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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:

1. 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;
2. 62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and
3. 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.

Coach’s Tip: Chasick warns against using the phrase “active adult” in your advertising and marketing materials. Every senior should be welcome, whether they’re active or not, he says.

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].

Editor’s Note: The appeals court’s ruling—that discrimination based on sexual orientation qualifies as sex discrimination—applies to all the states within the court’s jurisdiction, including Illinois, Indiana, and Wisconsin. But more recently, a court in Missouri came to the opposite conclusion—that discrimination claims based on sexual harassment don’t qualify as sex discrimination—and dismissed a complaint filed by a married lesbian couple who alleged that a senior living community turned them away because of their sexual orientation [Walsh v. Friendship Village of South County, January 2019].

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.

Coach’s 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 Act: 42 USC §3601 et seq.

Coach Source

Douglas D. Chasick, CPM, CAPS, CAS, ADV. RAM, CLP, SLE, CDEI: The Fair Housing Institute, Inc.; Norcross, GA;

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’t addressed 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.

following my article titled “Home Fire in the Community” I received an email from John Van Landingham with a ‘gentle reminder’ that “…you might want to add that, if a governmental agency posts the burned-out home as constituting a health hazard, the abandoned property timelines can be shortened. ORS 90.675 (21).” John was – as usual – absolutely correct.  Below is an amplification of my earlier post.

ORS 90.675 is the abandonment law that applies generally to homes located in manufactured housing communities. Today it contains 23 separate subsections, a behemoth in size compared to most statutes.  Buried 21 sections down in the subterranean recesses of the statute is that portion of the law dealing with health, safety and welfare issues, in which 45 day letters and 30 response periods could not possibly work. In such situations, time is of the essence.  Accordingly, subsection 21 sets forth a fast-track protocol for declaring the abandonment of a home that poses certain risks to others (such as the abandoned shell of a home destroyed by fire). Below is a summary of what this subsection says:

If a governmental agency determines that the condition of the abandoned  home constitutes an extreme health or safety hazard under state or local law and the agency determines that the hazard endangers others in the facility and requires quick removal of the property, the landlord may sell or dispose of it by taking the following steps[2]:

• The date by which a tenant, lienholder, personal representative or designated person must contact a landlord to arrange for the disposition of the property shall not be less than 15 days after personal delivery or mailing of the abandonment letter required by ORS 90.675(3);
• The date by which a tenant, lienholder, personal representative or designated person must remove the property must be not less than seven (7) days after the date the tenant, lienholder, personal representative or designated person issues the abandonment letter;
• The contents of the abandonment letter must be in accordance with ORS 90.675(5), except that:
  • The dates and deadlines in the notice must be consistent with the fast-track protocol above;
  • The abandonment letter must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and
  • The landlord must attach a copy of the agency’s determination to the abandonment letter.

[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.

[2] Note: the following steps are exceptions to the rest of ORS 90.675.  This means that if there is no exception in this list, the rest of the statute will apply.

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’t addressed 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.

ORS 90.675is the abandonment law that applies generally to homes located in manufactured housing communities. Today it contains 23 separate subsections, a behemoth in size compared to most statutes.  Buried 21 sections down in the subterranean recesses of the statute is that portion of the law dealing with health, safety and welfare issues, in which 45 day letters and 30 response periods could not possibly work. In such situations, time is of the essence.  Accordingly, subsection 21 sets forth a fast-track protocol for declaring the abandonment of a home that poses certain risks to others (such as the abandoned shell of a home destroyed by fire). Below is a summary of what this subsection says:

If a governmental agency determines that the condition of the abandoned  home constitutes an extreme health or safety hazard under state or local law andthe agency determines that the hazard endangers others in the facility andrequires quick removal of the property, the landlord may sell or dispose of it by taking the following steps[2]:

· The date by which a tenant, lienholder, personal representative or designated person must contact a landlord to arrange for the disposition of the property shall not be less than 15 days after personal delivery or mailing of the abandonment letter required by ORS 90.675(3);

· The date by which a tenant, lienholder, personal representative or designated person must remove the property must be not less than seven (7) days after the date the tenant, lienholder, personal representative or designated person issues the abandonment letter;

· The contents of the abandonment letter must be in accordance with ORS 90.675(5), except that:

• The dates and deadlines in the notice must be consistent with the fast-track protocol above;
• The abandonment letter must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and
• The landlord must attach a copy of the agency’s determination to the abandonment letter.

Your "Screening Criteria" is another important document that should be provided to an interested applicant. This is the document that will determine where you draw the line between acceptance and denial. Your "Screening Criteria" is a written statement of the factors the landlord considers in deciding whether to accept of reject an applicant and any qualification required for acceptance. What can you have on that list? That is up to you. Here is a brief list to get you started: unsatisfactory rental references, the absence of any prior tenant history or credit history, unsatisfactory character references, criminal history, bankruptcy filed in the past two years, payment of rent problems, no social security number, and inaccurate information on the application, insufficient debt to income ratio. All of these are reasons for denial - it is up to you establish them as a basis for acceptance into you community. For example - maybe you accept applicants with felony conviction that are 20 years or older - it is up to you to include that on your screening criteria.

Remember to apply your criteria uniformly in all applications. Do not make exceptions. The question of whether you denied one person and accepted another could be tied to a potential discrimination case. Save yourself the agony of these situations - write a "screening criteria" and apply it uniformly. Used properly and consistently it can be a tool that keeps you above any suspicion of discrimination. The one limit on your screening criteria is that you cannot deny residency to anyone because of his or her race, color, sex, handicapped status, familial status, national origin or sources of income. However, you can deny tenancy to anyone - even if they are in a protected class - if they do not meet any of the minimum criteria that you establish in your screening criteria. Often potential applicants will "self screen" themselves by reading your "screening criteria" and realizing that they do not qualify, thus saving you and the potential applicant time and energy.

Screening/Admission Criteria: All applicants should be presented with a full explanation of the established basis for acceptance or rejection. This should be a written statement of any factors a landlord considers in deciding whether to accept or reject an applicant and any qualifications required for acceptance. This may include:

• Unsatisfactory rental references
• Applicant must be 18 years or older
• Provide two pieces of identification, one with each applicant's photo from a government office (i.e. Driver's License, State ID Card, Passport) and Social Security Card
• Be gainfully employed or have verifiable income from retirement, social security or periodic income.
• If the community is either an "age 55 or older" or an "age 62 or older" Community, you must provide proof that you meet the age requirements
• The absence of any prior tenant history or credit history
• Unsatisfactory credit history
• Unsatisfactory character references
• Any criminal history
• Insufficient income to reasonably meet the monthly rental and other expense obligations
• Presence of pets or the number, type or size of pets
• Evidence that the prospective tenant has provided landlord with falsified or materially misleading information on any material items
• If the prospective tenant refuses to sign a new written rental agreement or lease agreement
• The number of additional occupants
• Adverse information contained in the public record

Additional criteria that may be added to qualify could include:

• Minimum two-year verifiable references with previous landlords
• No payment of rent problems over the past two years
• Two years of verifiable employment
• No criminal convictions
• No tax liens
• Sufficient income to pay all outstanding obligations after payment of rent
• Any individual who is a current illegal substance abuser, or has been convicted of the illegal manufacture or distribution of a controlled substance will be denied tenancy
• Any individual or pet/animal whose residency would constitute a direct threat to the health or safety of other individuals.
• If pets are permitted they must meet the requirements of state and local laws, ordinances, and the Community in regards to number, size and breed. Farm animals, exotic and/or wild animals, livestock and certain breeds of dogs. You should list breeds of dogs that are not allowed in your community
• You may want to set a percentage of net-income that should be left over after meeting all financial obligations.
• Homes must be owner occupied - no subleasing

You MUST post your community's screening criteria publicly in the office and provide written copies to all prospective residents.

Remember to apply your criteria uniformly in all applications. Do not make exceptions! Once you make an exception for one of your criteria you are opening up the possibility of future problems. You will be in the awkward position of having to explain why you made the exception to one applicant and not to another applicant. The question of whether you denied one person and accepted another could be tied to a potential discrimination case. Save yourself the agony of these situations and do not make exceptions to your screening criteria. Take the time to put your screening criteria in writing to protect yourself and provide prospective residents with a copy so that they can have the necessary information upon which to make a decision.

Remember - you cannot deny residency to anyone because of his or her race, color, religion, sex, handicapped status, familial status, national origin or source of income. However, you can deny tenancy to anyone - even if they are in a protected class - if they do not meet any of the minimum criteria.

For example: If someone applies for a space in your park and reveals that they are Catholic and have a bad credit record you cannot deny tenancy based on the fact that the individual is Catholic. However, you may deny the tenancy based on the fact that the prospective tenant has bad credit so long as the minimum screening criteria have been consistently applied.

Tell the applicant that you require a certain amount of time to screen the completed application, but that they will be notified within seven days, in accordance with Oregon law. This will give you the opportunity to complete credit and criminal checks, determine the condition of the home for pre-sale or move-in requirements, check employment and personal references; and get information about current and past tenancies.

Example: Landlord/Community
Screening or Admission Criteria

General Requirements:

1. Positive Identification with photo ID
2. A complete and accurate application. Incomplete applications will not be processed.
3. Applicant must be able to enter into a legally binding contract
4. Any applicant currently using illegal drugs or reporting a conviction for the illegal manufacture or distribution of a controlled substance will be denied.
5. Any individual who may constitute a direct threat to the health and safety of an individual, complex, neighborhood, or the property of others will be denied.
6. An application insufficient in credit and rental requirements shall require an additional security deposit equal to 50% of stated rental amount, over and above any other security deposit or additional security deposit required.
7. Applicants may qualify individually, however no person may reside in the property if they do not meet the general requirements of (3), (4) and (5).
8. In order to qualify as a co-signer you must meet all the general requirements and have a monthly income of five times the stated rent.
9. Proof of ownership of the home.

Income Requirements:

1. Gross monthly household income should be equal to two and half time the monthly rent
2. A current pay stub from your employer will be required if we are unable verify income over the phone. If you are unemployed you must have income or liquid assets equal to two and half time the annual rent. Self employed individuals will be required to show the previous year tax return and employment will be verified through the state. A recorded business name or corporate filing will suffice.
3. If applicant does not earn enough income to reside in the property then a co-signor will be required.
4. Your application will be denied if we are unable to determine you earn a legal source of income.

Rental Requirements:

1. One year of rental history or mortgage history verifiable by a third party is required. Current or previous mortgage history showing late payments will require an additional deposit of one month rent.
2. Eviction free rental history is required.
3. Rental history from a non-third party will require an additional deposit of one month rent or a cosignor.
4. Rental history with past due rent or an outstanding balance will be denied.
5. If previous landlord fails to give a reference or give a negative reference application will be denied.
6. Three (3) or more 72 hour notices within a one year period will result in denial.
7. Three (3) or more NSF checks within a one year period will result in denial.
8. Rental history demonstrating disruptive complaints or neglect will result in denial.

Credit Requirements:

1. A credit history with negative reports will not be accepted. A negative report is considered an non medical item 60 days past due or greater, collections, repossessions, liens, judgments or garnishments. Negative credit will result in additional guidelines as follows
   1. A credit report containing a discharged bankruptcy will require an additional deposit of one month's rent or co-signor.
   2. 1-2 items 60 days past due or greater, collections, repossessions, liens judgments or garnishments will require an additional deposit of one month's rent or co-signor.
   3. 3-5 of the items above will require an additional one and half time security deposit.
   4. 6-8 of the items above will require an additional one and half time security deposit plus a cosignor.
   5. 9 or more will result in complete denial

Criminal:

Upon receipt of the rental application and a screening fee, Landlord will conduct a search of the public records to determine whether the applicant or any proposed tenant has been convicted of, or pled guilty to, or no contest to, any crime.

1. A conviction, guilty plea, or no-contest plea, ever for: any felony involving serious injury, kidnapping, death, arson, rape, sex crimes/ and or child sex crimes, extensive property damage, or drug related offenses (sale, manufacture, delivery, possession with intent to sell) A/ Felony burglary or class A/ Felony robbery or;
2. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last seven years for any; felony charges or;
3. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last seven years for; any misdemeanor or gross misdemeanor involving assault, intimidation, sex related, drug related (sale, manufacture, delivery or possession), property damage or weapons charges; or
4. A conviction, guilty plea, or no-contest plea, where the date of disposition, release or parole have occurred within the last three years for; any class B or C misdemeanor in any of the above categories or any misdemeanors in the above categories or any misdemeanors involving criminal trespass I, theft, dishonesty, prostitution shall be grounds for denial of the rental application. Pending charges or outstanding warrants for any of the above will result in suspension of the application process until the charges are resolved. Upon resolution, if the desired unit is available, the application process will be completed. Units will not be held awaiting resolution of pending charges.

Denial Policy:

If you applicant is being denied to adverse and negative information being reported, you should:

1. If it is credit related, contact the credit reporting agency listed in the denial letter in order to:
   1. Identify who is reporting negative information about you
   2. Request a correction if the information being reported is incorrect.

Remember - the "Ideal Resident":

1. Pays the rent on time.
2. Keeps the outside of the manufactured home and the space in a clean and well maintained manner.
3. Does not litter, damage or destroy community property.
4. Does not disturb the neighbors.

The key to identifying the "Ideal Resident" is a thorough and complete processing of the rental application and the supplemental verification forms, combined with a personal interview of the prospective tenant. "Snap judgements" or a "hurry to rent the space" must be avoided.

Used properly and consistently, the Rental Application and supplemental verification forms will prove helpful in countering charges of discrimination in renting spaces. The application should be used in conjunction with a personal interview of the entire household, which can reveal characteristics that do not come through on the written application. In order to protect yourself against claims, you must adopt and consistently follow specific guidelines and procedures by which each and every application is reviewed. The "Resident Acceptance Policy" will assist you in documenting the basis for your acceptance or rejection of each application. It is a good idea to maintain all rejected applications and supporting information for a period of at least three years. Tenant screening is a very important part of community management and it should not be done without reason and consistency. Tenant screening cannot be based on your personal feelings or emotions.

A thorough screening is your best resource for finding good residents. Current residents in surrounding home sites will feel more secure knowing their neighbors have also been screened. 

Senate Bill 599 sets out an entirely new section of the ORLTA allowing tenants to use their dwellings as “family child care homes.” A landlord may not prohibit the use provided that the tenant has obtained the proper certification under ORS 329A.280 or ORS 329A.330, and has provided notice to the landlord of the tenant’s intent to operate a child care home.

Modifications. A landlord is permitted to require the tenant to pay in advance for costs of modifications necessary or desirable for the tenant’s use, certification or registration of the dwelling as a family child care home, even if it is not required of the landlord under ORS 90.320 or the rental agreement.

Prohibitions. A landlord may prohibit use as a family child care home if it will violate zoning restrictions or an association’s governing documents. Likewise, a landlord may prohibit any use which is not allowed under the rules of the Early Learning Council, the regulating body for in-home child care facilities.

Liability Protection. Family child care homes are not required to carry liability insurance unless the landlord specifically requires it. The landlord may require that the tenant running the child care home provide protection for the landlord, property owner or the association in the following manner:

• If uninsured: Child care provider must require that parents sign a document acknowledging that the landlord, owner and/or association is not responsible for harm to children or guests connected to the family child care home. This document also must acknowledge that the family child care home does not carry liability insurance for losses to their children or guests.
• If insured: Landlord may require that the child care home carry a reasonable surety bond or liability policy (in addition to renters insurance under ORS 90.222) covering the children and guests. The policy must provide coverage for injuries sustained related to negligence of the tenant or tenant’s employees, and the policy must name the landlord, property owner, or association as an additional insured.

Housing for Older Persons. The tenant may not operate a family child care home if the dwelling in question qualifies as housing for older persons under ORS 659A.421.

Situation: A tenant claimed he was sexually harassed by his next-door neighbor, citing a series of incidents in which the neighbor allegedly:

• Insulted him in Spanish;
• Blocked his path so that his chest touched the neighbor’s chest;
• Leered at his crotch area;
• Snuck up behind him; and
• Told gardeners to use a leaf blower to blow dust toward his apartment.    

The tenant claimed that all of this amounted to a hostile housing environment and sued the landlord for sex discrimination.

You Make the Call: Did the tenant have a valid claim for tenant-on-tenant harassment?

Answer: No

Ruling: The California federal district court granted the landlord’s motion for summary judgment. A landlord could, in fact, be liable for a hostile housing environment, as long as tenants can show they were subjected to: (1) unwelcomed (2) sexual harassment that was (3) “sufficiently severe or pervasive so as to interfere with or deprive the tenant of [his] right to use or enjoy [his] home.”

However, the court continued, the neighbor’s alleged conduct in this case, while no doubt annoying, wasn’t severe enough to prove a hostile housing environment interfering with the tenant’s enjoyment of his apartment [Pardo-Pena v. Spector, 2023 U.S. Dist. LEXIS 13904, 2023 WL 2202515].      

Takeaway: The issue of landlord liability for tenant-on-tenant harassment remains unresolved, except, arguably, in the Second Circuit, which has rejected the theory. While ultimately decided in favor of the landlord, the Pardo-Pena ruling opens a new dimension in the controversy by likening housing to the workplace and exposing landlords to the risk of liability for “hostile housing environment” the way an employer can be liable for a “hostile work environment.”

Bottom Line: Regardless of what the law says, landlords have not only a moral but business imperative in seeking to provide a respectful housing environment in which no tenant has to endure harassment of any kind. Best practice: The starting point for preventing tenant-on-tenant harassment is to create and implement a written anti-harassment policy as part of your community rules. Such a policy should include seven elements:

• A statement of policy that condemns harassment and expresses your company’s commitment to provide a respectful housing environment enabling all tenants are to enjoy their tenancy;
• A clear and broad definition of harassment as including any “action, conduct, or comment that can reasonably be expected to cause offense, humiliation, or other physical or psychological injury or illness to a tenant or other person,” accompanied by a list of examples;
• A process or mechanism that tenants can use to report the harassment they experience or witness;
• Assurances that tenants will suffer no retaliation of any kind for reporting harassment in good faith;
• Protocols and procedures for responding to, investigating, and resolving the harassment complaints that you receive;
• Language indicating that tenants will be held accountable for any harassment they’re found to have committed; and
• Clarification that filing a harassment complaint with you doesn’t take away a tenant’s right to file a housing discrimination complaint (to the extent the harassment is based on race, sex, etc.) with HUD or state fair housing agencies.

In response to the COVID 19 epidemic, Governor Kate Brown joined nearly a dozen other governors on Monday issuing a sweeping order (Executive Order 20-12) that essentially requires people to stay home except for essential travel, such as to the grocery store or for medical needs. Violation of the Order is a Class C misdemeanor, which carries a maximum penalty of 30 days in jail and/or a fine of $1,250.

As of 12:01 a.m. on March 24, a long list of businesses (from amusement parks to youth clubs) were ordered shuttered. Most likely, the list of businesses ordered to close does not affect a manufactured home park, RV park or floating home community; however, community owners should review the list of businesses to ensure compliance.

Although “campgrounds” were ordered closed, RV parks are exempted.

Pools, sports courts and playgrounds must be closed. 

The Governor's order does not change her previous order (Executive Order 20-07) with respect to restaurants, bars, and other establishments that serve food and drink, which Order prohibits on-premises consumption of food or drink but allows take-out or delivery services.

Outdoor Activities

Governor Brown's order specifically allows people to be outside for walking or hiking but any outdoor activity that cannot be done while maintaining social distancing (i.e. basketball) is prohibited. State and community parks may remain open if social distancing can be maintained and signage about social distancing must be prominently displayed.

Employees

Effective March 25, all businesses in Oregon shall facilitate telework and work at home by employees, to the maximum extent possible. Work in offices is prohibited whenever telework and work at home options are available, in light of position duties, availability of teleworking equipment, and network adequacy. In other words, your employees do not have to work from home if their duties require them to be on site (maintenance workers) or if they are not set up to work from home (they don’t have the ability or capability from working from home).

Social Distancing Policy

When telework is unavailable, businesses must designate an employee to establish, implement and enforce social distancing policies, consistent with the guidance from the Oregon Health Authority. Such policies must address how the business or non-profit will maintain social distancing protocols for business-critical visitors.

Bill Miner | Davis Wright TremaineLLP

1300 SW Fifth Avenue, Suite 2300 | Portland, OR 97201

Tel: (503) 778-5477 | Fax: (503) 778-5299 

Email: billminer@dwt.com| Website: www.dwt.com

If you do not yet have a policy in place, you should contact your legal or human resource advisor to assist you with the drafting of a social distancing policy. Please note that DWT is offering a draft policy at a fixed price for MHCO members.

Answer. Welcome to the Nanny State! I agree this is a frustrating situation for landlords.  I believe rule No. 1 is to pick your shots. By that I mean, you want to look at this in the same way a judge or jury would.  Does it pass the “smell test”?  – pun intended. 

To me it does not. This sounds like a case in which you’ve got a pretty good paper trail. But someone has to blink.  If you fold on this, bad precedent is set. Here she’s asking for two extraservice animals. By this rationale, the two pet policy means nothing, and she could gather another six animals and make the same claim.  I believe you should consult your attorney to find out what he/she recommends.   

From where I sit, I think you could take at least one more step, without this going nuclear.  You may want to consider issuing a 30-day notice to vacate, citing the rule and what she needs to remedy it, i.e. remove two of the pets.  

At that time, the issue will come to a head. Will she go to some advocacy attorney group who says they will fight you for free? Will she fold? Will she try to compromise?  There is a Roman saying that if you want peace, prepare for war.  In other words, if you show her you mean business, she may take a more realistic look at her position. Until there is a show of force, she has the upper hand.  If she backs off, there may be an opportunity to find a solution, e.g. and agreement to re-home the pets with a relative. Any solution that is reached should be in writing, and you should have your attorney prepare it.

If she pushes back, and has some legal group threating a fight, you can then decide whether to hold ‘em or fold em’.  Remember, litigation doesn’t happen overnight. You will, at worst, get a threatening letter or two, before something happens. If you don’t want the fight, then walk away.  Good luck!  By the way, during this dispute, if you intend to issue a 30-day letter, you should not also be accepting rent.

By Zach Koucos

Director, Holliday, Fenoglio, Fowler (HFF)

The second half of 2016 and early 2017 signaled a great amount of uncertainty regarding the future of fiscal and regulatory policy in the United States. While everyone is trying to figure out what the impacts of policy changes by the Trump administration will be on the economy, the stock market has surged and interest rates have climbed. Both of these occurrences reflect a positive reaction to the election in the financial marketplace, however the effect on real estate and income property values remains a concern for owners.

Higher interest rates certainly impact the feasibility of borrowing money, which in turn affects the purchasing power for real estate acquisitions as well as property values. Most fixed rate lenders price their loans based on US Treasury yields. Many borrowers have been focusing on rising benchmark interest rates, however the good news is that US Treasury yields today are still far lower than their long term averages. As of March 7, 2017, the 10 year US Treasury yield stood at 2.51%, compared to 1.83% on November 7, 2016, the day before the election. The 10 year US Treasury yield began 2016 at 2.24%, and 2015 at 2.12%. To provide some perspective, below is the average yield on the 10 Year US Treasury during the last 5 decades, and so far in the 2010's:

1961 - 1969:  4.73%

1970 - 1979:  7.50%

1980 - 1989: 10.59%

1990 - 1999:  6.67%

2000 - 2009:  4.46%

2010 - 2016:  2.38%

We have definitely enjoyed some very low interest rates over the last few years, which has benefitted borrowers and helped to support increasing property values. Most economists are predicting that ultimately Treasury yields have to return closer to these long term averages shown above, citing the Trump administration's mix of reflationary policy initiatives. Rates can always go down in the short term, however if the United States is successful at growing nominal gross domestic product (GDP) over the next few years, Treasury yields could likely follow. Given this outlook, today's still historically-low interest rate environment offers an extraordinary opportunity to evaluate your near and long term financing objectives.

Notwithstanding recent volatility due to the political climate and rising interest rates, the marketplace for income property financing remains very healthy, with no shortage of capital. Lenders remain optimistic for 2017, and most are planning to equal or exceed their loan origination volume from 2016. This includes lending for manufactured home communities (MHC's), an asset class of ever-increasing interest to capital providers. Volatility forces commercial lenders to gravitate towards lower risk, stable, income-producing real estate. Manufactured home communities are increasingly high on their lists, since the cash flow is consistent and demand for affordable housing is strong.

Numerous institutional and private owners of manufactured home communities and other commercial real estate have taken advantage by locking in historically low fixed rate loans. In several cases, refinancing existing loans with prepayment penalties still made economic sense given the savings realized with today's low interest rate financing. If you've been considering a refinance to lower expenses, access additional capital to fund overdue projects, or facilitate additional acquisitions, it's still a great time to take a look at the programs available in today's market.   

The pool of varying capital sources deepened even further in 2016. Lender demand for existing, stabilized real estate transactions remains strong, despite escalated regulatory practices imposed on the industry. Over $1 Billion in commercial real estate loans will be maturing daily through the end of 2018, and the necessary lender appetite is present to service this need. Owners of manufactured home communities will benefit from this activity, as the capital marketplace for MHC's continues to expand and lenders are seeking to deploy capital on lower risk housing assets.

An overview of community financing options for 2017:

As a result of Dodd-Frank Wall Street reform policies and Basel III regulations imposed on banks, construction and high risk" lending is tightening. Thus

Because, while Oregon permits the medical use of marijuana, the Federal Controlled Substances Act, 21 U.S.C. _ 801, et seq., says that it is illegal to manufacture, distribute, and possess marijuana, even when state law authorizes its use. Furthermore, federal law supersedes state law where there is a direct conflict between them. So, what does a landlord do when confronted by a card-carrying tenant claiming that he/she cannot be evicted for marijuana use and/or cultivation, because they have a legal right to do so under Oregon law. To second arrow in the tenant's quiver is the threat that "if you try to evict me, I will sue you under the federal Fair Housing laws that say you must grant me a reasonable accommodation [i.e. let me toke on the premises] because I have a "disability." Discussion. Clearly, this is a very complicated issue on several levels. Marijuana is a controlled substance under Federal Law, but under Oregon law, its use and cultivation in limited amounts are lawful with a medical marijuana card. The Oregon laws 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, the specific statutes should be consulted here. Based upon recent news reports, it appears that, subject to certain exceptions, 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 are legal. The Conundrum. In short, it appears that when it comes to enforcement of their 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 may be "No." Here's why: 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 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, both from an employment and housing perspective. Additionally, a subsequent article [found here] by the Fair Housing Council of Oregon is helpful for landlords from the view of private fair housing enforcement. Thus, it appears that in Oregon, on both the federal and state levels, enforcement agencies are [for the time being at least] taking a laissez-faire approach to the medical marijuana issue. This means that landlords have it within their control, with little fear of a fair housing/reasonable accommodation claim, to enact rules and regulations prohibiting the on-premises use of medical marijuana. However, the proscription should not be retroactive to tenants holding legal medical marijuana cards who have already signed their rental agreements or leases. Oregon Landlord-Tenant Laws. Oregon statutes permit landlords to enforce tenant violations of their rental agreements, rules, and general laws [not just the landlord-tenant laws]. It is my belief that the violation of a no medical marijuana policy would be enforceable on a going forward basis. The policy should not be retroactive - and it should so state. In summary, ORS 90.630 [Termination by Landlord] provides as follow: - After delivery of written notice, a landlord may terminate the rental agreement for cause and take possession in accordance with the state eviction laws [ORS 105.105 to 105.168], unless the tenant cures the violation. - Causes for termination are: _ Material violations of the rental agreement; _ Material violation by the tenant of his/her legal duties under [ORS 90.740]; _ Failure to pay rent. - The landlord's notice to the tenant must: _ Specify the acts and omissions constituting the violation; _ State that the rental agreement will terminate upon a designated date not less than 30 days after delivery of the notice; and _ If the violation may be cured under the law, so state and describe at least one possible remedy to cure it, designating the date by which the cure must occur. - If the violation described in the notice can be cured, and is cured by the designated date, the tenancy will not terminate; - If the tenant does not cure the violation, the rental agreement terminates as provided in the notice. - If the cause of a written notice relates to substantially the same act or omission that constituted a prior violation for which notice was given within the previous six months, the designated termination date must be not less than 20 days after delivery of the notice and no earlier than the designated termination date stated in the previously given notice. The tenant does not have a right to cure this subsequent violation. Miscellaneous Tips. Landlords, read the medical marijuana card! It must valid and current for Oregon. A California card, for example, would not suffice. [See, State v. Berrenger, 2010]. If there is no card, or no current card, the growing [not use] of marijuana may still be a violation of Oregon law. In such cases, issuance of a curable 30-day notice under ORS 90.630 may be appropriate. If other tenants are complaining about the odor [and many do], a landlord may consider looking to the "quiet enjoyment" provisions of the rental agreement, the rules, or the provisions in ORS 90.740(4)(i). Conclusion. Rental management companies and individual landlords in Oregon may wish to institute a written medical marijuana policy in their rules and/or rental agreements, dealing both with use and cultivation. Based upon current federal law, it does not appear to be a fair housing violation to prohibit medical marijuana in the landlord's rental agreement or rules. If such a policy exists, it should include management's right to decline a request for a reasonable accommodation. Remember, besides nonpayment of rent, there are only three ways to terminate a tenancy for cause: - Violation of the rental/lease agreement; - Violation of the rules; and - Violation of Oregon laws. This means that in Oregon, if a tenant engages in the legal use or cultivation of marijuana - i.e. with a valid card - doing so is not a violation of state law. If a landlord seeks to prevent such activity, the answer must then be found, if at all, in the rental agreement or the rules. Without an express prohibition contained in one of these documents, it may be difficult to bring an eviction action for legal marijuana use or cultivation - unless the tenant's conduct violates some other rule or provision in the rental agreement.