here is a summary:

1. Definitions.

• "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

• "Hazard tree" means a tree that:
  • Is located on a rented space in a manufactured dwelling park;
  • Measures at least eight inches DBH; and
  • Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.

1. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act.

1. Resident Duties re Trees Located on Space. A resident shall maintain and water trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees.

• "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.
• "Removing a tree" includes:
  • Felling and removing the tree; and
  • Grinding or removing the stump of the tree.

4. Landlord Duties re Hazard Trees.

• Landlord shall maintain a hazard tree that was not planted by the current resident if the landlord knows or should know that the tree is a hazard tree;
• Landlord may maintain a tree on the rented space to prevent the tree from becoming a hazard tree;
  • Landlord must provide residents with reasonable written notice and reasonable opportunity to maintain the tree themselves.
• Landlord has discretion to decide whether the appropriate maintenance of a hazard tree is removal or trimming.
• Landlord is not responsible for:
  • Maintaining a tree that is not a hazard tree; or
  • Maintaining any tree for aesthetic purposes.
• A landlord must comply with the access provisions of ORS 90.725 before entering a resident's space to inspect or maintain a tree. [Generally, 24-hour notice. - PCQ]
• Subject to the preceding, a resident is responsible for maintaining the non-hazard trees on the resident's space at the resident's expense.
  • The resident may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the resident's space at the resident's expense;
  • If the arborist determines that the tree is a hazard, the resident may:
    • Require the landlord to maintain the tree as a hazard tree; or
    • Maintain the tree at the resident's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report.

1. Tree Obstructing Removal of Home From Space. If a manufactured home cannot be removed from a space without first removing or trimming a tree on the space, the owner of the home may remove or trim the tree at the owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the home.

1. Use of Landscape Professional. The landlord or resident that is responsible for maintaining a tree must engage a landscape construction professional with a valid landscape license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more.

1. Access to Resident's Space [ORS 90.725].

• An "emergency" includes but is not limited to:
  • A repair problem that, unless remedied immediately, is likely to cause serious physical harm or damage to individuals or property;
  • The presence of a hazard tree on a rented space in a manufactured dwelling park.
• An "unreasonable time" refers to a time of day, day of the week or particular time that conflicts with the resident's reasonable and specific plans to use the space.
• "Yard maintenance, equipment servicing or grounds keeping" includes, but is not limited to, servicing individual septic tank systems or water pumps, weeding, mowing grass and pruning trees and shrubs.
• A landlord or a landlord's agent may enter onto a rented space to:
  • Inspect or maintain trees;
  • A landlord or the landlord's agent may enter a rented space solely to inspect a tree despite a denial of consent by the resident if the landlord or the landlord's agent has given at least 24 hours' actual notice of the intent to enter to inspect the tree and the entry occurs at a reasonable time.
  • If a landlord has a report from an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture that a tree on the rented space is a hazard tree that must be maintained by the landlord under this Act, the landlord is not liable for any damage or injury as a result of the hazard tree if the landlord is unable to gain entry after making a good faith effort to do so.
• If the resident refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement pursuant to ORS 90.630 (1) and take possession in accordance with the Oregon eviction statutes. In addition, the landlord may recover actual damages.

8.Statement of Policy. It shall include the facility policy regarding the planting of trees on the resident's rented space. [See ORS 90.510]

Discussion. As you can see from the above, the definition of a hazard tree relates to whether it poses an unreasonable risk of serious physical harm or damage to individuals or property in the near future. The size of the tree alone, i.e. exceeding eight inches or more DBH, does not, in itself, make it a hazard tree; there must be potential for injury or damage in the near future.

Secondly, you will note that the hazard tree statutes make no distinction as to what part of the tree causes damage or injury. Although I had some involvement, along with John Van Landingham and others, in the creation of the legislation, speaking for myself, I was focused on the tree or branches falling on a home or resident. I was not thinking about damage from root systems.

Third, a landlord's removal obligation for hazard trees speaks to felling and removing them, and removing or grinding the stumps. Again, speaking only for myself, I was not thinking about tree roots that might remain after the stump is removed. (As a layperson, I think of the stump as the unremoved portion of the downed tree, and that portion below ground necessary to return the ground to its original level, sans the tree. But I certainly didn't focus on requiring that landlords remove root systems.

All of this is to say that my reading of the hazard tree statutes seems to make no distinction between damage above or below ground. Moreover, I suspect we would agree that damage to the foundation of a resident's home, could fall within the definition of what constitutes a hazard tree.

Remember that pursuant to ORS 90.730(4), the failure to maintain a hazard tree can constitute a habitability violation for which a tenant could bring a claim against their landlord.

Conclusion. Unfortunately, it appears to me that absent some language in the hazard tree statutes indicating an intent to exclude that portion of a tree below ground, i.e. its root system, a case could be made that remediating the damage caused by a hazard tree to a resident's home, or the cost to relevel it, is on your shoulders.

This does not mean, however, that the root systems of all felled hazard trees need to be removed. Once the tree is downed, and the trunk removed, the root system will not (as I understand it[1]) continue to grow. That being the case, if the roots are not posing a danger to a resident's space or the common area, there should be little reason to remove it.

The take-away here, is that landlords should be proactive in assessing hazard tree issues. This may include inspection of resident spaces. And when evaluating risk, landlords should look down, as well as up.

One interesting question, which I will not opine on here, is what a landlord should do about an otherwise healthy tree that is least eight inches DBH, if its root system poses, or could pose, a risk of damage to a resident's home. Must the tree be removed now?

[1] I suspect the major exception is bamboo trees, whose root systems seem to have a zombie-like life of their own.

Answer: Here is a quick primer on ORS 90.727, the hazard tree statute, which was enacted in the 2013 Legislative Session:

Oregon Law.

1. Definitions.

• "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

• "Hazard tree" means a tree that:
  • Is located on a rented space in a manufactured dwelling park;
  • Measures at least eight inches DBH; and
  • Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.

1. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act.

1. Resident Duties re Trees Located on Space. A resident shall maintain and water trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees.

• "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.
• "Removing a tree" includes:
  • Felling and removing the tree; and
  • Grinding or removing the stump of the tree.

4. Landlord Duties re Hazard Trees.

• Landlord shall maintain a hazard tree that was not planted by the current resident if the landlord knows or should know that the tree is a hazard tree;
• Landlord may maintain a tree on the rented space to prevent the tree from becoming a hazard tree;
  • Must provide residents with reasonable written notice and reasonable opportunity to maintain the tree themselves.
• Landlord has discretion to decide whether the appropriate maintenance of a hazard tree is removal or trimming.
• Landlord is not responsible for:
  • Maintaining a tree that is not a hazard tree; or
  • Maintaining any tree for aesthetic purposes.
• A landlord must comply with the access provisions of ORS 90.725 before entering a resident's space to inspect or maintain a tree. [Generally, 24-hour notice. - PCQ]
• Subject to the preceding, a resident is responsible for maintaining the non-hazard trees on the resident's space at the resident's expense.
  • The resident may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the resident's space at the resident's expense;
  • If the arborist determines that the tree is a hazard, the resident may:
    • Require the landlord to maintain the tree as a hazard tree; or
    • Maintain the tree at the resident's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report.

1. Tree Obstructing Removal of Home From Space. If a manufactured home cannot be removed from a space without first removing or trimming a tree on the space, the owner of the home may remove or trim the tree at the owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the home.

1. Use of Landscape Professional. The landlord or resident that is responsible for maintaining a tree must engage a landscape construction professional with a valid landscape license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more.

1. Access to Resident's Space [ORS 90.725].

• An "emergency" includes but is not limited to:
  • A repair problem that, unless remedied immediately, is likely to cause serious physical harm or damage to individuals or property;
  • The presence of a hazard tree on a rented space in a manufactured dwelling park.
• An "unreasonable time" refers to a time of day, day of the week or particular time that conflicts with the resident's reasonable and specific plans to use the space.
• "Yard maintenance, equipment servicing or grounds keeping" includes, but is not limited to, servicing individual septic tank systems or water pumps, weeding, mowing grass and pruning trees and shrubs.
• A landlord or a landlord's agent may enter onto a rented space to:
  • Inspect or maintain trees;
  • A landlord or the landlord's agent may enter a rented space solely to inspect a tree despite a denial of consent by the resident if the landlord or the landlord's agent has given at least 24 hours' actual notice of the intent to enter to inspect the tree and the entry occurs at a reasonable time.
  • If a landlord has a report from an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture that a tree on the rented space is a hazard tree that must be maintained by the landlord under this Act, the landlord is not liable for any damage or injury as a result of the hazard tree if the landlord is unable to gain entry after making a good faith effort to do so.
• If the resident refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement pursuant to ORS 90.630 (1) and take possession in accordance with the Oregon eviction statutes. In addition, the landlord may recover actual damages.

1. Statement of Policy. It shall include the facility policy regarding the planting of trees on the resident's rented space. [See ORS 90.510]

Discussion. It is not clear to me whether your arborist knows what a "hazard tree" is under ORS 90. 727. Cutting the roots may make the tree more dangerous, but under the statutory definition, to be a "hazard tree" it must measure at least eight inches in diameter at breast height ("DBH")[1]. If it does, then you have the primary responsibility. If it does not then your rules would appear to apply.

However, even though the tree is not of sufficient size to be a hazard tree under the statute, I think the discussion merits a closer look. Assuming it was in existence at the time the resident rented the space, what the rule seems to say is that even though the landlord owns the ground and the tree, it becomes the tenant's responsibility once leased. As to small trees and normal vegetation, I can understand this rule. But the larger the tree, the more the argument becomes one of "cost shifting" i.e. requiring a resident to undertake possibly expensive measures (e.g. removing the tree) for the benefit of the landlord's property. This issue, in fact, was the rationale behind the hazard tree legislation.

Oregon law provides that park landlord have certain habitability obligations to residents. ORS 90.730(3)(g) provides:

Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord's duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; (Italics mine.)

Although the statute does not refer to driveways and other amenities on the space, it does refer to the "dwelling", which includes the skirting. Does the tree root make it "unsafe". Probably not, if safety refers just to personal safety and not safety of the property.

However, ORS 90.135 (Unconscionability) provides that a resident may argue that shifting the responsibility for maintenance of landlord-owned property - in this case - a non-hazard tree not planted by the resident that is causing damage to residents' property, is "unconscionable". The statute provides:

If the court, as a matter of law, finds: (a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; ***

Conclusion. I am not saying management is, per se' responsible. But what I am saying is that this is a risk that is better shouldered by a landlord, than a tenant, especially here, where the tree existed before the tenancy, and it ultimately belongs to the landlord.

Note, this may be an insurance issue. Can the residents file a claim with their carriers for the tree damage? This depends on their coverage. In the final analysis, the tree should be removed, since it will continue to damage the tenants' property. At some point they could file a claim against you for the cost of that damage. Why not remove the tree now and avoid any further issues?

[1] Technically, it is measured at four and one-half feet above the ground on the uphill side.

Answer: Both approaches are incorrect, as they do not comply with 90.610and 90.155for proper rule changes. This is exceeding risky, since, in my opinion, it creates the potential tenant argument that not being effectively enacted means the new rule is not enforceable. Any legal action to enforce a violation of an improperly enacted rule would be a nullity.

Below is the correct procedure in adopting new rules. It should not be varied from or ignored without first discussing with legal counsel:

• The landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlord's bargain with a tenant.
• It should be by written notice and served as described in 90.155.
• Unless tenants of at least 51 percent of the "eligible spaces"[1]in the community object in writing within 30 days of the date the rule change notice was served, the change shall become effective for all tenants of those eligible spaces on a date not less than 60 days after the date that the notice was properly served by the landlord.
  • One tenant of record per eligible space may object to the rule or regulation change through either: (i) A signed and dated written communication to the landlord; or (ii)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.

• If a tenant of an eligible space signs botha written communication to the landlord and a petition, or signs more than one written communication or petition, only the latest signature of the tenant may be counted.
• Aproxy may be used only if a tenant has a disability that prevents them from objecting to the rule or regulation change in writing.
  • The landlord's notice of a proposed change in rules or regulations must be given or served as provided in 90.155and must include: (i) Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change; and (ii) A statement substantially in the following form, with all blank spaces in the notice to be filled in by the landlord:

______________________________________________________________________________

(MHCO FORM 60) NOTICE OF PROPOSED RULE

OR REGULATION CHANGE

The landlord intends to change a rule or regulation in this facility.

The change will go into effect unless tenants of at least 51 percent of the eligible spaces object in writing within 30 days. Any objection must be signed and dated by a tenant of an eligible space.

The number of eligible spaces as of the date of this notice is:_____. Those eligible spaces are (space or street identification):___________________________.

The last day for a tenant of an eligible space to deliver a written objection to the landlord is _________ (landlord fill in date).

Unless tenants in at least 51 percent of the eligible spaces object, the proposed rule or regulation will go into effect on _________.

The parties may attempt to resolve disagreements regarding the proposed rule or regulation change by using the facility's informal dispute resolution process.

______________________________________________________________________________

• A good faith mistake by the landlord in completing those portions of the notice relating to the number of eligible spaces that have tenants entitled to vote or relating to space or street identification numbers does not invalidate the notice or the proposed rule or regulation change.
• After the effective date of the rule or regulation change (i.e. "a date not less than 60 days after the date that the notice was served by the landlord"), when a tenant continues to engage in an activity affected by the new rule or regulation to which the landlord objects, the landlord may give the tenant a notice of termination of the tenancy pursuant to ORS 90.630.
  • The notice shall include a statement that the tenant may request a resolution through the facility's informal dispute resolution process by giving the landlord a written request within seven (7) days from the date the notice was served.
  • If the tenant requests an informal dispute resolution, the landlord may not file an action for possession (i.e. eviction action) until 30 days after the date of the tenant's request for informal dispute resolution or the date the informal dispute resolution is complete, whichever occurs first.
• NOTE: Informal dispute resolution does not apply to disputes relating to:
  • Facility closure;
  • Facility sale; or
  • Rent, including but not limited to amount, increase and nonpayment.
• NOTE: Requiring a landlord to provide a Statement of Policy, do not create a basis for a tenant to demand informal dispute resolution of a rent increase.

[1]An "eligible space" means each space in the community as long as: (a) It is rented to a tenant and the tenancy is subject to ORS 90.505 to 90.850 (the manufactured housing section of the landlord-tenant law); and (b) The tenant who occupies the space has not: (i) Previously agreed to a rental agreement that already includes the proposed rule or regulation change; or (ii) Become subject to the proposed rule or regulation change as a result of a change in rules or regulations previously adopted under ORS 90.610.

Fair housing law generally prohibits discrimination based on familial status, but there’s a limited exception that applies to senior housing communities that qualify as “housing for older persons.” To qualify, senior housing communities must meet strict technical requirements. Unless they satisfy those requirements, communities may not enforce “adult only” policies or impose age restrictions to keep children from living there.

The focus of this article is on federal law, but it’s important to check the law in your state governing senior housing communities. The specifics may vary, but you could draw unwanted attention from state enforcement agencies if you exclude families with children without satisfying legal requirements to qualify for the senior housing exemption.

Example: In January 2019, the California Department of Fair Employment and Housing (DFEH) announced a $10,000 settlement in a fair housing complaint alleging familial status discrimination against the owners of a six-unit rental community and a residential real estate brokerage firm that managed the property.

Fair housing advocates filed the complaint, alleging that the property was advertised online as an “adult complex” and included a restriction of “maximum 2 adults.” During a follow-up call, the property manager reportedly told a tester that children weren’t allowed. DFEH found that the complex wasn’t a senior citizen housing development and that there was cause to believe a violation of state fair housing law had occurred.

“In California, senior housing developments can, with some exceptions, exclude residents under 55 years of age if they have at least 35 units and meet other requirements,” DFEH Director Kevin Kish said in a statement. “All other rental properties violate the law if they categorically exclude families with minor children. By identifying such policies through testing, fair housing organizations such as Project Sentinel play an important role in ensuring that families with children have access to housing.” 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination based on race, color, religion, sex, national origin, familial status, or disability—what’s known as “protected classes.”

Congress added familial status to the list of federally protected classes when it amended the FHA in 1988. In a nutshell, the familial status provisions make it unlawful to discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. Specifically, the FHA’s ban on discrimination based on familial status apply to one or more children under 18 living with:

• A parent;
• An individual with legal custody; or
• An individual who has the written permission of the parent or custodian.

The familial status provisions also apply to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.

Nevertheless, Congress recognized the need to preserve housing specifically designed to meet the needs of senior citizens. Consequently, the 1988 amendment created an exemption from the FHA’s familial status requirements for communities that qualified as “housing for older persons.” Congress later amended the law in the Housing for Older Persons Act of 1995 (HOPA), resulting in the current version of the federal exemption for senior housing.

The exemption allows senior housing communities that meet specific requirements to legally exclude families with children. The exemption applies to housing communities or facilities, which are governed by a common set of rules, regulations, or restrictions. A portion of a single building isn’t considered a housing facility or community, according to HUD. The senior housing exemption applies only to the FHA’s familial status provisions; communities must still abide by the law’s protections based on race, color, national origin, religion, sex, and disability.

The law describes three types of communities that are eligible for the senior housing exemption:

• Publicly funded senior housing communities: Housing communities where HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a federal, state, or local government program;
• 62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and
• 55-and-older communities: Communities that house at least one person who is 55 or older in at least 80 percent of the occupied units and adheres to a policy that demonstrates intent to house persons who are 55 or older.

7 RULES TO FOLLOW TO AVOID FAIR HOUSING TROUBLE

IN SENIOR HOUSING COMMUNITIES

Rule #1: Comply with Technical Requirements for Senior Housing Exemption

Senior communities must adopt policies and procedures to ensure strict compliance with the technical requirements of the senior housing exemption. If you don’t comply with the law’s requirements, then you lose the exemption, which in essence makes your community automatically liable for excluding or discriminating against families with children. 

Complying with the law governing the 62-and-older exemption is relatively straightforward. To qualify, the community must be intended for and occupied solely by persons aged 62 and older. For example, HUD regulations explain that a 62-and-older community would have to refuse the application of a 62-year-old man whose wife is 59. In the same vein, a community would lose its exemption if it allowed continued residency by a current resident who married someone under the age of 62.

Complying with the law governing the 55-and-older exemption is more complicated. To qualify, the community must satisfy each of the following requirements:

• At least 80 percent of the occupied units must have at least one occupant who is 55 years of age or older;
• The community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and
• The community must comply with HUD’s regulatory requirements for age verification of residents.

1. 80 percent rule. To meet this requirement, a community must ensure that at least one person 55 or older lives in 80 percent of its occupied units. The law doesn’t restrict the ages of the other occupants in those units. Furthermore, there are no age limits for the occupants of the other 20 percent, so communities may accept families with children, although they don’t have to do so.

The 80 percent rule applies to the percentage of “occupied units,” which includes temporarily vacant units if the primary occupant has resided in the unit during the past year and intends to return on a periodic basis. That means that a unit would count toward the 80 percent requirement if its 55-year-old occupant resided in the unit for only part of each year.

To maintain eligibility for the exemption, it’s a good idea to ensure that more than 80 percent of your occupied units are occupied by at least one person aged 55 or older. If you skate too close to the line, your community could be forced into a difficult situation—for example, if a 60-year-old resident dies, leaving a 54-year-old surviving spouse.

To prevent just such a problem, HUD advises communities to plan with care when renting the 20 percent portion of the remaining units to incoming households under age 55. Such planning should address notice to incoming households under the age of 55 regarding how the community will proceed in the event that the 80 percent requirement is threatened.

2. Intent to operate as senior housing. A community must publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons 55 years of age or older. HUD offers some examples of the types of policies and procedures to satisfy this requirement, including:

• The written rules, regulations, lease provisions, or other restrictions;
• The actual practices of the community used to enforce the rules;
• The kind of advertising used to attract prospective residents to the community as well as the manner in which the community is described to prospective residents; and
• The community’s age-verification procedures and its ability to produce, in response to a familial status complaint, verification of required occupancy.

3. Verification of occupancy. To qualify under the 55-and-older exemption, communities must able to produce verification of compliance with the 80 percent rule through reliable surveys and affidavits.

HUD regulations require communities to develop procedures to routinely determine the occupancy of each unit, including the identification of whether at least one occupant is 55 or older. The procedures may be part of the normal leasing arrangement. And, every two years, communities must update, through surveys or other means, the initial information to verify that the unit is occupied by at least one resident age 55 or older.

In addition, communities must establish procedures to verify the age of the occupants in units occupied by persons 55 and older through reliable documentation, such as birth certificates, driver’s licenses, passports, immigration cards, military identification, and other official documents that show a birth date. HUD regulations also allow a certification signed by any member of the household aged 18 or older asserting that at least one person in the unit is 55 or older.

Rule #2: Market Your Community as Senior Housing

For 55+ communities, it’s essential to ensure that your advertising and marketing doesn’t undercut your ability to qualify for the senior housing exemption.

To qualify for the senior exemption, the law requires communities to demonstrate an intent to provide housing for older persons. The manner in which your community is described to potential residents is among the relevant factors listed in HUD regulations to determine whether a community has complied with the intent requirement. Using the wrong words to describe yourself not only may trigger a fair housing complaint, but also undercut your ability to demonstrate your intent to operate as “55 or older” housing.

As an example, fair housing expert Doug Chasick points to the increasing number of housing developments that market themselves as “Active Adult” or “Empty Nester” communities. Yet, he points out, using the term “Adult Only” housing was outlawed back in 1988, when President Reagan signed amendments to the FHA into law. He says that some state and local enforcement agencies claim that using these phrases are always illegal because they’re incompatible with the intent requirement.

HUD doesn’t take it that far. It’s true that HUD regulations state that “Phrases such as “adult living,” “adult community,” or similar statements in any written advertisement or prospectus are not consistent with the intent that the housing facility or community intends to operate as housing for persons 55 years of age or older. But HUD says that the use of these terms does not, by itself, destroy the community’s ability to meet the intent requirement, according to HUD. If a facility or community has clearly shown in other ways that it intends to operate as housing for older persons, meets the 80 percent requirement, and has in place age verification procedures, then HUD says that the intent requirement can be met even if the term “adult” is occasionally used to describe it.

That’s not to say that Chasick says it’s a good idea to use those terms in your advertising or marketing materials. In fact, he recommends against it unless you want to be caught up in an expensive investigation or enforcement action. Instead, Chasick recommends using words like “senior housing,” “senior living community,” “a 55 and older community,” or even a “55 and Better Community” when describing your community to demonstrate your intent to operate as housing for older persons.

Rule #3: Don’t Discriminate Based on Race or Other Protected Characteristics

The FHA’s senior housing exemption is limited: It offers protection from federal fair housing claims based upon familial status as long as your community meets the FHA’s requirements to qualify as housing for older persons. It doesn’t exempt senior housing communities from any claims based on race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

That means that senior communities must take steps not only to qualify under the senior housing exemption, but also to ensure they don’t exclude or otherwise discriminate against applicants or residents based on race or other protected characteristic. For example, senior communities must adopt nondiscriminatory policies and procedures governing the application process and treatment of residents in addition to complying with the age-verification and other requirements to qualify for the senior housing exemption. And train your staff to apply those policies consistently to all applicants and residents, regardless of race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

Rule #4: Enforce Rules to Prevent Harassment by or Against Residents

Take steps to enforce rules to prevent harassment or other misconduct by or against residents. If a resident complains about being harassed by other residents based on her race, sex, or any other protected class, then you should take the complaints seriously.

You shouldn’t be expected to police the behavior of your residents, but you should make it clear that bullying or any other forms of harassment based on protected characteristics won’t be tolerated. Depending on the circumstances, you could face liability under fair housing law if you knew that a resident was subjected to severe and persistent abuse from other residents, but you did nothing to stop it.

Example: In August 2018, a federal court reinstated a fair housing case against an Illinois retirement community for harassment and retaliation. The complaint alleged that the resident endured months of physical and verbal abuse by other residents because of her sexual orientation, and that despite her complaints, the community did nothing to stop it and in fact, retaliated against her because of her complaints.

Fair housing law prohibits discriminatory harassment that creates a hostile housing environment. To prove the claim, the resident had to prove that: (1) she endured unwelcome harassment based on a protected characteristic; (2) the harassment was severe or pervasive enough to interfere with her tenancy; and (3) there was reason to hold the community responsible.

The resident’s complaint satisfied the first and second requirements. She alleged that she was subjected to unwelcome harassment based on her sex, and the community agreed that the court’s earlier ruling—that employment discrimination based on sexual orientation qualifies as discrimination based on sex—applied equally to housing discrimination claims. And the alleged harassment could be viewed as both severe and pervasive—for 15 months, she was bombarded with threats, slurs, derisive comments about her families, physical violence, and spit.

The complaint also satisfied the third requirement. When the case goes back for further proceedings, the focus will be on the management defendants to determine whether they had actual knowledge of the severe harassment that the resident was enduring and whether they were deliberately indifferent to it. If so, then they subjected the resident to conduct that the FHA forbids [Wetzel v. Glen St. Andrew Living Community, August 2018].

Rule #5: Watch for Potential Disability Discrimination Claims

Senior housing communities must pay particular attention to fair housing protections for individuals with disabilities. The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy.

Example: In December 2018, the owners and operators of a California senior housing complex agreed to pay $2,500 to resolve claims that they violated state fair housing laws by denying housing to a prospective resident because she has a disability.

In her complaint, the prospect alleged that the property manager initially approved her tenancy application but rescinded the approval after meeting her and seeing that she uses a wheelchair. The prospect’s daughter had handled most aspects of the application process, including viewing the unit. When the prospect arrived in a wheelchair to sign the lease, the property manager allegedly refused to rent her the unit and accused her and her daughter of misrepresenting the prospect’s identity by bringing other individuals to view the unit.

“The Fair Employment and Housing Act promises that all tenants, regardless of disability, have equal access to housing,” Kevin Kish, Director of the California Department of Fair Employment and Housing, in a statement. “Housing providers have a legal obligation to eliminate unlawful bias from every stage of the housing application process.”

Fair housing law bans discrimination against applicants and residents because they—or someone they’re associated with—is a member of a protected class. HUD says that the FHA’s disability provisions were intended to prohibit not only discrimination against the named tenant, “but also to prohibit denial or housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants or other associates with disabilities.”

Example: In December 2018, HUD announced that a New Jersey condo association representing residents of a 55-and-older condominium development has settled a complaint alleging that it refused to sell a condo to a man with disabilities and his wife because the couple planned to have their adult disabled daughter live with them. The settlement requires the association to pay a $9,000 civil penalty to the United States, undergo fair housing training, and make changes to the associations’ bylaws as they relate to reasonable accommodations. The wife, now a widow, is pursuing claims against the association in state court. The association denies that it discriminated against the family.

“No family whose members have disabilities should be denied the reasonable accommodations they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully, today’s ruling will remind homeowner associations of their obligations under the Fair Housing Act and encourage them to follow the law” [Secretary, HUD v. Tamaron Association, December 2018].

Senior communities must be prepared to comply with the full array of disability protections. For example, the FHA requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. The law also requires owners to permit residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises.

Example: In December 2017, the owner and property manager of a California community agreed to pay $11,000 to resolve a HUD complaint alleging disability discrimination against a resident with a mobility impairment. According to her complaint, the resident requested to have a live-in aide and a key to a locked gate near her unit to make it easier for her to come and go. In both instances, she said that the owner and property manager asked her intrusive questions about her disability, challenged whether she really had a disability, asserted that the development was for individuals who could live independently, and ultimately denied her requests.

“Residents with disabilities have the right to reasonable accommodations that allow them to use and enjoy their home, without unnecessary and invasive questioning,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work with housing providers to ensure they meet their obligation to comply with national fair housing laws.”

Example: In December 2018, the Fair Housing Justice Center (FHJC) announced that a settlement has been reached with the remaining defendants in two federal lawsuits against the operators of dozens of nursing homes and assisted living facilities for allegedly refusing to make American Sign Language (ASL) interpreter services available to deaf and hard-of-hearing residents. Though denying the allegations, the defendants in the latest settlement agreed to pay $245,675 in damages and attorney’s fees to resolve the case.

The FHJC says that the settlements in these cases ensures that deaf and hard-of-hearing people will have access to ASL services and other auxiliary aids and services as a reasonable accommodation in 61 nursing homes and 35 assisted living facilities in the New York City region. The settlement agreements reached with the defendants in these two cases also yielded a total monetary recovery of nearly $1.2 million in damages and attorney’s fees.

Rule #6: Review ‘Independent Living’ Requirements

Depending on the circumstances, you could face a fair housing complaint for imposing independent living requirements on applicants or residents. Courts have found that a policy requiring applicants to demonstrate an ability to live independently violates fair housing laws protecting individuals with disabilities [Cason v. Rochester Housing Authority, August 1990].

Example: In September 2017, the owner and managers of a 41-unit community in California agreed to pay $18,500 to resolve allegations of discrimination against elderly residents with disabilities who relied on support from caregivers. A fair housing organization filed the complaint on behalf of an elderly resident facing eviction after returning from the hospital with support from a part-time caregiver. Allegedly, the owner and property manager said that they didn’t want the “liability” of her remaining in her home, threatened to call the county to have her “removed,” ordered her to move out, and asked invasive questions about the extent of her disabilities. According to the organization’s complaint, its investigation corroborated the resident’s allegations and revealed that testers calling for disabled relatives were told that the complex was for “independent living” and people who “can take care of themselves.”

Example: In Michigan, fair housing advocates recently sued an affordable senior housing apartment complex, alleging that the community applies “independent living” requirements to force residents with disabilities to move, even if those residents are meeting all the requirements of the lease. The complaint asks the court to recognize the community’s practices as discriminatory and prevent the complex from forcing tenants with disabilities to leave their homes when they remain capable of meeting all of their lease obligations.

“Civil rights laws ensure that people with disabilities can decide for themselves where and how to live in the community of their choosing,” says Susan Silverstein, Senior Attorney at AARP Foundation. “The law doesn’t allow landlords to refuse to accommodate tenants with disabilities,” adds a lawyer for the Michigan Clinical Law Program, “and it certainly doesn’t allow landlords to refuse to let tenants age in place just because they might need some outside help.”

Example: And in New York, fair housing advocates and two individuals sued the state and four adult care facilities, alleging that they maintained and enforced blanket policies barring wheelchair users, regardless of their individual needs or abilities, and steered applicants who use wheelchairs to nursing homes.

One of the individual plaintiffs, an elderly woman with disabilities, alleged that she was barred from returning to one of the communities once she began using a wheelchair. According to the woman, the community tried to evict her because of an internal policy barring admission of people who use wheelchairs and state health department regulations that supported such policies at these and other facilities.

The lawsuit also alleges that New York State promotes disability discrimination through its regulations and policies, including its policy permitting adult homes to ban wheelchair users from admission. Until recently, state health department regulations stated that adult homes and assisted living programs should not admit or retain people who are “chronically chairfast.”

The state has since amended the regulations to eliminate the phrase “chronically chairfast” and to add language that operators may not exclude individuals solely because they primarily use a wheelchair for mobility and must make reasonable accommodations as necessary to comply with the law. Last fall, the court issued an order directing the community to allow the elderly woman to return to her home. The case is still pending in federal court.

Rule #7: Comply with Applicable State and Local Laws

It’s critical to review applicable state and local fair housing laws because the laws affecting senior housing may vary substantially, depending on your location. For example, HUD points out that federal fair housing law doesn’t cover age discrimination, which is a protected characteristic under some state and local fair housing laws.

Moreover, HUD notes that some state and local governments with fair housing laws that have been determined to be substantially similar to the federal law may not include an exemption from the familial status discrimination for housing for older persons.

Alternatively, some state or local laws impose different standards for the senior housing exemption. In California, for example, the legislature adopted more stringent requirements on senior housing than is required under the FHA “in recognition of the acute shortage of housing for families with children” in that state. The law imposes specific requirements related to accessibility, common areas, and refuse collection.

Still other state and local laws apply an older version of the federal exemption. Under the original 1988 legislation, 55-and-older communities had to have “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the exemption.

Though Congress eliminated the “significant services and facilities” requirement from federal fair housing law, some states didn’t follow suit. In Georgia, for example, communities are still required to furnish “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the senior housing exemption.

Tip: HUD urges communities to check all relevant state, local, and federal laws, as well as any requirements imposed as a term of governmental financial assistance before implementing policies and procedures that limit residents’ eligibility. Because of the complexity of the issues involved, you should get legal advice from an attorney well versed in the legal requirements for senior housing issues in your jurisdiction. 

Fair housing law expressly prohibits housing discrimination on the basis of familial status, including setting restrictive terms and conditions on residents with children under 18.

HUD's charge claims that the community owners enacted a policy that required children under the age of 18 to be supervised by an adult family member while on the property, including the pool area, with violations of the policy resulting in a $250 fine. In one instance, a couple was threatened with a fine because their two children were playing in the community area while being supervised by adults who were not blood relatives, according to HUD’s charge.

"Families shouldn't be penalized for letting their kids be kids," Anna María Farías, HUD's Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. "Imposing different rules and restrictions on families because they have children is a violation of the Fair Housing Act and HUD is committed to ensuring that housing providers meet their obligations under the law."

The case will be heard in federal court. If it is determined that illegal discrimination occurred, a judge may award actual and punitive damages, issue a court order to deter further discrimination, and order that defendants pay the couple's attorney fees.

By Elliot Njus | The Oregonian/OregonLive

Rent increases will be capped at 9.9% through 2020, the first full year Oregon’s new rent control law will be in effect, state economists announced Wednesday.

The Oregon Legislature this year passed Senate Bill 608, which imposed the nation’s first statewide rent control policy. The law caps rent increases at 7% plus the rate of inflation for the urban West. For 2019, that number came to 10.3%. 

Not all rentals are subject to the policy. The rent cap doesn’t apply to buildings that are less than 15 years old — an attempt to avoid a damper on housing construction — nor to government-subsidized rents. Landlords may raise rent without any cap if tenants leave of their own accord. 

Typical rents across Oregon are rising at a far slower rate than what’s allowed under the cap. 

But lawmakers who supported the policy said it would avert the biggest rent hikes that functioned as de facto evictions. Such increases, in which rents sometimes doubled or more, grabbed headlines in recent years, frequently after apartment buildings were sold to a new owner. 

The new law also requires most landlords to cite a cause, such as failure to pay rent or other lease violation, when evicting renters after the first year of tenancy.

Some “landlord-based” for-cause evictions are allowed, including the landlord moving in or a major renovation. In those cases, landlords are required to provide 90 days’ notice and pay one month’s rent to the tenant, though landlords with four or fewer units would be exempt from the payment.

-- Elliot Njus

Note:  Sample Rent Ledger is attached above.

Question 1: Tenant's balance goes back to the beginning of April 2020. Do we have to follow the rent schedule that is laid out by rental assistance agency?  Example: Oregon Emergency Rental Assistance Program gives you a statement on how to apply the rent  and it usually is  the most recent delinquent rent.  They will only cover 12 months plus 3 future months.  

In my opinion, yes, the landlord should apply the funds in the way that the Assistance Program dictates. There is a Landlord Hotline 844-378-2931 (operative during regular business hours) to discuss issues and questions. While I agree that it does make sense to apply it to the oldest debt first, I'm not comfortable making a blanket statement that you can ignore the dictates of the Program. I don't know whether acceptance of the funds creates a contract. Landlords should check with the hotline or their attorney for further guidance. So, I'd say payment should be applied as follows: (a) as dictated by the Program, (b) if the Program does not address the application of funds, then in accordance with the terms the lease, and (c) finally, if the lease is also silent, then in accordance with ORS 90.220(9).

Presuming that you apply the back rent to the most recent delinquent rent, that should put all the outstanding back rent within the Emergency Period, therefore subject to the tolling of the Statute of Limitations under the Eviction Moratorium. Basically, applying it to the most recent back rent gives the landlord more time to pursue the deb because they (landlord) have until next February to do so.  See the attached ledger to explain what I mean.

Question 2: What if tenant can only pay partial rent from the past due emergency period? Do we take it or will it result in a waiver? Does it preclude the landlord from sending out further 10-day notices of nonpayment?

ORS 90.417(4) is clear that acceptance of partial rent may, under certain circumstances, constitute a waiver of the right to terminate for nonpayment of rent. 

There are two ways to avoid acceptance as a waiver: 

• If Landlord accepts partial payment pursuant to a written agreement with tenant before issuing a Notice of Termination for nonpayment and tenant fails to pay the balance by the agreed-upon date. If so, the landlord’s Notice of Termination is served no earlier than if no rent had been accepted, AND the Notice provides that the tenant can cure by paying the balance by a time set by statute or by agreement of the parties; or

• Landlord accepts partial payment after issuing a Notice of Termination but enters into a written agreement with the tenant that acceptance does not constitute waiver. The agreement may also provide that the landlord may terminate and evict without further notice if the tenant does not pay the balance by the agreed upon date.

As with everything else, Covid has plowed new ground. I would not advise a landlord to accept rent from a tenant without getting a legally drafted agreement containing a non-waiver. If the tenant fails to pay under the written agreement then there is a basis for termination. 

Question 3: Now that the Oregon Emergency Fund is closed can we start issuing 10-day Notices on the back balances?

If the tenant has not provided their landlord with proof of their application to a Rental Assistance Program then they are not protected by the “Safe Harbor” protection it affords.[1] A landlord may pursue normal remedies against them unless/until they are notified that an application is pending. If you begin proceedings against a tenant and they then provide proof of application the proceedings must stop.

If a tenant has already provided proof of application to a Rental Assistance Program and the landlord is not receiving payment while the Safe Harbor is in place, the Landlord may apply to the Landlord Guarantee Program. See,  https://www.oregonlgp.org.  The Program is designed to get funds to landlords who are not receiving funds during the Safe Harbor period. The earliest funds may be requested was July 1, 2021 and the latest will be June 30, 2022 - but there may be special provision if a tenant's application is still pending when the law sunsets on October 1, 2022. 

Question 4: What about the one-year statute of limitations for claims by a landlord based on the tenant’s nonpayment of rent. Are rents owed from the pre-April 2020 – June 30, 2021 period affected under the one-year statute of limitations for past due rents?

No, the eviction moratorium only suspended the statute of limitations for debts arising during the Emergency Period April 1, 2020 to June 30, 2021. Per SB 282 the Statute began to run again on March 1, 2022 which was the end of the grace period (i.e., the period to pay off unpaid rent debt from the emergency period). The clock is running on debts prior to April 1, 2020 and after July 1, 2021.

However, note there was a tolling of some statutes of limitations by other Covid bills (see, HB 4212). It is unclear when that ended, i.e. whether it was when the bill expired (Dec 31) or when the State of Emergency was lifted in April. Landlords should check with their own attorneys regarding any claims outside of the Emergency Period. It is unclear how the courts will deal with these frequently changing dates.

[1] I am using the term “Safe Harbor” to refer to the time a tenant is protected from eviction after notifying landlord that they have made application under the Rental Assistance Program.

Answer: This is a very complicated issue on several levels. For example, marijuana is a controlled substance under Federal Law. Under Oregon law, use and cultivation in limited amounts pursuant to a lawful Medical Marijuana Card are legal. The Oregon laws are linked here. The statutes cover such things as grow-site registration; medical uses for marijuana; issuance of an identification card; and limitations on a cardholder's immunity from criminal laws involving marijuana. For those interested, these statutes should be consulted. You have a responsibility to make sure that laws are not being violated in the community. You also have a responsibility to the rest of the other residents. Compliance with all laws is a condition of occupancy under the park's rental agreement, its rules, and the Oregon Residential Landlord-Tenant Act. I know of no way you can honor your obligations except to ask to see the card and verify that it is current and held in the name of the resident. The main issue here is Fair Housing Laws. If the resident has a valid card, then arguably he have some medical condition that has authorized its issuance. Does he have a legal right to demand that under the Fair Housing Laws, you make a "reasonable accommodation" for his medical condition, and permit him to continue in his grow operation? Not necessarily. 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. It is very complete and helpful for all park managers and owners. It can be downloaded at: https://www.google.com/search?q=hud%20medical%20marijuana. 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 seems to be skirting the issue, leaving it up to the agency in the state that permits the use of medical marijuana. Between the lines, it appears that HUD will not enforce a fair housing reasonable accommodation claim against park ownership or management if the community has an anti-marijuana policy in place. Without such a policy, my inclination is that enforcement would be potentially riskier, since the card-holder was not aware of the limitation at the inception of the tenancy. In answer to your specific questions: - Clearly, the card has to be valid and current in Oregon. A California card, for example would not suffice. (See, State v. Berrenger, 2010). - If there is no card, or no current valid card, the growing (not use) of marijuana could be is a violation of state law. You may not be able to issue a 24-hour notice under ORS 90.396, since possession of certain amounts of marijuana pursuant to a valid card, is protected. However, you may consider issuances of a curable 30-day notice under ORS 90.630; - If others are complaining about the odor, you have an issue between enforcing the use and enjoyment provisions of your rules or ORS 90.740(4)(i) versus permitting the activity if the resident has a lawfully issued Oregon card and is not growing over the proscribed amount. In any event, I would recommend that your community institute a medical marijuana use policy as a part of your rules and regulations. See, ORS 90.610 for the law regarding rule changes. Note that the right to implement a rule change - even if it results and a material change to the tenant's bargain with the park - is expressly permitted. In other words, you may want to proscribe ALL such activity, even if it pre-existed the new rule. Alternatively, you could grandfather in current card-holders.

Answer: This is a good question, and all too frequently ignored by owners and managers. The first question is whether the issue is addressed anywhere in the community documents, i.e. the statement of policy, rules, or rental agreement. Likely not. It really isn'taddressed in the Oregon Residential Landlord-Tenant Act, with the exception of ORS 90.222, which covers renter's liability insurance, and is excluded from the manufactured housing section of the law.

Strictly speaking, the fact that the home was destroyed and is likely uninhabitable does not make it any less of a resident responsibility than before the fire. In other words, it is the resident's primary responsibility to either promptly repair, replace, or remove the home. The space is still under lease or rental to the resident, so all of the same rules apply, i.e. to keep it in good condition and safe. If the home is nothing more than a shell, the resident should likely remove it as soon as possible.

If the resident does not have fire insurance to repair or replace the home, I suspect he or she will abandon it, thus making it your problem - or the problem of the lienholder if there is one. Incidentally, if there is a lienholder, the loan documents likely require fire insurance, and that it be a named insured on the policy. If that is the case, then hopefully, between the resident and their insurance company, there may be available proceeds to repair or replace.[1]

If the resident abandons the home, you should immediately send out a 45-day abandonment letter, thus triggering your right (and duty) to take control of the personal property. It is likely an attractive nuisance for children, which could result in injury to them, and liability to you. In such case, you should consider having it either cordoned off with "No Trespassing" signs, or removed. Make sure that you independently confirm that it is a total loss, and with no salvage value. If there is salvage value, it belongs to the resident.

[1] Note that the MHCO Rental and Lease Agreements do have a provision for the resident to maintain fire insurance, but it is optional, and applies only if the box is checked. This situation should be a cautionary tale for owners and managers requiring such insurance, with proof that it is being maintained.