Search

Answer: By way of refresher, ORS 90.630 pertains to curable maintenance/appearance violations relating to residents' spaces. However, if the violation relates to the physical condition of the home's exterior, ORS 90.632 applies, to address repair and/or remediation that can take more time to cure, either due to the weather, the amount or complexity of the work, or availability of qualified workers.

SB 277A, became law on June 14, 2017 ("Effective Date"), applies: (a) To rental agreements for fixed term tenancies - i.e. leases - entered into or renewed on or after the Effective Date; and, (b) To rental agreements for periodic tenancies - i.e. month-to-month tenancies - in effect on or after the Effective Date.

Both ORS 90.632 and the MHCO form (No. 55) provides that if the tenant performs the necessary repairs before the end of the compliance date, or extended compliance date, they have the right to give the landlord/manager a written notice that the issues have been corrected. There is no fixed time for management's response as to whether the repairs have been satisfactorily and timely performed; it is sufficient if it is within a reasonable time following the tenant's written notice. However, if a tenant gives this notice to management at least 14 days prior to the end of the completion deadline, or extended deadline, their failure to promptly respond is a defense to a landlord's termination of tenancy.

I am assuming the tenant gave you no such notice, otherwise, you would have responded that the color was too bright.

MHCO Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. As I said in an article last year on this form, '_you cannot expect the tenant to be a mind reader - just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity."

Is there a technical argument that since the requirement was not in the Form 55 Notice, that it is not effective? In other words, he complied with the Notice, but not the letter. As you said: "He did paint like we asked him, but it was not a color approved by management." I personally think such an argue is specious - assuming that the letter accompanied, or quickly followed the Notice.

But to the question whether you can proceed under the Notice, I don't think I would recommend that, because the Notice was complied with. Assuming you have some rule about pre-approval on painting in your rules, I would issue a 30-day notice.

If you do not have such a rule, you will likely have to tread lightly, as you may not be in a good position to declare a violation upon which to issue a termination notice. In other words, you should try to reach a compromise, which may result in some form of cost sharing. I'm sorry to reach this conclusion, but without the requirement of management approval somewhere (i.e. in the rules or the Form 55 Notice) you may find that it the tenant secures legal counsel, you options are limited.[1]

The cautionary tale here is to make sure that when issuing Form 55 Notice, you not only need to identify what the problem is, but all completely explain what is necessary to cure. Had the pre-approval requirement been set out in the Form, you would have at least had a reasonable argument of non-compliance. I say "reasonable" because there still remains an argument by the tenant that you are imposing a requirement (i.e. management pre-approval), that is not contained in the rules or rental agreement.

[1] There is an argument that the Letter was part of the Form 55 Notice, and therefore the tenant is in violation. However, unless one of them referred to this cross-reference, it is not a pitch I would try to make in court.

Answer: Yes, there are a few new laws plus a few new twists on existing laws. In a shameless plug, I encourage all park owners renting RV spaces to attend my RV Law Seminar at the MHCO Annual Convention. The RV seminar is on Monday, October 20th at 3:30.

Liability Insurance

One of the new laws we'll cover is the tenant liability insurance statute. This new law allows landlords to require RV tenants to obtain and maintain liability insurance during their tenancy. The amount of coverage may not exceed $100,000. To implement this policy, landlords can give RV tenants a 30-day notice informing them of this requirement. New RV tenants can be required to obtain insurance as long as you notify them in writing when they apply for tenancy.

If you have long-term RV tenants, it might be worthwhile to make liability insurance a requirement in your park. It adds another layer of protection for you as a landlord if a tenant does something causing major damage or injury in the park. (NOTE: The law does not apply to mobile home park tenants.) There are some restrictions on the insurance requirement, which we will cover in more detail at the RV seminar.

Noncompliance Fees Charged to RV Tenants

There have been a few changes to the laws which allow a landlord to charge tenants a noncompliance fee for certain violations. These fees can be a useful tool in getting tenants to follow the park rules without having to issue an eviction notice. Landlords can charge fees for (1) late utility payments, (2) failing to pick up pet waste, (3) failing to clean up garbage, (4) parking violations, (5) improper use of vehicles on the premises, (6) smoking in non-smoking areas, and (7) keeping unauthorized pets. The fees can't be charged without first giving a written warning and there are several other restrictions that we will cover at the RV seminar.

Section 8 Rental Payments

A new law now makes it unlawful for you as a landlord to refuse to rent to Section 8 tenants for that reason alone. The rationale is to give low income tenants the opportunity to rent anywhere regardless of how they make their income. While this doesn'tusually arise in RV park rentals, all landlords should be aware of the new law.

Prior Evictions, Arrests of Crimes

RV tenant applicants now cannot have their evictions considered if the case was dismissed or a judgment entered in the applicant's favor. Eviction cases 5 or more years old at the time of the rental application similarly cannot be considered in evaluating the applicant.

The law also specifies that only certain types of crimes can be considered in evaluating an applicant: (1) Drug related crimes, (2) crimes against another person, (3) sex offenses, (4) financial fraud, and (5) a "catchall" provision that includes any crime that might affect the landlord's or other tenants' property or safety. Arrests in the person's past on any of these issues that did not result in a conviction cannot be considered. However, pending arrests that have not been adjudicated at the time of the application may be considered.

RV Restroom Requirements

While not a new law, Oregon law requires that parks provide bathroom facilities to "vacation or recreational" campers. Less clear is whether parks are obligated to keep or install restrooms if they only rent to long-term residential RV tenants. At the RV seminar we will explore this issue and how it might affect your park - particularly if you have a mixed-use park of both RVs and mobile homes.

The owners and managers of a single-family rental home in Idaho recently agreed to pay $15,000 to settle allegations that they violated fair housing law by refusing to rent the large home to a married couple because they have more than four children.

The federal Fair Housing Act makes it unlawful to deny or limit housing because a family has children under the age of 18, make statements that discriminate against families with children, and impose different rules, restrictions, or policies on them.

The settlement resolves a HUD charge, alleging that the homeowners discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they have seven minor children. Specifically, HUD’s charge alleges that when the couple met with the property manager about renting the home, he told them that the owners had set a limit of four children for the home. The charge also alleges a policy restricting the number of children was written in the rental contract.

“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s action will hopefully serve as a reminder to all housing providers of the importance of meeting their obligations to comply with the requirements of the Fair Housing Act.”

Background. Hickey v. Scott was an eviction action. Under the lease at issue, the tenants were to pay a $1,500 security deposit and $850 in monthly rent. Upon move-in their landlord received the $1,500 as a subsidy from a not-for-profit institution, but only $525 in “rent” from the tenants. Two months later the landlord issued the tenants a notice of nonpayment saying that they must pay $1,700 (two month’s rent at $850/month) to cure or face eviction. The tenants did not pay, and the eviction was filed.

The trial court sided with the Landlord on the eviction but ultimately determined that the tenants only owed $1,175 (i.e., the remaining $325 of the first month’s rent ($850 - $525), plus the full $850 for the second month). The tenants appealed contending that, because the Landlord asked for an overstated amount, the 72-hour notice was defective, and the case must be dismissed.

The Court of Appeals agreed with the Landlord, upholding the trial court’s eviction. The tenants appealed to the Oregon Supreme Court, who disagreed with the Court of Appeals and trial court. It held that the eviction notice was faulty since the notice sought an overstated amount of rent due and therefore automatic dismissal was required.

Supreme Court’s Reasoning. The Court’s written opinion engaged in both statutory interpretation and an expanded look at the nature of the landlord-tenant relationship. 

1. Statutory Interpretation. The Court reasoned that an FED proceeding requires two events: (a) That the tenant violated the rental agreement in some manner, and (b) That the landlord delivered a valid notice of termination. 

While it wasn’t disputed that the tenants had violated their rental agreement by failing to pay their rent, the landlord had not provided a valid notice of termination because the 72-houe notice had overstated the amount of money required to cure.

In short, the Court’s interpretation of ORS 90.394(3) was that there be a specific sum due and a date and time within which the tenant had cure. This led to the inescapable conclusion that the rent demand must be accurate. Overstating the demand, even innocently, renders the notice invalid and requires a dismissal of the case. Understating it is OK.[2]

2. Landlord-Tenant Relationship. The Court also acknowledged that there is an imbalance of power in the landlord-tenant relationship. Because of their business, landlords are in the best position to accurately determine the amount they will accept to cure the tenant’s default. If the landlord’s notice is wrong, the case is dismissed, but the eviction can be refiled seeking the proper amount. 

Where Does This Leave Oregon Landlords? The Court recognized that the ruling appears to be overly harsh to landlords, since there is no requirement that a landlord act in bad faith. An innocent mistake over the amount due will merit a dismissal just as quickly as an intentional act.

Landlords have two options if their claim is dismissed for an invalid notice.

1. Option #1. If an FED is dismissed because the Landlord overstated the amount due in the termination notice, the landlord may re-issue a notice with the correct amount and immediately re-file the eviction. It is the summary nature of FEDs, i.e., the speed with which a landlord may have the case decided, that requires absolute accuracy.

2. Option #2. In Hickey, the Court was only concerned with landlords overstating the amount of rent due. The Court, however, had no problem with a landlord stating an amount of rent necessary to cure that is less than the full amount of rent due. They make a distinction between the amount that will be accepted to “cure” versus the amount “owed.”[3]

MHCO Form Changes. MHCO Form 82A, the ten-day notice of nonpayment of rent has been modified (a) to encourage tenants to notify management if they dispute the “Total Rent Due,” and (b) to encourage landlords to (i) make sure the “Total Rent Due” is accurate, (ii) if the amount is disputed, to verify the figures, and (iii) if there are questions, to check with legal counsel before proceeding.

Conclusion. Landlords should use caution to accurately determine the amount of outstanding rent due before issuing the notice of nonpayment. The risk for having an overstated figure is automatic dismissal of the eviction. 

If an accurate amount is difficult to arrive at, or there is disagreement over the amount, landlords should consult with their legal counsel. One consideration may be that rather than risking an overstated disputed amount, is to accept a lesser amount to cure. An inaccurate, but lower, estimate of the outstanding rent will not trigger an automatic dismissal, and if that sum is not paid, the eviction will still be legal.

By: Rachelle Menaker is a partner with Hart, King & Coldren's transactional practice group. I. INTRODUCTION: OVERVIEW OF CURRENT LENDING CLIMATE FOR MHP'S Everyone knows that interest rates in re- cent years - in the wake of the financial melt- down that occurred in the mid-2008 to mid-2009 timeframe - have been at historic lows. While in the past few quarters of 2013 rates have crept up slightly, interest rates are still favorable from a historical perspective. Clearly, none of us have crystal balls as to how long rates will remain at these relatively attractive rates. So no guarantees on the duration of this favorable market for interest rates can be made. Nevertheless, if you either own a mobile home park (MHP") and you're considering a refinance

A fire or ambulance crew can’t safely respond to a medical emergency in a single family home because the resident has belongings stacked up to the ceiling and blocking many windows or doors.

A tenant living in an apartment faces eviction when he or she fails to pass a follow-up inspection after several warnings about lease violations related to items that create a tripping hazard, fire danger, or limit access to maintenance staff. The tenant then contacts their case manager in a panic.

These are just two examples of possible complications in housing settings that could impact housing providers.  Hoarding is distinct from simply building a collection, which is usually displayed with pride, or letting a few days of dishes and laundry pile up when life gets busy. A person who has been diagnosed with hoarding has a disability under the Fair Housing Act1. Hoarding has been added to the DSM-5, the latest version of the American Psychiatric Association’s classification and diagnostic tool, and is now recognized as diagnosable condition independent of other mental health conditions.

FHCO had received a few calls about potential hoarding situations by the time an invitation came in the spring of 2013 to participate in a collaborative Multnomah County conversation about the issue. Two graduate social work students serving as interns in the Multnomah County Office of Aging and Disability Services convened various agencies to meet for a “community assessment.” Attendees have included representatives of several nonprofit and for-profit housing providers, Aging and Disability and Adult Protective Services, Legal Aid, Animal Control, and Assessments and Tax. This Hoarding Task Force has continued to meet regularly, researching resources and bringing in experts to assist in coordinating services and developing best practices. The group is now beginning the process of staffing cases and developing a more formal protocol.  The good news is that there are new cognitive behavioral therapy models that can be successful in treating hoarding.

Since hoarding disorder is a disability under the Fair Housing Act, these individuals have the right to request a reasonable accommodation (RA) from a housing provider. This might include providing an agreed upon length of time to bring in a professional cleaner / organizer to help clear pathways, reduce pile heights, clear materials in front of heating vents, etc. More will probably be needed than a single deep clean. There may be several steps to the RA request, prioritizing the most immediate safety needs and then allowing a more gradual timeline for reducing other clutter, in conjunction with a professional organizer or mental health provider.

As with any RA request, housing providers need to evaluate the request and the verification of disability and respond in a timely manner. Housing providers are always well advised to review the legal reasons for denial, consult with a fair housing attorney, document the rationale for their decision, and feel comfortable defending it if a complaint / case follows when making a decision on a RA request.  As always, regardless of the request that’s made or what the disability is, if a denial is made, HUD says a conversation should ensue about what would work for the individual with the disability. 

Want to learn more?  Suggested reading list:

• Hoarding basics: www.psychiatry.org/hoarding-disorder -- American Psychiatric Association: “Hoarding Disorder”
• "The Hoarding Handbook: A Guide for Human Services Professionals" – Bratiotis, Christina, et. al., New York: Oxford University Press, 2011
• “Task Forces Offer Hoarders a Way to Dig Out” – The New York Times, Jan Hoffman, 5/26/13
• “Obsessive compulsive and related disorders” – American Psychiatric Publishing

This article brought to you by the Fair Housing Council; a civil rights organization.  All rights reserved © 2015. 

[1] Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.

This morning the Oregon State Senate passed the 2015 Landlord-Tenant Coalition Bill on a vote of 29-0 with one Senator absent.  The bill now moves on to Governor Kate Brown's desk for signature. 

MHCO is THRILLED that a long standing legislative goal - the ELIMINATION of the requirement that landlords pay the back taxes on an abandoned home in their community when the landlord purchases the abandoned home is well on it's way to becoming Oregon law.  This portion of the legislation will become effective January 1, 2016.  MHCO along with Phil Querin have already created initial drafts of the forms necessary to comply with the new law.  Those forms will be reviewed and available to members on-line later this year.  We will also have an extensive article by Phil Querin available for the MHCO membership later this year as well.  Other issues contained in this legislation will be addressed at the annual MHCO Conference at the end of October.  Stay tuned for details!

This is a major win for Oregon community owners and will impact every community owner in the state.  Special thanks to Dale Strom, Adam Cook and Phil Taylor who dedicated an enormous amount of time negotiating on behalf of community owners in the landlord tenant coalition.   MHCO also thanks Diane Belt with the Oregon Tax Assessors Association for her expertise and willingness to resolve this issue. 

There have also been some less than satisfactory developments in Salem this week.

Yesterday the Oregon Senate Committee on Human Services and Early Childhood held a public hearing on HB 2564.  This is the inclusionary zoning" bill that passed the Oregon House earlier this session.  It is also the bill that Representatives in the House alluded to the as needing a rent control amendment during the floor debate in the Oregon House last month.

At yesterday's public hearing an amendment (the dash 5 amendment) was introduced that would chip away at the statewide preemption on rent control.  

Here is Phil Querin's analysis of the proposed amendment:

"When the bill attempts to exclude the application of ORS 91.225 (which prohibits rent control)

The Basic Rule for Liability Avoidance in a Mobilehome Park 

It is the parents’ responsibility, not management’s, to decide ability to swim and access privileges for minors. Access, hours, and supervision restrictions are illegal under the Federal Fair Housing Amend- ments Act of 1988 (FHAA).1 While narrowly drawn rules may differentially impact children (persons under 18 years of age), these are not advised. The “default setting” is best: the law requires that the parents be vested with exclusive discretion to decide, control and live with their choices for kid’s access and supervision issues. Likewise, scour the rules and regulations (and now, internal management policies, manuals, agreements and memoranda) to eliminate any rule which mentions “children.” Use of the term “children” is a trigger word, no different than use of any other label for a person in a protected class. The Department of Housing and Urban Development (HUD) treats children as “small adults” for purposes of scrutinizing rules.

The Federal Fair Housing Amendments Act of 1988 (FHAA) created a new protected class of “familial status”. In California, the federal courts have addressed this requirements by ruling that “all age” communities may not discriminate against children, no more than management can discriminate against any other protected class.

Federal Requirements and Over-Regulation 

Let’s face it; some parents are not responsible. According to the Centers for Disease Control and Prevention, of all children one to four years old who died from an unin- tentional injury, almost 30% died from drowning. Fatal drowning remains the second-leading cause of unintentional injury-related death for children ages one to 14 years. The same report reveals that “the fatal drowning rate of African American children ages 5 to 14 is 3.1 times that of white children in the same age range.”

1. E.g., United States v. Plaza Mobile Estates, 273 F.Supp.2d 1084 (C.D. Cal. 2003); Bischoff v. Brittain, No. 2:14-cv-01970-KJM-CKD, United States District Court, E.D. California (May, 2016).

Mobilehome park swimming pools are deemed public, and re- quire fencing, postings and related equipment. In years past, it was believed that parkowners could require adult supervision in the swimming pool area, but it is for the parents to decide and control.

State Requirements and Conflict with the FHAA and the FEHA

California, meanwhile, promulgated modifications to Title 24, but apparently did not clear their proposals with any lawyer or the children’s rights lobby. The state mandated sign includes language mandated by Title 24 of the California Code of Regulations, as follows:

“WARNING: NO LIFEGUARD ON DUTY Children under the age of 14 shall not use pool without a parent or adult guardian in attendance.”

This language is a prima facie violation of the FHAA protections against discrimination on the basis of familial rights.2 Posting this sign places every operator of a Title 22 swimming pool (that’s us parkowners) in violation of the FHAA. If posted, any aggrieved family member may sue just because it is posted (enforced or not). Since posting this sign exposes a parkowner to liability, what should the parkowner do? First, offer to post the sign which would be consistent with the FHAA:

“WARNING: NO LIFEGUARD ON DUTY Children under the age of 14 should not use pool without a parent or adult guardian in attendance; management recommends no one swim alone.”

Despite entreaties made for clarification to resolve this conflict, to both the Department of Housing and Community Development (HUD) and the Department of Fair Employment and Housing (DFEH), there has been no response. This problem does not lie in an older persons (55+) park, by the way. This is because the “older persons” park is exempt from the familial status requirements. Since a parkowner may entirely exclude children due to the effect of the 55+ regulation, allowing kids at all is a benefit that is not required (total exclusions, pool hours, supervision are all allowable restrictions) all permissible in the “older persons” community at this time.

2 . In striking down the legal requirement for signage as a discrimination defense, the central district judge held that " . . . there is nothing magical about the age of 18 or 14 years old if defendants' concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement." U.S. v. Plaza Mobile Estates. 

In many counties, the illicit requirement is not applicable until capital renovation of the pool area. But if not, what do you do if the county representative refuses to consent to the suggested modification? Do you refuse to comply with state law in order to comply with the FHAA, or do you comply with the state mandate and violate the FHAA? As of this time, you must seek out counsel, pay them, obtain advice, and follow it.

Management Communications Can Violate the FHAA

In a housing case decided in Northern California in May, 2016, the landlord was called out for discrimination against children in an all age facility. In Bischoff v. Brittain,3 the on site management received training, including a “Resident Relations Training,” at seminars pro- vided by independent experts. A “Brief Recap of Notes” document summarizes several meetings and was distributed to the managers. The document stated that as to handling unsupervised children:

1. If you have a young child not being supervised, walk the child home and speak with whoever is in charge.

2. Have your supervisor write a letter after you speak with the person in the apartment, which will alert whoever opens the mail, that you are worried over the child’s safety-you are now showing safety concerns and are not attacking their parenting skills or being discriminatory.

1. If nothing changes and the child is once again outside un- supervised, notify your super- visor who will now contact so- cial services and/or the police. 

2. If nothing still changes, we will then consider eviction and note the reasoning on their notice. 


The landlord’s property director said the document is “simply a statement of suggested guidelines for the managers’ reference and discretionary application to unsupervised young children.” However, the court found that the reasoning violates “familial status” rights. The director relied on a mistaken understanding that “young children require regular adult super- vision.” She felt that management should “encourage [...] parents and guardians to exercise such supervision for the safety of their young children and for the benefit of other residents.” She believed that “such supervision is necessary so that young children who are tenant residents “will not be at risk of injuring themselves” or other residents, or “engaging in disruptive or destructive activities.”

“In an effort to promote such supervision and discourage parent-guardian neglect, we developed internal suggested guidelines for managers to use in their discretion as circumstances might war- rant.”

3. U.S.Dist.E.D.Ca. April 29, 2016, Decided; May 2, 2016, No. 2:14-cv-01970-KJM-CKD, 2016 U.S. Dist. LEXIS 58280.

The guidelines do not pass muster, said the court. While intended to protect the safety and well-being of young children in need of supervision, to encourage parents or guardians to provide that needed supervision, and to limit disturbances to other residents, they also allow differential treatment. It is no help that the guidelines serve the concomitant business purpose of protecting against liability that might arise from injuries to such young children.

The court found that the landlord’s policies “[...] toward unsupervised young children inherently treats children differently than adults by limiting when they may use the common areas of the complex to times when they are supervised by an adult.” The guidelines also treat parents of young children differently by subjecting them to certain consequences if their children are found unsupervised. Adult-only households may use the complex without limitation and warnings or facing eviction for violating the adult supervision guidelines. Be- cause children are subjected to explicitly differential treatment there was a validly claimed discrimination based on the face of the guide- lines.

The landlord claimed the guide- lines are not discriminatory: they are not a formalized, mandatory “policy” or rental provision; they only limit young children to the ex- tent the children are unsupervised; they apply only to young children; they have nondiscriminatory justifications; and they originated from a “neutral” source (educational sources). The court replied that the landlord did not understand the law: “[...]to establish a prima facie case of facial discrimination, a plaintiff must show only that the defendant subjects a protected group to explicitly differential treatment”4. But the landlord did not dispute that it treated unsupervised young children and their parents differently than adults sans children.

The guidelines were violations even if just “[l]imiting the use of privileges and facilities [which] is a violation of [§ 3604(b)].” The court also found it irrelevant that the guidelines distilled “neutral” information. The courts have held that “all-age” park rules which: (i) treat kids differently; (ii) are not based on a “compelling business necessity” and (iii) did not represent the “least restrictive intrusions” on familial status rights in promoting a health and safety interest, violate the law.

Any age restrictive rules which treat children, (and thus, families with children), differently and less favorably than adults-only house- holds violate the law. Period. In other words, no matter how ad- ministered, the rules were invalid as drafted. Even if never enforced, such rules may lead to a resident’s belief about allowable restrictions in use of the facilities. And now, the right to sue extends to internal policies handed down to on site personnel.

4. Citing Community House, Inc. v. City of Boise (9th Cir. 2007) 490 F.3d 1041 at 1050.

Safeguards Against Harm? 

Well-meant intentions are no defense, said the court. The court noted that the landlord submitted no evidence that managers were told to apply the policy only if a young child’s safety was threatened, or that managers in practice applied the policy in such a way. Land- lord also said, diluting the safety defense, that one of the “primary goals” of the guidelines is to limit disturbances to other residents by children, which “likely encompasses situations beyond those in which a child’s safety is legitimately threatened.” Peace and quiet is not a licit basis for the special treatment of children. Broad exclusionary policies without very particular narrowly tailored terms will be struck down. No cases specify what those narrow, least intrusive regulations might look like. And, it is submitted that seeking to develop children-specific rules is so fraught with difficulty and exposure as not to be worth the time and effort. Again, let the parents and guardians decide.

Eliminate the Exposure You May Have: 

Scour on-site management directives, policy handbooks, instructions, procedures manuals, emails. In other words, audit your intermediate level of management documentation; the entire body of memorialized supervision instructions, policies and requirements that apply to on site management. Do your employment agreements contain your fair housing policy? Do your agreements prohibit discriminatory statements, actions, conduct, communications, jokes, or notices? None of these documents is privileged from the prying eye of the plaintiff class counsel. It may be time to update these documents.

Remember: requiring adult supervision is NOT allowed in all age parks. 

An adult supervision requirement is outlawed by several decisions citing United States v. Plaza Mo- bile Estates: it is the parents, not management, who act as the “gate- keepers” of the facilities including swimming pool access and usage of facilities in “all age” communities. Requiring any form of super- vision constitutes a violation of the FHAA.

The FHAA Examples of Improper Rules to Update 

Rules and regulations in “all age” communities which discriminate include the following. If your rules contain any of the following restrictions, or any rules similar to them, it is strongly advised that a legal advisor conversant with the FHAA (and implementing regulations and judicial and administrative interpretations) be promptly consulted.

• “Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas [or] jet pool at any time;” 

• “Residents and visitors under the age of fourteen (14) years old are not permitted to use the saunas or jet pool (spa) at any time;” 

• “Use of the spa is prohibited to children under eighteen (18) years old;” 
“Use of the pool by children fourteen (14) years old and un- der requires accompaniment by a resident;” 

• “Parent of resident child or resident host must accompany 
children at all times in the pool or pool area;”
• “No one under the age of four-
teen (14) years old is allowed • to use the Jacuzzi;”
• “Guests and residents under the age of eighteen (18) years
old are permitted to use the swimming pool and sun deck from the hours of 10:00 a.m. to 2:00 p.m. only and must be accompanied by an adult park resident;”
• “Parent or responsible adult must accompany all children under fourteen (14) years old at all times [in the swimming pool and/or pool area];”
• “Minors under 16 years old are not permitted in the therapeutic pool;”
• “At 2:00 p.m. children are to be out of the pool area;”
• “All children must be accompanied by an adult to use the pool;”
• Children under the age of fourteen (14) years old shall not be allowed to ride a bicycle on the park streets without the accompaniment of an adult registered to the mobilehome in which they reside;
• Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence;
• “Children under 18 years old must be accompanied by a parent when they are in the swimming pool;”
• Children shall not be allowed to play on park streets, or in any other common areas;
• Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the mobilehome in which they reside;
• Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (club- house);
• Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10:00 a.m. to 12:00 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12:00 noon;
• Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or the therapeutic jet pool at any time; 

• Children under the age of four- teen (14) years old must be ac- companied by a registered resident adult to be allowed to ride a bicycle in the park streets; 

• The adult resident host must accompany all guests of their mobilehome who use the recreation building (clubhouse) or any of the recreational facilities of the park; 

• Children under the age of fourteen (14) years old must be ac- companied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (club- house); 

• When using the clubhouse, persons under ten (10) years old must be accompanied by an adult resident; use of the billiards room was restricted to residents over eighteen (18) years old; 

• Use of the spa was prohibited to children under eighteen (18) years old; 

• Use of the pool by children fourteen (14) years old and under required accompaniment by a resident; 

• Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host; 

• Parent of resident child or resident host must accompany children at all times in the pool or pool area;
• Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 9.00 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host;
• No one under the age of eighteen (18) years old is permitted in the billiard room at any time;
• No one under the age of four- teen (14) years old is allowed to use the Jacuzzi;
• At 2:00 p.m. children are to be out of the pool area;
• Children are not to walk around the park without adult supervision;
• Minors under 16 years old are not permitted in the therapeutic pool;
• For safety, children are not to ride bicycles, roller skates, skateboards, play in the street, play in RV storage, car wash, or wander around the park;
• Children under 8 years old shall be confined to a play area in the rear fenced yard of the family residence;

Age restrictive rules are “facially” discriminatory when they treat children, and thus, families with children, differently and less favor- ably than adults-only households. In other words, no matter how ad- ministered, the rules were invalid as drafted. Even if never enforced, such rules may lead to a resident’s belief about allowable restrictions in use of the facilities.

The FFHA 

In 1988, Congress amended the Federal Fair Housing Act (“FFHA”) to prohibit not just discrimination on the basis of race, color, sex, religion, disability or national origin, but also included “familial status” discrimination. “Familial status” is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent or another person having legal custody of such individual or individuals.” Among other provisions, it is unlawful:

“To discriminate against any persons in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... familial status ...”

Thus, in an all-age community, restrictions on access or use of common facilities and amenities based on age of a child (“familial status”) is a violation of the FHAA, absent “compelling business necessity.” 5 Any such rule must be proved to be the “least restrictive means” to achieving a health and safety justification. What does this legalese mean to the parkowner in practical terms? A full blown trial, risks of heavy penalties, damages and attorney’s fees and costs. This is because there is no bright line test for any age-restrictive regulation: the law is bereft of any standards

or guidance to make a reasonable, predictable risk-assessment or likelihood of success. Each case de- pends on the facts and surrounding circumstances. In other words, each case is a “test-case.” In sum, the penalties are so severe that prudent counsel would admonish all to eliminate age-restrictive rules and regulations.

“Children” are as protected as any other protected class. Thus, a simple way to test a rule for FHAA compliance is this: insert any other protected class in the place of “children” when testing a rule and regulation. For example, a common past rule (and no longer a valid one) is “all children under 14 years of age must be accompanied by an adult resident when in the pool area.” How does this sound: “All Methodists must be accompanied by an adult resident. . .” Obviously, such a rule would violate the FHAA.

It is also a violation of the FHAA to express to agents, brokers, employees, prospective sellers, or renters a preference for certain types of ten- ants. Another issue is the use of selective advertisements, or denying information about housing opportunities to particular segments of the housing market because of their race, color, religion, sex, handicap, familial status, or national origin. It is a violation to place ads that specify a preference for: “mature ten- ants,” stating an aversion to “families with children, teenagers in the building; advertisements stating no more than “one child,” or stating that the parkowner does not “rent to children.” “Adult Community” at the entrance to a non-exempt com- munity also violates the FHAA. Use of the word “adult” without in- dicating it is housing for older per- sons, constitutes a violation of the

FHAA. There are no such things as “adult” mobilehome parks, and use of the phrase is deemed to chill family applicants from applying for tenancy in them.

The court held that these rules were not based on “compelling business necessity” and did not represent the “least restrictive” intrusions on “familial status” rights in promoting a health and safety interest. Having held that these rules were unlawful, the issues remaining for trial in the Plaza Mobile Estates case included damages, punitive damages, civil penalties, injunctive relief and attorney’s fees and costs for the private plaintiffs. While the action was brought as a class claim (in which all of possibly thousands of affected tenants could have been included in damages awards), class certification efforts were defeated, allowing only the named parties to seek damages.

The court’s comments regarding the invalidation of these rules is telling and troubling. The court stated that the age restrictive rules were “facially” discriminatory. In other words, no matter how ad- ministered, the rules were invalid as drafted. Even if never enforced such rules might dissuade a prospective applicant from applying for tenancy.

What Can We Do to Avoid This Mine Field? 

Even in the absence of specific rules and the ability to craft them, educational materials may help parents understand common risks associated with the very youth. When educational information is provided as an adjunct to an activity rather than a rule restricting an activity, the chance of a claim of discriminatory preference is less likely to be made. For example, when a parkowner offers such educational material from organizations who seek better protection of children (e.g., police departments, charitable organizations, etc.), the parkowner is providing a service - disseminating information and facts - not discriminating against children. 6

Conclusion 

All the parkowner wants is to know what the law is! What we do know is that certain rules are not permissible. Does it make any practical sense to promulgate new regula- tions affecting treatment of children? No.

The best policy for the all-age park is to have no references to children, child, adult, or other words which suggest differential treatment be-tween adults and children. The de- cisions affecting the young are for the parents to decide on.

Even with neutral rules and regulations, the enforcement of the rules needs to be considered. Does your manager have different attitudes, tone, manner or demeanor in general in dealing with kids and their parents? There is no room for derogatory comments, insults, or force beyond the same level applied to parents and other childless adults. Our mantra: Professional- ism. First and always! ◆

5. Some cases phrase the test differently (least restrictive, narrowly tailored, not speculative, etc.), but the reader is best advised to apply the standards applicable to the most stringent precedents in effect at this time, until variations on the articulation of the proper test for rules is made judicially and clear through further appellate court development. This is what plaintiff lawyers do. They will make the claim that the rules do not pass muster under the most difficult of possible tests. If you wish to preclude court tests of your rules, they will be drafted based on clearing the highest possible legal hurdles.

6. For example, educational material exist which explain that young children have peripheral vision which is two-thirds that of an adult; they have difficulty determining the source of sounds; traffic noises and sirens may be confusing; they may not understand that an automobile may seriously hurt or kill them; most children cannot understand a complex chain of events; children believe that all grownups will look out for them; they think that if they can see an adult driving a car toward them, the driver must be able to see them; children often mix fantasy with reality - they may give themselves superhuman powers and do not understand that a moving vehicle can hurt them; they have difficulty judging the speed and distance of oncoming vehicles.

Terry R. Dowdall, Esq. has specialized in manufactured home communities’ law since 1978. Mr. Dowdall can be reached at Dowdall Law Offices, APC Orange County office; 284 North Glassell Street, 1st Floor, Orange, CA 92866; 714.532.2222 phone; 714.532.3238 fax. email: trd@dowdalllaw. net; www.dowdalllaw. com.

This article is reprinted from WMA "Reporter", July 2016.  MHCO would like to express our deep appreciation to WMA for their permission to reprint this informative article.

Answer to Question No. 1. Generally, an "Act of God" is considered to be a natural disaster that is outside of human control. That would include earthquakes, windstorms, floods, tsunamis, etc. If you are asking about insurance exclusions for Acts of God, you'll have to read you policy. Generally, however, as a landlord, you should make sure you have broad general casualty insurance coverage (as opposed to liability insurance coverage), since the former would cover casualty losses (fire, wind, flood, etc.), regardless of causation or negligence, whereas the latter would provide coverage for you only if you caused the damage. Broad insurance coverage against casualty losses, e.g. from Acts of God, is what community owners should have. Whether residents have such coverage is less certain, since the rental/lease agreements I've seen either do not require any form of insurance, or occasionally only liability insurance. And unless their lender requires it, it is unlikely that many owners of older homes have any insurance against loss or damage.

Answer to Question No. 2. As to uprooted trees, let's go to the legal definitions. A "hazard tree" under ORS 90.100(20) must include the following elements:

• It is located on a rented space in a manufactured dwelling park;
• It measures at least eight inches DBH[2]; and
• It is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 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 mine.)

I draw certain corollaries from this definition - some may disagree:

• A tree is a large living plant that grows out of the ground; if it is blown down, it is no longer a "tree" in the conventional sense. I have no recollection of discussing downed trees as "trees" that would somehow be subject to the hazard tree legislation. I would defer to John VanLandingham's recollection on this, however. This answer would seem to dispose of the above question, but I will continue, just to address the other unasked questions that will inevitably arise.
• If a tree does not measure at least eight inches, DBH, it is not a "hazard tree". This is not to say that the tree is necessarily "safe" or that it may be ignored by landlord or resident. In the final analysis, landlord and managers should monitor the condition of all trees, both in the common areas, and on the tenants' spaces. Just because a tree is not a hazard tree does not mean they can be ignored. Similarly, just because the tree is a resident's responsibility does not mean it should be ignored by management. If it is the resident's responsibility, management should encourage compliance - since a falling tree limb or the entire tree, may cause damage or injury to other spaces and other residents.
• If a licensed arborist has either said the subject tree does not pose a risk of harm, or the arborist has never opined at all, it is not a "hazard tree". Again, this does not mean the tree may, or should be, ignored.
• Lastly, remember that all of the above three elements (on the resident's space; eight inches DBH, and considered dangerous by a licensed arborist) must occur together before a tree can be considered a "hazard tree".

Once it meets the statutory definition, then the legal obligations found in ORS 90. 725, 90.727, 90.730, and 90.740 apply.

Answer to Questions Nos. 3 & 4. I believe the answer to who responsibility for maintenance, removal and disposal are addressed in ORS 90.727 (Maintenance of trees in rented spaces). Although the statutes do not referral to "disposal" they do refer to removal. I read these words as interchangeable in this context. For example, removal of garbage and debris from one's yard, reasonably includes disposal. The statute provides:

(1) As used in this section:

(a) "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.

(b) "Removing a tree" includes:

(A) Felling and removing the tree; and

(B) Grinding or removing the stump of the tree.[3]

I suppose the next question is whether "removing a tree" can refer to downed trees. I think not, since the follow text quoted above, refers to "felling" it.

Conclusion. As noted above, landlords, more likely than residents, have insurance that deals with Acts of God. These types of natural events do not distinguish between whose property is affected, e.g. common areas vs. resident spaces. In some instances, strict enforcement of the hazard tree statute could impose a catastrophic expense to a resident that might be covered under the landlord's insurance. In such cases, consideration should be given to providing assistance/coverage rather than forcing a tenant into bankruptcy or financial distress.

[1] I regard a tree never "planted by the tenant or landlord" as owned by the landlord, since they own the ground. When the landlord bought the property, they assumed the obligation to maintain the trees that came with it (assuming the resident didn'tplant them, and assuming the statutes don't provide otherwise).

[2] "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

[3] The balance of the statute is relevant to who has the responsibility, and is addressed here. It provides: (2) The landlord or tenant that is responsible for maintaining a tree must engage a landscape construction professional with a valid license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more. (3) A landlord: (a) Shall maintain a tree that is a hazard tree, that was not planted by the current tenant, on a rented space in a manufactured dwelling park if the landlord knows or should know that the tree is a hazard tree. (b) May maintain a tree on the rented space to prevent the tree from becoming a hazard tree, after providing the tenant with reasonable written notice and a reasonable opportunity to maintain the tree. (c) Has discretion to decide whether the appropriate maintenance is removal or trimming of the hazard tree. (d) Is not responsible for maintaining a tree that is not a hazard tree or for maintaining any tree for aesthetic purposes. (4) A landlord shall comply with ORS 90.725 before entering a tenant's space to inspect or maintain a tree. (5) Except as provided in subsection (3) of this section, a tenant is responsible for maintaining the trees on the tenant's space in a manufactured dwelling park at the tenant's expense. The tenant may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the tenant's rented space at the tenant's expense and if the arborist determines that the tree is a hazard, the tenant may: (a) Require the landlord to maintain a tree that is the landlord's responsibility under subsection (3) of this section; 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. (6) If a manufactured dwelling cannot be removed from a space without first removing or trimming a tree on the space, the owner of the manufactured dwelling may remove or trim the tree at the dwelling owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the manufactured dwelling.

Answer:  The short answer is Yes. The utilities section of the manufactured housing side of Oregon’s landlord-tenant law is ORS 90.560(4) provides:

• “Public service charge” has the meaning given the term in ORS 90.315 (Utility or service payments).
• ORS 90.315(1) defines:
  •  “Public services” payments to mean ‘municipal services and the provision of public resources related to the dwelling unit, including street maintenance, transportation improvements, public transit, public safety and parks and open space. (Emphasis added); and
  • “Public service charge” means a charge imposed on a landlord by a utility or service provider, by a utility or service provider on behalf of a local government or directly by a local government. (Note: public service charge” does not include real property taxes, income taxes, business license fees or dwelling inspection fees.)
• ORS 90.570 provides: “A landlord, upon 60 days’ written notice to a tenant, may unilaterally amend a rental agreement[1]to require a tenant to pay to the landlord, as part of the utility or service charge, a pro rata proportion of any new or increased public service charge billed to the landlord by a utility or service provider or a local government for a public service provided directly or indirectly to the tenant’s dwelling unit or to the facility common area.” (Emphasis added.)
• ORS 90.568 addresses “pro-rata billing” as follows:
  • “If allowed by a written rental agreement, a landlord using pro rata billing may require a tenant to pay to the landlord a utility or service charge that was billed by a utility or service provider to the landlord for a utility or service provided directly to the tenant’s space or to a common area available to the tenant as part of the tenancy. A landlord may include in pro rata billing a public service charge under ORS 90.570 (Public service charge pro rata apportionment).” (Emphasis added.)
  • A pro rata billing charge for tenants’ spaces must be allocated among them by a method that reasonably apportions the cost among the affected tenants and that is described in the rental agreement.
  • Methods that reasonably apportion the cost among the tenants include, but are not limited to, methods that divide the cost based on:
    • • • • The number of occupied spaces in the facility;
          • The number of tenants or occupants in the dwelling or home compared with the number of tenants or occupants in the facility, if there is a correlation with consumption of the utility or service; or
          • The square footage in each dwelling, home or space compared with the total square footage of occupied dwellings or homes in the facility or the square footage of the facility, if there is a correlation with consumption of the utility or service.
• A utility or service charge to be assessed to a tenant for a common area must be described in the written rental agreement separately and distinctly from the utility or service charge for the tenant’s space. (Emphasis added.)

Conclusion and Caveats. So, yes, to the above question: Prepare a 60-day written Notice of Unilateral Amendment explaining the public service charge and the pro-rata allocation approach. Keep records of these utility charges for tenants to inspect if they want, and when they increase, make sure tenants are notified as soon as possible.  Just like increases in utility rates, they may be passed along – they don’t require additional advance notice.

Utility pass-throughs can be very complicated for a variety of reasons. First and foremost, the legislation is created by committees of stakeholders including industry representatives for landlords (park and non-park owners), tenants, utility companies, lenders, and other interested parties. The results can be confusing, especially so because Oregon’s landlord-tenant law contains a “soft” bifurcation between non-MHPs and MHPs. I say “soft” because the MHP side, ORS 90.505+ occasionally depends upon and includes provisions from the non-MHP side, i.e., ORS 90.100 – ORS 90.493. These observations are not to diminished the legislative drafters’ skills – they must work with what they have.

Familiarity with MHP utility laws i.e., ORS 90.560 to ORS 90.584 (including various stealth statutes that precede ORS 90.560!) requires time, patience, and care. The above summary responds only to the limited question presented. It does not address the MHP landlord’s responsibility to make sure that all park documents address the current utility rules applicable to their park and are sufficiently explained to incoming tenants. If in doubt, legal counsel should always be consulted. ~ Phil

[1] Note: I recommend that each time a landlord seeks to “unilaterally amend” the rental agreement under Oregon law, a documents entitled “Unilateral Amendment” (or similar caption) be delivered to all affected tenants pursuant to ORS 90.155with the same diligence as if they were issuing a rent increase notice. This is really the only way the 60-day notice requirement can be established.