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Answer. The Multnomah County Moratorium does not declare a “rent-holiday” or anything close. Rent is still due and payable. The only exception is that if there is a timely request for partial payments, and the tenant has an objectively verifiable proof of loss of cash-flow related to COVID, you and the tenant are encouraged to enter into an agreement for partial payments for a period of time. Keep in mind that the state courts are not hearing FED evictions for nonpayment of rent, so your options are limited. Reaching a repayment program ahead of time is better that not getting any rent money and not being able to do anything about it.

MHCO has issued a recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon).

Question.Regarding Form 13-A (Mult. Co.), what if the resident decides they cannot pay anything?  Is that acceptable? Is that what I put in the agreement?

Answer.  The Multnomah Count Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID-19. 

In order to qualify, the resident needs to demonstrate a “substantial loss of income”, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic. Note, this includes loss of income related to County, State, and Federal restrictions imposed to mitigate the spread of COVID-19.

So what is your resident providing to establish the substantial loss of income? Presumably, if the resident is no longer employed, he/she can no longer pay the rent. If so, documentation or other information must be provided to establish this. If that is not the case, i.e. if there is no job loss, or it’s not related to COVID, or there is not a substantial loss of income, etc. they don’t qualify.

Keep in mind that if both residents are working and one loses their job for COVID-related reasons, this, of itself, does not automatically qualify them for partial rent payments. If the remaining resident is still working and generating income, you will want to explore how much rent can still be paid. Paying nothing should not be an option where the household is still generating some income, and the resident can pay a portion of the rent, but chooses not to.

Remember, whatever is deferred will have to be repaid within 6 months after the Governor’s Declaration of Emergency expires, so if the tenant is just trying to get out of paying anyrent, there is no real advantage to entering into the agreement today if it results in six months of rent abate, only to have to file an eviction the. The bottom line is that before you enter into the partial rent agreement, you should thoroughly vet the resident’s COVID-related issues and ability to pay at least something. However, as noted above, no Oregon courts are hearing nonpayment of rent evictions, so you alternatives are limited. 

Question.  Regarding having to demonstrate they have substantial loss of income due to the virus, can we:

• Ask to see their final pay stub and current bank statement so we can help figure out what they can pay us?  
•  Can we ask for a letter from their employer stating that they were laid off?  How are they supposed to prove they can't pay in full?

Answer.  Good questions. the Declaration of Emergency is not specific, except only to say that the proof has to be “through documentation or other objectively verifiable means.”

Here are the elements of proof as I see them:

• Is it COVID-related?
• Is there a substantialloss of income? 
• Does it prevent the resident from paying some or all of the space rent?

What you decide to accept as “evidence” is between you and the resident. But other than requiring that he/she provide sensitive, confidential, personally identifiable information (e.g. social security number) I submit that pay stubs, account information is OK, so long as the protected information is redacted, i.e. blacked out. An employer statement is probably unnecessary in most cases, as there would likely be some form of written or emailed announcement.

Question. The  Multnomah County Order says near the bottom that for landlords of communities within Multnomah County they should inform their tenants about the Moratorium. How should I do that?

Answer.I believe reliable information is your best approach so residents trust you as a source. MHCO has distributed material on the Multnomah County Moratorium, and developed two forms which are self-explanatory and follow the law. 

You want residents to know what the law is ahead of time. It is important to convey that the law does not “forgive” any deferred rent; there is no “rent holiday”; and any rent abatement must be supported by verifiable documentation or information showing a substantial loss of cash flow. Without such information, a tenant does not technically qualify for partial payments. 

Unless a tenant has lost their entire source of income, e.g. job loss and is unable to qualify for unemployment, most situations would seem to result in a possible wage reduction, rather than a total loss of income.

Question.Does the Moratorium apply to utilities?

Answer. As for utilities, here is the rule: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 

Question.  If residents do not get hold of me by the 1^stof the month, are we still under the obligation to enter into these agreements? 

Answer.  Only the Multnomah County form, 13-A requires the request to be made before the first of the month, since that is what the ordinance says. We developed Form 13-B (for areas outside of Multnomah County/City of Portland) and followed generally, Form 13-A. We did so because we believed it was a good approach. However, the Oregon Legislature has not developed a comparable law for areas outside Multnomah County/City of Portland – although we expect one shortly.

Accordingly, there are some differences between the two forms, one of which is that Form 13-B does not expressly require that the request must be made before the first of the month.

Nevertheless, assuming your community is inside the Portland/Multnomah County area, and rent has not yet been paid, say for April, and the resident requests to make partial payments, I suggest that a certain amount of latitude is important during these tough times. In other words, if the resident is a legitimate candidate for partial payments, you should consider having them sign Form 13-A. 

Question. Do we fill out either Form 13A or 13B each month?

Answer.  No. Form 13-A (Portland/Multnomah County) lasts for the duration of the Moratorium because that is what the law says; Form 13B last for the duration of the “Concession Period” which is the amount of time both landlord and resident agree rent shall be abated. 

However, directly above the resident’s signature in both forms, the following provisoappears in bold print:

By signing below, Resident certifies that the documentation or other objectively verifiable information supporting a substantial wage loss is true and correct to the best of his/her knowledge. In the event that through other income or employment, Resident’s wage loss is reduced or eliminated, Landlord will be promptly notified, and this Agreement shall either be terminated or modified accordingly.

Question. I've had my first call regarding nonpayment of rent.  The daughter called me to say her mother had been laid off.  She said the Governor said they have six months to pay rent.  I cautioned her that we needed some proof of wage loss, and if so, the parents would need to enter into an agreement for partial payments.  She said we can't evict them. I said not now, but eventually if rent isn't paid an eviction would occur.  
 

I don't think this conversation went very well.  A script of what we should be asking for or saying would help - even just bullet points so I know I am doing it correctly?

Answer. We cannot develop a script for many reasons, the first of which all circumstances can vary. However, I believe the following information distills exactly what landlords and residents can and cannot do: - but you should not treat tenant requests with a one-size-fits-all approach.
 

• The Multnomah County Moratorium does not declare a “rent-holiday”;
• Rent is still due and payable. 
• Deferred rent is not forgiven;
• The only exception to payment of full rent is a timely request for partial payments, in which case the tenant must establish with reasonable evidence:
  • An objectively verifiable proof of substantial loss of cash-flow;
  • It must be related to COVID;
  • MHCO has recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon);
  • Deferred rent must be repaid with 6-months after the Moratorium ceases in Form No. 13A (Multnomah County)  and an agreed-upon period of time in No. 13B (Rest of Oregon);
• Oregon courts are not hearing FED evictions for nonpayment of rent for the time being – we don’t know how long that will last;
  • If the resident engages in some activity that endangers the health, safety and welfare of the residents, management, or visitors/guests, you should check with your county court to see if a proceeding would be timely heard if you filed for eviction.
• For utilities: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 
• The above rules are fluid, and we do not yet know what the Oregon Legislature might do. Once that occurs, we anticipate having to make adjustments in the current rules upon which the above information is based.

Answer: Oregon law addresses tenant responsibilities in ORS 90.740. Subsection (4)(h) says that except as provided in the rental agreement it is the tenant’s responsibility to “(m)aintain, water and mow or prune any trees, shrubbery or grass on the rented space….” In my opinion, this provision is a good example of how not to draft a statute. Trees are not “mowed” and grass is not “pruned.” However, it is correct that “pruning” of trees [whatever that entails] is a tenant responsibility unless otherwise provided in the rental or lease agreement. As with everything these days, the Internet is replete with discussions and definitions of pruning. One example is found here: http://tinyurl.com/Q-Law-Definitions-pruning. Regardless of your reference source, it is clear that there are many, many, different types of pruning, depending upon the goal sought. You can prune to “teach” a tree or shrub how to grow in a particular fashion; you can prune for appearance; you can prune for maintenance, i.e. the health of the tree or shrub. Lastly, you prune for safety - this is called “hazard pruning.” Putting my “lawyer’s hat” on and returning to my law school roots, I recall a rule of interpretation called “ejusdem generis”. Here is one definition: “(eh-youse-dem generous) v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.” http://www.legal-explanations.com/definitions/ejusdem-generis.htm Applying that legal rule to ORS 90.740(4)(h), it could reasonably be argued that the words “maintain, water and mow or prune” are intended to refer to normal and routine landscaping activities. In other words, a tenant’s landscaping responsibility for his or her own space is limited to normal and routine activities. In other words, imposing a statutory duty and financial responsibility of “hazard pruning” on manufactured housing residents was unlikely. ORS 90.730(3) provides that “(f)or purposes of this section, a rented space is considered inhabitable if it substantially lacks: (e) At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin [underscore mine];” Thus, there is little question that as of the commencement of the tenancy, it is a landlord duty to make sure the community grounds, including the spaces and common areas, are safe for “normal and reasonably foreseeable uses….” Is a 40-foot fir tree “safe” at the commencement of the tenancy? Can it be made safe? If it is made safe, e.g. by hazard trimming, will it stay safe for the entire duration of the tenancy? It seems to me that a community landlord has two choices: 1. Doing nothing, and relying upon a poorly drafted statute for absolute immunity when a giant tree falls, killing an entire family during a windstorm; or 2. Envision the Doomsday Scenario – i.e. assume that such a disaster could occur regardless what a poorly drafted statute says, and that a multi-million wrongful death lawsuit will surely be filed by some aggressive plaintiff’s attorney, arguing to a jury that the landlord owns the ground, owns the trees coming out of the ground, and is simply trying to avoid the financial responsibility to thin and top dangerous trees. So my advice would be the following: (a) If you are in doubt about your legal responsibilities because the law is unclear, and (b) where doing nothing could place lives in danger, it is far better to undertake the financial responsibility of hazard pruning on a regular basis. In short, relying upon ORS 90.740(4)(h) when it comes to trimming and topping potentially dangerous trees, could be a serious and costly mistake.

Answer: This may be a habitability issue which you will have to address. Here is what the statute says about the landlord's habitability duties in a manufactured housing park:

90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.) provides:

(2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord's habitability duty under this section includes only the matters described in subsections (3) to (5) of this section.

(3) For purposes of this section, a rented space is considered uninhabitable if it substantially lacks:

(e) At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;" (Underscore mine.)

This would seem to suggest that from a habitability standpoint, as long as the space was in good shape at the commencement of the tenancy, you no longer have any further duty to the resident. I think that conclusion would be a mistake.

Here, the condition of the space has deteriorated due to the proximity of the stream. Inasmuch as you own the ground, and the ground is failing, I would suggest that relocating the home is your responsibility. Alternatively, if the stream is on a part of the park property, you may want to explore stabilizing the lateral support of the side of the stream.

Look at it this way: If you do nothing, and the subsidence continues to the point of damaging the tenant's home, he or she will have a damage claim against the park. If you relocate the home or properly fix the stream bank, further risk of damage is greatly reduced if not eliminated.

If you do pay to relocate the home, make sure that you have a professional address the issue of any further erosion from the stream. You don't want to have to address this problem again a few years down the road.

Answer 1: Generally, no. However, this isn'ta license to be rude to them. Let's start with the basics: If you are a legal 55+ community, you are not required to admit as residents, persons with children, i.e. those under the age of 18. If there are children in the community (perhaps before the facility converted to 55+, or simply because less than 20% of all spaces are occupied by persons with children), the park may do things that it could not do if it was a family park, such as prohibit children's Big Wheels and bicycles in the street. Generally, however, the best approach is to strive for 100% compliance with the 55+ laws in terms of occupancy. If you want to be a "safe" 55+ community, you will have rules that expressly say so; a rental/lease agreement that expressly says so; application and tenant home sale provisions that limit spaces to at least one occupant 55+; and generally hold yourself out in all advertising as a 55+ community. Of course, seniors are permitted to bring children (e.g. grandchildren, etc.) into the community, but the rules may place limits on the amount of time they may remain there.

Answer 2: You need to go through the formal rule change process described in the statute. A rule that is not legally enacted, isn'treally an enforceable rule. However, you should immediately issue a written notice to all residents that based upon legal advice, those rules (identifying them) that appear to be discriminatory against children, will not be enforced. If you own a family park and are concerned that your rules may appear to "target" children, you should consult with your attorney for advice on how to proceed. Note that even if your rules don't appear to target children, if they, in fact, affect the activities of children more heavily than adults, they could still be deemed to be discriminatory (e.g. occupancy limits). And if you are a family park, but you have over 80% of the spaces occupied by at least one person age 55 or over, you should ask your attorney about "converting" to become a legal 55+ community. Until you do, even though 99% of the community's spaces are occupied by seniors, you're still a family park, and subject to the anti-discrimination laws protecting children.

And don’t be thrown off by what the resident says or when he says it. Whenever a resident raises a disability-related reason for violating the lease or community rules, you should treat it as a reasonable accommodation request. Under the FHA, an applicant makes a request for a reasonable accommodation whenever he makes clear that he is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability. The law doesn’t require that requests for reasonable accommodations be made in a particular manner or at a particular time.

Don’t dismiss it as an excuse or ignore the resident’s request for an exception to the rules simply because he doesn’t appear to be disabled. The law covers a variety of physical and mental impairments, characterized by few, if any, obvious symptoms to suggest that a particular person qualifies under the FHA’s disability-related provisions. Federal guidelines permit you to request additional information necessary to evaluate the request if either the disability or the need for the requested accommodation isn’t readily apparent.

Answer. This is a great question, and one that doesn'tget asked enough. The applicable statute is ORS 90.630 (Termination by landlord; causes; notice; cure; repeated nonpayment of rent.) In summary, the statute provides that a landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy by giving to the resident not less than 30 days' notice in writing before the date designated in the notice for termination. There are several types of violations listed, but the one addressing your question is subsection (1)(a): '_a material noncompliance with ORS 90.740... ."

ORS 90.740 (3)(j) requires that the resident "behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors."

The text of ORS 90.630 that directly addresses your question is found at subsection (4):

"The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period ... ." (Emphasis added.)

So clearly, when it comes to conduct, if the bad behavior continues during the 30-day period, the 30-day notice is violated the moment it re-occurs "within the 30-day period". Thus, if after receiving the 30-day notice, the resident repeats what he was told not to do, you do not have to permit the bad behavior to continue for 29 more days - you may file immediately. To take a more serious example, suppose the tenant was speeding through the community, endangering the other residents. Certainly, if that continues during the 30-day period, it has not been "cured" and you may file the F.E.D.

However, out of an abundance of caution (at least when the violation does not endanger the health, safety and welfare of the other residents) you might consider allowing the repeat violations to re-occur a couple of times, just to make sure you've got clear evidence of an intentional disregard for the 30-day notice.

Also, note that ORS 90.630(3) requires that the 30-day notice state '_facts sufficient to notify the tenant of the reasons for termination of the tenancy and state that the tenant may avoid termination by correcting the violation... ." This requires that you be very clear, both in explaining in the notice the nature of the violation, and exactly what steps must occur to avoid termination.

I suspect the confusion about whether a landlord must wait the full thirty days before filing for eviction arises because when the violation does not involve conduct, but relates, say, to a static violation, such as a failure to maintain the space, the full thirty days must be observed. That is, the resident has the full 30-day period to cure, e.g. cleaning the yard, or removing dilapidated furniture from the street view.

To put it another way, when the conduct requires that the resident "stop" doing something, the affirmative act of doing it within the 30-day period is, per se' a violation of ORS 90.630(4); but when the 30-day notice requires that he "commence and complete" a certain activity, it must be done within the entire 30-day period. If it is not completed within the 30-days, only then may the eviction be filed.

Answer. This is a tough one, because there is really nothing in Oregon's landlord-tenant law addressing the situation, and if you don't have anything in your rules (and presumably rental/lease agreement) there is very little leverage you have to force the resident to remove the trampoline. It's on their space legally, and they are not in violation of any laws, rules, or the rental agreement. Some communities do have rules prohibiting trampolines because of their inherently dangerous nature.

This may be cautionary tale for including such a provision in your rules saying something about having recreational or playground equipment that can be inherently dangerous. Here is a sample provision:

Resident shall not construct or place devices, equipment, including playground or recreational equipment or structures on Resident's space that could cause or result in an increase in Landlord's liability insurance or a termination of Landlord's insurance coverage.

Example of such items include but are not limited to above-ground pools, trampolines; climbing structures or facilities higher than ____ feet from the ground, lawn darts, etc. In the event that Resident intends to construct, place, or use any such items on Resident's space, regardless of whether they are visible from the street, Resident shall first contact Landlord, and provide a description of the item. Before issuing approval:

(a) Landlord shall first secure confirmation from its insurance carrier that the item will not cause any increase in Landlord's insurance premiums;

(b) Resident shall sign a written release of liability to Landlord, and agree to indemnify and defend Landlord should any claims arise as a result of an injury to persons caused by the item; and

(c) Resident shall provide Landlord with proof of a current policy of liability insurance for not less than $______________________, naming Landlord as a co-insured (or otherwise agreeing to defend Landlord in the event of claims under such policy).

In the event of any claims, losses, liabilities, or threats thereof, or should Landlord's insurance carrier thereafter determine that use of the item could cause an increase in Landlord's insurance premiums, or a loss of Landlord's insurance coverage, Resident shall, within three days written notice from Landlord, remove said item from the Community.

Answer: This is a timely and important question. In March 2023 HB 2001 was enacted, which reinstated some of the earlier Pandemic tenant protections including restoring the 10-day and 13- day period in nonpayment of rent notices. It also enacted a new notice that must accompany it.[1]

Also, HB 2001 adopted a new expandeddefinition of the term “Nonpayment”:

“Nonpayment” means the nonpayment of a payment that is due to a landlord, including apayment of rent, late charges, utility or service charges or any other charge or fee as describedin the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560 to 90.584 or90.630.[2] “Nonpayment” does not include payments owed by a tenant for damages to the premises.

Of importance to the above rent-tender question is the following provision in HB 2001:

2. A court shall enter a judgment dismissing a complaint for possession that is based ona termination notice for nonpayment if the court determines that:
   1. The landlord failed to deliver the notice as required under subsection (2) of this section;
   2. The landlord caused the tenant to not tender rent, including as a result of the landlord’s failure to reasonably participate with a rental assistance program; or
   3. The tenant has tendered or caused to be tendered rental assistance or any other payment covering the nonpayment amount owed under the termination notice for nonpayment. (Emphasis added.)

So, to the question of whether the resident must pay the landlord’s filing fee after having to file the eviction the answer is a “Yes.” See, ORS 90.395(5):

(5) Notwithstanding ORS 90.302, a landlord may charge a tenant for filing fees paid under ORS 105.130, if the complaint for possession is dismissed under subsection (3)(c) of this section. Payment of the fees is not a prerequisite for dismissal under subsection (3)(c) of this section. [2023 c.13 §55]

But this does not mean the landlord should refuse the rent-tender unless it is accompanied by the filing fee.

The Take-Away.  It is my opinion[3] that HB 201 results in the following approach for MHP landlords:

1. If rent is not paid after the time prescribed in the Nonpayment of Rent Notice, and before filing the eviction, the landlord should make one last reasonable effort such as a call, visit or email, to see if the resident will pay immediately. It should not include threats or intimidation. If the resident pays, the landlord will have a right to assess late charges if provided in the rental agreement, but should accept the rent even if the late charge is not tendered.

2. If the FED is filed and the tenant pays before going to court, the landlord should accept it even if the landlord’s filing fee is not reimbursed.

3. If the tenant tenders rent at the first appearance in court the landlord should accept it even if the filing fee is not reimbursed.

4. Recovery of the landlords filing fees for the FED, late fees, and other “nonpayments” (as defined above) can be sought by following the default procedures in ORS 90.630. (I cannot forecast what the FED judge might do if the matter goes past the first appearance, but my suspicion is that unless the tenant demands a trial, the court would dismiss if rent paid at the time. Whether a judgment of restitution is issued if rent is not paid at that time is up to the judge; I would foresee a judgment of dismissal if paid the same day or a similar result to avoid the eviction and still get the rent paid.)

[1] Note there are several additional provisions including new first-appearance requirements; mandating landlord declarations for default judgments; changes to first appearance scheduling; and subject to specific court findings, an annual setting-aside of eviction-related judgments occurring after January 1, 2014; and new rent assistance fund provisions.

[2] ORS 90.630 is the statute important to MHP landlords, since it deals with defaults (other than nonpayment of rent) in manufactured housing communities.

[3] This article is not legal advice, It is my opinion only, based upon my reading of HB 2001. Members should check with their own legal counsel.