By: Steven M. Williams
One of my residents continues to violate our Community Rules, and another still refuses to pay rent. And now, I understand that I cannot evict them until after December. When will the madness end?
As you may know, Governor Wolf’s eviction moratorium expired on August 31. The next day, the Centers for Disease Control announced its nationwide eviction moratorium, which took effect on September 4. However, the CDC’s moratorium is different than the one that Governor Wolf had in place. And, it is not as restrictive. First, the CDC order is intended to apply to vulnerable individuals— not everyone. Second, the order does not apply to evictions based on a holdover at the end of a lease term or lease violations that do not involve nonpayment. In short, it only applies to non-payment of rent cases. More importantly, the order only bars an eviction if the resident submits a declaration, signed under penalty of perjury, that:
- He has used best efforts to obtain all available government assistance for rent
- He either:
- Expects to earn no more than $99,000 in annual income in 2020 (or no more than $198,000 if filing jointly)
- Was not required to report any income in 2019 to the IRS; or
- Received a stimulus check pursuant to the CARES Act
- He is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off or extraordinary out-of-pocket medical expenses
- He is using best efforts to make partial payments; and
- The eviction would likely render him homeless or force him to move into and live in close quarters in a new congregate or shared living setting.
If a tenant does not submit this declaration, you may proceed in a non-payment eviction case.
I have a resident who is disabled and has a service dog living with her. She now wants to bring two pet dogs in (our pet policy allows for two dogs). I told her that she can have one, but not two dogs, since she already has the service dog. She now says that she is reporting me to HUD for a fair housing violation. How can I possibly have violated fair housing when I allowed her to have a service dog?
Under the law, a service dog is not considered a pet, and it cannot be counted as one. Thus, by telling your resident that she cannot have two pets because she already has a dog—the service dog—you are violating fair housing laws. If you do not allow her to have the two pets, in addition to the service dog, you could be subject to liability if she actually files a complaint against you.
In my community, I have residents who own their homes and rent the lots only, and I have some who rent the homes and the lots from me. I have been told that I can treat those residents who rent homes from me differently than those who own their own their homes. This seems wrong—like discrimination. Can you clarify this for me?
You have heard correctly. Residents who do not own the homes are not protected under the Manufactured Home Community Rights Act (MHCRA). None of the provisions of the MHCRA apply to them. The MHCRA only applies to those residents who own their homes and rent only the lots from you. Those residents who rent the homes from you, thus, are not entitled to the various protections of the MHCRA. So, for example, you do not have to provide these residents the default notices that are required under the MHCRA. Also, the “perpetual” lease term that applies to your residents who own their homes does not apply to those who do not own the homes. Thus, you are entitled to non-renew the leases of those residents who do not own their homes. As you know, you are not entitled to non-renew the lease of a resident who owns his home. You can only get rid of the homeowners by terminating the lease for one of the reasons designated in the MHCRA.
Do you recommend that I have different leases for residents who own their homes and those who rent the homes from me?
Yes. Since the landlord and tenant relationship is different and different rights, remedies and obligations exist, it makes sense to have a different lease. For non-homeowners, the landlord and tenant relationship is governed by the lease, not the Manufactured Home Community Rights Act. If you do not have a different lease for residents who lease the home from you, there is a danger that those residents may be entitled to the same protections under the MHCRA as those residents who own their homes.
How long do rejected applications for residency have to be kept. How long do resident files have to be kept once they have moved out of the community?
Depending on the potential reason for the need for the records, the time frames can differ. For example, if a prospect who was denied rental believes he was discriminated against, he has up to two years to file a fair housing complaint. If a resident who vacates believes that you breached the lease by not returning his security deposit, he has up to four years to sue for breach of contract. If a resident or prospect wants to sue you for violating the Manufactured Homes Community Rights Act or for consumer protection violations, they have up to six years to file a lawsuit. If you are audited by the IRS, you may be asked to produce records that go back seven or more years. In each of these cases, you will surely want to have the files available. I suggest that you ask your accountant what he/she suggests, and then keep all records for whichever of these time periods is the longest.