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Required Provisions of a Rental/Lease Agreement

The required provisions of a rental/lease agreement are covered in ORS 90.510(5). These requirements include:

  1. Location and approximate size of the space.
  2. Federal Fair Housing age classification.
  3. Monthly rent.
  4. All personal property, services and facilities to be provided by the landlord
  5. All deposits (refundable and non-refundable), fees and installation charges including government fees.
  6. Improvements the tenant may or must make to the space or unit including plant material and landscaping.
  7. Provisions for dealing with improvements to the space.
  8. Any conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. This should be identical to the community's screening criteria.
  9. Term of tenancy.
  10. Processes for change to rules and regulations.
  11. The process by which notices shall be given by either landlord or tenant

All of these provisions are included in the MHCO Rental/Lease Agreement

(MHCO Form 5A and 5B) 

Anatomy of the Manufactured Home Community Insurance Policy

MHCO

Answer: The tenant application process is one of the least understood by landlords and managers. This lack of familiarity can result in significant liability to park owners. Here is a short primer:


Screening Criteria. The manufactured housing section of Oregon's landlord-tenant law provides that any conditions the landlord applies in approving a purchaser who will live in the community should be disclosed in the existing resident's rental or lease agreement.[1] Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what criteria may be placed in the rental or lease agreement.


If you are changing your screening criteria for existing residents, you may be in violation of Oregon law, since those criteria are supposed to already be in the rental agreement, which, as you know, cannot be unilaterally amended by a landlord - subject only to specific exceptions.


MHCO's rental and lease agreement forms contain a number of criteria that landlords may impose, such as: (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.


Note that in 2013, the Oregon Legislature changed the law as it relates to "criminal history." Now, landlords and managers may not summarily reject a prospective tenant for "any" criminal history. Today, it is limited to:


  • Pending criminal charges, or
  • Prior criminal convictions, if they resulted from crimes that are:
    • Drug-related;
    • Against persons;
    • Sexual in nature;
    • Fraudulent in nature; or
    • That could adversely affect the property, health, safety, or peaceful enjoyment of the landlord, landlord's agents, or tenants.

To remind landlords and managers, MHCO will be adding these clarifications to its rental and lease agreement forms. In the meantime, landlords and managers should adhere to the new limitations described above.


Although there may be other criteria that landlords and managers may wish to use when deciding whether to accept an applicant, the above list in the MHCO form is very comprehensive, and should be sufficient in imposing adequate guidelines when a resident wishes to sell their home on site. If you want to make a change by adding additional screening criteria, you may only do so for new residents coming into the community - not retroactively for existing residents.


Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check providing necessary verification. Although Oregon law imposes a 7-day or 10-day period[2] within which landlords have to respond to a submitted application, it does not prohibit landlords from imposing a longer period so long as the applicant agrees. Additionally, Oregon law expressly states that the 7-day or 10-day period does not commence if the application is incomplete or inaccurate. Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete - and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned. Accepting an incomplete application or continuing with the process after discovering that the applicant has provided incorrect information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.


Conclusion. Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes. Unfortunately, the desire to have the rental flow commence quickly can result in the process becoming rushed. Landlords and managers should never allow the applicant to rush them. Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed. Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws when one applicant claims they were treated differently than another.


[1] Although the law provides that the screening criteria must be in the rental or lease agreement, they may also be found in the rules and regulations. While there is no problem with this, other than redundancy, landlords should be careful to make sure that the criteria are the same. Similarly, the criteria may also be put in the Statement of Policy, but similar caution should be exercised to make them consistent. My approach is however, to avoid the risk of inconsistency by not repeating the same requirements in multiple documents. If one document gets changed and the others don't there will be an inconsistency.

[2] The longer period exists if the tenant failed to give the landlord at least 10-days advance notice of intent to sell his/her home.

Phil Querin Q&A: Screening Applicants - Is It Okay to Change Criteria? Any Changes in Oregon Law?

Phil Querin

Answer: The tenant application process is one of the least understood by landlords and managers. This lack of familiarity can result in significant liability to park owners. Here is a short primer:

Screening Criteria. The manufactured housing section of Oregon's landlord-tenant law provides that any conditions the landlord applies in approving a purchaser who will live in the community should be disclosed in the existing resident's rental or lease agreement.(1) Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what criteria may be placed in the rental or lease agreement.

If you are changing your screening criteria for existing residents, you may be in violation of Oregon law, since those criteria are supposed to already be in the rental agreement, which, as you know, cannot be unilaterally amended by a landlord - subject only to specific exceptions.

MHCO's rental (Form 5A) and lease agreement (Form 5B) forms contain a number of criteria that landlords may impose, such as: (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.

Note that in 2013, the Oregon Legislature changed the law as it relates to "criminal history." Now, landlords and managers may not summarily reject a prospective tenant for "any" criminal history. Today, it is limited to:

- Pending criminal charges, or
- Prior criminal convictions, if they resulted from crimes that are:
o Drug-related;
o Against persons;
o Sexual in nature;
o Fraudulent in nature; or
o That could adversely affect the property, health, safety, or peaceful enjoyment of the landlord, landlord's agents, or tenants.

To remind landlords and managers, MHCO will be adding these clarifications to its rental and lease agreement forms. In the meantime, landlords and managers should adhere to the new limitations described above.

Although there may be other criteria that landlords and managers may wish to use when deciding whether to accept an applicant, the above list in the MHCO form is very comprehensive, and should be sufficient in imposing adequate guidelines when a resident wishes to sell their home on site. If you want to make a change by adding additional screening criteria, you may only do so for new residents coming into the community - not retroactively for existing residents.

Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check providing necessary verification. Although Oregon law imposes a 7-day or 10-day period (2) within which landlords have to respond to a submitted application, it does not prohibit landlords from imposing a longer period so long as the applicant agrees. Additionally, Oregon law expressly states that the 7-day or 10-day period does not commence if the application is incomplete or inaccurate. Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete - and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned. Accepting an incomplete application or continuing with the process after discovering that the applicant has provided incorrect information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.

Conclusion. Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes. Unfortunately, the desire to have the rental flow commence quickly can result in the process becoming rushed. Landlords and managers should never allow the applicant to rush them. Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed. Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws when one applicant claims they were treated differently than another.

1 Although the law provides that the screening criteria must be in the rental or lease agreement, they may also be found in the rules and regulations. While there is no problem with this, other than redundancy, landlords should be careful to make sure that the criteria are the same. Similarly, the criteria may also be put in the Statement of Policy, but similar caution should be exercised to make them consistent. My approach is however, to avoid the risk of inconsistency by not repeating the same requirements in multiple documents. If one document gets changed and the others don't there will be an inconsistency.

2 The longer period exists if the tenant failed to give the landlord at least 10-days advance notice of intent to sell his/her home.

Phil Querin Q&A: Married Couple Divorce - They Qualified Based Upon Joint Income - Now What?

Phil Querin

Here are my questions: 1. Do we write a new lease for the remaining resident or keep the old lease with both residents on the lease? A new lease would presumably require than any new occupants be qualified all over again. But the current occupant would not qualify. Secondly, the ex-spouse would have no liability for space rent going forward. You may want to leave the status quo, to keep your options opened. 2. Can we legally keep the resident that moved out, responsible for the lease after a divorce and separation of assets? Yes. 3. Do we re-screen the remaining resident to see if he/she qualifies on their own? I have a concern about doing so - if they did not pass the credit requirements, then what? You can't evict them without cause, and as long as the remaining occupant is current, you could not do so. Besides, if the remaining occupant is receiving spousal or child support, their income might be sufficient. 4. Who owns the security deposit or pre-paid rent? I don't think you have a duty to refund any deposits until the tenancy is ended, and so far, that isn'tthe case. If and when it is ended, you could ask for joint instructions from both of them, and if they can't agree, make the check out to them jointly.

Phil Querin Q&A: Sub Lease Occupant and Eviction

Phil Querin

Answer: This fact pattern should be a cautionary tale for all park owners and managers about the risk of letting too much time elapse between the violation and legal action. In order to fully answer the question, I need to assume certain facts. First, I assume that the rules clearly do not permit one to occupy a home without management approval. Secondly, I assume that some form of permitted subleasing is OK, so long as the subtenant is approved by management. Third, I assume that someone - presumably the father - has been paying the rent.


If rent has been accepted with knowledge of this violation, it would be deemed to have been waived after the second acceptance of rent - regardless of who paid it. Clearly, if the rules prohibit this, as does the rental agreement and law, action should have been taken the moment she refused to cooperate.


The best solution may be for the father to proceed with the eviction, since he is a "landlord" under the non-manufactured housing side of the Landlord-Tenant law. Clearly, he can work it out with her and/or the court, better than management working with the recalcitrant occupant, who has already established her unwillingness to cooperate. Besides, why should the park absorb this expense, when it is really between the father as a "landlord" and his daughter as the "tenant." (I don't know why the judge sent them home, but suspect it was to try to resolve it as a family matter rather than a court matter.)


As for whether to accept the rent, it's already pretty late to be worried about "waiver" since that has long since been confirmed to have occurred. Nevertheless, I would NOT accept the rent until this matter is resolved.


The problem with park management doing the eviction based upon an "unauthorized occupant," violation, is that it's too late to enforce, in my opinion. However, your question about a "No-cause" eviction suggests that you believe this might be a viable alternative - i.e. the legal basis for eviction arises under the non-manufactured housing side of the statutes. I don't think so. First, because the manufactured housing side of the law still applies vis a vis the father, and regardless, rent has been accepted, making the waiver argument a real possibility.

Community Financing: Assessing the Lending Marketplace in 2017

By Zach Koucos

Director, Holliday, Fenoglio, Fowler (HFF)

The second half of 2016 and early 2017 signaled a great amount of uncertainty regarding the future of fiscal and regulatory policy in the United States. While everyone is trying to figure out what the impacts of policy changes by the Trump administration will be on the economy, the stock market has surged and interest rates have climbed. Both of these occurrences reflect a positive reaction to the election in the financial marketplace, however the effect on real estate and income property values remains a concern for owners.

 

Higher interest rates certainly impact the feasibility of borrowing money, which in turn affects the purchasing power for real estate acquisitions as well as property values. Most fixed rate lenders price their loans based on US Treasury yields. Many borrowers have been focusing on rising benchmark interest rates, however the good news is that US Treasury yields today are still far lower than their long term averages. As of March 7, 2017, the 10 year US Treasury yield stood at 2.51%, compared to 1.83% on November 7, 2016, the day before the election. The 10 year US Treasury yield began 2016 at 2.24%, and 2015 at 2.12%. To provide some perspective, below is the average yield on the 10 Year US Treasury during the last 5 decades, and so far in the 2010's:

 

1961 - 1969:  4.73%

1970 - 1979:  7.50%

1980 - 1989: 10.59%

1990 - 1999:  6.67%

2000 - 2009:  4.46%

2010 - 2016:  2.38%

 

We have definitely enjoyed some very low interest rates over the last few years, which has benefitted borrowers and helped to support increasing property values. Most economists are predicting that ultimately Treasury yields have to return closer to these long term averages shown above, citing the Trump administration's mix of reflationary policy initiatives. Rates can always go down in the short term, however if the United States is successful at growing nominal gross domestic product (GDP) over the next few years, Treasury yields could likely follow. Given this outlook, today's still historically-low interest rate environment offers an extraordinary opportunity to evaluate your near and long term financing objectives.

 

Notwithstanding recent volatility due to the political climate and rising interest rates, the marketplace for income property financing remains very healthy, with no shortage of capital. Lenders remain optimistic for 2017, and most are planning to equal or exceed their loan origination volume from 2016. This includes lending for manufactured home communities (MHC's), an asset class of ever-increasing interest to capital providers. Volatility forces commercial lenders to gravitate towards lower risk, stable, income-producing real estate. Manufactured home communities are increasingly high on their lists, since the cash flow is consistent and demand for affordable housing is strong.

 

 

Numerous institutional and private owners of manufactured home communities and other commercial real estate have taken advantage by locking in historically low fixed rate loans. In several cases, refinancing existing loans with prepayment penalties still made economic sense given the savings realized with today's low interest rate financing. If you've been considering a refinance to lower expenses, access additional capital to fund overdue projects, or facilitate additional acquisitions, it's still a great time to take a look at the programs available in today's market.   

 

The pool of varying capital sources deepened even further in 2016. Lender demand for existing, stabilized real estate transactions remains strong, despite escalated regulatory practices imposed on the industry. Over $1 Billion in commercial real estate loans will be maturing daily through the end of 2018, and the necessary lender appetite is present to service this need. Owners of manufactured home communities will benefit from this activity, as the capital marketplace for MHC's continues to expand and lenders are seeking to deploy capital on lower risk housing assets.

 

An overview of community financing options for 2017:

As a result of Dodd-Frank Wall Street reform policies and Basel III regulations imposed on banks, construction and high risk" lending is tightening. Thus

Phil Querin Q&A: Plumbing Issues

Phil Querin

Question  A:  We have a Tenant who has refused to fix the water leaks within their mobile home. The park owner pays for the water and there have been significant cost increases due to the leaks. 

The Lease is the MHCO Lease from 2003 and states under Tenant Agreements F. Maintain the Home in accordance with conditions set forth in Paragraph 12.A(8)(a) through (e) which states in (d) all electrical, water, storm water drainage and sewage disposal systems in, on, or about the Home, are in operable and safe condition, and that the connections to those systems have been maintained.

What recourse do we have in this situation?

Question B:  We have a tenant whose sewage line is routinely blocked.  We have had a plumber our numerous times and unclogged resident’s sewage line.  We have repeatedly told this resident that they cannot put certain items in the toilet - and yet they continue to do so and block the sewage line.  Does this constitute grounds for eviction?  At what point is the resident responsible for the sewage line and the items they are putting in the toilet?Question B:  We have a tenant whose sewage line is routinely blocked.  We have had a plumber our numerous times and unclogged resident’s sewage line.  We have repeatedly told this resident that they cannot put certain items in the toilet - and yet they continue to do so and block the sewage line.  Does this constitute grounds for eviction?  At what point is the resident responsible for the sewage line and the items they are putting in the toilet?

 

Answer A: First, the MHCO Lease cited above addresses this. Not fixing the leaks, which are their responsibility to do, is a violation. Secondly, ORS 90.740(f) requires that tenants “(u)se electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems. The tenant is using the water system in an unreasonable manner when they refuse to fix the leaks.

 

ORS 90.630 (Termination by Landlord) provides, in relevant part, the following:

 

 (1) Except as provided in subsection (4) of this section, the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days’ notice in writing before the date designated in the notice for termination if the tenant:

      (a) Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;

      (b) Violates a rule or rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing….

 

ORS 90.630 goes on to explain that you may issue a 30-day written notice of termination, allowing the tenant to fix the leaks within 30 days and avoid termination. If they fail to do so, you may file for eviction. If they cure, but the problem occurs again within six months following the date of your earlier 30-day notice, you may terminate the tenancy within 20 days, and there is no opportunity to cure. MHCO has the necessary forms.

 

Be sure you have papered your file to support your contention that these are water leaks for which the tenant is responsible, and then specifically describe the violations (there are two of them, one under the Lease, and the other under the statute)  in the Notice. 

 

Answer B:  This question is same as the prior one and the answer is the same (although the placement of the requirement may not be in the same location, depending on the date of your lease or rental agreement). Just make sure you have the evidence (e.g. plumber statement) before acting, and that you adequately identify the problem and solution in the Notice. 

 

Phil Querin Q&A: Two Questions on Plumbing

Phil Querin

Question  A:  We have a Tenant who has refused to fix the water leaks within their mobile home. The park owner pays for the water and there have been significant cost increases due to the leaks. 

The Lease is the MHCO Lease from 2003 and states under Tenant Agreements F. Maintain the Home in accordance with conditions set forth in Paragraph 12.A(8)(a) through (e) which states in (d) all electrical, water, storm water drainage and sewage disposal systems in, on, or about the Home, are in operable and safe condition, and that the connections to those systems have been maintained.

What recourse do we have in this situation?

Question B:  We have a tenant whose sewage line is routinely blocked.  We have had a plumber our numerous times and unclogged resident’s sewage line.  We have repeatedly told this resident that they cannot put certain items in the toilet - and yet they continue to do so and block the sewage line.  Does this constitute grounds for eviction?  At what point is the resident responsible for the sewage line and the items they are putting in the toilet?

 

 

Answer A: First, the MHCO Lease cited above addresses this. Not fixing the leaks, which are their responsibility to do, is a violation. Secondly, ORS 90.740(f) requires that tenants “(u)se electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems. The tenant is using the water system in an unreasonable manner when they refuse to fix the leaks.

 

ORS 90.630 (Termination by Landlord) provides, in relevant part, the following:

 

 (1) Except as provided in subsection (4) of this section, the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days’ notice in writing before the date designated in the notice for termination if the tenant:

      (a) Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;

      (b) Violates a rule or rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing….

 

ORS 90.630 goes on to explain that you may issue a 30-day written notice of termination, allowing the tenant to fix the leaks within 30 days and avoid termination. If they fail to do so, you may file for eviction. If they cure, but the problem occurs again within six months following the date of your earlier 30-day notice, you may terminate the tenancy within 20 days, and there is no opportunity to cure. MHCO has the necessary forms.

 

Be sure you have papered your file to support your contention that these are water leaks for which the tenant is responsible, and then specifically describe the violations (there are two of them, one under the Lease, and the other under the statute)  in the Notice. 

Answer B:  This question is same as the prior one and the answer is the same (although the placement of the requirement may not be in the same location, depending on the date of your lease or rental agreement). Just make sure you have the evidence (e.g. plumber statement) before acting, and that you adequately identify the problem and solution in the Notice.

Headline #2:  Community Owner to Pay $35,000 to Settle Dispute Over Resident's Pit Bull

The owners and managers of a Midwest community recently agreed to pay $35,000 to settle a lawsuit filed by the Justice Department, alleging that they violated fair housing law by placing undue conditions on a resident’s request to live with her assistance animal and then refused to renew her lease.

The Backstory: The case is about a resident who moved into an 800-unit community, which allowed pets and assistance animals, but had a “no dangerous breeds” policy that prohibited pit bulls. Before moving in, the resident allegedly had been in treatment for mental health disabilities that stemmed, at least in part, from witnessing the traumatic deaths of her boyfriend and mother. A family member gave her a young pit bull, which her treating psychologist said helped alleviate the symptoms of her disability and was a “major and required part of her treatment program.”

She apparently didn’t mention the dog when she moved into the community later that year. When the community discovered the pit bull, the resident requested a reasonable accommodation so she could keep it as an emotional support animal. Allegedly, the community denied the request and told her to remove it.

What followed were communications involving the resident, community representatives, and their lawyers, and ultimately, a series of court proceedings. During the process, the resident produced documentation from her treating psychiatrist that the specific animal was necessary for her to be able to live there and essential to her recovery from the severe trauma she suffered. In an interview before a court reporter, the psychiatrist said much the same thing.

It was about half-way through the one-year lease term when the parties came to terms. In lieu of granting her requested accommodation, the community allegedly gave her two options: either immediately terminate her lease and get some rent back or keep the dog through the end of the lease, but with conditions. Allegedly, the conditions included obtaining an insurance policy to cover the dog, requiring the dog to wear an emotional support vest whenever he left her unit, and repaying the community for any harm caused by the dog.

According to the resident, she picked the second option, but a few months later, she received notice that her lease would not be renewed. Renewed negotiations were unsuccessful, and she moved out. 

After the resident filed a HUD complaint, the Justice Department sued the community for discrimination and retaliation against the resident on the basis of her disability.

The community denied the allegations, but the parties reached a settlement to resolve the matter. Without admitting liability, the community agreed to pay $35,000 to the former resident and adopt policies, including a reasonable accommodation policy that specifically addressed requests for assistance animals. Under the new policy, assistance animals are not subject to breed restrictions or required to wear vests or other insignia that identify them as assistance animals; residents are not required to pay any fees or obtain insurance as a condition of keeping assistance animals.

Lessons Learned: 

1.   Assistance Animals Are NOT Pets: Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, security deposits, or additional rent charges. Whatever your pet policy, you must consider a request to make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the community. That includes a request to keep a pit bull as an assistance animal—despite any policies banning so-called “dangerous breeds”—unless there’s evidence that the particular animal poses a direct threat to the safety or property of others.

2.   Requests for Assistance Animal Can Come Anytime: Don’t get thrown off because the resident makes a reasonable accommodation only after you discover she’s been keeping an animal in violation of your pet policy. Under fair housing law, reasonable accommodation requests may be made at anytime before or during the tenancy. The timing may be off, but it’s risky to deny the request—or make the resident jump through hoops—to overcome suspicions that she’s trying to get around your rules by falsely claiming a pet is an assistance animal. Instead, follow your standard policies for handling reasonable accommodation requests, including verification of the disability and need for the assistance animal if either or both are not known or readily apparent.

3.   Don’t Impose Extra Conditions to Allow Assistance Animals: Don’t require residents with disabilities to pay pet fees or get extra insurance coverage as a condition of allowing them to keep assistance animals. Conditions and restrictions that communities apply to pets may not be applied to assistance animals, according to HUD, though you do have recourse against residents for damages caused by assistance animals. HUD says you may require a resident to cover the cost of repairs for damage the animal causes to his unit or the common areas, reasonable wear and tear excepted, if it’s your policy to assess residents for any damage that they cause to the premises. Allowing for reasonable wear and tear, you may assess the costs against the standard security deposit charged to all residents, regardless of disability.

 

 

Rent Increases Before New Rent Control Legislation Becomes Law

Phil Querin

Question:  All indications are that the 2023 legislature is going to revisit the rent increase formula currently in effect, and once passed it would likely become law immediately upon the Governor’s signature. How can landlords deal with having already issued a September 2022 90-day rent increase notice if the 2023 rent cap is legislatively reduced before the landlord’s previously-issued September 2022 increase goes into effect?

 

Answer: Currently, ORS 90.600(2)(b) limits rent increases to 7% plus CPI (“Cap”) for any 12-month period. For 2023 that resulted in a Cap of 14.6%.[1] This amount surprised some, and we can fully expect the Oregon Legislature to pass a new law that could effectively reduce the Cap.

 

Note, that I do not read the law to limit rent increase after the first year of a month-to-month tenancy to only once per year – so long as the annual Cap is not exceeded in total. However, I believe that rent increase are generally limit to one-a-year by most Oregon MHP landlords.

 

Note also, that since ORS 90.600 only applies to periodic tenancies, i.e., month-to-month, the Cap does not apply to rent formulas in leases, i.e., fixed term tenancies. However, it has been my understanding that this was a legislative oversight in 2019; if so, the 2023 Legislature may change that, as well.

 

Currently, the text of ORS 90.600 provides that the landlord may not increase the rent (a) without giving each affected tenant notice in writing at least 90 days prior to the effective dateof the rent increase; and (b) during any 12-month period, in an amount greater than seven percent plus the consumer price index above the existing rent.

 

My reading of this is that so long as the rent does not exceed the Cap during a particular year – there is no limit on when the notice of 90-day increase may be issued. To put it another way, “increasing the rent” is not the same as “giving notice” of an increase in rent. There is no restriction against the frequency of the notices, just increases that exceed the applicable Cap.

 

For example, say word was out that the 2023 Legislature was going to dramatically reduce the Cap going forward. In my opinion, a landlord having already issued a 90-day rent increase notice in September 2022, effective January 1, 2023 (or later) would have two choices:

  1. Rescind the 2022 notice before it becomes effective, and re-issue a new 90-day notice for a different rent effective in 2023, so long as it was done before the effective date of the new legislation and did not exceed the 2023 Cap establish in 2022.

 

  1. Don’t rescind the earlier 2022 notice but issue a second rent increase notice that does not, in total, exceed the 14.6% Cap - so long as it is issued before the new 2023 legislation becomes effective.[2] Caveat: The 2-notice approach needs to make sure that the rental agreement or other park docs don’t limit increases to one per year.

 

Note that for both Nos. 1 and 2 above, the rent increase notice cannot be sent to any tenants who still have rent payments due on their first year of tenancy (including occupancy that may have preceded the signed rental agreement).

 

SB 608, the 2019 law amending ORS 90.600 and creating the Cap, applied to “rent increase notices delivered on or after the effective date of this 2019 Act.” In other words, the Legislature did not attempt to retroactively (and likely illegally) interfere with a rent increase that had already been issued before SB 608 went into effect.

 

Following that logic, should a landlord wish to rescind a 2022 90-day rent increase for 2023 and reissue a different one, it should be entirely legal so long as it is issued before the effective date of the legislation creating a new Cap.

 

Caveat: Landlords should check with their own legal counsel before rescinding any 2022 90-day notices or reissuing a second 90-day notice for 2023 rents under the 14.6% Cap.

 

 

[1] https://www.multifamilynw.org/news/2023-oregon-maximum-rent-increase-is-146

[2] For example, a 5.00% increase notice issued in September 2022 and a second notice for something less than 9.6% issued before the 2023 legislation becomes effective.