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Last month the manufactured housing landlord-tenant coalition met to continue discussing issues in preparation for the 2015 Oregon Legislative session. As mentioned earlier, the coalition is a group of manufactured housing community interests - tenant organizations, landlord associations, banking interests, builders - that meet once a month to discuss industry issues. Manufactured Housing Communities of Oregon has been participating in the coalition since the 1990s.

It's the Dog Days of Summer - As 2015 Legislative Issues Get Legs

There are four issues that the coalition is discussing: 1. Back taxes owed on abandoned MHs (ORS 90.675 (14) 2. Who collects the $6 assessment on manufactured homes to fund the Manufactured Communities Resource Center (MCRC) 3. Revising ORS 90.630 regarding the cure period for ongoing versus discrete violations 4. Manufactured home sales conflicts with owner sales versus tenant sales

1. Back taxes owed on abandoned MHs (ORS 90.675 (14)

The negotiations on this statute focus on the situation where the current market value of the abandoned home is more than $8,000 and the proceeds of the sale don't cover the landlord costs and the past due taxes that have accumulated. In these cases, the financial incentive for the landlord when there is no purchaser at the abandonment sale is to destroy the home. Most community owners are not willing to pay $12,000 in taxes for a $9,000 home.

MHCO's position is to reduce this tax burden on the community owner as much as possible either by completely eliminating the tax obligation or reducing it as far as possible. The county tax assessors proposed eliminating up to $8,000 of the tax liability. MHCO's position is that the amount waived needs to be higher so that the economics of keeping abandoned homes in the community pencils out. We will be back in August negotiating this issue further, but it remains MHCO's top legislative issue.

2. Who collects the $6 assessment on manufactured homes to fund the Manufactured Communities Resource Center (MCRC)

Currently, ORS 446.525 imposes an annual $6 assessment on all manufactured homes which are taxed as personal property, meaning that they are not real estate (on land with joint ownership of the MH and the land or in a co-op or with a 20 year lease). The county assessor is responsible for collecting the assessment and forwarding the revenue to OHCS for MCRC. The concept is to collect this special assessment with the annual property taxes owed. This applies regardless of whether the MH is in a park.

MCRC estimates that the special assessment plus the $25 registration fee for all parks generated $443,051 in FY 2013 and $422,627 in FY 2014.

There are an estimated 63,000 MHs in parks; at $6 apiece, that would be $378,000/year. But the assessment is paid by non-park MHs, too.

In the past couple of years Multnomah County and some other counties have expressed a desire to get out of the business of collecting the $6 assessment. Multnomah County is drafting a bill for the 2015 Legislative Session exempting it from having to collect the $6 assessment

County tax collectors feel that, as a matter of principle, they should only collect taxes for their costs and for other local governments. This is not a tax.

Some manufactured home residents don't pay property taxes, either because of the senior tax deferral program or because of the ORS 308.250 cancellation of taxes on low-value (currently $15,500) MHs. That means the county bills those residents only for the $6. And, with the early payment 3 percent discount, the actual amount owed is only $5.82. The counties' cost to collect this amount exceeds the amount collected.

The coalition discussed increasing the assessment to $10 per manufactured home and possibly use some of the extra money to compensate the counties or MCRC to cover the cost to collect. Another proposal would expand this fee to floating homes. MHCO's position is to avoid having the community owner collecting the assessed fee from the residents and then passing the accumulated fees on to the Oregon Department of Revenue. The issue remains open to further negotiation.

3. Revising ORS 90.630 regarding the cure period for ongoing versus discrete violations

Manufactured home community residents who own and occupy their MHs and rent the space under the home in a community can only have their tenancies terminated for cause. Those causes are defined, to some degree, in ORS 90.630. The statute allows the tenant to cure the cause, within the 30 day notice period, and thereby avoid the termination. In some cases, the result of this cure right means that a tenant may continue the conduct which is the cause up until the 30th day.

Over the years, many of you have contacted the MHCO office to discuss 30 day notices of eviction and in the process expressed frustration that residents who where disturbing the peaceful enjoyment of other residents or where violating the rules and regulations in the community could continue living in the community till the end of the 30 day period after the notice had been served. As many of you have said to me on the phone, So basically they can misbehave for 30 days and we can't do a thing...."

We continue to discuss what conduct should be stopped immediately and what conduct should be allowed the full 30 days to cure. Phil Querin has suggested using the distinction that anything that materially impacts other residents should require a shorter period to cure. Some feel this is too subjective - where do you draw the line: failure to mow grass; large campaign sign for Kitzhaber; loud music; foul odors coming out of a home etc.

We will continue to discuss this issue in the months ahead. MHCO recognizes this is an important issue to both community owners/managers and residents. It remains one of our top legislative priorities.

4. Manufactured home sales conflicts with owner sales versus tenant sales

There have been some alleged abuses in situations where residents are trying to sell their homes and the community owner has other homes in the community that he/she are selling. Some residents claim that this inherent conflict results in their homes either not selling or selling at a substantially reduced price.

The State of Oregon has been investigating this through the Department of Consumer and Business Services. It is not clear what action the State wants to take - or other legislators for that matter. One of the proposals considered by the state is to prohibit issuance of any type of Manufactured Structure Dealer license to any mobile home or manufactured dwelling park owner or onsite park management representative. Other less draconian measures would be to adopt a "best practices".

Needless to say this is an issue that MHCO that will be watched closely. MHCO opposes eliminating your ability sell homes in your community. This may be an issue we will have to fight in the 2015 Oregon Legislative Session.

MHCO Editor's Note:  This summary is extensive with a lot of information.  A PDF copy of the same summary as below is attached above (the attached pdf version may be a more appropriate format) along with five new or revised MHCO forms that will be necessary for your to use for non payment of rent evictions.  These forms are not 'fillable' and can only be found on this web site attached to this article.  As we move through the COVID-19 crisis MHCO will likely be updating and revising these forms - please use the forms on the MHCO web site for the most current.  Thank you for your patience.

By Phillip C. Querin, MHCO Legal Counsel

Background. HB 4401 was signed by the Governor on December 23, 2020. It was the product of the Oregon Legislatures Third Special Session. 

Ostensibly, this was to be an extension of the current eviction moratorium that was scheduled to expire on Jan. 1. The new moratorium will now expire on July 1, 2021. However, if an extension was all the legislators sought to accomplish, they exceeded their own stated expectations. Actually, they had to deal also with HB 4213, which was the product of 2020’s First Special Session. 

In response to Covid-19 related financial hardships, the Oregon government passed HB 4213 in mid-2020. The bill prohibited evictions for nonpayment of rents, charges, and fees and no-cause evictions throughout a defined “Emergency Period.” The Emergency Period originally ran from April 1, 2020 to September 30, 2020. 

HB 4213 further established an additional six-month elective “Grace Period” during which the tenant could arrange to pay back their accrued rent arrearages. The tenant was required to pay back their outstanding rents, charges, and fees at the end of the Emergency Period unlessthey notified their landlord that they intended to use the additional six months.  The Grace Period originally began at the end of the Emergency Period and ran until March 31, 2020. Landlords were prohibited from filing nonpayment and no-cause evictions based on unpaid rent accrued during the Emergency Period. 

All rents, charges, and fees accruing outside of the Emergency Period still must be paid as agreed under the rental or lease agreements. For-cause evictions were always still available to landlords.

On September 28, 2020, in recognition that Covid-19 hardships were still continuing, Governor Brown issued Executive Order 20-56 which extended the Emergency Period and corresponding prohibition on no-cause and nonpayment residential evictions to December 31, 2020. The executive order did notextend the Grace Period – all back rents, charges and fees accrued between April 1, 2020 and December 31, 2020 were still due on or before March 31, 2020.

Unfortunately, what occurs when (a) drafters are rushed, and (b) their work product is not subject to any review or amendment, as was the case with HB 4401, the result is a bill that creates more questions than answers. While it purports to provide funding for landlords who have suffered as a result of the many Executive Orders and makeshift legislation such as HB 4312, the reality is not promising. Why? Because the success of the bill still requires the Oregon Legislature to put some money where its mouthlegislation is – the program must still be funded, and HB 4401 did nothing to address that issue.  

Oregon House Bill 4401.This bill was passed December 21, 2020, and signed by the Governor on December 23, 2020. It accomplished two major objectives[1]:

1) Directing the Oregon Housing and Community Services Department to implement a program for direct aid to landlords reimbursing a percentage of outstanding rents; and 

2) Modifying the Emergency Period and Grace Period created under HB 4213 for tenants who claim financial hardship. 

The Program.  HB 4401 authorizes the Oregon Housing and Community Services Department (“OHCS”) to pay residential landlords 80% of unpaid rents due after April 1, 2020 and up to the date of the application, for certain qualified tenants. 

Landlords,[2]or their designees, must apply to OHCS to qualify for distributions for tenants who: 

1. Have not paid rent, and
2. Have submitted a signed Hardship Declaration Form. (OHCS is directed to expedite implementation of the landlord compensation fund but the exact look and function of the program is unknown as of the writing of this summary.)

OHCS will develop an online application system to handle reimbursement requests. The application and related forms will be available in English, and translated for non-English speakers as well.[3]The program will also have more than one application period to assure broader reach and eligibility. It is unclear at this time how many application periods will be available. Landlords should be eligible to apply more than once, state funds allowing, if unpaid rents and fees continue to accumulate after the first application and distribution. 

Landlord application. It will require, at a minimum:

1. A copy of the tenants’ Hardship Declaration Forms;
2. A description of the unpaid rent for all current tenants;
3. An agreement to forgive the remaining 20% of unpaid rent for  tenants accrued between April 1, 2020 and the date of the application;
4. An agreement that, should the landlord receive from the tenant, or on the tenant’s behalf, any portion of the unpaid rent (forgiven or paid through the distribution) within a certain window specified by OHCS, that they will repay OHCS;;
5. An agreement that the landlord is not seeking reimbursement for rents due from immediate family members;[4]
6. An agreement that while the application for reimbursement is pending, the Landlord will not terminate[5]a tenant without cause or for non-payment;[6]
7. Any other information or requested by OHCS in the application;

In order to reach landlords who are struggling the most (i.e. fewer rentable units or a higher percentage of outstanding rents) OHCS may establish qualifications, priorities, restrictions or limits on distributions, which may include:

1. Limits per tenant, per landlord, or per time period; 
2. The number of units a landlord must own; or 
3. The percentage of total rent unpaid.

OHCS may coordinate with the local housing authority to administer the rules and distribute the reimbursement funds. Either OHCS or the appropriate housing authority will notify tenants of the distribution to the landlord on their behalf and the agreed-upon amount of forgiveness to which they are entitled. OHCS may also conduct outreach to landlords and tenants, including non-English speaking parties.

Eviction Moratorium Extension. The Landlord distribution program provisions are set to automatically repeal on January 2, 2023. 

Forms.

Emergency Period and Grace Period Extensions.  For all renters, the Emergency Period (until December 31, 2020)[7]and Grace Period (through March 31, 2021) as defined in HB 4213 remain unchanged, unless:

1. The landlord fails to provide a Notice of Eviction Protection (see MHCO Form 111 below); and
2. The landlord fails to provide tenant with a Tenant’s Hardship Declaration Form (see  MHCO Form 110 below); together with
   1. AnynoticegivenunderSection3(5)(c),chapter13,OregonLaws2020(firstspecial session) (Enrolled House Bill4213);[8]and
   2. Everyterminationnoticefornonpayment of rentdeliveredbeforeJune30,2021;and

c. Anysummonsforevictionbasedonaterminationnoticefornonpayment  delivered before June 30, 2021;

---OR---

3. Tenant fills out and returns the Hardship Declaration Form asserting financial hardship.

Afteratenantdeliversacopyofthe Hardship Declarationto the Landlord,theEmergencyPeriodandendoftheGracePeriodareextendedtoJune 30,2021. During that time, the landlordmaynot takeorattempttotakeanyactiontointerferewithatenant’spossession.

The Hardship Declaration Form. It may be submitted to the landlord at any time, up to and including the first appearance in an action to recover possession. Delivery of the Hardship Declaration Form may result in dismissal of no-cause or nonpayment eviction proceedings during the Emergency Period and Grace Period.

Landlords may not: 

1. Challenge the accuracy of a tenant’s Hardship Declaration in an eviction proceeding;
2. Require additional information beyond what is required by the Hardship Declaration Form; 
3. Demand more than one copy of the Hardship Declaration per household or tenancy; 
4. Prohibit the tenant from submitting a Hardship Declaration in a language other than English if the tenant is using an approved translated form from the courts; 
5. Prohibit the tenant from submitting the Hardship Declaration to the landlord in any manner, format or means available, including but not limited to, a photograph of the document submitted by email or text message.

Evictions During the Emergency and Grace Periods.  Only the following landlord evictions are permitted during either of these two periods:

1. Evictions for violation of a rental agreement, other than non-payment may continue;
2. Evictions for nonpayment occurring before April 1, 2020 may also continue;
3.  “Landlord-cause” evictions[9]are allowed after the first year of occupancy. Landlord cause evictions include:

1. Demolition or converting dwelling unit to non-residential use;
2. Intent to make repairs/renovations to the dwelling unit within a reasonable time, and the building is unsafe/unfit or occupancy or will be unsafe/unfit for occupancy during the repair/renovation period; 
3. Landlord intends for immediate family member to occupy dwelling unit as a primary residence and no comparable units at the same location are available; or 
4. Landlord has accepted an offer to purchase the dwelling unit; purchaser will use unit as a primary residence.[10]

Important Changes to Landlord Nonpayment of Rent Notices.  The 72-hour nonpayment of rent notice under ORS 90.394 is now a 10-day notice ending at 11:59 pm. The 144-hour nonpayment of rent notice is now a 13-day notice ending at 11:59 pm. These changes expire July 1, 2021.[11]

Tenant Relief for Landlord Violations.  Any violation of the above rules may result in the tenant being granted an injunction to recover possession or address any other violations, and the award of the equivalent of three-months rent on top of any actual damages. Landlord’s violation of the above rules will also give the tenant a defense to an eviction. In addition, tenant will be entitled to prevailing party fees, attorney fees or costs and disbursements unlessthe landlord can demonstrate:

1. That they delivered the required Notice of Eviction Protection and Hardship Declaration Form;
2. That they did not know or have reason to know at the time they filed the action that the Hardship Declaration Form had been completed and returned; and
3. That they promptly dismissed the action upon learning of the existence of the completed forms.

Summons and Complaint Forms: Note: Changes resulting from the Eviction Moratorium laws, and HB 4401’s changes to Landlord-Tenant statutory language are reflected in the  Summons and Complaint forms for residential evictions.[12]Summons and Complaint revert to the standard language on July 1, 2021.

Expiration. Under the terms of HB 4401 the provisions related to the eviction moratorium will automatically repeal on July 1, 2021.

Miscellaneous Provisions and Changes to HB 4213. 

1. A landlord may apply a last month’s rent or security deposit to the Nonpayment Balance if a tenancy terminates prior to the end of the relevant Grace Period;
2. Tenants with a Nonpayment of Rent Balance who are still within their Grace Period are not considered to be in default;
3. A landlord may accept partial payment of rents, charges and fees during the Grace Period. It does not constitute a waiver of the landlord’s right to terminate a tenancy for cause; nor to terminate a tenancy for nonpayment after the expiration of the relevant Grace Period;
4. Amendments to HB 4213 expire on September 1, 2021;
5. For all  Nonpayment evictions, the statute of limitations is tolled and does not begin to run against the Nonpayment claim until July 1, 2021. 

Unanswered questions.  In no particular order, here are some questions about HB 4401 that are sure to arise:

• What happens if landlord sends the Hardship Declaration to a tenant, who does not respond?
• Since landlords need the tenant’s Hardship Declaration to complete their application for 80% of their unpaid rent, is the landlord stymied?
• While the landlord will be able to file for eviction after the Grace Period ends under the old law (March 31, 2021), HB 4401 is clear that the tenant can submit the Hardship Declaration as late as the first appearance at the FED, and bring the proceeding to a halt.
• So it’s a bit of a guessing game what tenants will do; ignore the landlord’s Notice of Eviction Protection until an FED is filed, or cooperate with the landlord and sign and return the Declaration? What incentive do tenants have to cooperate, if they can wait until the last minute to submit the Hardship Declaration?  
• In any event, no action can be taken against the tenant who does not cooperate until after March 31, 2021 at the earliest. 
• Since the Legislature has no landlord reimbursement program in place yet, one has to wonder when, and if, it will be of any help now.
• There is no question that the landlord funding will eventually be exhausted, and some will be left out. 
• So, the take-away right now is that landlords should immediatelyreach out to their tenants in arrears, get their Hardship Declarations signed, so the application for reimbursement can be processed as soon as possible. 80% of unpaid rent is better than nothing - which is what could occur if the application is delayed. 

Ø Tenants do benefit by their cooperation, since when the moratorium is extended, they are not at risk of any eviction action until after July 1, 2021.  This is the message landlords need to get out to their tenants.

• Otherwise, a landlord may bring an evictionfornonpaymentofrent,chargesandfeesaccruedfrom April1,2020,toDecember31,2020 immediately after March31,2021. Perhaps this also should be part of the landlord’s message.

[1]The bill also made a few additional changes to Oregon Landlord-Tenant statutes which will be addressed below

[2]“Landlord,” for the purposes HB 4401, includes a manufactured dwelling park nonprofit cooperative.

[3]The bill does not specify which non-English languages OHCS must provide, but specifies later that the Oregon Judicial Department provide translated forms (including the Hardship Declaration Form) in Spanish, Korean, Russian, Vietnamese, and Chinese.

[4]Landlord may not seek reimbursement for any tenants that are immediate family members. For the purposes of this law “immediate family” means: a) an adult person related to the landlord by blood, adoption, marriage or domestic partnership; b)an unmarried parent of a joint child; c) a child, grandchild, foster child, ward or guardian of the landlord; or d) child, grandchild, foster child, ward or guardian of any person listed in (a) or (b). (“immediate family” definition from ORS 90.427)

[5]“Termination notice without cause” means a notice delivered by a landlord under ORS 90.427 (3)(b), (4)(b) or (c), (5)(a) to (c), or (8)(a)(B) or (b)(B) (HB 4213)

[6]“Nonpayment” means the nonpayment of a payment that becomes due during the Emergency Period to a landlord, including a payment of rent, late charges, utility or service charges or any other charge or fee as described in the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560, or 90.630. (HB 4213)

[7]Emergency Period Extended to December 31, 2020 by Executive Order 20-56; confirmed in HB 4401 Section 8 (Amendment to Section 3, Chapter 13, Oregon Laws 2020 (first special session )(Enrolled House Bill 4213))

[8]Under the original version of HB 4213, there is no Section3(5)(c). To find the required contents of the voluntary notice referred to in 2) a., one must look to the new HB 4401 Section 8 and follow the amended language. 

[9]See, ORS 90.427(5)(a)-(d).

[10]Note: This does not include listing or marketing the home for sale. Seller/landlord would have to have a pre-arranged buyer who was willing to buy without inspections, etc., or a tenant who was willing to permit the same with 24-hour notice. Of course, seller/landlord could always make financial arrangements with tenant for concessions.

[11]Amendments to 90.394 (2)(a) and (b). These changes from hour-notices to day-notices affect several other statutes that refer to 90.394. Changes revert to original language on July 1, 2021.

[12]For summons language: see ORS 105.113 (as amended by HB 4401 Section 13); for complaint form: ORS 105.124 (as amended by HB 4401 Section 15)

Tony Petosa and Nick Bertino - Wells Fargo Multifamily Capital

From both a global and national perspective, we are in the midst of witnessing major change unfold as President Trump takes over the reins from the Obama administration. It is undeniable that material shifts in policy are in the works, social and economic alike. Some of these will likely have an effect on the commercial real estate lending environment, including financing for manufactured home communities (MHCs). The Trump administration is already taking a new approach to banking regulations, which may at some point include working with Congress on the future of the government-sponsored entities (GSEs), Fannie Mae (FNMA) and Freddie Mac, both of which are active lenders to the MHC sector. More immediately, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd- Frank) is under review by the new administration in an effort to scale back regulations enacted during Obama's presidency. And, as if we didn't have enough change going on, many economists are predicting higher interest rates this year.

In 2016, FNMA and Freddie Mac continued to be reliable lending sources for multifamily and MHC properties while having remained in conservatorship since 2008. MHCs in 2016 were again excluded from the annual lending cap placed on the GSEs by their regulator, the Federal Housing Finance Agency (FHFA), and consequently MHC loans were generally priced with interest rate spreads well inside of those for conventional apartment properties. In December 2016, the FHFA announced that MHCs would continue to be excluded from the lending caps in 2017, which came as welcomed news to MHC property owners and lenders alike. Since Freddie Mac and FNMA will not have a limit on the volume of MHC loans they can originate this year, we anticipate they will continue to price MHC loans aggressively.

While we appear to be in a state of business as usual" with the GSEs in the near term

City of Portland Rental Housing Hoops

In 2018, the City of Portland enacted a Residential Rental Registration Program, Ordinance No. 189086. Its goal was to create an inventory of rental housing in a single location. Manufactured housing communities paid little attention, since it applied to “rental housing units”. At the time there were no specifics about funding the Program.

In 2019, the City implemented a $60 annual fee per rental unit to fund the Program. In December I contacted the Portland Housing Bureau to see if somehow it would be interpreted as applying to manufactured housing communities inside the City of Portland.[1]

On February 4, 2020 I had a conversation with two representatives of the Bureau. The agreed that the $60 fee would not apply to manufactured housing spaces in the City of Portland. However, they did say that it would apply to community owned homes – which does make sense, since they are also subject to the non-manufactured housing section of the Oregon Residential Landlord-Tenant Act, ORS Chapter 90.

Although most park owners are aware of the hoops, following are links to the applicable requirements when located within the City of Portland:

• Under the Ordinance, park owners will have to register with the City. See: https://www.portlandoregon.gov/revenue/59484

• And since the City views housing rental as a business, a business license will be required. See: https://www.portlandoregon.gov/revenue/59484

• Also, the Portland Business Tax applies. See: https://www.portlandoregon.gov/revenue/29320See the following link for exeptions: https://www.portlandoregon.gov/revenue/59568

• And with the new $60 fee, landlords will have to complete Form R (here), to include with their business tax filing.

The 2019 tax is due on April 15, 2020for calendar year taxpayers. For further information, owners should check with their own legal counsel and/or CPA.

[1]I stated: “My reading of the ordinance, which was passed almost 1 ½ years ago, is that it does not apply to rental spaces in mobile home parks. Section 7.02.890 A provides: “For purposes of this section, except where defined by administrative rule in accordance with Section 7.02.210, "residentialrentalunit"meansanyresidentialpropertyrented or offered for rent for a period of more than 30 consecutive days. If a property contains more than one residential living quarter, the term residential rental unit refers to each separate livingquarter.”  (Italics mine.) Mobile home spaces do not contain “more than one residential living quarter” so it seems fairly clear that the drafters did not intend (or believe) that mobile home park spaces constituted ‘residential living units.’”

When any existing resident intends to sell their manufactured home the resident must do the following:

1. Give the landlord a written 10-day notice of their intent to sell their manufactured home. (Note: The 10 days will run parallel with the 7 day application process - i.e. if the resident notifies the landlord of intent to sell the home and does not give the 10 day notice, then the application process time to approve or reject will take 10 days rather than 7 days.)
2. The existing resident must advise the prospective purchaser that they have to fill out an application with the landlord and be approved.
3. Do not move anyone into the manufactured home that has not been approved through the tenant screening and approval process.

If you are aware of a sale and do not have the purchaser fill out an application, or fail to advise the seller and prospective purchaser in writing that the application has been rejected within 7 days after they fill out the application, then the purchaser can move into the mobile home under the same condition of the rental agreement of the seller. Basically, they assume the existing rental agreement you have with the seller of the manufactured home.

If a prospective tenant refuses to provide you with the necessary information for you to qualify them, then it is an automatic denial of the applicant.

It is important that an application is filled out and you check out the person carefully. You should check them out the same as you do any prospective resident. You do not have to approve the person just because they are buying an existing home in the park. If they have a bad credit or rental history, they can be refused as a prospective tenant. This does not necessarily kill the sale of the mobile home. They can still purchase the home, they just cannot keep it in the park. You need to provide a written rejection to both the seller and prospective purchaser within 7 days. You need to advise them why they were not accepted. If you denied them for credit reasons, give the applicant the name and phone number of the company who provided you with the report. Advise the applicant that they can call them if they have any questions regarding the report.

It is important that you advise anyone that has a "For Sale" sign on their manufactured home that they do the three things listed at the beginning of this section. Failure by the prospective resident to fill out an application or the landlord's failure to advise them that they do not qualify can be a very costly mistake in the event they move in and then you give them notice. It makes for ill feelings for everyone involved.

If a resident sells their home and the new owner of the home has not filled out an application prior to moving into the home, you do not need to accept them as a resident. You have no contract with them and you can request them to remove the home from the park. DO NOT ALLOW PROSPECTIVE TENANTS TO MOVE IN BEFORE THE SCREENING PROCESS HAS BEEN COMPLETED, AND THE APPLICANT HAS BEEN APPROVED AND SIGNED, AND RECEIPTED FOR THE STATEMENT OF POLICY, RULES AND REGULATIONS AND RENTAL AGREEMENT. DO NOT ACCEPT RENT FROM ANYONE THAT YOU HAVE NOT APPROVED TO LIVE IN THAT HOME. If you accept rent before you qualify them then you may have established them as a tenant. Simply tell them that you cannot accept the rent until they fill out an application and are accepted by the landlord. DO NOT HAVE ANYONE SIGN A RENTAL AGREEMENT UNTIL YOU HAVE RUN CREDIT, RENTAL AND CRIMINAL CHECKS ON THEM AND THEY HAVE BEEN ACCEPTED. If any of the reports come back unfavorable there is nothing you can do about it because you have established them as a tenant by signing the agreement/lease. 

Answer: This situation is not directly addressed in the Oregon manufactured housing laws. First, some general observations: The manufactured housing side of the landlord-tenant law regards the “space” as the “premises.” For example, a resident in an apartment may not, without landlord permission, intentionally make major structural changes to the interior of the premises. However, most apartments have rules against this, or it is included in the rental agreement. Your space agreement or rules may have similar prohibitions regarding major changes to the space. In this case, however, you permitted the work to commence. It is unclear whether you had reviewed any plans, before the work started. You should have made this a condition of building the carport in the first place. What about permits? It is unclear whether they are required in your jurisdiction, but it is something you should always make sure is complied with. I am unclear what you mean when you say that other such structures are “free standing and permanent.” If they are permanent, in the sense of being permanently affixed to the space, then presumably, you are treating these as structures that would remain if the home were sold and removed. However, your independent conclusion that a structure is “permanent” and therefor stays with the space is really not the complete issue; what does the resident believe? It was his money that presumably paid for the work, and he may have some say in whether he intended it to be a part of the home, and movable if the time came. While your opinion is important, so is that of your resident. For this reason, I suggest that before doing this again, you might consider addressing it in the community rules. Some of the things that should be covered are the following: • Code compliance • Management pre-approval of completed drawings • Time to complete work • Your right to post a notice of non-responsibility for liens if the resident hires a contractor • Method of affixing to the ground • Safety of final structure and perhaps inspector sign-off • Who owns the structure • Can it be removed upon sale and removal of the home (I suggest “yes” so long as the space is returned to its original condition and all holes are safely and completed filled, etc.) • Duty to keep the carport in good and safe condition – remember if it is a part of the space, absent agreement with the resident, it would be your duty, since you own the park. In this particular case, I suggest that if you have not pre-addressed these issues with your resident, he may believe this is his structure to do with as he sees fit. I really can’t disagree, since you permitted the project and from your question, it appears no ground rules were established regarding ownership in the event the home was moved. However, if you permit the carport structure to be removed, you should insist that the space be returned to its original pre-construction condition. That’s about the best you can do with this situation, although establishing rules – or at least agreed-upon terms – before construction commences again, is a good idea.

Answer: This situation is not directly addressed in the Oregon manufactured housing laws. First, some general observations: The manufactured housing side of the landlord-tenant law regards the "space" as the "premises." For example, a resident in an apartment may not, without landlord permission, intentionally make major structural changes to the interior of the premises. However, most apartments have rules against this, or it is included in the rental agreement. Your space agreement or rules may have similar prohibitions regarding major changes to the space. In this case, however, you permitted the work to commence. It is unclear whether you had reviewed any plans, before the work started. You should have made this a condition of building the carport in the first place. What about permits? It is unclear whether they are required in your jurisdiction, but it is something you should always make sure is complied with. I am unclear what you mean when you say that other such structures are "free standing and permanent." If they are permanent, in the sense of being permanently affixed to the space, then presumably, you are treating these as structures that would remain if the home were sold and removed. However, your independent conclusion that a structure is "permanent" and therefor stays with the space is really not the complete issue; what does the resident believe? It was his money that presumably paid for the work, and he may have some say in whether he intended it to be a part of the home, and movable if the time came. The same issues pertain to the new buyer. While your opinion is important, so are those of your resident and his buyer. For this reason, I suggest that before doing this again, you might consider addressing it in the community rules. Some of the things that should be covered are the following: - Code compliance - Management pre-approval of completed drawings - Time to complete work - Your right to post a notice of non-responsibility for liens if the resident hires a contractor - Method of affixing to the ground - Safety of final structure and perhaps inspector sign-off - Who owns the structure upon completion? - Can it be removed upon sale and removal of the home (I suggest "yes" so long as the space is returned to its original condition and all holes are safely and completed filled, etc.) - Duty to keep the carport in good and safe condition - remember if it is a part of the space, absent agreement with the resident, it would be your duty, since you own the park. In this particular case, I suggest that if you have not pre-addressed these issues with your resident, he may believe this is his structure to do with as he sees fit. I really can't disagree, since you permitted the project and from your question, it appears no ground rules were established regarding ownership in the event the home was moved. However, if you permit the carport structure to be removed, you should insist that the space be returned to its original pre-construction condition. That's about the best you can do with this situation, although establishing rules - or at least agreed-upon terms - before construction commences again, is a good idea.

Editor's Note:  The 2018 Oregon Primary Election on last Tuesday was brutal for Oregon community owners and landlords and business owners.   It was a dismal election night for some of Oregon's strongest opponents of rent control.  In some cases the primary election winners - staunch rent control advocates - will face NO opposition in the November General Election.  The loss of Senator Rod Monroe (Senate District 24) will have a profound impact in the 2019 Oregon Legislative Session.  Senator Monroe was the one vote stopping rent control in the Senate in the 2017 Oregon Legislative Session.  MHCO will be monitoring and engaged in the upcoming General Election  - but with Tuesday's election results the 2019 Oregon Legislative Session may consist of super majority Democrats in both chambers and a definite leftward tilt that will make rent control and other anti-landlord and anti-business all that more challenging to defeat.  The following article from "The Oregonian" sums up the key legislative races in Oregon.  

The following article is from "Oregonian", "OregonLive" - Posted May 15, 2018 at 09:59 PM | Updated May 16, 2018 at 12:04 PM

Oregon's liberal Democrats notched key wins Tuesday in legislative primaries that focused on such hot-button issues as housing affordability and the state's public pension crisis.

With the Legislature likely to consider proposals on tax increases, public pension reform and greenhouse gas emissions next year, the constituencies that support and oppose those plans - businesses, public employee unions and environmentalists - poured money into certain primary contests.

The vote also set the stage in a couple of swing districts that are likely to be intensely contested in November's general election, as Democrats attempt to win a supermajority and Republicans do their best to block them. Democrats need to pick up just one seat in the House and Senate to achieve the three-fifths supermajority necessary to pass bills raising revenue without Republican support.

Tuesday's primaries included 16 seats up for grabs in the Senate, with five Democrats running unopposed. All 60 seats were up in the House, with seven Republicans and 24 Democrats running unopposed.

SENATE DISTRICT 24

This East Portland district was one of the most closely watched and high-spending races in the May primary, with civil rights attorney Shemia Fagan handing a decisive defeat to five-term Democratic incumbent Rod Monroe. Fagan won 62 percent to Monroe's 25 percent. Kayse Jama, a 43-year-old Somali immigrant and community organizer collected 13 percent of the vote.

Monroe, 75, a five-term senator, was vulnerable because the race centered on housing. The owner of a 51-unit apartment complex in East Portland, Monroe alienated tenant advocates and fellow Democrats last year when he opposed a bill that would have restricted evictions and allowed some rent controls.

Monroe spent heavily to defend his seat, raising nearly $385,000 -- much of it from the real estate industry -- and spent most of it. A group largely funded by the real estate industry also raised more than $360,000 and spent much of it on polling in support of Monroe and advertising against Fagan. 

That wasn't enough to fend off Fagan, who moved into Monroe's Senate district last year. The Happy Valley resident has raised $310,000, with big contributions from the state's public employee unions and the Oregon Trial Lawyers Association. The recently formed political action committee A Progressive Voice for Oregon also paid for advertising against Monroe, although the committee funded mostly by trial lawyers and public employee unions did not disclose the purpose of most of its $66,000 in reported spending.  

Fagan made affordable housing her top priority and said she would put an end to no-cause evictions and allow cities to enact rent controls.

SENATE DISTRICT 11

Senate President Peter Courtney, a Salem Democrat, faced his first primary challenger in 20 years. Though Courtney handily beat Joyce Judy -- 65 percent to 35 percent -- the race put the state's longest-serving current lawmaker and most-tenured Senate president in the position of defending his record against attacks by Judy and other more liberal Democrats.

SENATE DISTRICT 3

This is poised to be a pivotal race in the general election, potentially giving Democrats the additional position needed to achieve a supermajority in the Senate. It opened up after Republican Sen. Alan DeBoer decided not to seek reelection.

Democrats had four candidates: community services nonprofit employee Kevin Stine, television producer Jeff Golden, behavioral health administrator Athena Goldberg and physician Julian Bell. Golden had a decisive lead Tuesday evening, with 52 percent of the vote. Athena Goldberg trailed with 36 percent.

On the Republican side, technology company founder and CEO Jessica Gomez claimed victory with 54 percent of the vote, over certified public accountant Curt Ankerberg's 46 percent. Gomez also worked as one of DeBoer's legislative aides.

HOUSE DISTRICT 32

This Democratic primary was likely the most-watched House race among political insiders. It pitted Tim Josi, a full-time Tillamook County Commissioner backed by outgoing Rep. Deborah Boone, against two rivals running to the left of Josi. Child welfare worker Tiffiny Mitchell, who moved to Oregon from Utah about three years ago, led with 39 percent Tuesday night and Josi had 31 percent. John Orr, who splits his time between part-time jobs as a municipal court judge and biomass energy contractor, followed with 30 percent.

A central issue in the race was whether public employees should begin contributing to the public pension fund. Orr and Mitchell said the state should not require public employees to contribute. Josi said the state should consider requiring employees to put money into the fund, but said he remains undecided on the issue.

HOUSE DISTRICT 20

Selma Pierce, a retired dentist from Salem, was recruited by House leadership to challenge the potentially vulnerable Democratic incumbent, Paul Evans. She easily bested her opponent in the Republican primary, garnering 61 percent of ballots versus Kevin Chambers' 39 percent.

Pierce, the wife of former gubernatorial candidate Bud Pierce, is a longtime volunteer in the Salem area and says she'll prioritize improving graduation rates and vocational education; providing more robust services to those suffering mental health issues; and private sector affordable housing solutions.

This is a swing district some consider to be the closest in the state. Democrats have only a 3.6 percentage point registration margin and Evans, an Air Force veteran and Western Oregon University professor, eked out a victory by less than 2,000 votes in 2016.

HOUSE DISTRICT 52

Democrats have long set their sights on this district, and the departure of former Rep. Mark Johnson last year to take a short-lived job leading a business group put the seat in play.

On the Republican side, Rep. Jeffrey Helfrich -- who was selected by county commissioners to serve the remainder of Johnson's term -- was the clear winner with 98 percent of the vote.

Democrats fielded educator and environmental activist Aurora del Val, who fought the Nestle water bottling proposal, and academic adviser Anna Williams. Del Val withdrew from the race earlier this year but was still on the ballot. Williams held a large lead with 77 percent over del Val's 22 percent.

HOUSE DISTRICT 26

Gun control was a central issue in this Republican primary. Incumbent Rich Vial garnered 70 percent of the vote, easily beating challenger Daniel Laschober. Laschober entered the race after Vial and two other House Republicans joined Democrats to pass a lawbroadening an existing ban on people owning guns because of domestic violence or stalking convictions. Vial is a lawyer and Laschober is a software and finance consultant.

By:  Phil Querin, MHCO Legal Counsel

Always Assume The Matter Will Go To Court

While most legal notices will have their desired effect – e.g. the tenant will pay the rent, or maintain the space, or do what is necessary to comply – there are a small number of tenants who will fight. Of those who fight, some will secure an attorney. Most attorneys know that the easiest way to win is to attack the notice for some deficiency. If the notice is legally insufficient, the landlord’s case will fail without any examination of the merits of the case. The failure to win in court oftentimes leaves management with an unmanageable tenant.

Accordingly, when landlords and managers prepare notices, they should alwaysassume that the notice will be contested. This approach is the best protection landlords have in securing compliance in those cases where the tenant decides to fight. 

What does it mean to draft a notice as if the matter will go to court? It means that someone – the judge or jury - will be scrutinizing the document. It means making sure that everything is filled out correctly before mailing or delivering it. It means using a form, if one is available, rather than hand-drafting a notice. It means making sure that the proper form is used. In some circumstances, it may mean having your attorney review the form beforesending it out.

Always Use A Calendar

Virtually all legal notices in the landlord-tenant law give a certain number of days (or hours) for compliance. If a 30-day notice is mailed, three additional days must be added. This means that the deadline for compliance is at least 33 days. However, landlords and managers frequently count the day of mailing toward the 33 days. This is incorrect. Additionally, the 33d day is frequently identified as the deadline, when it should be the day afterthe 33d day. When notices are sent in the month of February, the 33-day calculation can get confusing, since there are only 28 days – or 29 in the case of leap years. Rather than trying to do it in your head, it is far better to physically count the number of days on a calendar. Don’t do it once. Count out the necessary number of days at least three times, just to make sure that you’ve gotten it right.

Don’t Cut Deadlines Too Close

Frequently, landlords and managers give only the minimal number of days for compliance. This can be dangerous. While the court will always throw out a notice that is too short, it cannot throw one out that is too long. Since the risk of error is so high in the calculation of the necessary number of days, it is always prudent to give a couple of extra days, just to be safe. Rather than giving just 33 days on mailed 30-day notices, give 35. The statute governing the calculation of days can be confusing. Rather than trying to remember each rule, it is far better to simply add a couple of extra days, in order to avoid the risk of miscalculation.

Avoid All Ambiguity

For all maintenance and repair notices, be as specific as possible. Assume that a judge or jury will be looking at it. Assume that they know nothing about the problem. Will they be able to understand it? For example, saying “Clean up your yard” will not be understood by a judge or jury to mean “Mow and edge the lawn, and remove the weeds and blackberry bushes.” While tenants may know, in their heart of hearts, exactly what the landlord is referring to when he says “Clean up your yard,” by the time the matter gets into court, the tenant’s attorney will argue that the notice was so vague as to make compliance impossible. 

On disrepair notices, landlords and managers should be sure to tell the tenant exactly what is wrong with the home and exactly what is necessary to remedy it. To say “fix the steps” will be argued as too vague. This cannot be said of a notice that says “repair or replace the broken steps and handrail located along the side of the sundeck behind the house.” 

Use Current MHCO Forms

Most forms have a copyright date at the bottom. Remember that the Oregon Legislature meets every two years and that a session never goes by without some changes being made to the landlord-tenant laws. There is a good chance that a 1996 form will not legally comply with those laws generated during the 2001 Legislative Session. Accordingly, if you have a form that is copyright dated before the latest legislative year, you should check to find out if it is still current. 

Make Sure You’re Using the Right Form

While this seems obvious, errors can occur. This is especially true when sending out notices to repair a home due to damage or deterioration. ORS 90.632 expressly governs this situation. There is a special form that must be used. The law requires that the form must contain specific notice to the tenant regarding their rights to obtain an extension of time for compliance if certain repairs, such as painting, are required by the landlord. Landlords and managers frequently confuse damage and deterioration situations with failure to maintain issues. If a house is in need of paint or the skirting is rusted and broken, a notice under ORS 90.632 must be issued, since this deals with damage or deterioration. However, this is not so, if the problem is simply maintenance, such as debris in the yard, or the home needs to be power-washed.

Be Careful Using 24-Hour Notices

While there are several good reasons to use a 24-hour notice, before issuing one, you should first ask two questions: (a) Is the conduct expressly prohibited by the park rules, and (b) is it of such a magnitude that it jeopardizes the health and safety of the tenants or managers in the park. If the violation is a breach of the rules, but is nota health or safety issue, it is better to give a 30-day notice for a rules violation. Here’s why: 24-hour notices are not curable. This means that the court will be faced with having to kick someone out of their home. If there is any doubt whatsoever, the judge or jury will normally come down on the side of the tenant. However, a 30-day notice is curable. If the conduct stops, there is no further issue for the landlord. If it is repeated within six months of the date of the 30-day notice, the landlord may issue a 20-day non-curable notice. If the landlord must file an eviction based upon the tenant’s failure to vacate after the issuance of a 20-day notice, the judge or jury will know that the tenant was first given an opportunity to avoid termination of the tenancy but they ignored it. 

Only Use Notices of Termination As A Last Resort

Several changes ushered in by the 2001 Legislative Session make it easier for landlords and managers to first seek voluntary compliance from a tenant before issuing notices of termination. The waiver statute is not as harsh as it once was. Additionally, since informal notices are not intended to be the basis of an eviction action, they do not need to be in any particular form. They can be mailed or hand delivered without the necessity of counting days. They do not have to threaten termination of the tenancy. They do not need to have a fixed deadline for compliance. They can say “please.” Perhaps most important, they make management look better, since they show that the landlord or manager “walked the extra mile” with the tenant, rather than simply terminating the tenancy. Most landlord attorneys would prefer to be in court with a tenant’s file that is thick with requests for voluntary compliance. By the time a legal notice of termination is sent, it should say to the judge or jury “this was the landlord’s last resort.”

Only Use Notices Of Termination If You Mean It

Landlords and managers who issue notices without enforcing them create the appearance they are “crying wolf.” If a notice is issued, say for failure to maintain the yard, but no enforcement occurs upon noncompliance, the notice loses importance. If this occurs park-wide, the minute an eviction is filed based upon a particular tenant’s refusal to comply, the argument occurs that management is engaging in “selective enforcement,” since it had never done it before.  Consistent with the “last resort” approach, discussed above, landlords and managers should reserve the legal notice of termination only for those cases in which they intend to follow through.

Conclusion

While legal notices of termination are a necessary precondition to filing an eviction, they can also prove to be management’s undoing, if not properly used. They should be reserved for those cases in which the landlord or manager has no other viable alternative, and when used, they mustbe properly prepared.  Indiscriminate use or sloppy preparation of notices of termination will do management more harm than good.