Ask a Lawyer
By: Steven M. Williams
Question:
I run an over-55 community. A resident has recently filed a discrimination complaint alleging that am evicting her due to her race and religion. First, her allegations are completely false. But, more importantly, I thought that since the community is an over-55 community, it is exempt from the fair housing laws. Am I wrong?
Answer:
Yes, you are wrong. Being a (proper) over-55 community protects you only from discrimination claims based on familial status. That is, you can discriminate against families with children under the age of 18 and refuse to rent to them. But, this does not allow you to discriminate based on any other protected classes (e.g., race, religions, sex, disability, etc.). You are obligated to fully comply with fair housing laws with regard to all other protected classes.
Question:
I recently purchased a community and want to get all residents on my lease form. The current (old owner’s) leases are all month-to-month. How much notice do I have to give to the residents that they have to sign my lease forms? As a follow-up, what do I do if a resident refuses to sign my lease?
Answer:
For month-to-month leases, you are required to provide to the residents at least 30 days’ notice of any lease changes (rent increases, change in terms, change in rules and regulations). However, when you are asking residents to sign a new lease or an amendment or extension agreement, you are required to give them at least 60 days’ notice. The notice you provide must be mailed to each resident and be posted conspicuously in the community (in the rental office, or if there is no office, in the place where other community notices are posted). You are right to be concerned that some residents may not sign your lease. To protect against this, I suggest that in your notice you include a sentence that says something like this: “The terms of this new lease will be effective as of (date). If you fail to sign and return the lease to me, you will nevertheless be bound to the terms of this new lease.” By including this statement, and presuming that the resident remains in the community, you can establish that, notwithstanding his/her refusal to sign, he/she has agreed to the new terms.
Question:
I have a disabled resident who smokes medical marijuana. The smoke is bothering other residents who are constantly complaining to me. What can I do about this?
Answer:
You can treat this as another lease default and evict him if he does not stop. If your resident has a medical marijuana card, he may be entitled, as an accommodation for his disability, to use medical marijuana on the property. But, smoking is not a permissible form of use for medical marijuana. The permissible forms of medical marijuana are limited to pills, ointments, lotions, edibles, and vaping/nebulizing. Notwithstanding his disability, your tenant’s smoking of marijuana constitutes a violation of the law.
Question:
Currently, water and sewer charges are included with my residents’ rent. I want to “unbundle” them so that the residents pay for the water and sewer in addition to the rent. Is there any problem with this?
Answer:
The short answer is no. However, since water and sewer charges have been included with the rent, “unbundling” them will constitute a rent increase. So, you will need to time the “unbundling” to be sure that it does not happen within twelve months of your last rent increase. I suggest that you coordinate it with the timing of your rent next increase. You will also need to be sure that you provide the residents sufficient notice of the “unbundling” since this will constitute a change in the lease terms.
Question:
I received a letter from the Attorney General asking that I provide a bunch of documents and information. But, the letter does not say why. Am I required to respond to this letter? It seems like a “fishing expedition.”
Answer:
The Attorney General has the power to enforce the Manufactured Home Community Rights Act and the Unfair Trade Practices Consumer Protection Law. The letter you received is likely related to the Attorney General’s investigation of your business practices as they relate to one or both of these laws. The investigation may be based on complaints that the Attorney General has received from one or more of your residents. Or, it may just be a targeted investigation to determine if you are in compliance with these laws. In any event, you are not obligated to respond to the letter. If you do not, however, the Attorney General will issue a subpoena for the same documents and information. If that happens, you will have to respond, and the “tone” of the investigation could be impacted. I suggest that, rather than ignoring the letter you received, you have a lawyer who is familiar with these investigations reach out to the Attorney General, ask what the scope of the investigation is and work with the Attorney General to narrow the focus of the document/information request. When the Attorney General knows that you have a lawyer who is knowledgeable about these investigations, he will usually work with your attorney.
