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1. How to Initiate Mediation or Informal Dispute Resolution

Mediation may be initiated by a Landlord, a Tenant or Group of Tenants. Either party may contact the mediation services available through: (a) park/marina manager, (b) Local Community Dispute Resolution Center (CDRC), or (c) Manufactured and Marina Communities Resource Center (MMCRC) hotline: 1-800- 453-5511 (Toll Free in Oregon) or email:hcs.mmcrc@oregon.gov or the MMCRC Website.

2. Disputes Eligible for Mandatory Mediation

• Those between the landlord and one or more tenants, initiated by any party.

• Those between more than one tenant as initiated by the landlord.

• Information dispute resolution, disputes between two tenants, initiated by either party. Consistent with statute, upon intake the CDRC will determine the eligibility of an issue for mediation (reference Section 6 below).

3. Good Faith Efforts

Participants must make good faith effort to: (a) schedule a mediation within 30 days after initiation: (b) attend and participate; and (c) cooperate with reasonable requests of the mediator.

4. Mandatory mediation only:

 If a party refuses to participate in good faith in mandatory mediation with another party, or uses mediation to harass another party, the other party:

(a) has a defense to a claim related to the subject of the dispute for which mediation was sought; and

(b) is entitled to damages of one month’s rent against the party.

Effect of Filing for Mandatory Mediation

Between the commencement and conclusion of the mediation:

• If the request for mandatory mediation is made before the landlord files a Forcible Entry5. 6.and Detainer, Oregon Revised Statute 90.767 calls for a “stay” or “toll” (suspension) of

any related court action until conclusion of the mandatory mediation.

• A party may not file a court action over the dispute until conclusion of the mandatory mediation; (c) tenant has continuing duty to pay rent; and (d) landlord’s receipt of rent does not constitute a waiver under Oregon Revised Statute 90.412(2).

5. Matters Subject to Mandatory Mediation

Except as provided in Section 6, below, the following disputes are eligible for mediation:

(a) landlord or tenant compliance with the rental agreement or Oregon Revised Statute Chapter 90 (Oregon landlord/tenant statutes); (b) landlord or tenant conduct within the Park/Marina; and (c) rule changes initiated under Oregon Revised Statute 90.610.

Matters Not Subject to Mandatory Mediation

Unless specifically provided for in a mediation policy established under this section, or agreed to by all parties, no party may initiate mediation for:

(a) Facility closures consistent with ORS 90.645 or 90.671.

(b) Facility sales consistent with ORS 90.842 to 90.850.

(c) Rent increases consistent with ORS 90.600.

(d) Rent payments or amounts owed.

(e) Tenant violations alleged in a termination notice given under ORS 90.394, 90.396 or

90.630 (8).

(f) Violations of an alleged unauthorized person in possession in a notice given under ORS

90.403.

(g) Unless initiated by the victim, a dispute involving allegations of domestic violence,

sexual assault or stalking or a dispute between the victim and the alleged perpetrator.

(h) A dispute arising after the termination of the tenancy, including under ORS 90.425,

90.675 or 105.161.

7. Confidentiality

Subject to Oregon Revised Statute 36.220 (confidentiality of mediation communications and agreements), all communications between the parties and mediator are strictly confidential and may not be used in any legal proceedings.

8. Limitations on Mandatory Mediation Process

Participation in mediation does not require any party to: (a) reach an agreement on any or all issues submitted; (b) participate in more than one mediation session; (c) participate foran unreasonable length of time in a mediation session; or (d) waive or forego any legal rights or remedies.

9. Designees for Parties

Any party may designate any other person, including a non-attorney(“Designee”), to represent the interests of that party provided that the Designee has complete written authority to bind that party to any resolution of the dispute reached in mediation. The Designee shall be equally bound by all rules of the mediation, including confidentiality.

10. Resolution/Nonresolution

The mediator shall notify Oregon Housing and Community Services whether a dispute was resolved but may not disclose the contents of any resolution.

This article was created by Oregon Housing and Community Services

By:  Rebekah Near, CEO, Orca Information, Inc.

Last article I wrote was titled, A COMMON MISTAKE WHEN DENYING APPLICANT COULD COST YOU THOUSANDS.  The focus of the topic was on giving your applicant who does not qualify for the unit the ADVERSE ACTION LETTER which is sometimes referred to as a CONSUMER RIGHTS LETTER AKA FCRA Summary of Rights.  One knowledgeable, sharp and concerned Manufactured Park Manager sent me some good questions. Evidently there is some confusion as to what information is required in an Adverse Action letter.  Here is one of the questions I received and my reply.  

Question: I’ve been giving the FCRA Summary of Rights as part of the Adverse Action letter to applicants for years until my supervisor told me not to.  I recently forwarded your advice directly to my employer and supervisor, who says, “There is no current requirement to give an applicant the FCRA Summary of Rights along with the reasons for adverse action”. 

Answer:  First, I am not an attorney.  It is wise to consult an attorney on these matters.  That is just what I did.  Not only did I read advice from an attorney but I also researched deeply the FCRA wording for clarity.  Let’s read what this attorney from the FTC Division of Privacy and Identity Protection advises.  She is addressing landlords.  She writes the following:

What if the information in a consumer report (tenant screening report) leads you to deny housing to an applicant?  Under the  Fair Credit Reporting Act (FCRA), you must inform applicants in what’s called an adverse action notice. That’s true even if the report was only a minor factor in your decision. An adverse action notice tells people about their rights to see information being reported about them and to dispute inaccurate information. It’s a best practice to provide that adverse action notice in writing because it benefits both you and the applicant. Written notices give you proof of compliance with the law. They also better enable applicants to assert their rights to request a copy of the report from the consumer reporting agency (tenant screening company) and to dispute any mistakes.

The attorney now quotes the FCRA:

Fair Credit Reporting Act 15 U.S.C § 1681

A summary of rights is required to be included with agency (tenant screening company) disclosures (adverse action notices).

A consumer reporting agency (tenant screening company) shall provide to a consumer (landlords applicant), with each written disclosure by the agency (tenant screening company) to the consumer (landlords applicant) under this section –

(A) the summary of rights prepared by the Bureau (credit bureau) under paragraph (1);

(B) in the case of a consumer reporting agency (tenant screening company) described in section 603(p), a toll-free telephone number established by the agency (tenant screening company) at which personnel are accessible to consumers during normal business hours;

(C) a list of all Federal agencies responsible for enforcing any provision of this title, and the address and any appropriate phone number of each such agency, in a form that will assist the consumer in selecting the appropriate agency;

(D) a statement that the consumer may have additional rights under State law, and that the consumer may wish to contact a State or local consumer protection agency or a State attorney general (or the equivalent thereof) to learn of those rights; and

(E) a statement that a consumer reporting agency (tenant screening company) is not required to remove accurate derogatory information from the file of a consumer, unless the information is outdated under section 605 or cannot be verified.

End of the FTC attorneys advice.

______

It appears the Park Manager who submitted this question is correct when she sent denied applicants the Adverse Action letter and included The Summary of Their Rights.  If this Park Manager were my employee, I would be proud I had the foresight to hire someone who deeply cares about the company for which they work, stays educated and remains aware of the ever-changing, laws.  What do you my readers think?  I would love to hear from you.

To read more about the FCRA law pertaining to Adverse Action letters including Summary of Rights, go to:  Consumer Financial Protection Bureau, Rules & Policy.  Also, the FTC, Summary of Your Rights. 

Rebekah Near is the owner operator of Orca Information, Inc an Employment and Tenant screening company serving the Pacific Northwest and the Nation.  The web address is www.orcainfo-com.com  She is not an attorney and does not give legal advice.  You may send your questions to her at rebekahn@orcainfo-com.com.    

The CDC has warned against stigmatizing people or groups because of COVID-19. Health officials noted that people in the United States may be worried or anxious about friends and relatives who are living in or visiting areas where COVID-19 is spreading. Some people are worried about getting the disease from these people. Fear and anxiety can lead to social stigma, for example, toward people who live in certain parts of the world, people who have traveled internationally, people who were in quarantine, or healthcare professionals.

Stigma is discrimination against an identifiable group of people, a place, or a nation, according to the CDC. Stigma is associated with a lack of knowledge about how COVID-19 spreads, a need to blame someone, fears about disease and death, and gossip that spreads rumors and myths.

But, as the CDC points out, stigma hurts everyone by creating more fear or anger toward ordinary people instead of focusing on the disease that’s causing the problem. And in multifamily housing communities, stigma against particular people or groups because of COVID-19 could also lead to fair housing trouble.

In this lesson, we’ll review the law and offer six rules to follow to help you avoid fair housing trouble at your community while dealing with COVID-19.

MHCO Tip: The news regarding COVID-19 has been rapidly evolving, so it’s important to stay up to date on the latest developments. For the health information related to virus, visit the CDC’s website at https://www.cdc.gov/coronavirus/2019-ncov/index.html. And check your state, county, or municipal government websites to find out what’s happening in your area.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability—also known as “protected classes.”

In general, fair housing law targets housing practices that exclude or otherwise discriminate against anyone because of their race or other protected class. Owners, managers, and individual employees all may be held liable for discriminatory housing practices, including:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures;
• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms;
• Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
• Assigning residents to a particular section of a community or floor of a building;
• Providing different housing services or facilities, such as access to community facilities; and
• Failing or delaying maintenance or repairs.

In addition, the FHA makes it unlawful to advertise or make any statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. The law also prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right.

Deep Dive: Disability

General Rules: Technically, the FHA bans discrimination based on “handicap,” though the term “disability” now is more commonly used. Under the FHA, disability generally means a physical or mental impairment that substantially limits one or more major life activity. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

The law protects not only individuals who have a disability, but also individuals with a record of such disability (such as medical history of such an impairment), or those who are regarded as having such a disability (such as someone who is believed to have a mental illness, but in fact does not have such an impairment).

Despite the general rule banning discrimination against individuals with disabilities, the law recognizes an exception that allows communities to exclude an individual whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. But it’s a limited exception—federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of the particular applicant or resident based on reliable objective evidence of current conduct or a recent history of overt acts.

Special Rules: In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant requests for reasonable accommodations or modifications if necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.

6 RULES FOR COMPLYING WITH FAIR HOUSING LAW

WHILE DEALING WITH COVID-19

Rule #1: Remember Fair Housing Requirements While Responding to COVID-19

Fair housing law may not be the first thing you think of when it comes dealing with the coronavirus crisis, but it’s important to remember that the law bans discrimination on the basis of race and national origin, disability, and other protected characteristics, even if motivated by concerns about COVID-19. It’s certainly on the minds of federal and state fair housing enforcement agencies and advocates.

“As the global response to the COVID-19 pandemic continues, the Justice Department will remain vigilant in enforcing civil rights laws,” Assistant Attorney General for Civil Rights Eric S. Dreiband said in a statement. “We must ensure that fear and prejudice do not limit access to housing, schools, benefits, services, jobs, and information, among other things, on account of race, sex, religion, national origin, disability, or other protected classes.

“It is important that we all work together to address unlawful discrimination, including violent acts or threats based upon protected classes. As in all emergencies, the COVID-19 outbreak has affected people of many different races, religions, and ethnicities, as well as those with disabilities. Unlawful discrimination may also discourage people from coming forward to seek treatment or information. Laws prohibiting unlawful discriminatory behavior must and will be vigorously enforced,” he said.

HUD Secretary Ben Carson echoed those sentiments in HUD’s Statement on Fair Housing and COVID-19:

We all must be vigilant to take protective measures recommended by public health officials to prevent the spread of COVID-19, knowing that many individuals with COVID-19 show no symptoms and have no awareness of exposure to the virus. Regardless of specific laws, now is not the time to evict people from their homes. If a housing provider is concerned that a person has COVID-19 and may pose a threat to the health or safety of others, the housing provider should set aside fear and speculation, and rely on objective medical information and advice from public health officials to determine steps that could mitigate or prevent the risk of transmission.

Likewise, officials in New York State explain that state law bans discrimination against anyone because of a perceived connection between his race, national origin, or disability, and COVID-19. The law prohibits discrimination against anyone assumed to have been exposed to COVID-19 based on any of these traits.

Fast Fact About Face Masks: If an applicant or resident is wearing a face mask as a precaution, he’s still protected against discrimination, warn officials in New York State. The law prohibits discrimination based on a perceived connection between race, national origin, or disability and possible exposure to coronavirus—wearing a face mask doesn’t change this.

Rule #2: Comply with Laws Banning Discrimination and Harassment Against Racial and Ethnic Minorities

Fair housing law bans discrimination based on race and national origin, so it’s unlawful to exclude or otherwise discriminate against racial or ethnic minorities, even if motivated by concerns about COVID-19.

“As the CDC has said, viruses do not target specific racial or ethnic groups,” HUD Chief Ben Carson said in a statement. “Be aware that the Fair Housing Act and other federal laws prohibit the eviction, turning away or harassment of a person in housing because they are profiled, on the basis of race, national origin or other protected class, to be associated with COVID-19. The Fair Housing Act also prohibits retaliation and intimidation against persons who report acts of discrimination they have witnessed to law enforcement authorities, like HUD, or who aid someone who has been the victim of discrimination.”

Of particular concern during the COVID-19 outbreak are increasing reports of discrimination and harassment against Asian Americans. In the first four weeks following its official launch in mid-March, the STOP AAPI HATE reporting center said that it had received nearly 1,500 reports of coronavirus discrimination from Asian Americans across the country. More than half originated in California and New York—the states hardest hit by COVID-19 at the time. Civil rights violations involving workplace discrimination and being barred from businesses and transportation or refused service made up almost 10 percent of incident reports.

In New York City, officials announced the formation of a COVID-19 Response Team to handle reports of harassment and discrimination related to the outbreak. By mid-April, the New York City Commission on Human Rights recorded 248 reports of harassment and discrimination related to COVID-19, over 40 percent of which identify incidents of anti-Asian harassment or discrimination. By comparison, during this same time period in 2019, the commission received just five reports of anti-Asian discrimination.

The COVID-19 Response Team has taken action in 148 cases, including conducting early or emergency intervention, providing information on how to request a reasonable accommodation, referring the individual to another service or agency, or commencing an investigation. The 18 matters currently under active investigation span discrimination in housing, public accommodations, and employment on the basis of race, national origin, disability, and lawful source of income. Additionally, the Response Team has successfully resolved nine matters of COVID-19-related harassment and discrimination.

“In this time of unparalleled crisis, the NYC Commission on Human Rights is dedicated to responding to and investigating reports of bias, harassment and discrimination related to the COVID-19 outbreak in our city,” Chair and Commissioner of the NYC Commission on Human Rights, Carmelyn P. Malalis, said in a statement. Even in the midst of a pandemic, human rights cannot be violated, and we encourage anyone who has experienced COVID-19- related discrimination to report it to us.”

Fast Fact About Retaliation: Fair housing law also bans retaliating against anyone for complaining about discrimination or bias-based harassment, or otherwise exercising her rights under fair housing law. For example, a housing provider can’t evict someone for reporting housing discrimination to a state enforcement agency, explain New Jersey officials.

Rule #3: Don’t Let Fear of Virus to Lead to Disability Discrimination Claims

It’s important to keep fair housing disability rules in mind when dealing with COVID-19. The FHA bans discrimination based on disability, so it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability.

As noted by Secretary Carson, “There is much still to learn about COVID-19. We know, however, that persons with disabilities, including those who are older and have underlying medical conditions, are vulnerable and at high risk for a severe, life-threatening response to the virus. HUD recognizes that these persons may face unique fair housing and civil rights issues in their housing and related services. Housing providers are required to make reasonable accommodations that may be necessary to deliver housing and services to persons with disabilities affecting major life activities.”

There are no clear-cut answers about whether individuals who contract COVID-19 qualify for the disability protections under fair housing law. In part, that’s because the nature of the virus itself: For example, the symptoms of the condition vary so widely: Some people have no symptoms at all, while others suffer life-threatening, often fatal, consequences. For another thing, there’s still much that isn’t known about the virus—for example, whether people who have recovered from the virus are no longer contagious, and whether and for how long, they may be immune from the virus.

Under fair housing law, the disability provisions protect anyone who has a physical or mental impairment that substantially limits one or more major life activities. For example, the law would protect people with disabilities from discrimination, even if you believe that they have a higher risk of serious consequences from the coronavirus.

The law is also likely to cover anyone with serious symptoms of the virus, but it’s debatable whether it would cover someone with only mild or no symptoms of the virus. On one hand, even people with mild or no symptoms must self-quarantine to avoid any activities that could spread the virus to others, including work, a major life activity. On the other hand, the self-quarantine period is usually only a few weeks—and the disability provisions generally don’t cover temporary conditions.

Even in people with few, if any, symptoms of the virus, it’s important to remember that fair housing law protects not only individuals who have a disability, but also those who are regarded as having a disability—that is, anyone who is mistakenly believed to have a disability. Consequently, you could face a discrimination complaint if you take adverse action against someone because you believe they have the virus—whether or not they actually do.

Q&A

Q: Can or should I disclose the identity of residents who test positive for the virus to other residents?

A: In general, fair housing law requires that disability-related information be kept confidential, so you should exercise caution concerning what you tell your residents about anyone diagnosed with COVID-19.

The first step is to find out about recommendations of state and local authorities, if any, with respect to your obligation to disclose active COVID cases to the residents at your community. Absent applicable requirements, fair housing expert Doug Chasick says it’s fine to send a general notice to advise residents that there are active COVID cases at the community, but not to disclose the names or unit numbers of people with the virus. Disclosure may not only violate the resident’s privacy, but also trigger discrimination or harassment of the resident by others living at the community.

Rule #4: Carefully Consider Reasonable Accommodation Requests

In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant reasonable accommodations if necessary to allow individuals with disabilities to fully enjoy their dwellings.

Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. By definition, reasonable accommodations are exceptions to your general policies or practices. For example, fair housing attorney Terry Kitay says that if someone wants to break a lease early because she has COVID-19, and needs to be hospitalized for treatment, then a request for early lease termination would be an accommodation to a disability.  

Only individuals who qualify under the FHA’s definition of disability are entitled to reasonable accommodations. For example, someone who isn’t sick, but has lost employment because of stay-at-home policies, isn’t entitled to a payment plan as a reasonable accommodation under the Fair Housing Act, explains Kitay. Instead, this would be a customer service you’re providing for residents because of the pandemic.

In other cases, you could get a reasonable accommodation request for an exception to policies adopted to minimize residents’ exposure to the virus. For example, many communities closed amenities, such as fitness centers and pools, and other areas to slow the spread of the virus, but you could get a request by a resident with a disability, who usually uses the treadmill as part of his therapy, for an exception to the policy as a reasonable accommodation so he could use it.

Even though his request is related to a disability, fair housing law doesn’t require you to grant a request for a disability-related accommodation if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. In this case, Kitay says that his request to use the fitness center would probably be considered unreasonable—it would not only pose a direct threat of spreading the virus, but also impose an additional financial and administrative burden on the community to clean and sanitize the facility and the equipment after each use.

Rule #5: Comply with Laws Banning Discrimination, Harassment Based on Sex

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex. Though most sexual harassment claims are filed by women, the law is broad enough to protect both men and women from sexual harassment, regardless of whether the perpetrator is a man or a woman.

Since the COVID crisis began, there have been increasing reports of landlords pressuring women unable to pay rent due to lost income from the COVID crisis into “arrangements” and sexual conduct, according to Khara Jabola-Carolus, Executive Director of the Hawaii State Commission on the Status of Women. Though the law temporarily protects renters from evictions, there’s no official policy for rent forgiveness. About one-third of Americans were unable to pay their rent on April 1—and male landlords were taking advantage of the intensifying financial pressure, she said. 

In response to reports of sexual harassment during the pandemic, Attorney General William Barr directed federal prosecutors throughout the nation to deploy all available enforcement tools against anyone who tries to capitalize on the current crisis by sexually harassing people in need of housing.

“As the country adopted drastic measures to slow the spread of COVID-19, many Americans have lost their jobs and many more have seen their wages curtailed,” Barr said. “These losses have forced many to seek abatements or suspensions of their rent, with reports that nearly one-third of Americans were unable to pay their April rent at the beginning of the month.”

Though many landlords responded by trying to work with their tenants to weather the current crisis, Barr said that others have responded to requests to defer rent payment with demands for sexual favors and other acts of unwelcome sexual conduct. “Such behavior is despicable and it is illegal,” he said. “This behavior is not tolerated in normal times, and certainly won’t be tolerated now.”

In a statement, HUD Secretary Ben Carson praised the Attorney General for devoting all “necessary resource” to aid HUD investigations into reports of landlords demanding sexual favors in exchange for rent.

“The Fair Housing Act embodies the spirit of this great Nation where everyone is entitled to equal opportunity and respect,” Carson said. “No one should have to endure sexual harassment and degrading treatment, especially to keep a roof over their heads. I’m pleased Attorney General Barr has partnered with HUD to fully investigate and prevent sexual harassment in housing particularly during this difficult time in our country.”

Rule #6: Treat Applicants and Residents Consistently

Don’t treat people differently based on whether they have—or you believe they have—been exposed to COVID-19. Absent a positive COVID test, it can be difficult, if not impossible, to tell whether someone has the virus, because so many people have few, if any, symptoms of the virus.

It’s discriminatory to assume that someone has been exposed to the virus, simply based on where they—or their ancestors—were born. For example, enforcement officials in New Jersey explain that owners or managers can’t refuse to make necessary repairs to a unit because the resident is Asian and they’re afraid of contracting COVID-19. Nor can an owner or manager refuse to rent a property to someone based on these reasons. Fair housing law doesn’t prohibit a landlord from taking reasonable steps to protect himself or other residents from COVID-19, but such reasonable steps wouldn’t include actions premised on stereotypes based on race or national origin.

Consistency is key to fair housing compliance, says fair housing expert Doug Chasick. During the COVID crisis, for example, many communities have suspended regular maintenance operations, responding only to emergencies, to avoid the risk of exposure between residents and staff. When responding to emergency repair requests, it’s important for maintenance staff to respond to requests using the same safety practices to avoid potential discrimination claims.

Kitay agrees. When dealing applicants and residents, she says it’s a good idea to assume that everyone is positive, so you go into every situation with the same protocol.

Fair Housing Compliance Basics

• Suspend Judgment
• Think: Equal, Not Fair
• Be Consistent, which doesn’t mean “treat everyone the same”
• Manage Expectations
• Be Transparent – Communicate the “Why”
• Appreciate that Perception Is Reality

WHAT DOES THE LAW SAY?

Section 804(c) of the federal Fair Housing Act (FHA) makes it illegal “[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.” Notice that the rule covers not just landlords who make discriminatory statements in ads but also those who publish them.

The U.S. Department of Housing and Urban Development (HUD) interprets the prohibition very broadly as applying to all kinds of ads, not just newspaper ads. Moreover, the offense isn’t discriminatory advertising but making discriminatory statements, which includes communications that you may not normally think of as advertising, such as:

• Spoken, written, and online statements—including words, phrases, pictures, symbols, and other graphic images—that send the message that housing isn’t available to particular groups because of race, color, religion, sex, handicap, familial status, or national origin (which we’ll refer to collectively as “protected characteristics”);
• Expressing to leasing agents, employees, prospects, or any other person a preference for or against any renter because of the renter’s protected characteristic; and/or
• Selecting media or locations for advertising that deny particular segments of the housing market information about housing opportunities based on a protected characteristic.

Example: “Loft Apartments. . . . For Adults 21 & Over.” A family with a young child sued the owner of a Pennsylvania luxury community that placed ads including this language in local newspapers. HUD joined the lawsuit. The federal court found the owner liable for discriminatory advertising and ordered it to pay $35,000 in damages [U.S. v. Joyce, 2010].

It’s Not What You Mean But What You Say

Unlike with most other forms of fair housing violations, liability for making discriminatory statements doesn’t require proof of discriminatory intent. What matters is not what you meant but whether the statement you actually made would suggest a preference to an “ordinary reader or listener.” Thus, innocent intentions are no defense to a violation.

Example: The Massachusetts landlord probably acted with the best of intentions in running a Craigslist ad stating that an apartment was “not deleaded, therefore it cannot be rented to families with children under six years old.” But whatever the landlord’s intentions were, the ad clearly communicated the message that the apartment was off limits to families with children. Result: The landlord had to shell out over $38,000 in damages [Massachusetts Attorney General’s Office, May 2013].

You also need to recognize that exclusion can take the form of not only discouraging but also encouraging groups of people. Thus, phrases like “ideal for singles” imply that married couples with children are unwelcome.

Beware of State Fair Housing Laws

Finally, keep in mind that federal requirements are just the baseline for compliance and that most states have adopted their own fair housing laws covering groups or characteristics that the FHA doesn’t list as protected, such as sexual orientation, gender identity, marital status, ancestry, age, military status, and source of income. Thus, for example, an ad that includes the phrase “No Section 8 vouchers” would violate the laws of states that ban discrimination on the basis of a person’s source of income.

7 RULES FOR AVOIDING DISCRIMINATORY ADVERTISING

The ban on making discriminatory statements applies to a broad range of advertising and marketing practices, but the basic rules don’t vary by medium. Stated differently, the formula for avoiding discrimination in traditional advertising is pretty much the same as it is for avoiding discrimination in internet advertising. Thus, HUD, fair housing groups, and victims continue to bring cases against landlords and publishers for discriminatory statements made in newspapers and other traditional media outlets.

Rule #1: Avoid Discriminatory Buzzwords

Landlords that use phrases like “Whites Only” or “No Wheelchairs” in their ads richly deserve the liability they incur. But unlike obscenity, people don’t intuitively recognize discriminatory advertising when they see it. If they did, the vast majority of landlords who do believe in fair housing principles and want to comply wouldn’t get into trouble because of their ads. Inadvertent liability is often the result of using certain buzzwords and phrases that send subtle messages of exclusion. They may include not only references to protected classes and characteristics but seemingly neutral words like “restricted,” “exclusive,” or “private.”

Descriptions of the neighborhood can also raise a red flag. In describing the community, stick to neutral terms, such as “desirable neighborhood” or “quiet streets,” and avoid words indicating which groups live in it.

Standard descriptions of a unit’s features that include otherwise taboo words, such as “walk-in closets” and “family room,” don’t violate fair housing law, as long as the advertisement doesn’t otherwise suggest a discriminatory preference, according to HUD. (See this table based on government guidelines from the State of Oklahoma.)

Rule #2: Market Property, Not People

The rule of thumb for avoiding discriminatory advertising is to market the property and its amenities, not the people you think should live in it. Vet every ad, slogan, and marketing piece you create with one question in mind: Will the prospects who look at this item feel welcome? In making this determination, set aside your own personal opinions and consider the view of the “ordinary reader or listener,” since this is the standard by which you’ll be judged if somebody files a fair housing complaint.

Compliance strategy: Because litigation is so expensive—even when you win—the primary goal should be to avoid it at all costs. Thus, if there’s even a question about whether ad language will cross the line, err on the side of caution by not including it.

Example: If it could have done things differently, an Ohio community would have probably chosen not to run an online ad suggesting that, “Our one bedroom apartments are a great bachelor pad for any single man looking to hook up.” The good news is that the community eventually won the lawsuit claiming that the ad discriminated on the basis of familial status and sex; the bad news is that it took the community over five years of litigation and tens if not hundreds of thousands in legal fees to ultimately prevail [Miami Valley Fair Housing Center, Inc. v. The Connor Group, December 2015].

DEEP DIVE

Exceptions Where Ads May Express Preferences

While the law generally bans statements that express a preference based on a protected characteristic, there are a few exceptions, including:

• Roommates: Ads stating a preference for members of a particular sex as a roommate in a shared-living arrangement;
• Senior housing: Ads excluding children in communities that qualify under the “housing for older persons” exception, which applies if:
  • HUD has determined the housing is specifically designed for and occupied by elderly persons under a federal, state, or local government program; or
  • The housing is occupied solely by persons 62 or older; or
  • It houses at least one person 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 or older; and
• Accessible housing: Ads with information about the availability of accessible housing; and
• Affirmative advertising: Ads designed to attract persons to dwellings who would not ordinarily be expected to apply, when such efforts are part of an affirmative marketing program or undertaken to remedy the effects of prior discriminatory housing advertising or marketing.

Rule #3: Beware of Discriminatory Use of Human Models

Pay close attention to not just the words but the images contained in your ads and marketing materials. Be especially careful about using human models, whether via video, photograph, drawing, or other graphic techniques, to express preferences for or against different groups. The classic example is a picture or video that uses all white models to portray your residents. Whether you realize it or not, such an ad sends the message that people of color aren’t welcome in your community. Similarly, ads showing nothing but able-bodied people running, playing tennis, or engaging in other physical activities may send subtle exclusionary messages to persons with disabilities; failing to display kids may have the same effect on families with children.

Accordingly, HUD cautions that models used in display advertising campaigns “should be clearly definable as reasonably representing majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children.” If used, models should also portray persons in an equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, etc., HUD adds.

Landlords and their employees need to keep these principles in mind for not just professional shoots but handheld videos shot with a smartphone for posting to Facebook, Instagram, Zillow, or any other online site. There should be guidelines in place for vetting videos for potential fair housing risks before hitting the “send” button.   

Rule #4: Put the HUD EHO Logo in All Ads

There is one thing you should include in all of your advertising: the HUD equal housing opportunity (EHO) logotype, statement, or slogan. While not technically required under the FHA, these materials send the very opposite message conveyed by discriminatory ads, namely, that the property is available to all persons regardless of race, color, religion, sex, handicap, familial status, or national origin.

In addition to enhancing your reputation as an equal housing opportunity provider, including the logo may also serve to contradict any discriminatory messages your ads inadvertently send. One example is advertising for communities that have a religious name (such as “Roselawn Catholic Home”) or use of a religious symbol in an ad. According to HUD, these practices may indicate an illegal religious preference. But HUD also says that use of the religious name or symbol will be deemed acceptable if it’s paired with a disclaimer stating that the community doesn’t discriminate based on race, color, or any other characteristic protected under federal, state, or local law.

The logo examples here come from HUD’s fair housing advertising regulations that were officially rescinded as part of a large effort to eliminate advisory materials from official regulations, but which HUD still unofficially follows in implementing the law. The choice of logotype, statement, or slogan will vary depending on the type of media used (visual or auditory) and, in space advertising, the size of the advertisement. The rescinded regulations include a table for determining logo size in newspapers and other traditional print media:

For other ads, the EHO logo should be at least equal in size to the largest of the other logotypes; if no other logotypes are used, the type should be bold display face which is clearly visible.

Rule #5: Avoid Discriminatory Ad Placement  

Consider not just the content of your ads but where you place them. Explanation: Historically, landlords have been able to perpetuate segregation by deliberately advertising only in certain publications or outlets that minorities targeted for exclusion are known not to use. Examples include strategically placing billboard ads in predominately white neighborhoods and running newspaper ads in local publications read mostly by a white audience. The digital age and rise of websites that use sophisticated algorithms to target highly specific audiences have significantly increased the potential for landlords to engage in selective and manipulative ad placement strategies.

Of course, HUD and fair housing organizations are aware of these practices and scrutinize landlords’ marketing practices for evidence of discrimination.

HUD has also warned against relying exclusively on English-language media or media catering to the majority population in an area where non-English language or other minority media is also available.

Example: A group of 15 Latino residents sued the owners and operators of seven rental properties in Los Angeles for deliberately excluding Latinos by marketing newly vacated units primarily through websites directed at young, English-speaking, single, nondisabled people (such as Radpad, Hotpads, and Walk Score). The defendants denied the accusations and asked the federal court to toss the case without a trial. The court ruled that the residents had a legally valid claim and could take their case to trial [Martinez v. Optimus Props., LLC, March 2017].

Your best defense is a proactive strategy relying on the creation and implementation of a written marketing plan to ensure that your marketing campaign is as broad and inclusive as possible. Retain copies of the ads you place, along with detailed records of when and where you placed them. Documenting your efforts to reach a wide, diverse audience will help you defend yourself against claims of selective advertising; better yet, it may prevent such claims altogether.  

Coach’s Tip: One exception to the ban on selective ad placement allows for targeting a particular group as part of a broad, inclusive marketing campaign, provided that the landlord has a valid, nondiscriminatory reason for doing so. For example, it may be permissible to run ads in a Vietnamese language newspaper if large numbers of Vietnamese people settle into your community and surrounding area.

DEEP DIVE

Fair Housing & Facebook

In 2018, the National Fair Housing Alliance and other fair housing groups sued Facebook for “virtual redlining” by allowing housing advertisers to use its platform and lists of “excluded” groups to customize ads that families with children, women, and other protected classes wouldn’t be able to receive. The complaint also accused Facebook of giving housing advertisers the ability to exclude certain “interest” categories from receiving ads that are disability-based (such as people who are interested in disabled veterans or disabled parking permits) or national origin-based (such as people who are interested in English as a second language).

Facebook settled the suit in 2019 by agreeing to change its advertising platform. However, HUD wasn’t impressed with the solution and has filed its own lawsuit challenging Facebook’s advertising practices in federal court.

Meanwhile, a group of Facebook users have brought a class action against the social media giant contending that they were on the receiving end of housing advertisers’ discriminatory practices enabled by the use of the Facebook platform. In January 2021, a federal court rejected the claim for lack of specificity; however, the dismissal was “without prejudice.” Translation: The plaintiffs can still file an amended complaint.    

Rule #6: Keep Your Advertising Methods Consistent

Expansive campaigns targeting multiple markets can expose you to liability if your advertising methods are selective. So try to keep your campaigns consistent from market to market. For example, when using human models primarily in media that cater to one racial or national origin segment of the population, consider a complementary advertising campaign using models targeting other groups. Another example of selective marketing is using racially mixed models to advertise one property and not others. You also need to be careful when advertising in publications or other media directed at one particular sex or persons without children.

Rule #7: Beware of Discriminatory Advertising on Your Community Website

As a matter of fair housing compliance, your website is an extension of your advertising to the extent you use it to show the benefits of living in the community. Result: You need to be careful that the content you post—including words, photos, video, and other graphic images—don’t express preferences for or against any groups based on race, religion, sex, or other characteristics protected under federal, state, or local fair housing laws.

In general, the website should describe the community, its units, and amenities, but not the kind of people who should want to live there. Providing maps and directions can also express preferences if they include references to institutions or landmarks associated with certain racial, religious, ethnic, or other groups. Examples: Saying your community is within walking distance of:

• A church (signal to Christians)
• A black development (signal to blacks);
• A development known for its history of excluding minorities (signal to whites); or
• A community center dedicated to a particular nationality.

When they left their children's play furniture and other items out on the patio, the apartment manager issued a few warnings and then another $20 fine.

The family's actions violated apartment policies, according to a complaint filed last September in Multnomah County Circuit Court. But under an agreement with the state announced Friday, the apartment complex and its property management firm will pay nearly $65,000 to tenants, the state and a legal aid organization. They will have to ditch policies that tenants criticized as discriminating against families.

And they will have to install a playground structure.

"It's a really good (result) for families in Oregon," said Christina Dirks, who represented the Sazykins, one of several families who made claims against the apartment complex and property management firm Norris & Stevens. "It's helping to assure that families in our community have equal access to enjoy their rental housing."

Under the agreement, Wah Mai Terrace and Norris & Stevens, do not admit any wrongdoing.

Norris & Stevens representatives did not return a call for comment.

Jonathan Radmacher, an attorney for the Wah Mai Terrace owners, said the policies were never meant to be anti-children.

He noted that the apartment complex owners and property managers were quick to address the problems as soon as they were brought up.

The policy that barred tenants from storing items other than bikes and barbecue grills on their patios was to keep the look of the complex presentable and clean, Radmacher said. The policy that prohibited children from riding bikes, tricycles, Big Wheel-type toys, skateboards and rollerskates on the property was out of concern for older residents, he said.

"There are lots of places to play in the neighborhood," he said, noting Ventura Park and Floyd Light Middle School, both about a block or two away from the complex at SE 111th and SE Stark.

He criticized the state, saying that the apartment complex and property managers were not aware of the discrimination concerns until the state intervened and threatened them with tens of thousands of dollars in state legal fees. "I know my client would never want to have any policy that's discriminatory... They would always want that brought to their attention, and they would fix it," he said. About $35,000 of the settlement will go to six current and former tenants. Norris & Stevens and Wah Mai Terrace also must pay attorney fees and costs of $20,000 to the Oregon Department of Justice and $9,816.36 to Legal Aid Services of Oregon.

Representatives for the two entities must participate in training on fair housing practices.

They also cannot try to collect fines and other debts that were levied against tenants under the "potentially unlawful" policies.

Norris & Stevens, which manages 8,300 units throughout the Portland area, will adopt the revised policies at all properties in its portfolio, and not just to the Wah Mai Terrace Complex, the state said.

The change helps families - particularly low-income families - who don't have the means to just pick up and move elsewhere, said Dirks, a staff attorney with Legal Aid Services of Oregon. The rental market, as well, offers few options.

The Portland market is tied with Minneapolis for having the second-lowest vacancy rate in the nation, according to a survey of the National Association of Realtors.

While landlords who deliberately abuse their power in this way deserve whatever liability they incur, retaliation can also happen inadvertently. Risk of liability comes into play any time you reject, evict, raise the rent, or make housing decisions that negatively affect a person who’s previously exercised a fair housing right. This is true even if retaliation was the furthest thing from your mind. Moreover, while prohibition against retaliation has always been a fundamental part of fair housing laws, retaliation claims against landlords have increased noticeably in recent years.

How does retaliation happen and what can you do to avoid it? Those are the questions this month’s lesson will answer. First, we’ll explain the laws of retaliation and the conundrum they pose when dealing with protected individuals after they’ve engaged in protected activities. Then, we’ll outline eight rules to follow to ensure that your rental staff is sensitive to retaliation liability risks and the actions they can take to defuse them. At lesson’s end, you can take the Coach’s Quiz testing your knowledge of the lessons and ability to apply them in real-life situations.

WHAT DOES THE LAW SAY?

Retaliation is a form of discrimination that the federal Fair Housing Act (FHA) bans. The rule stems from Section 818 of the FHA, which makes it illegal to “coerce, intimidate, threaten, or interfere with” any person “on account of his having exercised” any right the law protects. Regulations and court decisions interpreting the provision have made it amply clear that acts of retaliation violate Section 818.

In a retaliation proceeding, there are four things that the rental applicant, tenant, or other complainant (which, for simplicity’s sake, we’ll refer to as “tenant,” except where the context requires otherwise) must prove to make a valid case:  

1. Tenant Exercised a Fair Housing Right

First, tenants must show they exercised a fair housing right. Suing the landlord is an obvious example. However, “exercising” a fair housing right can also take more subtle forms, such as:

• Requesting accommodations for a disability;
• Reporting a discriminatory housing practice to a landlord or an authority; and/or
• Talking to a HUD official, bringing a complaint, testifying, assisting, or participating in any way in an FHA proceeding.

2. Landlord Knew of Tenant’s Exercise of the Right

To be liable for retaliation, tenants must show that the landlord knew that they exercised a fair housing right. A landlord is considered to have knowledge if a leasing agent or other employee knew of the activity.  

3. Landlord Took Adverse Action Against Tenant in Response to the Exercise

Next, tenants must show that they were on the receiving end of some “adverse action” from the landlord after they exercised the fair housing right. Examples include:

• Rejection of a rental application or renewal;
• Eviction;
• Rent increases and other unfavorable rental terms;
• Bringing a lawsuit without any reasonable basis;
• Threats to engage in the above or any other adverse actions; and
• Harassment.

4. The Landlord Took the Adverse Action Because of the Exercise

The first three requirements are usually easy to prove. That’s why most retaliation cases come down to the fourth element: Whether the exercise of the fair housing right was the reason the landlord took adverse action against the tenant. Note that retaliation doesn’t have to be a landlord’s only motive for taking adverse action against a tenant; it need only be one of the factors in the decision. In other words, a retaliatory motive taints the entire decision even if there were legitimate, nondiscriminatory motives as well.

Timing Is Everything—Or Is It?

Because landlords rarely admit that the adverse actions they take are in retaliation for the exercise of a fair housing right, there usually must be some other evidence of the landlord’s retaliatory motive. The most common form of evidence is timing. Adverse action that occurs after a tenant exercises a protected right creates the inference that it happened because of the exercise. The smaller the time interval, the stronger the inference. Thus, evicting a tenant 24 hours after she makes a fair housing complaint puts you in a terrible position at trial.  

Even so, the mere fact that adverse action comes after exercise of a right isn’t enough to prove retaliation. Maybe the timing was just coincidental. Besides, exercising a fair housing right doesn’t mean tenants can do whatever they want. After all, a tenant who hasn’t paid rent in months shouldn’t be able to avoid eviction simply because he previously filed a discrimination complaint against his landlord.

Example: A tenant claimed that her Colorado landlord threatened to evict her after she complained that he was discriminating against families with children. The landlord admitted to making the threat but insisted he made it because of the tenant’s refusal to follow a community rule requiring all tenants to put heat tape on their water supply pipe. The HUD administrative law judge (ALJ) found that the evidence supported this explanation and tossed the retaliation case [HUD v. Quintana, HUDALJ 08-92-0239-1 (1994)].

Compliance Strategy

Tenants suing for retaliation have the burden of proving each of the above four elements. That can be a huge advantage in your favor. It means that all you have to do to defeat a case—or better yet, deter tenants from bringing it in the first place—is knock out one of the required elements. While any one of the four elements will do, targeting the fourth element requiring proof of retaliatory motive is almost always the most promising strategy.

8 RULES FOR AVOIDING RETALIATION LIABILITY

You can minimize your liability risks for fair housing retaliation by ensuring your leasing agents and management staff follow these eight rules.

Rule #1: Don’t Retaliate Deliberately

The starting point is to strictly prohibit your staff from targeting tenants for complaining about discrimination or engaging in any other form of protected activity. “Weaponizing rental, renewal, or other leasing decisions to punish fair housing ‘trouble makers’ is a recipe for liability disaster,” cautions a Georgia fair housing consultant. Unfortunately, the six-figure damage awards being handed out against landlords suggests that deliberate retaliation remains an all-too-common occurrence.

Example: A Los Angeles area landlord shelled out $225,000 to settle charges of raising the rent, threatening to evict, and taking away a family’s parking space because of their association with another family that was evicted because they had a disabled child [Downey Property Management, et al., Calif. Dept. of Fair Employment and Housing press release, October 2018].

Example: An Ohio landlord paid $177,500 to settle charges of sex harassment against at least 20 tenants, including refusing to make repairs for women in retaliation for spurning sexual advances [US v. Klosterman, (S.D. Ohio), Oct. 1, 2020].

Taking adverse action might be especially tempting when a tenant’s discrimination accusation or complaint is totally bogus. But while it may seem unfair, retaliation is still illegal even if the accusation that brings it on is false; all that’s required is that it be made in good faith.  

Rule #2: Don’t Try to Keep Tenants from Exercising Their Fair Housing Rights

Don’t do or say anything to pressure or persuade a tenant who expresses fair housing complaints or concerns not to pursue a fair housing complaint. Once a tenant comes to you with a fair housing complaint, your first reaction might be to try to set things right so you don’t end up getting sued. The irony is that in seeking to prevent a fair housing lawsuit, you might actually be inviting one. That’s because your efforts might be seen as an illegal act to “coerce, intimidate, threaten, or interfere” with fair housing rights.

So refrain from making not just threats but also promises or inducements that may be seen as bribes designed to stop the exercise of a fair housing right. Although you can offer constructive solutions, you should make it clear that your suggestions are just that—suggestions—and don’t preclude tenants from filing a complaint or pursuing their other fair housing remedies.

Rule #3: Don’t Charge Tenants Fees for Exercising Their Fair Housing Rights

Another form of retaliatory activity banned by Section 818 is charging tenants fees, deposits, or extra rent for exercising their fair housing rights. Common examples include charging fees for providing disabled tenants handicap-accessible parking spaces or other reasonable accommodations that the FHA requires.

Example: A Colorado condo association fined a tenant with epilepsy for allowing her to keep a service dog in violation of its “no dogs” policy. The tenant sued for retaliation. The association asked for dismissal without a trial. HUD considered the case so important that it intervened on the tenant’s behalf. Fining a tenant for requesting an accommodation is evidence enough to support a retaliation claim, regardless of whether the underlying accommodations claim was valid, the government argued. The federal court agreed and allowed the case to go forward. Retaliation claims stand on their own and aren’t dependent on the validity of the underlying discrimination claim that prompted them, the court concluded [Arnal v. Aspen View Condo. Ass’n, et al., 226 F. Supp. 3d 1177 (D. Colo. 2016)].

Rule #4: Differentiate Between Retaliation and Legitimate Enforcement

This is the most important rule of the entire lesson. There’s a big difference between retaliation and enforcement of rental application and lease rules. Stated differently, protection from retaliation doesn’t require you to accept an unqualified rental applicant or tolerate a tenant’s failure to pay rent or other serious violations. Thus, a tenant isn’t allowed to create a serious disturbance on Tuesday just because he complained about a fair housing issue on Monday.

The key question: How do you enforce your rental qualifications and lease rules against applicants and tenants after they’ve exercised a fair housing right? The answer is not by refraining from taking the action but by ensuring that you can justify it by showing that you did it for legitimate, nondiscriminatory reasons having nothing to do with the previous exercise of a fair housing right.

Example: A Pennsylvania public housing tenant filed a state discrimination complaint contending that she was sexually harassed by maintenance workers and her neighbors over the course of her 10-year tenancy. A few months later, she was evicted. Although the timing was mighty suspicious, the federal court ruled in the landlord’s favor and dismissed the case.

The landlord won because the tenant couldn’t get past the fourth prong of the retaliation test by proving there was a causal link between the eviction and the fair housing complaint. And the reason she couldn’t prove this was because the landlord was able to demonstrate that it had received multiple complaints about the tenant in the months after the sexual harassment complaint. Neighbors accused her of verbal assault, beheading a neighbor’s cat, and inviting a neighbor’s child into her apartment and not letting her go until the police arrived. So, the court concluded that the eviction was for a legitimate and nondiscriminatory reasons and not an act of retaliation for filing the sexual harassment complaint [Madison v. Philadelphia Housing Authority, Civil Action 09-3400, E.D. Pa., June 2010].

Rule #5: Document Legitimate Reasons for Taking Adverse Actions

Doing what the landlord was able to do in the Madison case is the blueprint for not only defeating but preventing retaliation claims. To achieve that objective, you must keep careful records documenting your rental and leasing decisions. Specifically, you must be able to demonstrate the legitimate and nondiscriminatory bases for the rules and standards you establish and the actions you take to enforce them.

Without these records, it will be easy for the people you reject, evict, fail to renew, etc. after they engage in protected fair housing activity to claim that you retaliated. The documents are essential to counteract these claims and show the policy, action, or decision was justified and not a pretext for retaliation.

You also need documentation any time you amend your community bylaws, policies, rental standards, and rules of conduct. Otherwise, a tenant might claim that you made the change to retaliate against them for exercising a fair housing right.

Example: The owner of a Georgia condo claimed the community association deliberately adopted new rent restrictions to keep her from following through with her plans to rent the unit to an African-American woman. Although the deal did go through, the owner sued the association for trying to stop it. The association denied the charges and insisted that the bylaw changes had nothing to do with the proposed rental.

Thus, as is often true in retaliation litigation, the case boiled down to the evidence of the housing provider’s intentions. Unlike the landlord in Madison, the association in this case couldn’t come up with evidence justifying its proposed new rental restrictions. In fact, the absence of discussion of the change in the corporate meeting minutes belied the association’s contention that they were already in the works at least a year before the proposed rental arrangement.

By contrast, there was evidence suggesting that the association was concerned that leasing the unit to an African-American tenant would reduce property values and lead to protests by other owners in the community. Result: The Georgia state court ruled that there was enough evidence to allow the case to go to trial. Having lost its bid for dismissal, the condo association then faced an unenviable choice: Pay a hefty settlement or risk a trial [Bailey v. Stonecrest Condo. Assoc., Inc., 2010 WL 2472501 (Ga.App.)].

Rule #6: Enforce Your Rules and Rental Criteria Consistently

Showing that an enforced policy is legitimate and nondiscriminatory isn’t enough to justify an adverse action against a tenant who has engaged in protected activity; you must also be able to show that the action is consistent with your previous practices. Otherwise, it might look like you’re singling out the tenant for selective enforcement. Thus, for example, failure to follow pool rules would look like a pretext for not renewing a tenant if you let other tenants get away with similar violations.

Deciding not to renew the lease of a person who has engaged in protected activity is a frequent source of retaliation claims, attorneys warn. Accordingly, they suggest that you create a policy for nonrenewals and apply it consistently to all tenants. In addition to listing clear and legitimate criteria for nonrenewals, the policy should require staff to create a memo documenting its discussions about and reasons for not renewing a tenant. These records can put you in a strong position to defend against a claim for retaliatory nonrenewal.  

Rule #7: Don’t Retaliate Against Third Parties

FHA protection from retaliation covers not only rental applicants and tenants claiming to be victims of discrimination, but also third parties who help or encourage them to pursue their fair housing rights. That includes fair housing associations and even your own employees. Result: It’s illegal to fire, demote, transfer, cut the pay of, harass, or take other unfavorable employment action against an employee for speaking up against discriminatory practices or advising aggrieved tenants to contact HUD or other fair housing agencies.

Example: Owners and managers of a Kansas City high-rise rental community shelled out $2.13 million to settle allegations of creating a racially hostile environment and retaliating against a former employee for cooperating with HUD investigators and helping others file complaints with HUD. The abuse, complete with hangman’s nooses and racial slurs, was so bad that the federal court also issued an order permanently banning the community manager from working in rental housing and ordering her to pay a $55,000 civil penalty [U.S. v. Sturdevant, Civil Action No. 07-2233-KHV, Fed. Dist. Ct. Kansas, May 2010].

You can also get into trouble if you take retaliatory action against tenants for opposing discrimination against their neighbors. This is true even if the tenant targeted for retaliation is white or otherwise not part of a protected class under the FHA.

Rule #8: Implement a Non-Retaliation Policy

Although it’s never fun when a rental applicant or tenant comes to you with a discrimination complaint, discouraging such reports could expose you to liability for interfering with the exercise of fair housing rights under FHA Section 818. Moreover, these reports should be welcomed because they can help you identify and root out hidden discrimination problems in your community.

The problem is that people may be reluctant to speak up because they fear retaliation. For example, suppose an applicant hears a leasing agent use a racial slur. What you want her to do is come forward and tell you. But the applicant won’t do that if she thinks it might lead you to reject her. As a result, she may tell a local fair housing organization instead.  

Answer. Many manufactured housing communities in Oregon have large trees. While Oregon law has imposed the duty of general tree maintenance on the residents, there is little question but that most do not have the expertise, skill or financial means to provide the type of maintenance that may be required for large older trees. With this in mind, the MHCO encouraged the Landlord-Tenant Coalition to craft a bill that fairly and clearly allocated the responsibility for tree maintenance in a realistic manner. Landlords are in a better position than residents to obtain and afford good liability insurance, since it is a standard cost of doing business. Moreover, there was concern that under the existing law, some park owners might not regard the issue of tree maintenance as their problem. In reality, however, it is. Injury or death resulting from falling limb or tree that should have been trimmed or removed is surely going to result in potential liability to the park owner. Accordingly, the statute allocates the risk in a more realistic and practical manner: Normal maintenance for trees on a resident's space remains with the resident. However, if the tree has certain features that make it a "hazard tree" then responsibility shifts to the landlord - unless the resident planted the tree. This delineation should help both landlords and residents understand their respective responsibilities. Here is a summary of the current 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. 2. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act. 3. 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. 5. 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. 6. 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. 7. 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] Conclusion. It sounds as if your solution was a good one and everyone was satisfied with the outcome. Your question did not specify whether the tree was a "hazard tree." If it was, then my question to you would have been: Did you develop a tree policy for your park? By the fact that you're asking this question, I assume you have none. Even if you did, it would be hard to apply it retroactively. With the recent snow storms of February, perhaps community owners will become more mindful of these issues. The first order of business is to take a survey of the hazard trees, and then develop a program for safety maintenance. Lastly, of course, park owners should always have a good policy of liability insurance for $1,000,000 or more that covers this type of situation. Fortunately, no one was injured in your situation, but if so, the solution might not have been so easy.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) makes it illegal to discriminate on the basis of race, color, religion, sex, familial status, national origin, or disability. The vast majority of undocumented alien discrimination cases involve exclusion of people who aren’t legal citizens of the U.S. The question: Is this legal?

Damned If You Do: How the FHA Applies to Undocumented Aliens

Notice that citizenship and immigration status aren’t on the list of FHA “protected classes.” In January 2003, the U.S. Department of Housing and Urban Development issued a memo clarifying that the FHA “does not prohibit discrimination based solely on a person’s citizenship status.” Nor does the law bar discrimination based on “immigration status or resident alien” status, the HUD memo adds. In other words, people who are in this country illegally can’t sue for discrimination under the FHA if that’s the sole reason they experience discrimination.  

However, there’s more to the story. Undocumented aliens and non-U.S. citizens who get excluded may have valid grounds to sue for other forms of discrimination, including religion, race, and especially national origin. Rule: FHA protections extend to every person in the U.S., regardless of their immigration or citizenship status. Stated differently, a person doesn’t have to be a U.S. citizen to sue for discrimination.

Example: A Virginia townhouse community rejected a resident alien couple because they weren’t U.S. citizens. The couple sued, and the federal court ruled that they had a valid FHA claim for national origin discrimination. A citizenship requirement may be part of a wider scheme to exclude persons based on their national origin, the court reasoned [Espinoza v. Hillwood Square Mut. Ass'n, 522 F. Supp. 559 (E.D. Va. 1981)].

Of course, the same principles could apply to other protected classes. Thus, for example, a citizenship requirement may also constitute discrimination on the basis of race, color, religion, sex, familial status, national origin, or disability.

Refusing to rent to non-U.S. citizens may also violate other federal civil rights laws. For example, people who aren’t U.S. citizens may be permanent legal residents with “Green Cards” who enjoy nearly all the same rights as citizens to live and work in the country.

In addition to federal laws, landlords must comply with any stricter requirements under state and local fair housing laws. And immigration status is a protected class in some states and municipalities. For example, California makes it illegal to inquire into an applicant’s immigration status; New York City bans discrimination on the basis of “alienage or citizenship status.”

DEEP DIVE

Anti-Harboring Laws

Federal and some states’ immigration laws make it a crime to “harbor” undocumented aliens. However, most courts have ruled that the laws don’t penalize landlords for simply renting housing to people without regard to their immigration status.

Example: In February 2017, a Texas federal appeals court ruled against two landlords who were willing to rent to persons regardless of immigration status but feared they might be prosecuted for “harboring” illegal aliens under state law. The lower court agreed and issued a temporary ban on Texas’s enforcement of the law. But the appeals court lifted the ban and dismissed the case, saying there’s a distinction between “harboring” and simply renting to an undocumented alien [Cruz v. Abbott, February 2017].

Damned If You Don’t: The Liability Risks of Not Screening Applicants’ Immigration/Citizenship Status

Here’s where things get tricky. While screening on the basis of immigration or citizenship status is problematic for conventional housing, it’s actually required for some forms of federally assisted housing. Thus, for example, landlords participating in the Section 8 program are obligated to ask and confirm that applicants and tenants are permanent U.S. citizens or hold some other lawful immigration status.

There are also states and municipalities where landlords are required to verify applicants’ immigration status or face severe penalties, including stiff fines and loss of their business license to operate.

Bottom Line: It’s crucial to consult an attorney and be aware of the fair housing requirements of your particular jurisdiction in determining your policies and protocols for screening and leasing to immigrants.

7 RULES FOR AVOIDING DISCRIMINATION AGAINST IMMIGRANTS

Once you sort out the basic legal landscape, you need to establish clear policies on leasing to undocumented aliens and train your leasing and management staff to implement them consistently. Here are the seven rules to cover in your training.

Rule #1: Ensure Nondiscriminatory Justification for Citizenship Screening

Technically, unless you live in a state or municipality that prohibits it, screening applicants’ citizenship and/or immigration status isn’t illegal; it might even be required. However, there are risks you must avoid if you adopt such a policy.

First, you need a legitimate, nondiscriminatory and documented business justification for making citizenship or immigration status a qualifying criterion. Doing it because the law requires it is one example. But also keep in mind that the vast majority of undocumented aliens in the U.S. belong to a minority racial, religious, and/or nationality group. Accordingly, stereotypes about undocumented aliens being troublemakers or not paying rent open the door to discrimination on the basis of religion, race, and national origin. Thus, for example, refusing to rent to immigrants because they “can’t keep a steady job” may be deemed a pretext for excluding certain nationalities, particularly in properties located near the Mexican border or on the West Coast where there are large numbers of Asian immigrants.

Rule #2: Apply Screening Policy Consistently

Whatever screening approach you adopt, you must apply it consistently. Just having a principled and justified policy requiring rental applicants to verify their U.S. citizenship won’t protect you if you follow it in some cases but not others. The 2003 HUD memo uses the following example to illustrate the fair housing liability risks of an inconsistent citizenship or immigration status screening policy.  

Example: A person from the Middle East applies for an apartment. Because he’s from the Middle East, the landlord requires him to provide additional information and forms of identification and refuses to rent him the apartment. Later, somebody from Europe applies for an apartment at the same complex. Because the person is from Europe, the landlord rents him the apartment without making him complete additional paperwork or verify the information on the application and rents the apartment. This would be disparate treatment on the basis of national origin.  

Implementation Strategy: The only way to ensure the consistency necessary for compliance is to have clearly written policies that explain why you screen for citizenship and/or immigration status along with procedures and protocols for implementing them. What you must guard against, above all, is allowing leasing staff to ask questions or make decisions about whether to screen particular applicants based on their appearance, accent, apparel, etc.

Rule #3: Ask for the Right Kind of Proof

If you do decide to screen for citizenship and/or immigration status, you need specific procedures and protocols to do it properly. You don’t have to take applicants at their word and have the right to request information enabling you to verify their status. Again, consistency is the key. If you ask one applicant for documentation, you must ask all applicants for it. You must also be careful to request the right information. Acceptable proof depends on whether you’re seeking to verify an applicant’s status as a citizen, immigrant, or nonimmigrant:

• Citizenship: Acceptable proof of U.S. citizenship includes a valid current U.S. passport, birth certificate, or certificate of naturalization;
• Legal immigrant: Proof of legal immigrant status—that is, noncitizens who have the right to permanently remain in the U.S., include a Permanent Resident Card (a.k.a., “Green Card”) and an official Social Security number;
• Legal nonimmigrants: Legal nonimmigrants are persons who are allowed to be in the U.S. on a temporary basis for specific reasons. Such applicants should have a non-U.S. passport from their native country along with a Form I-94 (a.k.a., Arrival Departure Record, or Entry Permit listing when they entered the U.S. and how long they have a right to stay). They also need a visa, such as an F-1 visa for students, unless they’re from one of the countries that has signed a visa waiver agreement with the U.S.

Rule #4: Apply Your Normal Screening Standards to Immigrants

There’s no rule requiring landlords to make special concessions for applicants based on their citizenship or immigration status. In other words, you may require verification of identity (such as a driver’s license, passport, or other form of government ID), financial and rental history, and other legitimate qualifications that you use to screen any other applicant.

It’s standard practice to ask applicants for Social Security numbers (SSNs). This is okay, especially since many screening companies require an SSN to perform tenant screening, such as credit and criminal background checks. But don’t automatically reject applicants because they don’t have SSNs. Explanation: Not having an SSN doesn’t necessarily mean the applicant is in the country illegally. Noncitizens need to get SSNs only if they want to work in the U.S. And tenant screening companies may still be able to vet their qualifications even without an SSN using alternative information, such as the applicant’s name, date of birth, and last known address.

Also, note that unauthorized immigrants may obtain drivers’ licenses in at least 16 states and the District of Columbia (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Massachusetts, Nevada, New Jersey, New York, Oregon, Utah, Vermont, Virginia, and Washington).

Coach’s Tip: Contact an immigration attorney, the U.S. Bureau of Citizenship and Immigration Services (BCIS), or State Department if you’re unclear about documentation requirements or have questions about the documentation of legal immigration that an applicant presents to you.

Rule #5: Don’t Make Ability to Speak English a Rental Criterion

In September 2016, HUD issued guidance confirming what several courts had previously ruled—namely, that excluding applicants or tenants based on their limited English proficiency (LEP) violates the FHA. Explanation: Statistically, most LEP people come from a country other than the U.S. Thus, disqualifying people because they’re LEP has the effect of discriminating on the basis of national origin (and, in some cases, race and/or religion). Discriminatory practices to avoid include:

• Imposing an English-speaking language-related requirement on people of certain races or nationalities;
• Posting ads that contain blanket statements, such as “all tenants must speak English”; or
• Immediately turning away applicants because they’re not fluent in English.

Example: In 2013, HUD ordered a Virginia property management company to pay $82,500 to settle allegations of not letting a Hispanic woman apply for an apartment. According to the complaint, the company refused to give her a rental application because she didn’t speak fluent English even though she brought along a bilingual person to act as translator. HUD investigators also found that the company actually had a written policy requiring all prospects to be able to communicate with management in English without help from others [Travsiňa v. Virginia Realty Company of Tidewater, Inc., FHEO Case Numbers 03-11-0424-8].

Strategic Pointer: It’s imperative to ensure that leasing, management, and other staff remain calm, patient, poised, and professional at all times when dealing with LEP people. Giving in to frustration, even if it’s just a momentary and isolated lapse, may result in comments and actions that serve as Exhibit A in an intentional discrimination case against you.

Example: In 2017, the owner and manager of a California community had to shell out $20,000 to settle claims of national origin discrimination against Latino tenants. The turning point came when a local fair housing group joined the case bringing along evidence showing that the manager repeatedly made statements about not liking having Latino tenants at the community because they didn’t speak English.

For more guidance on this topic, see the Coach’s July 2021 issue, How to Avoid Discriminating Against People with Limited English Proficiency.

Rule #6: Don’t Use Tenant’s Immigration Status as a Bargaining Chip

Citizenship and immigration status liability issues can arise not only during the leasing process but also in the context of dealing with current tenants. One common example is seeking to use that status to extort a rental or other concession from the tenant. In 2012, HUD issued guidance (in the form of FAQs) clarifying that it’s “illegal to coerce, intimidate, threaten, or interfere with a person’s exercise or enjoyment of” FHA rights. “This includes threats to report a person to U.S. Immigration and Customs Enforcement (ICE)” to get them to move out or accept unfavorable treatment, or in retaliation for reporting housing discrimination to HUD.

Example: A married couple sued their landlord for threatening to report them to federal immigration authorities if they didn’t move out within a matter of days. They also claimed the landlord threatened to report their attorney to the California Bar for illegally advocating on behalf of tenants it perceived to be undocumented. In April 2020, the landlord agreed to pay $250,000 in damages and attorney’s fees to resolve the allegations of national origin discrimination [DFEH settlement announcement, April 22, 2020].

Rule #7: Protect Immigrant Tenants from Harassment

Immigrant tenants may become a target for harassment, intimidation, and abuse by property staff and neighboring tenants. Regrettably, the emergence of immigration as a divisive political issue in recent years has made such behavior a more widespread problem in the context of not only rental housing but many other aspects of social activity. And to the extent it’s typically based on a tenant’s national origin, race, or religion, landlords that engage in or allow others to engage in such harassment are at risk of liability for interfering with tenants’ use and enjoyment of the property they lease.

Strategic Pointer: Preventing harassment is the bare minimum. Achieving true compliance requires a shift in culture, one in which nationality, racial, and religious differences are not only tolerated but appreciated and respected, if not actively embraced. Staff training should strongly emphasize professionalism and the need to respect the diverse ethnic and cultural differences among prospects, applicants, and tenants.

To accomplish this requires cultural sensitivity and awareness of how well intentioned and seemingly innocent acts and statements may be considered offensive to persons of different national, ethnic, or religious backgrounds.

Example: Training of maintenance and other staffers who may enter into a tenant’s apartment should emphasize that removing one’s shoes before entering another person’s home is an essential protocol of respect in some cultures.

Also train staff to avoid asking people about their accents or where they come from. While such questions might be the product of genuine curiosity or desire to engage on a personal level, they may also be construed as a form of illegal inquiry, especially if they’re accompanied by clumsy or insensitive remarks.

Example: In an attempt to make casual conversation, a real estate broker married to a Brazilian woman asked the wife of a married couple where she was from. What the broker didn’t know was that the wife, who was from Venezuela, felt as if she had just been denied a rental at another property because of her national origin. “Here we go again,” she thought when the broker asked the question. She was convinced that they had just lost a rental opportunity because of her national origin and that it was happening again. The couple filed a discrimination complaint. Result: The broker was found liable for discrimination and ordered to pay $76,500. The Massachusetts appeals court upheld the ruling—although it did reduce the damages [Linder v. Boston Fair Housing Commission, February 2014].

Example: In 2013, a Washington public housing community fought off a fair housing complaint filed by a resident who was threatened with eviction for feeding pigeons and allowing them to nest on his deck. The community’s rules prohibited the feeding of stray animals and wildlife, so he received several warnings that he’d be evicted if he didn’t stop. He eventually complied and no further action was taken against him, but the resident sued the community for discriminating against him because of his race. He failed to prove that he was being falsely accused since he admitted that he allowed the pigeons to nest on his deck. And the court rejected his claim that nonminority residents fed the pigeons and were not disciplined, noting that other residents viewed the pigeons as a nuisance and were trying to get rid of them in various ways, including poison [Bahati v. Seattle Housing Authority, September 2013].

To ward off fair housing trouble, it’s a good idea to have a written policy detailing your standards of conduct so all prospects, residents, and staff members understand what behaviors constitute lease violations. Putting it down on paper heads off claims that the resident didn’t know about the rules or understand the consequences of breaking them.

Make sure that your rules conform to state and local requirements by asking your attorney for help in drafting a policy that defines what conduct is considered a lease violation. Make the rules as specific as possible—for example, by quantifying how many times an act must be committed before it’s considered a lease violation, how much time you’ll give a resident to correct his behavior, and so on. Your policy should also detail the procedures for investigating, resolving, and documenting complaints against residents for violating the lease and community rules.

 Published: Friday, February 24, 2012, 10:30 PM Updated: Saturday, February 25, 2012, 9:56 AM Helen Jung, The Oregonian By Helen Jung, The Oregonian The Oregonian

When the Sazykin family's 14-year-old son rode his scooter on pathways around the Wah Mai Terrace Apartments complex in Southeast Portland, the apartment manager fined his parents $20.

When they left their children's play furniture and other items out on the patio, the apartment manager issued a few warnings and then another $20 fine.

The family's actions violated apartment policies, according to a complaint filed last September in Multnomah County Circuit Court. But under an agreement with the state announced Friday, the apartment complex and its property management firm will pay nearly $65,000 to tenants, the state and a legal aid organization. They will have to ditch policies that tenants criticized as discriminating against families.

And they will have to install a playground structure.

"It's a really good (result) for families in Oregon," said Christina Dirks, who represented the Sazykins, one of several families who made claims against the apartment complex and property management firm Norris & Stevens. "It's helping to assure that families in our community have equal access to enjoy their rental housing."

Under the agreement, Wah Mai Terrace and Norris & Stevens, do not admit any wrongdoing.

Norris & Stevens representatives did not return a call for comment.

Jonathan Radmacher, an attorney for the Wah Mai Terrace owners, said the policies were never meant to be anti-children.

He noted that the apartment complex owners and property managers were quick to address the problems as soon as they were brought up.

The policy that barred tenants from storing items other than bikes and barbecue grills on their patios was to keep the look of the complex presentable and clean, Radmacher said. The policy that prohibited children from riding bikes, tricycles, Big Wheel-type toys, skateboards and rollerskates on the property was out of concern for older residents, he said.

"There are lots of places to play in the neighborhood," he said, noting Ventura Park and Floyd Light Middle School, both about a block or two away from the complex at SE 111th and SE Stark.

He criticized the state, saying that the apartment complex and property managers were not aware of the discrimination concerns until the state intervened and threatened them with tens of thousands of dollars in state legal fees. "I know my client would never want to have any policy that's discriminatory... They would always want that brought to their attention, and they would fix it," he said. About $35,000 of the settlement will go to six current and former tenants. Norris & Stevens and Wah Mai Terrace also must pay attorney fees and costs of $20,000 to the Oregon Department of Justice and $9,816.36 to Legal Aid Services of Oregon.

Representatives for the two entities must participate in training on fair housing practices.

They also cannot try to collect fines and other debts that were levied against tenants under the potentially unlawful" policies.

Norris & Stevens