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New Forms

For the first time, MHCO is making long term Leases available to its members. The new Lease form is entitled, “MHCO Form 5F: Manufactured Dwelling Space Long Term Fixed Term Lease Agreement.” The corollary forms, which must be used in conjunction with form 5F, are entitled “MHCO Form 5G: Manufactured Dwelling Space Utility Addendum” and “MHCO Form 5H: Rent Addendum.”

The look and feel of the new Lease is a radical departure from prior formats. The new Lease contains clearer headings, consolidates similar concepts, and guides readers through its contents. The new Lease further adds many clauses that fill preexisting gaps and further clarify the parties’ rights and obligations throughout the term of the Lease. 

Familiarization and Independent Reviews

Before using the new Lease and the aforementioned corollary Addendums, members are encouraged to read them and to familiarize themselves with their contents. Members are also encouraged to forward a copy of all three forms to attorneys of their choosing, prior to using the Lease package, in order to procure independent opinions and advice. 

While MHCO believes the new Lease package complies with Oregon law, others may disagree. MHCO is not aware of any Oregon litigation focusing on the validity of these types of Leases, but that may be due to their recent introduction. In any event, make sure that the Lease and Addendums are within your realm of risk tolerance, should you elect to utilize the same going forward.

How to Use the Long Term Lease Package: Rent

Assuming you’ve decided to use the Long Term Leases, first compare the Lease language and customizable portions to the park’s goals. Pay special attention to such items as the duration of the Lease and the Addendums that must be – or may be – added. 

Since desired Lease durations and rent structures will inevitably vary from one park to the next, Lease sections 7.1 and 19.40 cross reference a Rent Addendum. That Rent Addendum (Form 5H) is a necessary addition to the Long Term Lease, as it sets forth the rent rates for each year of the lease term. 

MHCO’s Rent Addendum (form 5H) provides a clearly stated amount of rent for each year of the Lease. However, MHCO simultaneously recognizes that different parks may desire different Rent Addendum language and made sure that the Lease takes that into account. Parks that wish to use formula-based rent tiers or other structures can add their own Rent Addendums to the Lease, and the generic appearance of the title, “Rent Addendum” in Lease sections 7.1 and 19.40 allows for the integration of those customized, park-specific Rent Addendums.

The New Utility Addendum

A number of lawsuits focusing on utility billing practices have recently jumped into the spotlight. That litigation trend has triggered a change in the way utility billings are being handled via the new Long Term Lease.

Utility allocations and billing practices are far more complicated than most landlords have realized. Inserting utility clauses into the Long Term Lease became cumbersome, as the clauses burgeoned in their breadth and scope. Rather than bloat the new Lease with utility provisions, a new Utility Addendum (Form 5G) was created. As with the Rent Addendum, the Utility Addendum is a necessary component of a complete Lease package (which would minimally consist of the Long Term Lease, Rent Addendum and Utility Addendum). 

The new Utility Addendum may intimidate first time users. However, a quick perusal of the headings, followed by a more detailed reading of the options listed under each heading, will assuage those fears and reveal common patterns that are surprisingly user friendly. Nonetheless, landlords should take their time filling in Utility Addendums, so as to ensure they’re complete, accurate, and compliant with all relevant laws. 

MHCO’s Forms Database 

While three new forms have been described in this article, many other forms remain available to customers and may remain part of your Rental Agreement packages. For example, landlords will still provide Rules and Regulations (and check the correlating box in Lease section 19.40) and may use one of the many other Addendums listed in Lease section 19.40. Further, as new forms become available, they too may be incorporated into future Lease packages. 

Supporters, Detractors and the Future

Anytime a new form hits the market, there will be an inevitable division between its supporters and detractors. Further, most forms tend to evolve over time. (If the foregoing comments weren’t true, we’d be using the same Rental Agreements today that we had in place decades ago.) We anticipate that the Long Term Lease – and its related Addendums – will follow an evolutionary trend, just as so many other forms have done. Alas, MHCO’s goal of providing customers with contemporary forms that recognize the nuances of today’s practices will remain consistent. 

Should any member have questions, comments or suggestions regarding the new forms, please don’t hesitate to contact us. 

Answer. ORS 90.545(Fixed Term Tenancies) provides that unless you take action not less than 60 days prior to the end of the term, the lease becomes a month-to-month tenancy on the same conditions as the original lease. 

The only exception to this is for the landlord to submit a proposed new lease to the tenant at least 60 days prior to the ending date of the term. Any provisions that are new, i.e. not in the prior lease, are to be summarized in a written statement; the same applies if the landlord is going to create new community rules. Remember, however, that if there are substantive changes to either or both of these two sets of park documents, you may also have to issue a new Statement of Policy under ORS 90.510,[1]which is a summary explanation of certain park policies provided to new and existing residents.

If you introduce new lease terms or new rules, they must “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or are the same as those offered to new or prospective tenants in the community.”

Note, however, that the new lease terms or rules cannot relate to the “…age, size, style, construction material or year of construction of the manufactured dwelling” *** and cannot “…require an alteration of the manufactured dwelling *** or new construction of an accessory building or structure.

The tenant must accept or reject the proposed new lease at least 30 days prior to the ending of the term by giving written notice to the landlord.

So, your choice on expiring leases under ORS 90.545 is: (a) To do nothing, in which case the lease morphs into a month-to-month tenancy on the same terms as the earlier lease, or (b) Introduce a new lease and/or rules that “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or are the same as those offered to new or prospective tenants in the community.”

You do not have an option to notnon-renew the tenant at the end of a lease term.  This is not to say that you are limited in termination  for cause under: ORS 86.782(6)(c) (foreclosure trustee sale),90.380(5) (dwelling posted asunsafe by gov’t),90.392 (termination for cause),90.394 (termination forfailure to pay rent),90.396 (termination on 24-hour notice),90.398(termination drugs, alcohol),90.405 (termination, unpermitted pet),90.440(termination in group recovery facility)or90.445 (termination for criminalact).  

As to the summary, the statute simply says that “(t)he landlord shall include with the proposed agreement a written statement that summarizesany new or revised terms, conditions, rules or regulations.” (Emphasis added.)

However, since you will have many changes to the new lease, you ask about two possible alternatives: Either to send the new lease to the tenant: (a) and inform him/her it has numerous updates and they should read it as if it were a completely new edition; or (b) “…offer a redline version which they wouldn’t be able to read.”

ORS 90.130 provides:

Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.”

I read that to mean that good faith compliance is satisfactory in this case. Since ORS 90.545 does not elaborate about the written summary, I would opt for an approach that gives you more coverage rather than less. Both of your alternatives, especially (a) standing alone, could be attacked by residents as insufficient since it really doesn’t comply – if the goal is to inform and educate residents about the new changes. Alternative (a) is too little, and (b) is too much.

My view is that you don’t have to detail every single change, just the material ones that aid in understanding the nature and scope of the new provisions. Stylistic changes that do not alter the substance of the new text don’t need to be addressed. As to material changes, they should be summarized.

I would give the new lease to the residents together with a marked redline showing the material changes.[2]I would then include a distillation of the material changes in the new lease into categories and short summaries.

For example:

• Rule No. ___, Late Fees: they are going to increase from X$ to $Y;
• Rule No. ___, Pets: There will be a fine for pet violations;
• Rule No. ___, Mediation: Adds mediation rules under the recently enacted SB 586 Sec. 7 et seq. (2019) and provides that Landlord has the duty to mediate if requested by Tenant. See,https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/SB586;
• Rule No. ___, Occupants: Tenants must now notify manager within X days of the person coming into the park and obtain a Temporary Occupancy Agreement.

Be sure the notice invites residents to contact the park manager if they have any questions. I believe this approach meets the spirit and intent of ORS 90.545, and is in good faith compliance with the law.  

Lastly, before sending out the notice, enlist the help of someone who is not privy to the changes, and ask them to read your summary. If they understand it (without your coaching), then send. If not, I would re-work the language until it is clear. The goal is to avoid ambiguity in the summary; but if reasonable minds can differ as to the meaning of the new summary, it is, per se’ambiguous, and needs to be clarified before sending.

Answer. ORS 90.545(Fixed Term Tenancies) provides that upon reaching the end of the term, the lease becomes a month-to-month tenancy on the same conditions as the lease. The only exception to this is for the landlord to submit a proposed new rental agreement to the tenant at least 60 days prior to the ending date of the term. Any provisions that are new, i.e. not in the prior lease, are to be summarized in a written statement; the same applies if the landlord is submitted new community rules.

Note that the new lease terms or new rules must “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or Are the same as those offered to new or prospective tenants in the community. 

Further, the new lease terms or rules cannot relate to the “…age, size, style, construction material or year of construction of the manufactured dwelling” *** and cannot “…require an alteration of the manufactured dwelling *** or new construction of an accessory building or structure.

The tenant must accept or reject the proposed new lease at least 30 days prior to the ending of the term by giving written notice to the landlord.

Under the recently enacted SB 608, there is a “3-stikes” rule that applies as follows. At the end of the lease it does notautomatically become a month-to-month tenancyif:

• Landlord gives the tenant notice in writing not less than 90 days prior to the ending dateor
• 90 days prior to the date designated in the notice for the termination of the tenancy, whichever is later,and: 
  • The tenant has committed three or more (3+) violations of the lease within the preceding 12-month period and; 
  • The landlord has given the tenant a written warning notice at the time of each violation:
    • Specifying theviolation;
    • Stating that landlord may choose to terminate the tenancy at the end of the fixed term if there are three violations within a 12-month period preceding the end of the fixed term;and
    • Stating that correcting the third or subsequent violationis nota defense to termination under this subsection; and
• The 90-day notice of termination due to violations muststate:
  • That the rental agreement will terminate upon the specified ending date for the fixed term or upon a designated datenot less than 90 days after delivery of the notice, whichever is later;
• Thereasonfortheterminationandsupportingfacts;and
• Is delivered to the tenant concurrent with  or  after the  third or subsequent written warningnotice.

So, the bottom line is that under ORS 90.545, a landlord may not non-renew a tenant at the end of a lease term. You may only offer a new lease as discussed above, or follow the “3-strikes” protocol under SB 608.

Of course, you may always terminate the lease at any time for cause, pursuant to: ORS 86.782(6)(c) (foreclosure trustee sale),90.380(5) (dwelling posted asunsafe by gov’t),90.392 (termination for cause),90.394 (termination forfailure to pay rent),90.396 (termination on 24-hour notice),90.398(termination drugs, alcohol),90.405 (termination, unpermitted pet),90.440(termination in group recovery facility)or90.445 (termination for criminalact).  

Upon reaching the ending date, fixed term tenancies will automatically renew to a month-to-month tenancy upon the same terms and conditions (except duration and rent).

In order to renew or extend a fixed term tenancy, (and avoid rolling into a month-to-month tenancy), the landlord must submit the proposed new lease agreement to the tenant at least sixty (60 days prior to the end of the lease term. The landlord is to include with the proposed lease agreement a written statement summarizing the new or revised term, conditions or rules and regulation.

If the landlord fails to submit a proposed new lease agreement the tenancy renews as a month-to-month tenancy.

The new or revised terms, conditions, rules and regulations must:

1. Fairly implement an existing statute or ordinance adopted after the creation of the existing agreement.
2. Be the same as those offered to new or prospective tenants.
3. Be consistent with the rights and remedies provided to tenants under ORS Chapter 90.
4. Not relate to age, size, style, construction material or years of construction contrary to ORS 90.632(2)Not require an alteration of the manufactured dwelling or accessory, building or structure.

The tenant must accept or reject the proposed new rental agreement at least thirty (30) days prior to the end of the lease term.

If the tenant fails to accept or unreasonably rejects the proposed new lease agreement, the fixed term tenancy terminates on the last day of the lease term without further notice.

If the tenancy terminates for failure to renew by the tenant, and the tenant surrenders and delivers possession of the premises to the landlord, the tenant is entitled to substantially the same rights and responsibilities as a lien holder under ORS 90.675(18) (the abandonment statute) except that the term of the storage agreement may not exceed six (6) months. (Note: this is not technically an "abandonment" the lien holder's rights are delayed until the end of the tenant's storage agreement.)

Fixed termed tenancies entered into before the effective date of this 2001 Act are not made invalid because their duration is less than two years. However, upon renewal or extension in accordance with the Act, the lease agreement must comply with minimum two (2) year requirement. 

Answer.  Senate Bill 608 applies to this situation. You have not indicated whether the resident’s period of occupancy exceeded one year.[1]For purposes of the answer below, I will assume it is. I will also assume the resident owns their own home, in not in violation of the rules or rental agreement, and is current on rent, i.e. you are not seeking to terminate the tenancy based upon nonpayment, which, as you know, has been prohibited pursuant to HB 4213 which was passed in the Special Session and became immediately effective on June 26, 2020. 

Based upon the above assumptions, here are the rules for what is to happen at the end of a lease term:

The fixed term lease becomes a month-to-month tenancy upon the expiration,unless: 

(a) You and the tenant agreetoanewfixedtermtenancy;

(b) The tenant gives you notice of terminationin writing not less than 30 days prior to the ending date of the lease (or the date designated in the notice for the termination of the tenancy, whichever is later);or 

(c) You give written notice to the tenant under the Qualified Landlord rules.[2]

I suggest you try to find out what the tenant wants to do. Reach out and ask. It may be he or she is just being coy, knowing that the right of occupancy cannot terminate at the end of the lease term, i.e. under SB 608 it automatically becomes a month-to-month tenancy. 

Note that if the tenant remains in occupancy over one year, he or she automatically becomes a month-to-month tenant. If that is the case, you may not reject the tender of rent. However, with 90 days’ notice, you are entitled to increase the rent, so long as it is no greater than 7% plus the change in CPI.

If the tenant plans on withholding rent, that is another issue, since the Special Session rules have imposed limitations on a landlord’s ability to terminate a tenancy for non-payment of rent. This is why you need to contact your tenant to see what’s going on.  Oregon’s laws today do not give residential landlords many options - at least until some of these regulations disappear.[3]  

Answer. There is a critical difference between fixed term leases (i.e. those having a definite commencement date and expiration date) and periodic tenancies (i.e. month-to-month tenancies that continue month after month, and only terminate if the tenant gives not less than 30-days' written notice, or the landlord terminates for cause).

Fixed term tenancies may only be for a term of two years or more. Rent is set in the lease, and (hopefully) the landlord has built into the document a rent increase formula (e.g. a "base" amount plus a percentage increase tied to some recognized index, e.g. the CPI, or Consumer Price Index). Not less than 60 days prior to the expiration of the lease term, the landlord must give written notice of the terms of the new lease (including rent), and may include new rules, etc., so long as they are all consistent with the terms of the leases and rules given to new incoming residents. See, ORS 90.545.

Rent for periodic tenancies, such as month-to-month, can only increase through a 90-day notice, pursuant to ORS 90.600. Note that this statute limits its application to "month to month tenancies", so a landlord with a fixed term tenancy cannot use that statute to increase rent for a fixed term tenancy.[1]

Question No. 2. Can a landlord raise rent in the first year of the lease, or does he/she have to wait a year? Is there a way around the first year limitation on rent increases if the resident is on a lease?

Answer. Section 2 of House Bill 4143 (2016) provides as follows:

(2) If a tenancy is a month-to-month tenancy, the landlord may not increase the rent:

(a) During the first year after the tenancy begins.

(b) At any time after the first year of the tenancy without giving the tenant written notice at least 90 days prior to the effective date of the rent increase.

(3) The notices required under this section must specify:

(a) The amount of the rent increase;

(b) The amount of the new rent; and

(c) The date on which the increase becomes effective.

(4) This section does not apply to tenancies governed by ORS 90.505 to 90.850. (i.e. manufactured housing communities) (Emphasis mine.)

So in regards to your question, the one-year limitation only applies to month-to-month tenancies for homes that are not under the law governing manufactured housing communities, i.e. ORS 90.505 - 90.580.

However, note that RVs are not considered manufactured homes, so if you had them in your community and they were on month-to-month tenancies, you would be subject to the one year limitation on rent increase.

And there is no one-year prohibition against rent increases for homes on leases, either inside or outside manufactured housing communities, because, as noted above, it is assumed a rent increase protocol was already built into the lease at the time it was signed by the landlord and tenant. The state law cannot interfere with that contractually agreed-upon arrangement. So you don't have to figure out a work-around for leases - just build in a good formula to cover the years of the lease term.

Question No. 3. What about rent increases in the Portland metro area? What are the limitations?

Answer. Originally, the Portland rent increase law as it applied to rental homes, apartments, and RVs, contained the one year limitation discussed above. But in 2016, HB 4143 was enacted, which expanded the one-year limitation statewide. So the rent increase law for Portland and the rest of the state is the same with one major exception:

If a rent increase in the city of Portland is 10% or more,[2] the tenant may opt to vacate, and the landlord is required to pay for their relocation assistance. The details are contained in the Portland City Code 30.01.085 (Portland Renter Additional Protections) here.

Question No. 4. Other than leases in the Portland metro area - what are my rights and responsibilities of raising rent in an Oregon manufactured home community.

Answer. There are only two types of tenancies - fixed term (e.g. leases for two or more years) and periodic (e.g. weekly and monthly). As discussed above, the regime for increasing rent for fixed term tenancies is contained in the body of the lease; no statutes or ordinances control.

As for month-to-month tenancies, rent increases are governed by ORS 90.600, which requires not less than 90-days' written notice (plus at least three days for mailing) '_prior to the effective date of the rent increase specifying the amount of the increase, the amount of the new rent and the date on which the increase becomes effective."

Even though the statute does not place any limitations on the frequency or amount of rent increases in manufactured housing communities, there are indirectly some common sense limitations: e.g. what are other parks charging in the area with the same or similar amenities?

Question No. 5. Finally, what about rent increases in RV parks - are the terms the same for RV parks as manufactured home communities?

Answer. As noted above, rent increases for RVs on periodic tenancies, inside or outside of parks, are treated the same as for tenants in rental homes and apartments; the law requires not less than 90 days' written notice, and prohibits increases until after the first year of the tenancy. The big exception is for the city of Portland, in which increases of 10% or more have some rather harsh financial consequences to landlords.

Advance notice of increase requirements or rent increase limitations do not apply if the tenant is on a lease (unless provided in the lease itself), since both parties agreed, in advance, to the rent formula in the written document.

[1] However, notwithstanding the limited application of ORS 90.600, I personally believe that a landlord may (with assistance of competent counsel) include in a lease, a program, not unlike that contained in ORS 90.600, providing that the rent may be increased, say annually, with 90-days' notice, in an amount not to exceed X% of base rent, thus giving the landlord the ability to vary rent increases not tied to an index, but rather to the landlord's business needs.

[2] Be careful here! The percentage increase applies to "Rent" and "Associated Housing Costs" which are defined in the ordinance.

Answer:  In a word – No.  Or, to be more precise, as discussed below, if you do not renew the lease, it will automatically become a month-to-month tenancy on the same terms as the lease.  In other words, your non-renewal will not result in forcing the tenant to vacate the space.

When this law was first being discussed, this issue was addressed.  Prior to enactment, there was an open question whether fixed term tenancies [i.e. leases - those with definite start and ending dates] were even legal.  From the tenants’ perspective, under the manufactured housing landlord-tenant laws, since a landlord cannot terminate a tenancy “without cause,” a lease that expires without renewal is the same thing i.e. termination without cause.  Accordingly, ORS 90.545was enacted, which provided protections to tenants against the possibility of unilateral nonrenewal.

Is this unfair to a landlord, such as yourself, when an applicant is approved, ostensibly based upon a satisfactory application, who then becomes the “Tenant From Hell?”  Some would say that the landlord’s best protection is at the front end of the business relationship, since he/she is given a full and complete opportunity to set out all screening criteria and performing a thorough vetting of the applicant’s financial, rental, and criminal background. But once the landlord approves the applicant – presumably because he/she passed the vetting process - they have the right to remain at the space, so long as they don’t commit certain material violations, such as nonpayment of rent, breach the rules, rental agreement, state law, or commit certain actions outrageous in the extreme.   

Here is how the fixed term tenancy law, found at ORS 90.545 and 90.550, works:

• At least 60 days prior to the ending date of the lease term the landlord must provide to the tenant a proposed new lease, together with a written statement that summarizes any new or revised terms, conditions, rules or regulations.
  •  The new rental agreement may include new or revised terms, conditions, rules or regulations, if:
    • They fairly implement a statute or ordinance adopted after the creation of the pre-existing lease; or
    • They are the same as those offered to new or prospective tenants at the time the new proposed lease is submitted to the tenant and for the preceding six-months prior to submission period;
    • If there have been no new or prospective tenants during the six-month period, the new lease terms must be same as are customary for the rental market; and
    • They are consistent with the rights and remedies provided to tenants under ORS Chapter 90; and
    • Do not relate to the age, size, style, construction material or year of construction of the manufactured dwelling [or floating home] contrary to ORS 90.632 (2);[1] and
    • Do not require an alteration of the manufactured dwelling [or floating home] or alteration or new construction of an accessory building or structure.
• The tenant may accept or reject a landlord’s proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.
• Note that if a landlord fails to submit a proposed new rental agreement as allowed, the tenancy renews as a month-to-month tenancy under the same terms as the prior lease, except that the landlord has the right to increase the rent unilaterally, pursuant to ORS 90.600.
• If the tenant fails to accept or unreasonably rejects a landlord’s proposed new rental agreement, the fixed term tenancy terminates on the ending date without further notice and the landlord may take possession through the eviction process, assuming the tenant does not vacate the space and remove the home.
  • However, if the tenant surrenders possession of the space prior to the filing an eviction, he/she has the right to enter into a written storage agreement with the landlord, and then has the same rights and responsibilities of a lienholder during an abandonment, i.e. pay storage fees, maintain the space, and sell the home within six months [rather than 12 for lienholders].  See, ORS 90.675 (19).

Conclusion.  My suggestion is that if your tenant is continually causing problems, paper your file thoroughly, showing the efforts you’ve made to work with that person. If there are complaints from other residents, document them. Eventually, the tenant will slip up – doing something that gives you the basis for an eviction.  If he is a chronic late payer, consider using the three strikes law, found in ORS 90.630(8). Then find a good landlord attorney and discuss the best method to evict the tenant.  You will then be armed with good evidence for the judge or jury to show that you walked the extra mile with this person, but they simply refused to cooperate.  And remember that although there are restrictions on the contents of the new lease you offer, it may contain provisions that will give you a better foundation for the eviction.  Good luck!

[1] This specific protection was important to the tenant lobby, since until it was enacted, there was an open question as to whether landlords could impose as a condition upon accepting an applicant who was purchasing an older home, that it must be removed upon subsequent resale. In addition, ORS 90.632 was enacted which permits landlords to expressly require that homes be repaired due to damage or deterioration.

Historically, it has been common knowledge that once signed by the landlord and tenant, a rental/lease agreement may not be amended unless all parties agree. However, over the years, as landlord-tenant legislation began to detail more and more rights and liabilities, the issue arose as to how changes in the law were to be applied, when they did not appear in the rental/lease agreement.

In summary, ORS 90.510(4) provides that a park rental or lease agreement may not be unilaterally amended except under the following circumstances:

a) Both parties agree; or

b) Certain specific statutes specifically allowunilateral amendment; or

c) Certain specific statutes automatically requirethat the rental/lease agreement is changed.

In the case of subsection (4)(b), ORS 90.510 specifically lists those statutes which allow a landlord to unilaterally impose a change in the rental/lease agreement. A common example is the submetering statutes. When they first came into effect, many - if not most - agreements did not specifically address the multiplicity of issues that would be effected, from removing certain utilities from base rent, to direct billing, to accessing a space to install and read the meters.

In the recent Court of Appeals case of Morat v.Sunset Village, LLC, the focus was on how ORS 90.510(4)(b) should be interpreted. The Court explained the issue in the opening of its opinion:

This case involves a conflict between a tenant and landlordaboutwhopaysthecostresultingfromafallentree in a manufactured dwelling park. At issue are a statute on trees in rented spaces (ORS 90.727), a statute on "unilateral amendment" of a rental agreement (ORS 90.510(4)), the terms of the parties' lease, and the trial court's award of attorney fees incurred in court-annexed arbitration. [1]

The Court found in favor of the plaintiff-tenant. Setting aside the fact that in trial, the tenant put on evidence that the prior landlord had always cleaned up tree limbs that littered spaces after a storm, the main issue was fairly straight forward: Does the unilateral amendment language of ORS 90.510(b) require the landlord to actually amend the rental/lease agreement (as argued by the tenant),or is it automatic under subsection (4)(c) which provides that "(c)ertain specific statutes automatically require that the rental/lease agreement is changed" (as argued by the landlord).[2]

The Court held that although ORS 90.510(4)(b) explicitly allows landlords to unilaterally amend the rental/lease agreements to allocate responsibility, the enumerated statutes (including hazard tree statute) are not automatically effective. That is, the rental/lease agreement actually has to be unilaterally amended. In other words, contrary to the position taken by the park owner in the above case, in order to gain the benefit of allocating responsibility between landlords and tenants for trees on a space, management was first required to affirmatively "unilaterally amend" the rental/lease agreement.

Although the Court did not get into specifics as how this is done, it is not difficult to comply, e.g. send to each tenant a single page amendment, stating that pursuant to ORS 90.510(4)(b), their rental/lease agreement is '_hereby amended to adopt ORS 90.727 Maintenance of Trees in Rented Spaces)." Either the statute should be quoted verbatim, or a copy attached to the unilateral amendment. And of course, the amendment should be included in each tenant's file.

So the take-away for MHP landlords is that if you want the protection/enforcement provisions of the following statutes (and your current rental/lease agreement does not already contain them), you should make a unilateral amendment:

- ORS 90.530 (Pets in facilities);

- ORS 90.533 (Conversion of billing method for garbage collection and disposal);

- ORS 90.537 (Conversion of billing method for utility or service charges);

- ORS 90.543 (Utility or service charge billing for large manufactured dwelling parks);

- 90.600 (Increases in rent);

- 90.725 (Landlord or agent access to rented space); and

- 90.727 (Maintenance of trees in rented spaces).

At the end of MHCO's rental and lease agreements, the following provision appears, which should serve as a prompt for all landlords to issue a unilateral amendment document to tenants when (a) permitted by Oregon law, and (b) the provision is not already contained in the rental/lease agreement:

TENANT understands and agrees that in the event of any changes in local, State or Federal laws affecting the parties' rights or remedies herein, LANDLORD, in LANDLORD'S sole discretion, may request that TENANT sign one or more written addenda expressly incorporating such changes into this Agreement. TENANT'S failure to sign such written addenda within ten (10) days of LANDLORD'S written request to do so shall constitute a breach of this Agreement. No such change shall be retroactively applied to any circumstance that occurred prior to the date such new law became effective. Notwithstanding the preceding, LANDLORD shall have no duty to amend, alter or adjust this Agreement due to any laws or ordinances enacted after the Commencement Date, regarding Rent, Rent control, Rent adjustment, or any other limitation, restriction or provision affecting or limiting the amount of Rent LANDLORD may charge for this Space. TENANT(S) Initials): _______ _______

It appears the rental or lease agreement at issue in the above-referenced case did not contain such a reminder.

[1]The following discussion does not address whether ORS 90.727 applies to fallen trees.

[2]Query: If subsection (c) automaticallyapplied to trees on tenant spaces, why was subsection (b) necessary? In other words, it would seem that (b) would not need to have been included in ORS 90.510(4).

Answer: In a word - No. Or, to be more precise, as discussed below, if you do not renew the lease, it will automatically become a month-to-month tenancy on the same terms as the lease. In other words, your non-renewal will not result in forcing the tenant to vacate the space.

When this law was first being discussed, this issue was addressed. Prior to enactment, there was an open question whether fixed term tenancies [i.e. leases - those with definite start and ending dates] were even legal. From the tenants' perspective, under the manufactured housing landlord-tenant laws, since a landlord cannot terminate a tenancy "without cause," a lease that expires without renewal is the same thing i.e. termination without cause. Accordingly, ORS 90.545 was enacted, which provided protections to tenants against the possibility of unilateral nonrenewal.

Is this unfair to a landlord, such as yourself, when an applicant is approved, ostensibly based upon a satisfactory application, who then becomes the "Tenant From Hell?" Some would say that the landlord's best protection is at the front end of the business relationship, since he/she is given a full and complete opportunity to set out all screening criteria and performing a thorough vetting of the applicant's financial, rental, and criminal background. But once the landlord approves the applicant - presumably because he/she passed the vetting process - they have the right to remain at the space, so long as they don't commit certain material violations, such as nonpayment of rent, breach the rules, rental agreement, state law, or commit certain actions outrageous in the extreme.

Here is how the fixed term tenancy law, found at ORS 90.545 and 90.550, works:

• At least 60 days prior to the ending date of the lease term the landlord must provide to the tenant a proposed new lease, together with a written statement that summarizes any new or revised terms, conditions, rules or regulations.
• The new rental agreement may include new or revised terms, conditions, rules or regulations, if:
• They fairly implement a statute or ordinance adopted after the creation of the pre-existing lease; or
• They are the same as those offered to new or prospective tenants at the time the new proposed lease is submitted to the tenant and for the preceding six-months prior to submission period;
• If there have been no new or prospective tenants during the six-month period, the new lease terms must be same as are customary for the rental market; and
• They are consistent with the rights and remedies provided to tenants under ORS Chapter 90; and
• Do not relate to the age, size, style, construction material or year of construction of the manufactured dwelling [or floating home] contrary to ORS 90.632 (2) (Footnote 1); and
• Do not require an alteration of the manufactured dwelling [or floating home] or alteration or new construction of an accessory building or structure.
• The tenant may accept or reject a landlord's proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.
• Note that if a landlord fails to submit a proposed new rental agreement as allowed, the tenancy renews as a month-to-month tenancy under the same terms as the prior lease, except that the landlord has the right to increase the rent unilaterally, pursuant to ORS 90.600.
• If the tenant fails to accept or unreasonably rejects a landlord's proposed new rental agreement, the fixed term tenancy terminates on the ending date without further notice and the landlord may take possession through the eviction process, assuming the tenant does not vacate the space and remove the home.
• However, if the tenant surrenders possession of the space prior to the filing an eviction, he/she has the right to enter into a written storage agreement with the landlord, and then has the same rights and responsibilities of a lienholder during an abandonment, i.e. pay storage fees, maintain the space, and sell the home within six months [rather than 12 for lienholders]. See, ORS 90.675 (19).

Conclusion. My suggestion is that if your tenant is continually causing problems, paper your file thoroughly, showing the efforts you've made to work with that person. If there are complaints from other residents, document them. Eventually, the tenant will slip up - doing something that gives you the basis for an eviction. If he is a chronic late payer, consider using the three strikes law, found in ORS 90.630(8). Then find a good landlord attorney and discuss the best method to evict the tenant. You will then be armed with good evidence for the judge or jury to show that you walked the extra mile with this person, but they simply refused to cooperate. And remember that although there are restrictions on the contents of the new lease you offer, it may contain provisions that will give you a better foundation for the eviction. Good luck!

Footnote 1: This specific protection was important to the tenant lobby, since until it was enacted, there was an open question as to whether landlords could impose as a condition upon accepting an applicant who was purchasing an older home, that it must be removed upon subsequent resale. In addition, ORS 90.632 was enacted which permits landlords to expressly require that homes be repaired due to damage or deterioration.

Answer: First, please understand that Oregon law does not directly deal with this - and neither is it addressed in most rental/lease agreements, including MHCO's. So my responses are based upon my opinion alone. Until an appellate court rules on these issues - which is unlikely, since most such cases are never appealed - the best we can do is speculate. My answers are in italics below.

1. Do we write a new lease for the remaining resident or keep the old lease with both residents on the lease? I think I would prefer to see a new lease signed by the remaining resident - even if title remains in both their names. That way, the ex-spouse cannot argue that he or she has a right of occupancy a year or two down the road, when they patch things up, or one moves out and the other moves back in. A new lease would require than any new occupants be qualified all over again. Note that if the lease is changed into the name of the remaining resident, the ex-spouse would certainly have no liability for space rent going forward.

2. Can we legally keep the resident that moved out, responsible for the lease after a divorce and separation of assets? Technically, yes. Neither the divorce decree nor the parties themselves can - without your consent - alter their joint legal duties under a lease they both signed. [This situation is not dissimilar to spouses jointly signing their mortgage and then divorcing; they both remain liable under the mortgage, even though one vacates the home.] The best a divorce court can do is to make the occupying ex-spouse primarily responsible for the rent and give indemnity rights to the non-occupying ex-spouse in case she or he end up having to pay for unpaid rent that should have been paid by the occupying ex-spouse.

3. Do we rescreen the remaining resident to see if he/she qualifies on their own? I have a visceral reaction to doing so - if they did not pass the credit requirements, then what? Deny them the right to stay in the community in which they have lived for a number of years? Kick them out without waiting to see whether they can - or will make the payments? That is like punishing the remaining ex-spouse for being divorced. Remember, the occupying ex-spouse will likely be the custodial parent, if children are involved. The non-custodial parent will likely have some child support obligation, which would then make the custodial parent's individual credit score less important. The same may be said even if there are no children; there may be a spousal support obligation by the non-occupying ex-spouse. It seems to me that it will become clear soon enough, whether the occupying ex-spouse can or will make the space rental payments, independent of what their current credit score may be.

4. If we do rescreen the remaining resident and he/she fails the credit or criminal background, what are our options? Before you re-screen, re-read my answer to Question No. 3 above. If the lease agreement or rules do not address the possibility of spouses divorcing - and I have never seen any that do - the ultimate decision on whether you may re-screen could be left up to a judge. I submit that judges do not like to evict people out of their homes unless there is a compelling reason to do so. A case in which a resident is being evicted for no reason other than that they no longer meet the credit criteria - with no evidence that they are in default under the lease or rules - would be a very difficult sell to most judges. It is unlikely that you would prevail. I compare this situation to requiring a resident to be re-screened upon a job loss or death of a spouse. In cases of such unplanned events occurring after residents have been approved, I suggest that you let the situation play itself out. If a resident cannot afford to pay the space rent, you will then have sufficient cause to evict. But to try to evict because you doubt the ability of the resident to pay rent in the future, is premature and likely to fail.

5. Who owns the security deposit or pre-paid rent? That depends upon whether you have the remaining resident sign a new lease. If a new lease is signed, you could issue a refund check to both of them under the first least, and require the remaining occupant to pay a new deposit under the new lease. It would be preferable, however, to see if they could agree to authorize you to leave the existing deposit in place, but permitting you to refund it, if appropriate, to the remaining occupant at the end of his/her tenancy. If no agreement can be reached, simply hold the deposit until expiration of the tenancy by the occupying non-spouse, and then, if a refund is in order, make the check out to both of them.