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Answer:  It’s easy to get confused. There is a lot to remember.  Generally all of the answers are contained in ORS 90.630[Termination by landlord; causes; notice; cure; repeated nonpayment of rent].[1]Here is a short summary:

· The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ noticein writing before the date designated in the notice for termination if the tenant:

• 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[Tenant Obligations];
• Violates a rule or rental agreement provision;
• Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or
• Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534or 90.536.

· The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written noticespecifying the violation and the date of termination of the tenancy.  In such cases, the tenant does nothave a right to correct the violation – and the notice must so state. 

· Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period.  [Caveat: All three notices must have been validly prepared and delivered or served. – PCQ]The “three strikes” law is found at ORS 90.630(8)-(10).As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.

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

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

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

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

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

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

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

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

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

Even when you have solid evidence that a resident has violated the lease or your community’s rules, he may try to turn the tables by questioning your motives. Unless you’ve applied the rules fairly and consistently, you could suddenly find yourself on the defense if it looks as though you’re acting in a discriminatory manner.

For example, the resident may argue that you took a hard line against him for breaking the rules only because he was a member of a protected class, and his claim could get some traction if he can show that you allowed other residents—who did not share his protected characteristic—to get away with the same or similar infractions. Evidence of inconsistent enforcement of your rules could lead a court to conclude that his violation of the rules wasn’t the real reason for evicting him, but merely an excuse to cover up unlawful housing discrimination.

Avoid the temptation to bend the rules for some people, but not for others, just because you happen to be friends with them or you think they’re nice people. You may not intend to discriminate against anyone, but treating some residents better than others may give the impression that you have discriminatory reasons for holding other residents to higher standards.

By: Phil Querin, MHCO Legal Counsel

Current Oregon Law. ORS 90.680 is the statute governing the on-site sale of homes in a manufactured housing community. It previously contained no limitations on landlords who required, as a condition of tenancy, that residents selling their homes must enter into a consignment agreement with the landlord. That will change on January 1, 2016.

New Oregon Law. ORS 90.680 is now amended as follows:
1. It defines the term consignment" to mean a written agreement in which a resident

authorizes a landlord to sell their manufactured dwelling or floating home in the

community for compensation.

1. It prohibits landlords from requiring as a condition of occupancy

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.

Spot the Discrimination Mistake

The precise rule: “Children ages 18 and younger may not use the swimming pool unless they are supervised by a parent.”

Pitfall: As HUD acknowledges in a 1992 Memo, “requiring a responsible adult to supervise young children and provide written designation of an adult supervisor are policies which appear more tailored to protect legitimate health and safety interests and appear less problematic” than a total or partial ban on children’s use. However, the legality of adult supervision rules depends on how they’re framed. Basic Rule: You can require adult supervision as long as the rule is narrow and no more restrictive than it has to be to accomplish the purpose.

While it’s true that many young kids can’t swim, lots of adults also lack proficiency in swimming. The danger of swimming unsupervised, in other words, is based not on a person’s age but the fact that they can’t swim. Once you introduce age and family relationship into the equation, you take the supervision rule to places it shouldn’t go. 

Example: The parents of three young children sued their California landlord for adopting a rule stating that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.” Too restrictive, said the federal court. A “prohibition on unsupervised swimming which would prevent even a 17-year-old certified lifeguard from swimming unaccompanied is overly restrictive.” While recognizing “the inherent dangers of unsupervised swimming,” the court concluded that requiring that a parent or legal guardian to supervise “transforms this rule” from a legitimate safety precaution to an unjustified restriction on children and their families” [Iniestra v. Cliff Warren Investments, Inc., C.D. Cal. 2012, 886 F.Supp.2d 1161].

Solution: The least restrictive and most nondiscriminatory way to accomplish the safety objective of the adult supervision rule is to frame the rule in terms of swimming proficiency and the ability to supervise responsibly. Options:

• Require supervision of not just children of certain ages but any person who can’t swim;
• Require all would-be pool users—and not just children—to pass a swimming proficiency test administered by a competent lifeguard or swim instructor; and
• Rather than a “parent” or “adult guardian,” require non-proficient swimmers to be supervised by a proficient swimmer.

Revised Pool Rule: In the interest of safety and in accordance with local laws, individuals who are not proficient swimmers may not use the community pool unless they are supervised by a person who is a proficient swimmer.