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While we know that anyone in a trusting relationship with the older person has the potential to be abusive, the dynamic is still predominantly intimate partner violence. This can be a long term relationship that has had abuse occurring all throughout the history of the relationship. Another form is a new relationship, possible post-divorce or widowed. In this relationship an older person may have experienced abuse in the past or this may be his or her first experience with abuse. Late Onset is a description of a relationship that has changed with an organic condition. The abusive person could have been controlling and verbally abusive and now is physically abusive. Or abuse may have not been present in the history of the relationship and now is, due to an organic condition such as dementia or capacity changes. Another dynamic is a person who was abused in the past and is now abusing the abuser. Believing, safety planning and collaboration are key in supporting the older survivor.

Take action by not letting the older folks in your lives be invisible. Try to notice when your older neighbor isn'taround or big changes occur in his or her lives. An adult child moving in, mobility changing, caregivers that aren'tconsistent or anyone that appears to be controlling the older person's life. Are the same support folks coming around or has something changed? Try to give that older adult some private space to have a safe conversation. Often, if the abuser thinks the older adult might be asking for help or telling others about the controlling behaviors, the abuser will retaliate. This could be punishing, physically and emotionally abusing or further isolation. Connecting with your local Adult Protective Services agency, Domestic Violence Agency and Social Service Senior agencies are a key way to help the older adult. The collaboration of these agencies can provide protection and support by the way of Elderly/Disabled Persons Abuse Prevention Act, criminal charges, emotional and resource support.

Answer: First, it must be noted that since tenants are not “owners,” and therefore, the caselaw and statutes that might apply to the latter do not necessarily apply to tenants in manufactured housing communities where the Spaces are rented.

Since landlords are the “owners” of the community, so they should maintain good liability insurance coverage because even if maintenance of a non-hazard tree may be the tenant’s responsibility based on the park rules or rental agreement, (a) he or she may not have sufficient assets or insurance to cover the damage caused – especially if it involves personal injury, and (b) even if they do have coverage, there is a good chance the tenant or the insurance carrier, may try to pass the liability on to the landlord either for indemnity or contribution.

It is also important that landlords have good rules in place that are consistently enforced. Setting aside the hazard tree issue, which are mandated by statute, park rules should be clear in addressing each resident’s duties regarding maintenance responsibilities for non-hazard trees, especially in dealing with low hanging limbs over the resident’s home or that cross over onto another resident’s space. This is especially important where limbs are over a home, patio, driveway, and play areas.

Oregon law allows landlords to require that tenants carry liability insurance not exceeding $100,000.[1] The rental agreement may be unilaterally amended to impose the insurance, subject to 30-days’ notice.[2]

Before we address liability, we must first address duties. Is the tree a “hazard tree” – which is generally the landlord’s duty unless assumed by the tenant as discussed below. If it is not a hazard tree, who has responsibility? That depends upon what the rules and rental agreement say. If the issue is not addressed in those documents, it is – in my opinion - almost certain the landlord will be held responsible if any damages occur. ORS 90.740 governing tenant duties, does not deal with maintenance of trees, except for watering and removal of fallen limbs. ORS 90.730, governing landlord responsibilities, does not address maintenance of trees on the tenant’s space. For common areas, the landlord is liable for maintenance of all trees.

This means that if the issue is entirely ignored in the rules or rental agreement, it will fall to the landlord.

Definitions. The hazard tree statute, ORS 90.727, provides the following definitions:

Maintenance.  “Maintaining a tree” means removing or trimming it for the purpose of eliminating features of the tree that cause it to be hazardous or may cause it to become hazardous in the near future. The term “hazardous” is discussed below.
Removal. “Removing a tree” includes both felling and removing it and also grinding or removing the stump.

Hazard Trees. ORS 90.100(20) defines them as trees located in a manufactured housing community measuring at least eight inches DBH[3] and “…considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 (Issuance of license) 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.” (Emphasis added.)

Landlord Duties. The following hazard tree rules apply under the statute:

Landlord must maintain a tree that is a hazard tree (i.e., that was not planted by the current tenant) on the Space if “…the landlord knows or should know that the tree is a hazard tree.”
Landlord may maintain a tree on the Space to prevent the tree from becoming a hazard tree. Prefacing the statute with “may” means it is not mandatory. But if the issue is not covered in the rules or rental agreement, guess what? If the tenant does not maintain the tree voluntarily, it could ultimately become a “hazard tree” thereby removing any doubt about who has the duty to maintain.
Landlords have discretion in deciding whether the appropriate maintenance is removal or trimming of the hazard tree.
 Landlords are not responsible for (a) maintaining a tree that is not a hazard tree or (b) for maintaining any tree for aesthetic purposes.
ORS 90.725 is the general access statute for all landlords and tenants. It is lengthy and detailed. But ORS 90.727(4) requires that the reasonable notice be given to inspect a tree and “…except as necessary to avoid an imminent and serious harm to persons or property, a reasonable opportunity for the tenant to maintain the tree. The notice must specify any tree that the landlord intends to remove.”

Tenant Duties.  Except as provided above, the tenant is responsible – at their expense - for maintaining the trees on their Space. (Notwithstanding this provision, I believe it is good practice to include the responsibility in the rules or rental agreement.) Tenants may retain certain qualified arborists[4] to inspect a tree on their Space, and if the arborist determines that the tree is a hazard, the tenant may either (a) require the landlord to maintain the hazard tree, or (b) maintain the tree at the tenant’s expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist’s report.

Whether it is the tenant’s duty or the landlord’s based upon the above rules, maintenance of any tree with a DBH of eight inches or more requires engaging the services of a landscape construction professional with a valid license issued pursuant to ORS 671.560.

Tree Interfering With Removal Home. If a tenant’s home cannot be removed without first removing or trimming a tree on the Space, the owner of the home may remove or trim the tree at the tenant’s expense, after giving reasonable written notice to the landlord.

General Liability Issues. What follows are my opinions only, and not legal advice. In addressing these issues, I am following general real estate laws.

Who is responsible if a non-hazard tree – or limbs, falls on the resident’s home or injures a resident or guest?
Under ORS 90.727(5), it is the tenant’s responsibility. If the tenant has their home insured, it would be submitted to the insurance carrier. Otherwise, it’s absorbed by the tenant. If they have health insurance, the injury should be covered.
Who is responsible if a non-hazard tree – or limbs, fall on the neighbor’s home or injures the resident or a guest?
 Does the tenant on whose space the tree grows, have liability insurance? If a claim is brought by the neighbor against that tenant, the liability carrier will likely cover it.
If the neighbor whose home was damaged had property damage insurance, that carrier would pay, and if the tenant was responsible for tree maintenance by virtue of ORS 90.727(5) the carrier might bring a subrogated[5] claim against the tenant if he/she has assets or liability insurance.
If the neighbor was injured and had health insurance, the same rules would apply as above.
Who is responsible if the roots of a non-hazard tree protrude under the resident’s home, or onto the neighbor’s Space and cause that home to become out of level or otherwise damaged?
ORS 90.730(3)(g) provides that “…Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy.” (Emphasis added.)
This suggests that the root system from the non-hazard tree is going to be the landlord’s problem if safety becomes an issue as the tree remains there.
For this reason, landlords should be attentive to the problem, especially upon the change of ownership of the home, i.e., before the offending root system causes more damage.
What if a non-hazard tree is blown over in a storm or struck by lightning, and cause damages or injuries to tenants or their property?
This is well beyond my real estate legal skill set, except to say that “Acts of God” e.g., weather, forest fires, earthquakes, etc. would not normally create liability to the tenant unless the risk was foreseeable and/or the result of an intentional or grossly negligence act of the tenant – e.g., the tenant damaged the tree affecting its stability, but allowed it to remain on the Space. Certainly, the damage or injuries resulting from the non-hazardous tree would be covered by health or property damage insurance, if the affected resident carried it.

Lastly, notwithstanding the ORS 90.727(5) imposes non-hazard tree maintenance responsibility on the tenant, management must be careful to assure that they are safe. The cost of trimming to prevent a tree from becoming a hazard tree could be significant, and beyond the tenant’s financial capacity. For that reason, among others, it is my belief management must be vigilant about the safety of all trees on the residents’ spaces.

[1] See, ORS 90.222. This statute is quite detailed. It must be reviewed carefully before a landlord attempts to require it of the residents.

[2] Interestingly, the 30-day notice only applies to month-to-month tenants; it is therefore doubtful that a fixed term lease can be unilaterally amended. Landlords using leases for new residents should consider requiring it in the lease from the start.

[3] The width of a standing tree at four and one-half feet above the ground on the uphill side. Don’t tell the Woke Police, but “DBH” stands for “Diameter at breast height.”

[4] Details in ORS 90.727(5).

[5] Subrogation is a concept that permits an insurance company to pay their insured’s claim and then recover the amount paid from the party ultimately liable for the damage or injury.

Answer: First, it must be noted that since tenants are not “owners,” and therefore, the caselaw and statutes that might apply to the latter do not necessarily apply to tenants in manufactured housing communities where the Spaces are rented.

Since landlords are the “owners” of the community, so they should maintain good liability insurance coverage because even if maintenance of a non-hazard tree may be the tenant’s responsibility based on the park rules or rental agreement, (a) he or she may not have sufficient assets or insurance to cover the damage caused – especially if it involves personal injury, and (b) even if they do have coverage, there is a good chance the tenant or the insurance carrier, may try to pass the liability on to the landlord either for indemnity or contribution.

It is also important that landlords have good rules in place that are consistently enforced. Setting aside the hazard tree issue, which are mandated by statute, park rules should be clear in addressing each resident’s duties regarding maintenance responsibilities for non-hazard trees, especially in dealing with low hanging limbs over the resident’s home or that cross over onto another resident’s space. This is especially important where limbs are over a home, patio, driveway, and play areas.

Oregon law allows landlords to require that tenants carry liability insurance not exceeding $100,000.[1] The rental agreement may be unilaterally amended to impose the insurance, subject to 30-days’ notice.[2]

Before we address liability, we must first address duties. Is the tree a “hazard tree” – which is generally the landlord’s duty unless assumed by the tenant as discussed below. If it is not a hazard tree, who has responsibility? That depends upon what the rules and rental agreement say. If the issue is not addressed in those documents, it is – in my opinion - almost certain the landlord will be held responsible if any damages occur. ORS 90.740 governing tenant duties, does not deal with maintenance of trees, except for watering and removal of fallen limbs. ORS 90.730, governing landlord responsibilities, does not address maintenance of trees on the tenant’s space. For common areas, the landlord is liable for maintenance of all trees.

This means that if the issue is entirely ignored in the rules or rental agreement, it will fall to the landlord.

Definitions. The hazard tree statute, ORS 90.727, provides the following definitions:

• Maintenance.  “Maintaining a tree” means removing or trimming it for the purpose of eliminating features of the tree that cause it to be hazardous or may cause it to become hazardous in the near future. The term “hazardous” is discussed below.
• Removal. “Removing a tree” includes both felling and removing it and also grinding or removing the stump.

Hazard Trees. ORS 90.100(20) defines them as trees located in a manufactured housing community measuring at least eight inches DBH[3] and “…considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 (Issuance of license) 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.” (Emphasis added.)

Landlord Duties. The following hazard tree rules apply under the statute:

• Landlord must maintain a tree that is a hazard tree (i.e., that was not planted by the current tenant) on the Space if “…the landlord knows or should know that the tree is a hazard tree.”
• Landlord may maintain a tree on the Space to prevent the tree from becoming a hazard tree. Prefacing the statute with “may” means it is not mandatory. But if the issue is not covered in the rules or rental agreement, guess what? If the tenant does not maintain the tree voluntarily, it could ultimately become a “hazard tree” thereby removing any doubt about who has the duty to maintain.
• Landlords have discretion in deciding whether the appropriate maintenance is removalor trimming of the hazard tree.
•  Landlords are not responsible for (a) maintaining a tree that is not a hazard tree or (b) for maintaining any tree for aesthetic purposes.
• ORS 90.725 is the general access statute for all landlords and tenants. It is lengthy and detailed. But ORS 90.727(4) requires that the reasonable notice be given to inspect a tree and “…except as necessary to avoid an imminent and serious harm to persons or property, a reasonable opportunity for the tenant to maintain the tree. The notice must specify any tree that the landlord intends to remove.”

Tenant Duties.  Except as provided above, the tenant is responsible – at their expense - for maintaining the trees on their Space. (Notwithstanding this provision, I believe it is good practice to include the responsibility in the rules or rental agreement.) Tenants may retain certain qualified arborists[4] to inspect a tree on their Space, and if the arborist determines that the tree is a hazard, the tenant may either (a) require the landlord to maintain the hazard tree, or (b) maintain the tree at the tenant’s expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist’s report.

Whether it is the tenant’s duty or the landlord’s based upon the above rules, maintenance of any tree with a DBH of eight inches or more requires engaging the services of a landscape construction professional with a valid license issued pursuant to ORS 671.560.

Tree Interfering With Removal Home. If a tenant’s home cannot be removed without first removing or trimming a tree on the Space, the owner of the home may remove or trim the tree at the tenant’s expense, after giving reasonable written notice to the landlord.

General Liability Issues. What follows are my opinions only, and not legal advice. In addressing these issues, I am following general real estate laws.

• Who is responsible if a non-hazard tree – or limbs, falls on the resident’s home or injures a resident or guest?
  • Under ORS 90.727(5), it is the tenant’s responsibility. If the tenant has their home insured, it would be submitted to the insurance carrier. Otherwise, it’s absorbed by the tenant. If they have health insurance, the injury should be covered.
• Who is responsible if a non-hazard tree – or limbs, fall on the neighbor’s home or injures the resident or a guest?
  •  Does the tenant on whose space the tree grows, have liability insurance? If a claim is brought by the neighbor against that tenant, the liability carrier will likely cover it.
  • If the neighbor whose home was damaged had property damage insurance, that carrier would pay, and if the tenant was responsible for tree maintenance by virtue of ORS 90.727(5) the carrier might bring a subrogated[5] claim against the tenant if he/she has assets or liability insurance.
  • If the neighbor was injured and had health insurance, the same rules would apply as above.

• Who is responsible if the roots of a non-hazard tree protrude under the resident’s home, or onto the neighbor’s Space and cause that home to become out of level or otherwise damaged?
  • ORS 90.730(3)(g) provides that “…Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy.” (Emphasis added.)
  • This suggests that the root system from the non-hazard tree is going to be the landlord’s problem if safety becomes an issue as the tree remains there.
  • For this reason, landlords should be attentive to the problem, especially upon the change of ownership of the home, i.e., before the offending root system causes more damage.
• What if a non-hazard tree is blown over in a storm or struck by lightning, and cause damages or injuries to tenants or their property?
  • This is well beyond my real estate legal skill set, except to say that “Acts of God” e.g., weather, forest fires, earthquakes, etc. would not normally create liability to the tenant unless the risk was foreseeable and/or the result of an intentional or grossly negligence act of the tenant – e.g., the tenant damaged the tree affecting its stability, but allowed it to remain on the Space. Certainly, the damage or injuries resulting from the non-hazardous tree would be covered by health or property damage insurance, if the affected resident carried it.

Lastly, notwithstanding the ORS 90.727(5) imposes non-hazard tree maintenance responsibility on the tenant, management must be careful to assure that they are safe. The cost of trimming to prevent a tree from becoming a hazard tree could be significant, and beyond the tenant’s financial capacity. For that reason, among others, it is my belief management must be vigilant about the safety of all trees on th

[1] See, ORS 90.222. This statute is quite detailed. It must be reviewed carefully before a landlord attempts to require it of the residents.

[2] Interestingly, the 30-day notice only applies to month-to-month tenants; it is therefore doubtful that a fixed term lease can be unilaterally amended. Landlords using leases for new residents should consider requiring it in the lease from the start.

[3] The width of a standing tree at four and one-half feet above the ground on the uphill side. Don’t tell the Woke Police, but “DBH” stands for “Diameter at breast height.”

[4] Details in ORS 90.727(5).

[5] Subrogation is a concept that permits an insurance company to pay their insured’s claim and then recover the amount paid from the party ultimately liable for the damage or injury.

State and local fair housing laws mirror federal laws, but add additional protected classes. In Oregon, for instance, "marital status" and "source of income" are protected classes in addition to the seven federal classes. To these state and federal classes, cities may add additional protections. Eugene and Corvallis, for example are cities that add "age" to the list.

State, federal and local fair housing laws all prohibit discrimination in selling, renting or leasing activities, including advertising, because the buyer, renter or lessee is a member of a protected class. It would be illegal to refuse to sell a house to someone because of his or her familial status or race or religion or membership in any other protected classes. That means a seller, with limited exceptions applicable to senior housing, cannot refuse to rent or sell to a family with children.

In addition to outright refusals to sell, rent or lease, Oregon fair housing laws also prohibit such things as expelling a purchaser from real property, offering different terms or rent or even attempting to discourage someone from purchasing, renting or leasing real property because the person is a member of a protected class. Fair housing laws also prohibit discriminatory advertising of any kind.

Advertising discrimination can include using works in flyers or ads that indicate a preference, limitation, specification or discrimination based upon the purchaser being a member of a protected class. Newspaper associations publish long lists of words that are considered discriminatory or that should be used only with great care.

Fair housing violations can be quite costly. Several years in Oregon, a manufactured home park owner paid $50,000 for refusing to rent to families with children. Property owners who do not follow fair housing laws have to worry about government agencies bringing an enforcement action.

In Oregon, the enforcement agency is the Bureau of Labor and Industries; for the federal government it is the Department of Housing and Urban Development.

People who believe they have been discriminated against can bring a civil suit in addition to complaining to the government.

Fair housing advocacy groups sometimes dispatch "testers" who have different social, racial and ethnic backgrounds to see if each tester is treated the same. Realtors also have been trained to help clients navigate the intricacies of buying and selling property.

Industry experts on the panel noted that retaining people who are effective with coworkers and the public is an ongoing process. Periodic employment reviews and training programs are generally well received. Most people want to know how well they are doing and what needs to improve. Coaching by regional managers and outside consultants is critical to recognizing employment and operational issues and correcting them before they cause other problems.

Second "tip" is also simple and can be summarized in one word: Documentation. It is critical that your community have well prepared written rental agreements whether for a long-term or month-to-month tenancy. There are, of course, pros and cons to both forms of tenancy. Certainly, in a rent control jurisdiction, long-term leases are preferred. However, it is well understood that obtaining an economically viable long-term lease can be difficult in rent controlled communities because of the legislative constraints on tenant negotiations. To the extent a local jurisdiction has vacancy control it is critical to pay attention to those opportunities to offer suitable long-term lease agreements so that future rent increases are known by both the resident and the park.

Another form of documentation to consider is arbitration agreements. There are intense debates among lawyers, and even within the industry, about whether or not arbitration is a desirable means of conflict resolution. If arbitration is going to be pursued, however, it is critical that the arbitration agreements reference and be drafted in accordance with the Federal Arbitration Act. While the State of California has an arbitration statute, it is effectively useless in compelling arbitration in most circumstances in a mobilehome park context. Numerous appellate State court decisions, when deciding whether or not arbitration can be compelled under the state arbitration law, are uniform in declining to enforce landlord/tenant arbitration agreements.

Documentation also means due consideration of park rules. Park rules are the functional equivalent of covenants, conditions and restrictions created for residential developments such as condominiums and planned unit developments. California law requires that park/community rules be reasonable and that, of course, is key to any judicial enforcement. Park owners differ as to whether they prefer general rules or more detailed rules. Again, there are pros and cons to each. However, when it comes to enforcement, it is this writer's experience that more particular detailed rules are typically easier to enforce than a more vaguely worded general rule where "reasonable" discretion by the park's resident manager might be seen by a judge as being less objective or personal. The courts in California tend to err on the side of tenants and thus making sure documentation (Rules) are objectively reasonable can greatly aid in their enforcement.

Tip three is getting to know your customer/market. Understanding who wants to live in your park and why it is important to properly serve that segment of the public and the larger "neighborhood community".

Consistent with knowing your market and customer, is knowing your competition. A park's competition might be other manufactured housing communities or, possibly, nearby apartment complexes, duplexes and triplexes in the area. Knowing who is renting and at what price is critical to knowing if your park is offering all that it can at a competitive price.

A fourth issue noted by regional park managers is the need to conduct a thorough park assessment. Many of the larger owners in the industry have an annual reassessment of each community including what potential capital expenses and improvements might be required. An annual or semiannual assessment can be done in conjunction with a documented risk assessment and analysis. Reviewing a community's streets, curbs, gutters and any recreational amenities can help a community be prepared for accidents; weather cause events and the ever present potential for litigation. A proactive system of having maintenance logs and keeping records of what has been repaired, when, and by whom is critical in the event of a simple slip and fall accident or, more significantly, if a "failure to maintain" lawsuit is threatened. In California failure to maintain allegations are routinely made against many communities that, from all objective criteria, are well-maintained and are highly desirable places to live.

Capital improvement and risk analysis assessments also lead to insight as to how a community is evolving. Is there a plan for replacing or improving the current housing stock? To the extent the park has the ability to help renovate or replace older functionally obsolete housing is a plan being considered. In some areas of California, the options of potential closure or conversion to a resident owned community are worthy of discussion. In rent controlled communities it might be prudent to have park owned homes so as realize appropriate revenue from the park.

One final tip: manage your revenue properly. Successful park operations need to follow and have a well-defined timeframe and process for rent collections. How rents are collected, managed and deposited is critical to cash flow. An annual review of the community to understand whether reserved parking or storage facilities should be provided, for a fee, should be considered. A number of communities have added solar panels to parking areas that generate revenue and help offset electricity costs in the park. Whether or not the park accepts electronic payments and how it processes resident checks can be critical to cash management. Knowing when and where funds are spent is ultimately the reason that the investment is either successful or not.

Thanks to Mindy Parish from Hometown America and Tom Pacelli from J&H Management for their participation and insight as to how operations for community owners can be managed proactively and efficiently.

Bill Dahlin is a partner with the Southern California law firm of Hart King and a leader in the firm's Manufactured Housing Industry Practice Group. He can be reached at 714-432-8700, 714-619-7084 (direct dial) or bdahlin@hartkinglaw.com.

Answer. RS 90.680(6)(b) provides as follows:

The landlord may not unreasonably reject a prospective purchaser as a tenant. Reasonable cause for rejection includes, but is not limited to, failure of the prospective purchaser to meet the landlords conditions for approval as provided in ORS 90.510 (Statement of policy) (5)(i) or failure of the prospective purchasers references to respond to the landlords timely request for verification within the time allowed for acceptance or rejection under paragraph (a) of this subsection. Except as provided in paragraph (c) of this subsection, the landlord shall furnish to the seller and purchaser a written statement of the reasons for the rejection.

What this means is that the only prohibition is against unreasonable rejections. That, of course, is in the eye of the beholder. But whatever criteria you have, it must be applied consistently to all prospective applicants.

However, note that besides situations in which the prospective tenant fails to timely respond, the source of relevant screening criteria is to come from your Statement of Policy. So check that to see what criteria you have.

Similarly, Oregon law requires that you must inform your current resident in the rental agreement as to what criteria you will use, so check that, as well. In other words, you cannot make up screening criteria on the fly.

The MHCO rental and lease agreements have a number of criteria set out, and as long as you confine yourself to them you should be in good shape. You will note that they are general in nature, and do not set limits on the age or type of criminal convictions.

In checking with John VanLandingham, he reminds me that ORS 90.303 currently provides that a "landlord cannot consider arrests (unless the charge is still pending), but can consider convictions if the conviction relates to conduct relevant to being a tenant, which includes most everything. In consulting with screening companies, we were told that most don't report crimes older than 5 or 7 years."

There is a move afoot to apply limitations on criminal records in hiring. See the discussion on the Internet relating to "Ban the Box," here.

You Make the Call: Does the tenant have a legally valid claim for FHA discrimination?

Answer: Yes

Ruling: The Pennsylvania federal court rejects summary judgment for the landlord and allows the case to go to trial, citing well-established case law finding that the FHA does protect victims of domestic violence given its disproportionate impact on women and minorities [Butler v. Sundo Capital, LLC, 2021 U.S. Dist. LEXIS 171736, 2021 WL 4134034].

Takeaway: There are three important morals to take from the Butler case:

1. Domestic violence victims can sue for housing discrimination under the FHA (as well as many state laws, including Delaware, the District of Columbia, Illinois, New Jersey, North Dakota, Rhode Island, Vermont, and Wisconsin);
2. Zero-tolerance policies that lump victims and purveyors of domestic violence together for adverse treatment is a form of discrimination the law prohibits; and
3. Protection for domestic violence victims may include allowing them out of their lease early without penalty if they must move out to avoid threatened violence. 

As a community manager, you will normally be charged with accepting or rejecting prospective residents. This is one of the most important functions that you will perform as a manager of a manufactured home community. Done properly and effectively, the rental application and screening process will minimize potential problems in landlord - resident relations. If the process is done incorrectly the seeds of future problems will be sown. Every prospective resident should be given sufficient information to make an informed decision about living in a manufactured home community.

When an individual stops by the manufactured home community office inquiring on the possibility of becoming a resident, always give them an application packet. Anyone who is interested in applying should be given the application packet - inconsistency in giving out application packets could lead to cause of action by the resident selling the home in the community or a fair housing violation.

The application packet is your opportunity to sell the prospective resident on your community. Include in the application packet an application and "Minimum Criteria Standards", optional information may include what homes are available in the community, a community newsletter, information on the history of the community, the advantages of living in a manufactured home community etc. You may also want to include at this time a copy of the rental/lease agreement, rules and regulations, rent history, and statement of policy. Remember, you want to sell the prospective resident on your community, but you also want them to make a well informed decision.

Providing a prospective resident's with extensive information regarding your manufactured home community allows the applicant to evaluate for themselves if they qualify. Including what your expectations are in order to qualify and expectations and requirements to maintain residency in the community allows the prospective resident to self qualify.

The overall rental application process should include:

1. Review application to make sure it has been completely filled out.
2. Check to make sure that the applicant has included social security number, driver license information etc.
3. Provide the applicant with a copy of the Statement of Policy (keep a signed copy or receipt for your file), the rent history of the space, Rental Agreement/Lease, Park Rules & Regulations, RV Storage Agreement and Pet Agreement (if applicable), and a Flood Plain Notice. None of these documents should be signed by the community owner or manager until the application process is complete and the prospective resident is accepted.
4. Collect application fee.
5. Provide prospective resident with application fee receipt.
6. Conduct credit, rental and criminal check.
7. Attach copies of credit, rental and criminal check to application
8. If credit, rental and criminal checks are acceptable contact prospective resident.
9. If they are denied and they are purchasing an existing home in the park, send them an application denial form. Also, send a copy to the resident selling the home and one for the tenant's file.

Under current Oregon law you will have not more than 7 days to accept or reject a prospective resident. The 7 days begins on the day of receipt of a complete and accurate written application. The landlord and the prospective resident may agree to a longer time period for the landlord to evaluate the prospective resident's application to address any failure to meet the landlord's screening or admission criteria.

If the existing resident fails to give the required 10 day notice in writing prior to the sale of the home, the landlord may extend the written application process by 10 days. (ORS 90.680)

An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation required pursuant to ORS 90.510 including any financial data and references. 

Answer:

It is permissible to rent to overnighters, but there are some important differences that you must keep in mind when you do.

The first and most important difference is that overnighters are not considered "tenants" under Oregon law if the landlord follows Oregon's "vacation occupancy" requirements. The requirements are: (1) The "guest" is only staying for vacation purposes, not as a residence; (2) the guest has a principle residence other than at the park; and, (3) the guest's stay cannot exceed 45 days. (Hint: Make a copy of each guest's driver's license to keep on file to prove that they have a permanent residence elsewhere.) If you ensure that the "guest" meets these requirements, they do not have the rights or remedies that RV tenants have under Oregon law.

If you follow these requirements, you do not have to file an eviction case if the guest fails to vacate or fails to pay. You can simply ask that they immediately leave or have the sheriff remove them. You should not have to worry about any "tenancy" complaints or threats of habitability claims, etc.

The caveat is that some sheriff officers won't make an overnighter leave, telling the park owner that it is a "civil eviction matter." There are two main ways to avoid this problem. The first is to maintain a good relationship with your local police officers. A little bit of good will can go a long way towards gaining their cooperation with this type of problem. The second thing to do is make sure you have the "guest" sign a short term RV registration agreement that acknowledges his or her status as non-tenants.

An RV registration agreement should list Oregon's vacation occupancy requirements mentioned above. (My office or a knowledgeable attorney can easily draft a registration agreement for this purpose.) It should also contain a specific acknowledgment that the guests are not "tenants" and can be immediately removed at any time. Showing a sheriff this acknowledgment - signed by the overnighter - should make it much easier to have the sheriff show the RV'er the front gate, if necessary.

One caveat on renting RV spaces to overnighters is that Oregon law requires that bathroom facilities be provided to vacation campers. If your park doesn'thave bathrooms available, you should not rent to overnighters. However, depending on the circumstances, you may be able to meet this requirement with portable facilities, although always check with an attorney before making that decision.

Mark L. Busch, P.C.
Attorney at Law
Cornell West, Suite 200
1500 NW Bethany Blvd.
Beaverton, Oregon 97006

Ph: 503-597-1309
Fax: 503-430-7593
Web: www.marklbusch.com
Email: mark@marklbusch.com