Search

In order to comply with Oregon Law, and to provide accurate records, there are several forms that are to be completed when the applicant is accepted to become a resident in the community. These forms should be completed after you have reviewed the resident's application, and completed all background checks and tenant screening, but before the resident moves into their home.

Copies of the following forms should be given to the new resident:

• Copy of signed Rental Application
• Copy of signed Rental Agreement signed by both manager and new resident
• Copy of Park "Rules and Regulations" signed by the new resident
• Copy RV Storage Agreement if applicable.
• Copy of Pet Agreement if applicable
• Copy of "Statement of Policy" signed by the new resident
• Copy of Receipt of Statement of Policy
• Copy of Rental History Addendum to Statement of Policy
• Flood Plain Notice

The following documents should be in the new resident's office file:

• Signed "Reciept of Statement of Policy" (signed before signing rental agreement)
• Signed Rental Application
• Signed Rental Agreement (signed by both manager and new resident)
• Park "Rules and Regulations" signed by the new resident
• Statement of Policy signed by the new resident
• Rental History Addendum to Statement of Policy
• Emergency Contact Information
• RV Storage Agreement (if applicable)
• Pet Agreement (if applicable) signed by the new resident
• A copy of criminal, credit and rental checks. Remember, credit check results are confidential
• Age verification (if 55 and Older Community)
• Flood Plain Notice

Remember - Prior to renting a space and permitting possession, you must have all proper inquiries completed and applicant accepted and the rental agreement signed.

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.

Acceptance Briefing

Once you have determined that an individual is qualified to live in the community and all the proper documentation has been explained and signed, you should consider a meeting with the new resident. Use the Park Rules & Regulations as a briefing tool. The conversation should not be a "laying down of the law", but rather an open discussion of what is expected of both the new resident and community management. New residents may not know their responsibilities (despite signing numerous documents outlining their rights/responsibilities), thus it is your responsibility to clarify and remind them of their responsibilities. Be sure your new resident understands such things as:

1. Rent is due on the first of each month:
   1. If rent is paid after the 5th day, the residents will be faced with a late fee.
   2. If not paid by the 8th day, the resident will receive a 72-hour notice.
   3. Residents must give 30 days written notice to vacate space or they intend to sell their manufactured home.
2. Help your new resident be a good neighbor. Be sure that he/she is informed about:
   1. Quiet hours
   2. Pet Control
   3. Laundry room/Recreation room hours
   4. Swimming pool hours
   5. Review Rules and Regulation and remind the new resident that they are strictly enforced.

Statement of Policy - Complying with the Truth in Renting Act

As of July 1, 1992, all manufactured home communities renting space for manufactured dwellings have been required to provide prospective and existing tenants with a Statement of Policy. The applicants must receive their Statement of Policy before signing the rental agreement. Existing tenants who have not previously received a copy of the Statement of Policy and are on month-to-month rental agreements must receive their copy at the time the next 90-day rent increases notice is issued (ORS 90.510(3)(b). All other existing tenants shall receive a copy of the statement of policy upon expiration of their current rental agreement and before signing a new agreement.

While a Statement of Policy is not technically a contract, it is an important document. A tenant or rental applicant who makes their decisions or changes their position in reliance upon the policies set forth in the statement may be entitled to hold the landlord to those written policies. As proof of delivery of the Statement of Policy to tenants or applicants, it is advised to get a signed receipt.

A landlord who intentionally and deliberately fails to provide a Statement of Policy as required by ORS 90.510, or delivers a legally defective one, may be subject to a lawsuit.

The Statement of Policy is required to include the following information in summary form:

1. The location and approximate size of the space to be rented.
2. The federal fair housing age classification and present zoning that affect the use of the rented space.
3. The facility policy regarding rent adjustment and a rent history for the space to be rented. The rent history must, at a minimum, show the rent amounts on January 1 of each of the five preceding calendar years or during the length of the landlord's ownership, leasing or subleasing of the facility, whichever period is shorter.
4. All personal property, services and facilities to be provided by the landlord.
5. All installation charges imposed by the landlord and installation fees imposed by government agencies.
6. The facility policy regarding rental agreement termination including but not limited to closure of the facility.
7. The facility policy regarding facility sale.
8. The facility policy regarding informal dispute resolution.
9. Utilities and services available, the person furnishing them and the person responsible for payment.
10. If a tenants' association exists for the facility, a one-page summary about the tenants' association that shall be provided to the landlord by the tenants' association and shall be attached to the statement of policy.
11. Any facility policy regarding the removal of a manufactured dwelling, including a statement that removal may impact the market value of a dwelling.

Tenant Files

Before any tenant moves into your community the tenant's file should contain the following information:

1. Completed Application
2. Signed Rental Agreement. (Resident is to receive a copy)
3. Signed Rules and Regulations (Resident is to receive a copy)
4. Signed Statement of Policy including Rent History Addendum. (Tenant is to have received a copy of the Statement of Policy prior to signing rental agreement.)
5. Copy of Homeowner's insurance policy with community named as an interested party (for the purpose of being notified of cancellation of insurance. (This is for pets only.)
6. Credit check results
7. Rental check results
8. Criminal check results
9. Application screening fee receipt
10. Pet Agreement - Identify type of pet, name, size. You might consider taking a picture of the pet to include in your file in case you need to identify the pet in the future. Resident must sign the pet agreement. (Resident is to receive a copy)
11. Proof of Age if 55 and older community (photo ID, driver's license)
12. RV Storage Agreement. Identify type of RV (i.e. boat, camper, trailer, etc.) and include license number and description of recreational vehicle. (Resident is to receive a copy)
13. Any and all notices/correspondence between landlord/manager and resident 

Answer: Does the former tenant have issues other than his lack of fiscal responsibility? You could prevent him from being a temporary occupancy based upon prior conduct, etc., but not regarding his failure to pay rent, since "in theory" a temporary occupant is not one who is sharing rent, etc. The statute (ORS 90.275) does not permit you to vet a person's financial/employment status if they want to be a temporary occupant. If the guy has other negative issues, you can decline to put him on a temporary occupancy agreement if they are substantial and material.

The following is a summary of a recent conversation I had with the Fair Housing Council of Oregon on the issue of whether landlords can put "caregivers" on Temporary Occupancy Agreements, rather than putting them on a Rental Agreement (or not putting them on any written agreement - which leaves in doubt their legal status if the Landlord wants them removed from the Community).

1. If the assistance provider doesn'tqualify based on the background check[1] then you don't have to accept them into the Community;
2. If they violate rules of the community when they are already in the Community you can require they leave. (Of course if they are not on an Occupancy Agreement, this could mean removing the tenant if the caregiver refuses to leave, and the tenant doesn'tforce them to do so);

• You can pre-qualify the current tenant as to their need for a care provider, i.e. require a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
• If they can't provide that proof, then you don't have to allow them into the Community as a care provider (although I can't imagine it would be very hard to obtain such proof);
• You have to give the current tenant a choice (assuming the person qualifies under the background check), i.e. they can be on an Occupancy Agreement or go onto a Rental Agreement. You can't automatically say, "OK, you must go on an Occupancy Agreement."
• It is believed that if the tenant understands the risk of allowing the caregiver to be a tenant (i.e. if the caregiver is disruptive, the current tenant may have to leave also), that they will voluntarily opt to put the person on the Occupancy Agreement. (Note: This doesn'taddress the problem where the person doesn'tfinancially qualify to be on the Rental Agreement, but I suspect FHCO would say it's a "reasonable accommodation" by the landlord to waive that financial requirement.) This approach may be slightly unrealistic in those cases in which the tenant wants the caregiver there, and defers to what the caregiver says.

Your alternatives seem to be the following:

• If the current tenant wants them to be a care provider, can he/she establish its legitimacy? If not, you can say no.
• If the current tenant wants them as a temporary occupant, and they have been a problem in the park you can say no; I believe this is so, even though they try to go the care provider route.
• If the current tenant wants them as a "tenant" you can say no because they do not have the financial capacity to pay rent (remember, you couldn'tsay that if they were to be a temporary occupant).
• If you do agree to make them a temporary occupant, have everyone sign the Temporary Occupancy Agreement and put him on a 3 or 6 month term, to see how it goes. You are under no obligation to renew - but if they are serving as a care provider on a Temporary Occupancy Agreement, you'd probably have difficulty not renewing unless there was a specific problem. (But if there was a specific problem, you likely would have already removed them. Getting temporary occupants must be "for cause" e.g. a rules violation, but there is no 30-day right to cure.)

[1] Remember, you cannot require financial capacity if they are to be a temporary occupant, but you can if they are to be a tenant.

Answer: Bad news on both fronts. Let me answer your second question first. You may NOT share in a real estate commission unless you have your own Oregon real estate license. This prohibition against commission sharing even applies between real estate agents and the homeowner they represent. Here is the applicable Oregon Law:

ORS 696.290 [Sharing compensation with or paying finders fee to unlicensed person prohibited]

(1)A real estate licensee may not offer, promise, allow, give, pay or rebate, directly or indirectly, any part or share of the licensees compensation arising or accruing from any real estate transaction or pay a finders fee to any person who is not a real estate licensee licensed under ORS 696.022 (Licensing system for real estate brokers and property managers). However, a real estate broker or principal real estate broker may pay a finders fee or a share of the licensees compensation on a cooperative sale when the payment is made to a licensed real estate broker in another state or country, provided that the state or country in which that broker is licensed has a law permitting real estate brokers to cooperate with real estate brokers or principal real estate brokers in this state and that such nonresident real estate broker does not conduct in this state any acts constituting professional real estate activity and for which compensation is paid. If a country does not license real estate brokers, the payee must be a citizen or resident of the country and represent that the payee is in the business of real estate brokerage in the other country. A real estate broker associated with a principal real estate broker may not accept compensation from any person other than the principal real estate broker with whom the real estate broker is associated at the time. A principal real estate broker may not make payment to the real estate broker of another principal real estate broker except through the principal real estate broker with whom the real estate broker is associated. Nothing in this section prevents payment of compensation earned by a real estate broker or principal real estate broker while licensed, because of change of affiliation or inactivation of the brokers license.

(2)Nothing in subsection (1) of this section prohibits a real estate licensee who has a written property management agreement with the owner of a residential building or facility from authorizing the payment of a referral fee, rent credit or other compensation to an existing tenant of the owner or licensee, or a former tenant if the former tenant resided in the building or facility within the previous six months, as compensation for referring new tenants to the licensee.

(3)(a) Nothing in subsection (1) of this section prevents an Oregon real estate broker or principal real estate broker from sharing compensation on a cooperative nonresidential real estate transaction with a person who holds an active real estate license in another state or country, provided:

(A)Before the out-of-state real estate licensee performs any act in this state that constitutes professional real estate activity, the licensee and the cooperating Oregon real estate broker or principal real estate broker agree in writing that the acts constituting professional real estate activity conducted in this state will be under the supervision and control of the cooperating Oregon broker and will comply with all applicable Oregon laws;

(B)The cooperating Oregon real estate broker or principal real estate broker accompanies the out-of-state real estate licensee and the client during any property showings or negotiations conducted in this state; and

(C)All property showings and negotiations regarding nonresidential real estate located in this state are conducted under the supervision and control of the cooperating Oregon real estate broker or principal real estate broker.

(b) As used in this subsection, nonresidential real estate means real property that is improved or available for improvement by commercial structures or five or more residential dwelling units.

As for requiring that residents use your preferred agent, that too is a No-No. Here is that statute [I've underscored the applicable provision in subsection (1).] The term "services" can clearly be applied to real estate brokerage services, and as such, I cannot recommend that you impose that condition on residents when they want to sell their home.

90.525 [Unreasonable conditions of rental or occupancy prohibited.]

(1) No landlord shall impose conditions of rental or occupancy which unreasonably restrict the tenant or prospective tenant in choosing a fuel supplier, furnishings, goods, services or accessories.

(2) No landlord of a facility shall require the prospective tenant to purchase a manufactured dwelling or floating home from a particular dealer or one of a group of dealers.

(3) No landlord renting a space for a manufactured dwelling or floating home shall give preference to a prospective tenant who purchased a manufactured dwelling or floating home from a particular dealer.

(4) No manufactured dwelling or floating home dealer shall require, as a condition of sale, a purchaser to rent a space for a manufactured dwelling or floating home in a particular facility or one of a group of facilities. [Formerly 91.895; 1991 c.844 _7]

Answer. There is nothing in the Oregon landlord-tenant laws that addresses this subject. This is not like an adult who wants to be approved as a resident and move in to an existing home. In that case, I can see that you would want to run him through the fully battery of checks.

But in this case, what would you learn? You would not be able to get any juvenile records. He probably has no credit to speak of, and his income is not necessary for establishing that his parents can afford to live in the community. It strikes me that going forward, you retain the same control over him as any other adults in the park. He has to obey the rules, etc., and if he doesn'tyou could issue a 30-day notice to the parents about his conduct.

If you wanted to add him as a Temporary Occupant, you could do that. If he violated rules, etc., you could terminate his right to be a Temporary Occupant, and require that he vacate. However, in this case, it does not seem that there is cause for concern.

If he had been a problem child, and now had grown into a problem adult, I would strongly recommend that you use a Temporary Occupancy Agreement. Your options in requiring that he vacate upon breach of the rules, are much swifter, although you cannot terminate without cause.

Although I don't believe I've seen this issue addressed in park rules, it's not a bad idea to have something in place. You could say that all children remaining in the park after their 18th birthday, must do X, Y, and Z. That way, when it happens, you will not be accused of picking on one particular tenant's son or daughter.

Lastly, I've often seen a similar situation, where the child moves away after his or her 18th birthday, and then returns a year or so later. Some landlords treat this as they would any other third party wanting to move into an existing resident's home. While it would be nice if the situation was addressed in the community rules, I have not seen this. I believe I would treat any adult wanting to share space with other residents, even parents, the same way I would treat unrelated parties; they must at least pass a background check. The rule should be the same for two residents who have been approved, then one leaves and comes back a year or so later.

In all cases, you can use the Occupancy Agreement, assuming the person passes their background check. If there is ever any doubt about the boomerang child, or former tenant coming back into the community, your best alternative (other than saying "No" based upon the background check) is to use the Temporary Occupancy Agreement.[1] However, never let the Temporary Occupancy Agreement be perpetual; be sure to have an expiration date on the term. You can always renew it if they behave.

[1] The statute is here. Note that you cannot qualify the Temporary Occupant based upon finances, since it is presumed their income is not necessary for the existing tenant(s) to pay the monthly space rent.

In addition to the plan you are developing for your manufactured home community, you should encourage each resident family to have its own disaster plan in place.  Residents should know what types of disaster could occur, and what they can do about each one.  A community newsletter is a good way to educate residents, and so are community meetings.

Residents should also know how they will be notified of a potential disaster.  Does the community have a warning system, such as a siren, and what does each signal mean?  If someone in the family is responsible for helping to notify others in the community, phone numbers or addresses should be posted near the phone or in a place that can be easily reached.

It’s a good idea for all members of a family to discuss and develop these plans together.  The plans should include:

• Escape routes in the home, if doors are blocked
• Where to go in case of an immediate emergency, such as a community shelter
• Where to go in case of an evacuation
• A map of the evacuation route
• A list of phone numbers that would be needed in a disaster.  This would include doctors, relatives and insurance agents.
• A contact person outside of the area for all family members to call to report on their safety and whereabouts
• A place to meet if the family is separated

In addition, each member of the family should be assigned a job to do to get ready for an emergency.  For example,

• Set up, maintain and move emergency supplies
• Stow breakable items
• Secure outside items, such as awnings, grills or patio furniture
• Turn off utilities (electricity, water, natural or LP gas)
• Collect pets
• Collect valuable items, if time allows (credit cards, insurance papers, drivers licenses, photos)

Note: Different steps should be taken to secure the home, depending on what type of disaster is being planned for.  See more about how to secure your home in the section on each type of potential disaster.

Every member of the family should be familiar with the plan, and should participate in planned community practices or drills.  Children should know where to go and what to do in case of an emergency, and should practice with their parents several times each year.  They should also memorize contact names and phone numbers in case separated from their parents.

In a community disaster, families may need to be able to survive on their own for several days.  This means each household should have its own water, food, clothing, a first aid kit and other emergency supplies ready to go at all times.  Here’s a list of the basics each family should have, adapted from a list developed by the Federal Emergency Management Agency (FEMA).

Family Emergency Supplies List

FEMA recommends that families use backpacks or duffel bags to store their emergency supplies and to move them, if necessary.  They should contain items from the list on the following page.

Families should keep their emergency supplies in a cool, dry place.  Boxed foods should be stored in closed containers.  The food and medical supplies should be dated and replaced with new supplies as needed.  If you are storing water over a long period of time, treat each container with a water purification element before storing it.  Keep water in a cool, dark place in tightly closed, unbreakable containers.

If someone in your family has a disability or specific medical problem that creates special needs, be sure that the necessary items are included in the emergency supplies.  If someone in the family is dependent on electric powered respirators or other medical equipment, find out what kinds of special assistance are available in the community.  If a family has no one who is capable of driving in an evacuation, make sure that a neighbor or someone else nearby will provide transportation.

Family Emergency Supplies List

Water, Food and Utensils

• Water (1 gallon per person per day) in non-breakable containers
• Ice and cooler chest
• Water purification materials – tablets, tincture of iodine or household bleach, with instructions on how they are used
• Food: high-nutrition and ready to eat items like canned tuna, peanut butter, granola bars
• Non-electric can opener
• Special foods, such as baby food, if needed
• Pet food, if needed
• Plastic utensils and cups

Communications, Lighting and Safety

• Battery-powered radio and extra batteries
• Cellular phone or citizens band radio
• NOAA weather-alert radio
• Fire extinguisher
• Flashlights and extra batteries
• Work gloves
• Propane gas stove

Clothing and Bedding

• One complete change of clothing for each person, appropriate for weather conditions
• Sturdy shoes
• Outer-wear appropriate for weather conditions
• Extra underwear and socks
• Sleeping bag or two blankets for each person
• Pillows

Personal Items

• Contact lens solution
• Dentures
• Deodorant
• Family Medications
• Insect repellent
• Sanitary napkins or tampons
• Sewing kit
• Shampoo, comb, hair brush
• Shaving kit
• Soap, toothbrushes, and toothpaste
• Special children’s needs, such as toys, blanket, pacifier, diapers
• Washcloth and towel

First Aid Kit

• Adhesive tape and bandages
• Antibiotic and anti-itch ointments
• Antiseptic solution
• Aspirin or substitute
• Diarrhea medication
• Fist aid handbook
• Petroleum jelly
• Prescription and non-prescription medications used by family
• Scissors and tweezers
• Sterile bandages

Papers and Valuables

(if not kept in a safety deposit box)

• Birth certificates
• Credit cards and cash
• Deeds and mortgages
• Drivers licenses
• Insurance policies
• Inventory of household goods (photos preferred)
• List of emergency phone numbers
• Photos that can’t be replaced
• Savings and checking account records
• Small valuables (watches, jewelry, cameras, electronics)
• Stocks and bonds
• Wills

By David M. Weber & M. Christine Weber We all know it is far easier to maintain a resident than find one who will fill a vacant space within a community. This is particularly true in 55+ communities. To be great at resident retention, managers need to believe strongly in the lifestyle that has led many seniors to a manufactured housing way of life. Managers must be helpful, respectful, enthusiastic and work relentlessly to continuously improve their seniors' lifestyles. One of the measuring sticks of great managers, as well as great regional managers, is their ability to be friendly while at the same time, keeping their eyes firmly upon the objectives of the community. The responsibilities of property management are immense and sometimes thankless. It is hard to believe that any of us could add another thing to our schedules to strive for better resident relations. But we must, and we must go at it with an eager, devoted, and intense passion to be successful. The only way to achieve this and still maintain the quality of the community is great organizational skills, resident, participation and the initiative to be creative. No matter how large or small a community and its budget, the following simple steps will bring a community to its peak performance and create strong resident relations. Get the Residents Involved Make photo albums or scrapbooks of residents enjoying their community or community activities. Seniors enjoy donating photos from their past and the fun time they've had with neighbors or friends. Residents can form a photography club to take pictures of all community events, funny resident situations and neighbors helping one another. Photo clubs are a good source for pictures submitted by residents. Volunteers can help with the collection of photos and putting together the album. Display the album(s) proudly in the activity center or community lounge area for all to enjoy. Managers should look through the books from time to time to ensure quality content. Encourage residents to write positive letters or stories about the community. Resident writings can be collected in an attractive album, which is also to be displayed in the community activity center. When the letters have been submitted, ask if they may be used in the community newsletter. Pick one letter a month to exhibit in an attractive picture frame under the caption, Letter of the month" or "Why we enjoy living in this community." Create a journal to pass around the community (it may be a spiral notebook) for all residents to write in. A note stating the topic should be firmly attached on the outside of the journal for all to read before inserting thoughts. The note may ask for how long the resident has lived in the community and a short biography. Encourage the use of photos or themselves

Answer. Based upon recent news reports, it appears that, subject to certain exceptions,[1] there will be no effort by the federal Department of Justice to seek out and charge violators of the Controlled Substances Act in those states where the medical or recreational use of marijuana is legal.

Thus, it appears that when it comes to enforcement of park rules and regulations, Oregon landlords are on their own; neither the feds, nor the state, will go after persons with lawfully issued medical marijuana cards. Furthermore, if a tenant has a valid card, then arguably he or she has some medical condition that has authorized its issuance. Is the landlord obligated under the Fair Housing laws to make a "reasonable accommodation" for their medical condition, and permit the tenant to continue their use or grow operation? If properly done, the answer is likely "No." Here's why:[2]

In January 20, 2011, the U.S. Department of Housing and Urban Development ("HUD") issued a Memorandum, the subject of which was "Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing." While the Memo was limited to federal public and assisted housing, it can be regarded as a helpful - though perhaps not a "final" resource - on the issue.[3] It is very complete and helpful for all landlords. It can be found at this link. Here is what the Memo directs:

Public housing agencies '_in states that have enacted laws legalizing the use of medical marijuana must therefore establish a standard and adopt written policy regarding whether or not to allow continued occupancy or assistance for residents who are medical marijuana users. The decision of whether or not to allow continued occupancy or assistance to medical marijuana users is the responsibility of PHAs, not of the Department."

Thus, HUD appears to be leaving it up to the state public housing authorities to decide whether the refusal to permit on-premises use of medical marijuana constitutes a fair housing violation. Between the lines, it appears that HUD will not directly investigate such claims, leaving it up to public housing agencies on the state level.

While HUD's pronouncement is directed toward "public housing" is would be hard to believe private housing would be treated any differently. Oregon fair housing law is "substantially equivalent" to federal fair housing law. So, generally speaking, on the issue of medical marijuana, as goes the federal law, so goes state law.

However, in the 2010 case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court held that employers do not have a legal duty to allow employees to use medical marijuana on the job. This case addressed many unanswered questions on the use of medical marijuana in Oregon from an employment perspective. In a subsequent article [found here] by the Fair Housing Council of Oregon it appears that the rationale of the Emerald Steel Fabricators case is helpful for landlords declining to admit new residents with medical marijuana cards - so long as they have an existing policy against the use and cultivation of marijuana in the community.

Thus, it appears that in Oregon, on both the federal and state levels, enforcement agencies are taking a laissez-faire approach to the medical marijuana issue. This means that landlords have it within their control, with little fear of fair housing/reasonable accommodation claims, to enact rules and regulations prohibiting the on-premises medical or recreational use of marijuana.

However, I do not believe the proscription should be retroactive to tenants holding legal medical marijuana cards who have already signed their rental agreements or leases. Like you, I believe that a court would not be favorable to your situation.

It appears that your resident's medical marijuana card is in order. It must valid and current for Oregon. A California card, for example, would not suffice. [See, State v. Berrenger, 2010].

Conclusion. Yours is a difficult situation. For existing tenants I believe you can legally institute a "no marijuana" policy against recreational and medical use. However, making it retroactive as to persons already holding medical marijuana cards, would be a difficult proposition, since they did not bargain for that when they became residents or when they received their card.

In some instances, and this may not be one, I have seen situations where the resident, under the guise of holding a medical marijuana card, is also selling the drug illegally to others. This situation is most apparent when there are late night visits by unknown persons for short periods of time. If this situation presents itself, and neighbors complain, you may have recourse by issuing a 30-day curable notice of termination for violating ORS 90.740(4)(j) for disturbing the neighbors' peaceful enjoyment. You do not have to raise the marijuana use, just the noise and disruption. Upon a second similar violation within six months of the date of issuance of the first notice, you can issue a 20-day noncurable notice.

[1] The exceptions are: The distribution of marijuana to minors; Directing revenue from marijuana sales to gangs and cartels; Diverting marijuana from states where it is legal to other states where there are no laws allowing for marijuana use; Using legal sales as cover for trafficking operations; Using violence and or firearms in marijuana cultivation and distribution; Driving under the influence of marijuana; Growing marijuana on public lands; Possessing marijuana or using on federal property.

[2]Note: This answer is not intended to constitute legal advice. Readers should consult their own legal counsel to determine how to proceed in these cases, as the correct outcome depends upon the specific facts of each situation.

[3] Note that Oregon has its own set of fair housing laws.

1.         Why is Miner writing an article on taxes?

Good question, because I am not a tax lawyer and (as with all of our articles) this is not legal advice. MHCO has been receiving questions from owners about the new corporate activity tax. The below questions and answers are an attempt to summarize HB 3427 and the possible effect it may have on some owners of manufactured home parks. Each situation is different and it is imperative for every owner to speak with their tax professional on whether and how the new law will be applied to each owner’s individual situation. If you are interested in getting specific advice on your situation, or need a referral to a tax professional, please feel reach out to me.

2.         What is HB 3427?

HB 3427 (“the Act”) was signed into law by Governor Kate Brown on May 16, 2019. It technically became effective on September 29, 2019, but will apply to the 2020 tax year. The Act’s official title is the “Student Success Act”. The first 55 sections of the Act establish various programs to invest in early childhood and K-12 education programs in Oregon. Examples include an “early warning system” for high school graduation, a statewide “youth reengagement” system, and school breakfast and lunch programs, to name a few. 

Section 58 of the Act creates the Corporate Activity Tax (“CAT”), also known as Oregon’s first modified gross receipt tax. The CAT is intended to raise approximately $2 billion per biennium to fund the programs listed in the Act.  Section 56 of the Act slightly reduces personal income tax rates.

3.         What is the CAT?

The CAT, or corporate activity tax, is a tax on gross receipts(or sales) over $1 million by any affected person or business in Oregon. Any person or business with a taxable commercial activity in excess of $1 million will be imposed a tax rate of 0.57% plus $250 on receipts above the first $1 million of taxable commercial activity ($250 +.57% of revenues in excess of $1 million). The first $1 million in gross receipts are exempt from the CAT. In other words, if your park does not make more than $1,000,000 per year in gross revenue (from all sources), you most likely won’t need to worry about it. BUT, check with your tax professional.

4.         What is “commercial activity”? 

Commercial activity is defined as transactions and activity in the regular course of the person’s trade or business, without deduction for expensesincurred by the trade or business (although there does appear to be some qualified deductions (see question #8 below)). 

5.         Does the CAT apply to the gross income (i.e. all the rent, utilities, fees, interest) that I make at my manufactured home park?

Again, it is imperative that you speak with your own tax professional to determine whether the CAT applies to you and what exactly it applies to. The Act specifically refers to receipts from the sale, rental, lease or license of real property to the extent the property is located in Oregon. There are several exemptions of what constitutes “commercial activity”. For example, receipts from the sale, exchange or other disposition of an asset as described in Internal Revenue Code Sections 1221 or 1231; contributions to capital; interest and dividends; sales of motor fuel; distributive income received from a pass-through entity; receipts from the wholesale or retail sale of groceries, are a few of the exemptions.

If you own multiple entities that own multiple parks in Oregon where the total gross receipts exceed $1 million, you will want to talk to your tax and/or legal advisors on whether you are required to aggregate the receipts. If you have one entity that owns several parks, you may want to discuss having separate legal entities for each property. 

 6.        What if I have another property outside of Oregon?

Only Oregon sourced commercial activity is taxed. The Act defines taxable commercial activity as the total amounts realized by the taxpayer arising from transactions and activity in the regular course of taxpayer’s trade or business that is sourcedto Oregon.  Receipts from outside Oregon wouldn’t be considered.

7.        Can I pass on the CAT to others (i.e. my tenants)?

There appears to be no prohibition on passing on the tax through increased pricing (why this is viewed by some as a backdoor sales tax); however, you must always keep other restrictions in mind. For example, you continue to have the ability to raise your rent every year pursuant to the provisions of SB 608, but there is a cap (7% plus CPI). 

8.         Can I take any deductions from “gross receipts”?

Again, talk to your tax professional, but the Act provides a 35% subtraction from taxable commercial activity of “labor costs” (defined as total compensation paid to all employees excluding any compensation paid to any single employee in excess of $500,000) or“Cost inputs” (defined as the cost of goods sold calculated in accordance with IRC Section 471).

9.         Does this replace the existing corporate tax?

No. The CAT is a new business tax and will apply in addition to Oregon’s existing corporate tax.  

10.       Does this apply to income earned in 2019?

No. The CAT will take effect for tax years beginning on or after January 1, 2020. Any person or business generating more than $750,000 of Oregon sourced commercial activity will be required to register with the Oregon Department of Revenue and file an annual return by April 15 of the following year. 

11.       Can I wait until April to pay?

Again, talk to your tax professional, but taxpayers must pay at least 80% of the balance due for any quarter or the DOR may impose penalties, starting at 20%. It is similar to paying estimated income taxes.

Answer: Bad news on both fronts. Let me answer your second question first. You may NOT share in a real estate commission unless you have your own Oregon real estate license. This prohibition against commission sharing even applies between real estate agents and the homeowner they represent. Here is the applicable Oregon Law:

ORS 696.290 [Sharing compensation with or paying finders fee to unlicensed person prohibited]

(1)A real estate licensee may not offer, promise, allow, give, pay or rebate, directly or indirectly, any part or share of the licensees compensation arising or accruing from any real estate transaction or pay a finders fee to any person who is not a real estate licensee licensed under ORS 696.022 (Licensing system for real estate brokers and property managers). However, a real estate broker or principal real estate broker may pay a finders fee or a share of the licensees compensation on a cooperative sale when the payment is made to a licensed real estate broker in another state or country, provided that the state or country in which that broker is licensed has a law permitting real estate brokers to cooperate with real estate brokers or principal real estate brokers in this state and that such nonresident real estate broker does not conduct in this state any acts constituting professional real estate activity and for which compensation is paid. If a country does not license real estate brokers, the payee must be a citizen or resident of the country and represent that the payee is in the business of real estate brokerage in the other country. A real estate broker associated with a principal real estate broker may not accept compensation from any person other than the principal real estate broker with whom the real estate broker is associated at the time. A principal real estate broker may not make payment to the real estate broker of another principal real estate broker except through the principal real estate broker with whom the real estate broker is associated. Nothing in this section prevents payment of compensation earned by a real estate broker or principal real estate broker while licensed, because of change of affiliation or inactivation of the brokers license.

(2)Nothing in subsection (1) of this section prohibits a real estate licensee who has a written property management agreement with the owner of a residential building or facility from authorizing the payment of a referral fee, rent credit or other compensation to an existing tenant of the owner or licensee, or a former tenant if the former tenant resided in the building or facility within the previous six months, as compensation for referring new tenants to the licensee.

(3)(a) Nothing in subsection (1) of this section prevents an Oregon real estate broker or principal real estate broker from sharing compensation on a cooperative nonresidential real estate transaction with a person who holds an active real estate license in another state or country, provided:

(A)Before the out-of-state real estate licensee performs any act in this state that constitutes professional real estate activity, the licensee and the cooperating Oregon real estate broker or principal real estate broker agree in writing that the acts constituting professional real estate activity conducted in this state will be under the supervision and control of the cooperating Oregon broker and will comply with all applicable Oregon laws;

(B)The cooperating Oregon real estate broker or principal real estate broker accompanies the out-of-state real estate licensee and the client during any property showings or negotiations conducted in this state; and

(C)All property showings and negotiations regarding nonresidential real estate located in this state are conducted under the supervision and control of the cooperating Oregon real estate broker or principal real estate broker.

(b) As used in this subsection, nonresidential real estate means real property that is improved or available for improvement by commercial structures or five or more residential dwelling units.

As for requiring that residents use your preferred agent, that too is a No-No. Here is that statute [I've underscored the applicable provision in subsection (1).] The term "services" can clearly be applied to real estate brokerage services, and as such, I cannot recommend that you impose that condition on residents when they want to sell their home.

90.525 [Unreasonable conditions of rental or occupancy prohibited.]

(1) No landlord shall impose conditions of rental or occupancy which unreasonably restrict the tenant or prospective tenant in choosing a fuel supplier, furnishings, goods, services or accessories.

(2) No landlord of a facility shall require the prospective tenant to purchase a manufactured dwelling or floating home from a particular dealer or one of a group of dealers.

(3) No landlord renting a space for a manufactured dwelling or floating home shall give preference to a prospective tenant who purchased a manufactured dwelling or floating home from a particular dealer.

(4) No manufactured dwelling or floating home dealer shall require, as a condition of sale, a purchaser to rent a space for a manufactured dwelling or floating home in a particular facility or one of a group of facilities. [Formerly 91.895; 1991 c.844 _7]

Situation: A Michigan landlord rejected an otherwise qualified African-American applicant after an online check revealed that he had been convicted of a felony in connection with a domestic disturbance four years earlier. While acknowledging the conviction, the applicant insisted that he was fully rehabilitated. But the landlord stubbornly refused to budge from the community’s policy of not accepting anyone with a criminal conviction while stressing that it doesn’t “consider cases individually.” The applicant and a local fair housing group sued for racial discrimination. The landlord moved for summary judgment, claiming that the statistics about arrest and incarceration rates of African Americans nationwide were too general to prove disparate impact in a particular community.   

You Make the Call: Did the applicant have a valid claim for racial discrimination under the FHA?

Answer: Yes

Ruling: The Michigan federal court rejected the motion and allowed the applicant to take his claims to trial. “Even countrywide statistics may be sufficient to plead a disparate impact claim where a challenged policy has a clearly disproportional effect on a protected class,” the court reasoned. Besides, the applicant also cited state and county statistics showing the same disproportionate rates of minority arrests and incarceration [Lyman v. Montclair at Partridge Creek, LLC, 2023 U.S. Dist. LEXIS 166464].

Takeaway: As a landlord, you have a responsibility to ensure your community is safe and secure. But while a blanket exclusion based on criminal history might look like a legitimate, nondiscriminatory safety policy, in the view of HUD and many courts, it has a discriminatory impact based on race. By the same token, HUD and DOJ guidelines also say that landlords can reject or evict a person that poses a “direct threat” to the health and safety of other tenants. Rule: Having a criminal record isn’t automatic proof that a person is a direct threat. You must do an individualized assessment of each case based on:

• How long ago the conviction occurred;
• The nature of the crime for which the person was convicted—arrests without a conviction don’t count;
• Evidence of rehabilitation; and
• Other evidence related to whether the person poses a threat to safety.