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Answer:  This question relates, in part, to the Q&A that immediately preceded this one regarding the tenant who refused to maintain their Space. Please review it. The major difference here is that Tenant also has a duty to “Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;” (Emphasis added.) See, ORS 90.740(4)(f). This means that from the point of connection from the ground below the home and into the home, is the  Tenant’s responsibility.

So, to the issue of the Tenant refusing to perform their ORS 90.740(4)(f) duties, the Landlord’s best alternative is to issue a 30-day notice to terminate the tenancy pursuant to ORS 90.630(1)(b).

In answer to whether you could – following advance written notice – access the Tenant’s space and perform the repairs yourself, I strongly recommend not doing so, even if your rules or rental agreement allow for it. Tampering with the water system affecting the home could result in defective repairs and potential damages, including to Tenant health and safety. You do not want that liability.

Should you decide otherwise, be aware that the issue of entering a Tenant’s Space is fraught with risk relating to Tenant damage claims. During the tenancy, a Landlord’s rights are governed by ORS 90.322, which limits access to:

• Inspection of the premises;
• Making necessary or agreed repairs, decorations, alterations or improvements;

• Supplying necessary or agreed services, perform agreed yard maintenance or grounds keeping; or
• Exhibiting the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers or contractors.

However, assuming no emergency,[1] and absent a written agreement providing otherwise, Landlords must give at least 24-hours’ actual notice[2] of the intent to enter, but only at reasonable times. An “unreasonable time" is defined as: “…a time of day, day of the week or particular time that conflicts with the tenant's reasonable and specific plans to use the premises.” The open-ended nature of this language leaves room for argument, but my interpretation (without reading the case law) on what should be reasonable is weekdays between  9:00 AM and 5:00 PM, and Saturdays, 10:00 AM – 4:00 PM. I would avoid Sundays if possible, unless with Tenant’s consent. The best way to deal with an emergency here would be to turn off the Tenant’s water (with proper advance notice if possible, or immediately following your access.

Conclusion. Accessing a Tenant’s Space to perform repairs to the water pipes entering their home is not a good option. As soon as you become aware of the problem, notify the Tenant to immediately perform the repairs. If the tenant refuses, consider, after consulting with legal counsel, turning off the water to the space.

Under these circumstances, a 30-day notice to terminate the tenancy is the most effective tool in either securing the Tenant’s cooperation - or eviction. Deciding whether to also turn off the water would be up to your attorney’s advice. Good luck!

[1] “Emergency” includes but is not limited to a repair problem that, unless remedied immediately, is likely to cause serious damage to the premises. If a landlord makes an emergency entry in the tenant’s absence, the landlord shall give the tenant actual notice within 24 hours after the entry, and the notice shall include the fact of the entry, the date and time 

[2] This term is defined in governed by ORS 90.150, and includes verbal and written notice. It should be closely reviewed before proceeding.

1. Empathy

We have all heard the expression, "put yourself in the others' shoes", and this is great advice when dealing with a conflict. This does not mean you must agree with the other person, but by placing yourself in their situation you are demonstrating your desire to solve whatever problem they have brought to you.

1. Improve Your Listening Skills

It is important to develop active listening skills. Glancing at your phone or computer screen while a resident is trying to talk to you is not only disrespectful, you are probably adding fuel to their already heightened sense of aggravation. When possible move the conversation away from a desk so that there is a level playing field without a barrier to communication. Try repeating back to them "Here is what I heard you say, is that correct?". This solidifies that you are paying attention and that their issue is important to you.

1. Keep Your Emotions In Check

Okay, so this is a hard one! You work hard and take pride in your job. It is only natural for you to defend and protect your livelihood. It is vital that you do not jump to any conclusions and stay focused on the matter. You can achieve this by asking questions and taking notes to assure that you are understanding all the information correctly. If you allow yourself to get defensive the situation will only escalate and remember, you are there to solve the conflict, not make it worse. Many people have a difficult time expressing themselves, and the same words may have different meanings to different people. When our emotions are engaged, we tend to hear only what we want to hear. This can trigger our "flight or fight" response and this will add to the conflict rather than solve it. Monitor your voice tone and volume, be ready to listen, and then speak to be understood.

1. Cooling Off Difficult People

There will always be loud and inflexible customers who feel that they have been treated poorly, or have preconceived ideas about you and your company. Some people are just difficult! We need to focus on our job: reaching a deeper understanding of the issue and solve it. This means listening attentively, do not interrupt, let them vent, and acknowledge how important the issue is and reflect it to them. Remind them that you there to find a solution and focus on the things we CAN do to help.

This does not mean you must sit there and accept any abuse from anyone. If a customer is verbally abusive you should remain civil, but tell then the truth about the effect of their attitude. Try this: "I care very much about your problem but when you speak to me this way I find it difficult to focus on a solution". This is a solution oriented response that lets them know that you will not tolerate any more of their verbal attacks.

Document the conversation.

1. Stay Calm and Move On

Here is the good news - not every customer interaction is negative. It's just that those situations are so unpleasant we tend to dwell on them. Self-preservation demands that you stay calm - take a deep breath, don't take it personally, take a break, and don't repeat the story to everyone you see for the rest of the day. This behavior will intensify your emotions and it becomes the proverbial "fish" story. The more you tell it, the bigger the story becomes. Continually reliving the incident can change what really happened into a story you have told yourself. Focus on the positives and solutions that emerged from the incident and take pride in handling the situation.

Take some advice from Taylor Swift and "Shake It Off"!

Being polite goes a long way towards appropriately dealing with difficult people and resolving conflict. Work to maintain your sense of humor and difficulties will roll off your back much easier. Increasing your problem-solving skills will significantly reduce problems in your community, as well as show your employer that you are representing them in a positive and productive manner.

Angel Rogers has over 25 years of Property Management experience. She has been teaching for various Associations for 15 years and has successfully launched her own training company, S.T.A.R. - Specialized Training by Angel Rogers. She is dedicated to providing educational sessions that are motivational and create a fun learning environment. Angel can be reached at (909)725-2700 or angel@angelrogers.com - check out her website: www.angelrogers.com

Senate Bill 586 becomes law on January 1, 2020. It amends several landlord-tenant laws, but for purpose of this article, we will focus on the new mediation laws it enacted.

Participation. If any landlord or tenant initiate a request for mediation, participation is mandatory. 

Types of Disputes Subject to Mediation. Generally, they relate to landlord or tenant compliance with the rental agreement or with the provisions of  ORS Chapter 90 (Oregon’s Residential Landlord-Tenant Laws). Specifically, they may include the following: 

• Landlord or tenant conduct within the facility; and
• The modification of a rule or regulation under ORS90.610.

Types of Disputes Excluded From Mediation.Unless all parties agree otherwise, nopartymayinitiatemediationfor:

• Facility closures consistent with ORS90.645 or 90.671;
• Facility sales consistent with ORS 90.842 to 90.850;
• Rent increases consistent with ORS 90.600;
• Rent payments or amounts owed;
• Tenant violations alleged in termination notices given under ORS 90.394 (Nonpayment of Rent), and non-curable notices under 90.396 (24-Hour Notices) or 90.630(8) (3-Strike Notices);
• Unauthorized person in possession under ORS 90.403;
• Unless initiated by the victim, dispute involving allegations of domestic violence, sexual assault or stalking or a dispute between the victim and the alleged perpetrator; and
• Disputes arising after the termination of the tenancy, including under ORS 90.425 (Personal Property Abandonment), 90.675 (Manufactured Home Abandonment) or 105.161 (Writs of Execution).

Parks Required to Have a Mediation Policy.It must include the following:  

• The process and format to initiate mediation;
• The names and contact information, including thephone number and website address, for mediation services available through the referral program provided by the Housing and Community Services Department established under ORS 446.543 (2) and any other no-cost mediation service acceptable to thelandlord;
• Information explaining the following requirements:
  • It may be initiated by the landlord or tenant contacting the Housing and Community Services Department in their required format;
  • It may not resolve any matters except by the agreement of all parties; [Note: we interpret this to mean that neither party can be compelled to reach agreement on any matter against their consent. However, we do not interpret this to mean that both parties must agree in advance as to which topics will go to mediation (assuming they are not otherwise beyond the scope of the law)].
  • All communications from all parties are held strictly confidential and may not be used in any legal proceedings. 
  • Mediation may be used toresolve:
    • Disputes between the landlord and one or more tenants,initiated by any party; and 
    • Disputes between any two or more tenants, initiated only by the landlord.
  • A party may designate any person, including a non-attorney, to represent their interests, provided that the designee must have the authority to bind that party to any resolution of thedispute;
  • Must comply with any other provisions as the Housing and Community Services Department may require byrule; and
  • Parties must participate in mediation (a) by making a good faith effort to schedule mediation within 30 days after it is initiated, (b) attending and participating in mediation and (c) cooperating with reasonable requests of the mediator.

MHCO Form No. 4 (Mediation Policy).  This form summarizes Senate Bill 586, and should be given to all new residents after January 1, 2020.  A landlord may unilaterally amend a rental agreement or facility rules and regulationstoSB 586.  PCQ Comment: MHCO has a form (No. 4) available to its members to make the unilateral amendment for existing residents. If your current policy conflicts with the new law, or you simply want to update it, we suggest sending the unilateral amendment to current residents. For new residents, Form 4 should become a part of their rental agreement, rules, and statement of policy.

Pending Claims.After mediation has been initiated and while it is on going,any statute of limitations related to the dispute is suspended (aka “tolled”). Additionally, after the mediation has been initiated, a party may not file a legal action related to the dispute, including an action for possession under ORS105.110 (“FED”).

Continuing Duties During Mediation. The tenant must continue paying their rent. However, receipt of such payment is not subject to landlord waiver under ORS 90.412(2) so long as it is refunded (if appropriate) within 10 days following the conclusion ofmediation.

Miscellaneous.  SB 586 does not require any party to:

• Reachanagreementonanyof the issues submitted to mediation;
• Participate in more than one mediation session or participate for an unreasonable lengthoftimeinasession;or
• Waive or forgo any rights or remedies or the use of any other available informal dispute resolutionprocess.
• A mediator in the mandatory mediation must notify the Housing and Community Services Department as to whether the dispute was resolved - but may not provide the department with the contents of any resolution;
• If a party refuses to participate in good faith in a requested mediation or uses mediation to harass another party, the other party:
  • Has a defense to a claim related to the subject of the dispute for which mediation was sought;and
  • Is entitled to damages of one month’s rent against that party.

PCQ Note:Although unrelated to mediation, SB 586 also provides that the Housing and Community Services Department shall award grants to persons to provide legal representation to low-income facility tenants in addressing disputes involving legal matters arising under ORS Chapter 90;

 Two states away, Kimberly, a park owner, and her park manager were driving through her park, Maple Creek, and pulled over to stop and pick up a coke can. It was unusual to have to stop and do this. But that was due to the consistent actions of residents being held accountable for keeping their homesites and home exteriors clean and in good repair. It had taken over two years to get the 400 residents onboard, but now the community swelled with pride of ownership.

            What do Eleanor’s Whispering Maples and Kimberly’s Maple Creek communities have in common? Maples! No, that’s not it. One key common thread is good resident relations. Another common trait is the owners’ and managers’ mission of having the cleanest communities and best residents in the market. What does this have to do with profitability? The answer is pretty much everything. 

            How did the owners and managers get to a high level of compliance in rent collections and home appearance? Eleanor and Kimberly understood that to attract and retain the best residents, they needed to start with their websites. For prospective residents, the pictures, testimonials, and ease of finding information made these parks stack up well against other housing options. Prospective residents want to feel good about telling friends, family and co-workers, about where they will be living. Existing tenants liked the resident section of the website where they could find answers to their questions, copies of the leases and rules, and even a payment portal. They also like the compliments about their community they received from family and friends looking at pictures from the website. 

            The secret of the website was the number of prospects that came from and were directed from ads on Facebook and other social media, as well as, print media that directed prospects to the website for more information and online applications. These ads increased traffic to the website which increased the number of applicants. This increased applicant pool allowed the managers to pick the best possible tenants from the ever-increasing pool of prospects, thus making the best rental decisions possible. You can guess (and accurately, too) that making the best possible rental decisions helped fill vacant sites and vacant homes quickly, and with quality tenants. It was a win/win. 

            The mindset of these owners is that of abundance; there are plenty of credit worthy, conscientious, pride-of-home-appearance-having prospects (whether it’s a home buyer or renter). It is essential, though, to increase the applicant pool. How did they do this? One tactic was lots of quality community pictures of the homes (ones actually in the park, not just stock images), the signage, landscaping, and even the residents. They realized most people are visual. More pictures, not less, especially of the homes, is key.

            A tactic of Julio Jaramillo, founder and CEO of Evergreen Communities with 4,000 sites in 8 states, is for every community manager to talk to three park residents every day. Because Julio’s managers are compensated for home sales and home rentals, this practice makes the residents feel acknowledged and listened to. As a result, Julio’s managers sell and lease more homes. The managers are also very aware of any issues in the community and can get ahead of issues before something even becomes a problem – such as moving tenants.

            Successful community owners and managers find it helpful to have a vision. Helen Keller was asked, “Can you think of anything worse than being blind?” “Yes” she said, “Being able to see but having no vision.”

 Getting Real:

            There probably are some community owners and managers that are just naturally happy people. They wake up in the morning and can’t wait to get to the community. Statistically, this number might be as high as 20%. Like Warren Buffet, they tap dance into work each day.  For most people, it takes some concentration, mental gymnastics, and a pot of coffee, to keep their eyes on the prize. 

Building a Resident Relations Vision:

1. Owners and managers need to have an ‘abundance’ mindset. Today, because apartment rents and house prices have appreciated so much, many prospective community residents and current residents don’t qualify to buy a site-built house or rent a newly built apartment. The MH Community business has plenty of people that want what your park has to offer.

2. Current residents that consistently pay late, or have to be filed on, may have to find other housing. In our communities, we offer a free listing service. It’s available to all but it is meant to help the residents, who won’t comply with timely rent or home & lot rules, relocate as painlessly as possible. Al, an owner of 2,000 sites, offers a cash for keys program for residents that won’t comply. The last thing anyone wants or needs is an eviction on their record.

Arty is a park manager at Green Meadows, a medium sized park. He felt exhausted and annoyed with the park residents and their homes. “And it’s only 11 am on Monday” he laments. A whole week lay in front of Arty, of grinding it out – collecting rents, confronting non-payers, “Noticing” ungovernable residents, mowing and trimming their homes, since “they wouldn’t just do it”. Arty wondered if he should quit and look for another job, maybe a greeter at Wally World.

The Benefits of Resident Relations:

• Resident Relations keeps managers and owners energized, focused on achieving initiatives. Whether it’s 100% rent collections, pet policy enforcement, home compliance, 100% occupancy or park expansion, they (to quote Walt Disney) “Keep moving forward.”
• Resident Relations involves proper marketing, tenant selection, and ongoing manager training. Resident Relations should never be at the bottom of the to-do list; it NEEDS to be a daily habit of every manager and owner.
• Resident Relations is a measurable quality. It is quantifiable in terms of:
  • • Profitability
    • Return of Investment (ROI)
    • Home Compliance Rate
    • Increased Applicant Pool
    • Increased Rental Rates and Home Sale Prices

You can see it. There even is a waiting list of prospective residents. There are no rundown POH’s nor abandoned homes that need to be removed. Let’s stop calling these ‘handyman specials” and allowing them to sit there month after month. We all know that the odds are slim that an actual handyman is coming along to buy, fix up and move into one of these homes.

• Mission-oriented managers and owners are players, not victims. Properly trained owners and managers understand the vital role housing plays in the lives of their residents. They care about being accountable to the mission and initiatives of their parks. They are players, strategizing for the best outcomes for maximizing the bottom line. “Victim” owners and managers can’t grasp why the residents don’t pay on time, and why their yards are not mowed. They blame the tenants, the city, the economy… As time goes on there are more homes out of compliance and more late payers. 
• Let’s play a game… (this is a spin on the Florida man birthday Google search game) You type in affordable housing, your birthday (affordable housing, January 15^th) in Google then click the news tab. How many articles did you get? Most towns and cities have weekly newspapers articles and TV news reports on the lack of affordable housing. It’s a key topic of discussion for local, state, and national elections. Mobile home parks can be an important part of the solution for affordable housing, but not if the political candidate or their staff drive through a park and see unsightly abandoned homes, tires stacked in yards, or weeds three feet high. Resident Relations are the face of mobile home parks.

Three Things Owners and Managers Can Start Doing to Have the Fastest Resident Relations Outcomes:

1. Review your mission, initiatives, and goals for the year. It is not too late to get going on the things that have fallen through the cracks. Your mission, initiatives and goals need to be in writing, and you need to look at them every morning.

2. Contact three residents every day. This means if you have a 200-site park, you have called each resident at least once in the past three months. (21 workdays per month, times 3= 189)

3. Every resident, prospective resident, local official, political candidate, journalist ought to be able to look at your website (your virtual front door) or drive the community and have a favorable impression. If the homes in your community are in compliance, what might the prospective tenants think when they drive through? Guaranteed, they just drove through a competing park, where the rules have not been enforced.

The good news is that mobile home parks are filling up. This is the time to be selective in renting and selling homes. Check out the tenants’ budget. Can they afford to live in your community? Ideally 30% or so of their gross income is their budgeted housing cost. If the homes in your community are out of that price range, don’t rent to them. Being selective with your prospects and keeping your homes in compliance is good for your park’s image and for your stress level!

Joanne Stevens is a national Mobile Home Park broker.  Sign up for her free industry E-newsletter at www.joannemstevens.com  To request a mailed copy of her newsletter, contact Joanne at: joannestevens@iowarealty.com M: 319-310-0641 / O: 319-378-6786 

Answer. This is not an issue under ORS 90.632, which relates to damage and deterioration of the home. In fact, this statute indirectly validates the right of the structures to be on the space, which you are contesting, since portions were built without permission, in violation of local ordinances, and contrary to the terms of the rental agreement. Moreover, ORS 90.632 does not allow the landlord to require removal - just repair.

This is a violation for which you would normally use a 30-day curable notice of termination. ORS 90.630(1)(a) (Termination by landlord; causes; notice; cure; repeated nonpayment of rent), which provides for the issuance of a 30-day termination notice if the resident:

• Violates a law or ordinance related to the tenant's conduct as a tenant;
• Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy.

Subsection (4) provides that:

The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in subsection (1) of this section. However, if substantially the same act or omission that constituted a prior violation of which notice was given recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days written notice specifying the violation and the date of termination of the tenancy.

However, in this particular case, the issue is whether you (and your predecessor) waived the right to terminate the tenancy because you accepted rent after you had knowledge of the violation. In summary, a landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord:

• During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or
• Accepts performance by a tenant that varies from the terms of the rental agreement.[1]
• A landlord does not waive the right to terminate a rental agreement for a violation under any of the following circumstances:
  • The landlord and tenant agree otherwise after the violation has occurred.
  • The violation concerns the tenant's conduct and, following the violation but prior to acceptance of rent for three rental periods or performance, the landlord gives a written warning notice to the tenant regarding the violation that:
    • Describes specifically the conduct that constitutes the violation, either as a separate and distinct violation, a series or group of violations or a continuous or ongoing violation;
    • States that the tenant is required to discontinue the conduct or correct the violation; and
    • States that a reoccurrence of the conduct that constitutes a violation may result in a termination of the tenancy pursuant to ORS 90.392 (termination of non-MHP tenancies), 90.398 (termination for drug/alcohol violations), 90.405 (unpermitted pets), 90.630 (termination of MHP tenancy by landlord).
  • The tenancy consists of rented space for a manufactured dwelling or floating home, and the violation concerns:
    • Disrepair or deterioration of the manufactured dwelling or floating home;
    • A failure to maintain the rented space;
    • The termination is under ORS 90.396 [24-hour notices].

I do not believe any of the above exclusions apply to your situation, and on its face, there is an argument that by accepting the rent you permitted the structures to be there. See, ORS 90.412 and ORS 90.414.

However, permitting the structures, and permitting their violation of the building codes, etc., are two different things. You don't have the power to permit the law violations. I view the violations of the building codes as something that is a "continuing violation", and something you can likely still treat as a violation. For a continuous or ongoing violation, the landlord's written warning notice remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months.

You should issue a warning notice, identifying the various code violation, (e.g. work done without permits and work done not to code). Then give the tenant a fixed period to go obtain the necessary permits and provide proof that the work was done to code. The "proof" would be through the building department who would inspect and pass.

Note: you have to be careful that whoever the resident uses (they should be CCB licensed and bonded) knows that you are not responsible for payment of any construction liens for unpaid work.

If you cannot get compliance with the warning notice, then give him a 30-day curable notice under ORS 90.630, identifying the violations relating to the failure to get the work permitted and not complying with the building code. Give him a fixed period to complete, e.g. 30 - 45 days, during which time you should not accept any rent. If he does not comply, then you could file your eviction.

Alternatively, if you can do so, you may consider speaking with the resident about voluntarily removing the structures. However, if push came to shove, they were approved long ago, so I think it would be a difficult argument to now use the existence of the structures as the basis of a 30-day notice of termination under ORS 90.630. If you can reach agreement, fine. If not, the continuing violation of the code violations are your best bet under ORS 90.630. Be sure to confer with your own legal counsel before proceeding, however.

[1] However, a landlord has not "accepted rent" if within 10 days after receipt, the landlord refunds the rent, or the rent payment is made in the form of a check that is dishonored.

The 2015 Oregon Legislative Session convened this month with House and Senate Committees beginning their work the first week in February.  There are a wide variety of issues the Oregon Legislature will be dealing with - many being repeats from previous sessions such as education funding and taxes that never seem to go away.

The Manufactured Housing Landlord-Tenant Coalition continues to work on possible legislation.  The group has been meeting since June 2014 - at least once a month to address a variety of issues.  The issues have been significantly narrowed down as we rapidly approach the end of these negotiations.  The odds are that there will either be a compromise bill (typically know as the coalition bill) or we could face some nasty political battles on some onerous legislation.  The coalition provides a venue for both landlords and tenants to work through selected issues.  In general the coalition's work tends to be better thought out than most of the knee jerk legislative proposals we see from individual legislators. 

The biggest challenge of any negotiation process is the end - reaching a final compromise.   We all know, compromise is something that is not easily accomplished in today's political environment.  Perhaps the best sign of a successful compromise is when both sides are unsatisfied with the final product.  Having worked on coalition bills since 1999 most times both sides grumble their way to agreement.  I suspect this year will be no different.

Over the last six months MHCO has posted updates on the issues we have been working. There are now four issues in the proposed 2015 Coalition Bill.  Many of these issues are complicated and consume pages of proposed legal language.  We will spare you that in this report but will try to convey the key substance of each issue.  The following is a summary of where those issues stand in very broad brushstrokes:

1. Unpaid Taxes on Abandoned Homes

The County Tax Collector and the Oregon Department of Revenue have agreed to cancel all unpaid property taxes and special assessments as provided under ORS 311.790.  There is no limit on the market value of the home or limit on the amount of tax to be canceled.

In general, in order to obtain the tax cancelation of unpaid taxes on an abandoned home the landlord will be required to file an affidavit with the county tax collector stating that the landlord will sell the property in an arms length transaction to an unrelated buyer who intends to occupy the property in that facility.  Once the home is sold by the landlord another affidavit or declaration with the county tax collector would have to be filed stating that the landlord has sold the property, the sale price and description of any costs incurred by the landlord to improve the property for sale.

MHCO will create these affidavits as new MHCO Forms for community owners or managers to utilize. 

This is an issue MHCO has wanted to address over the past ten years.  We are very happy that the issue is finally resolved and the unpaid taxes on an abandoned home will be completely eliminated.  This will impact nearly every community in the state of Oregon.  

In addition, on a separate issue there will also be and increase in the yearly fee paid by community owners paid to Oregon Housing and Community Services.  The department will charge $50 for communities with more than 20 spaces and $25 for those communities with less than 20 spaces.  Under ORS 446.525 the special assessment levied annual upon each manufactured dwelling will increase from $6 to $10.  This  $10 assessment is to be paid by the tenants.

2. Habitability - Ground Support, Natural Gas and Garbage Cans

This issue has been significantly altered since it was first introduced last summer. 

One of the main concerns the residents have is being able to cancel a rental agreement or lease if the foundation of their home is partially washed away.  The proposed language is: For manufactured dwellings only

By:  Phil Querin, MHCO Legal Counsel

The Oregon Governor will sign HB 2001 on Wednesday, March 29, 2023; it makes significant changes to the Oregon Residential Landlord Tenant Act (“ORLTA”). Here is a summary of those provisions most likely to impact landlords and tenants in Oregon manufactured housing communities.

Nonpayment of Rent Notices. Prior to the Pandemic, landlords issued  72-hour or 144-hour notices for nonpayment of rent. During the Pandemic the Oregon Legislature extended those timeframes to 10-days and 13-days, respectively; they only recently returned to the 72/144 hour notices.

HB 2001 will permanently restore the longer 10-day and 13-day periods for nonpayment of rent notices. Note: This will not apply to week-to-week tenancies, which will continue to be terminated with a 72-hour notice of nonpayment.

“Nonpayment” Terminations. HB 2001 will be adding permanent language to ORLTA defining an entire class of terminations and evictions for nonpayment. These terminations for nonpayment will be subject to additional notice requirements and longer timelines in Eviction proceedings, whereas terminations for all other causes will remain the same.

Under HB 2001 “nonpayment” will be defined as “the nonpayment of a payment that is due to the landlord, including a payment of rent, late charges, utility or service charges or any other charge or fee described in the rental agreement” or in the following statutes:

• ORS 90.140 – defines types of payments a landlord may require or accept;
• ORS 90.302 – fees for landlord expenses;
• ORS 90.315 – utility or service payments (not in manufactured housing/floating homes);
• ORS 90.392 – for cause terminations;
• ORS 90.394 – failure to pay rent;
• ORS 90.560-90.584 – utility and service charges (manufactured housing/floating homes);
• ORS 90.630 – landlord termination (manufactured housing/floating homes);

These are the same statutes and categories that constituted “nonpayment” under the Covid regulations. They are not so much “changes”, but rather a return to the definition of “nonpayment” that was created back in the Spring of 2020. The important thing to note is that a termination based on tenant’s failure to pay rent, charges or fees under these statutes will be considered a “nonpayment” termination and therefore subject to  additional notice requirements and an extended eviction timeframe.

Tenant Notice: Nonpayment Eviction Resources. HB 2001 reintroduces the tenant notice requirement (the “Notice”) that must accompany terminations and evictions based on nonpayment. The Notice will be drafted, updated, translated, and maintained by the Judicial Department and Oregon Housing and Community Services. It contains a list of resources for tenants directing them where to apply for housing assistance and/or seek legal services in relation to a termination or eviction. The Notice must accompany:

• Any notice of termination for nonpayment; and
• Any summons for an eviction proceeding based on a termination for nonpayment whether served by the landlord or by a process server.

Failure to serve the Notice with a nonpayment-based termination notice and a summons will be grounds for the Court to dismiss an eviction complaint.

First Appearances and FED Trials. For an Eviction based on nonpayment under ORS 90.392 (for cause) or ORS 90.394 (failure to pay rent), the timelines for first appearance and trial in an FED are extended. First appearances will be set roughly 15 days after the initial filing for FED actions involving nonpayment under those statutes. Clerks will have the ability to extend that timeline by up to 7 days if a judge is unavailable on the 15th day or to accommodate the plaintiff’s schedule.

An FED trial for a nonpayment eviction, if necessary, will be scheduled no earlier than 15 days, and no later than 30 days, after the first appearance.

All other Evictions, not based on allegations of nonpayment under ORS 90.392 (for cause) or 90.394 (failure to pay rent), will be scheduled for first appearance within roughly 7 days of filing. Clerks will have the ability to extend that timeline by up to 7 days if a judge is unavailable or to accommodate the plaintiff’s schedule. Trials for all other Evictions will occur no later than 15 days after first appearance.

An Eviction Under ORS 90.630 (termination by MHP landlord) would be subject to a 7-day window for first appearance, but, if the underlying termination was based on nonpayment, the trial would be scheduled between 15-30 days after first appearance.

If, through no fault of the landlord, trial for any type of Eviction does not take place within the specified time frames (15-30 days for nonpayment; 15 days for all others) the court may require the tenant to tender rent to the court.[1]

Court Obligation to Dismiss. HB 2001 dictates a number of circumstances in which the court will be required to dismiss an Eviction complaint. Henceforth, dismissal will be warranted when:

• A landlord fails to provide the Tenant Notice in a nonpayment eviction (termination AND summons);
• A landlord causes a tenant not to tender rent, including by failing to “reasonably participate” in a rental assistance program;
• The tenant has tendered, or caused to be tendered through rental assistance or any other payment, the outstanding amount owed in the Nonpayment Notice;
  • If payment of the unpaid amount is received AFTER commencement of the FED action, tenant will not be entitled to prevailing party fees. Tenant may also be charged landlord’s filing fees.
• A landlord files an FED based on unlawful holding by force (ORS 105.115)before the expiration of (a) a fixed term tenancy or (b) the time period specified in the termination notice.
  • NOTE: HB 2001 also expands the definition of “holding by force” to mean refusing to pay rent within the time period required by an ORS 90.392 (for cause) or ORS 90.394 (failure to pay rent) notice. Previously, holding by force only applied to 90.394 (failure to pay rent).

Default Judgments at First Appearance. HB 2001 makes a modification to the process for a landlord receiving a default judgment at the first appearance. To obtain an order of default:

• The plaintiff (landlord or landlord’s representative) must appear and the defendant/tenant must fail to appear;
• The court must determine that the FED complaint complies with ORS 105.115 (unlawful holding by force) and ORS 105.124 (form of complaint);
• The landlord must testify under oath or submit an affidavit or declaration under penalty of perjury that:
  • Landlord does not have knowledge that the tenant has delivered possession; and
  • Landlord believes that the tenant remains in possession.

Sealing Eviction Records. The courts will be required to conduct an annual review of completed FED proceedings to determine which ones will remain on a tenant’s record. A judgment will be set aside and the record will be sealed in the following situations:

• A judgment was either not for a money award, or the money award  expired or had been satisfied/discharged; and
• Five years have passed since a judgment of restitution; or 12 months have passed since a stipulated judgment between landlord and tenant.

Once a record is sealed and set aside, a tenant will not be required to disclose the judgment. This record-sealing process is supposed to be conducted by the court on a regular basis, but it does not prevent a tenant from taking the initiative to apply for a set aside under ORS 105.163 (setting aside judgment). The court’s first review of old records must be completed by December 31, 2024.

What Now?!  HB 2001 does not contain any direction going forward, i.e., how landlords are to deal with terminations for nonpayment that are already in process. Accordingly, I’ve listed below my thoughts. Readers should check with their own legal counsel.

• If a notice of default (“NOD”) is going to be sent/delivered to the tenant tomorrow, March 29, 2023, when the Governor signs the Bill, it is safest to assume that regardless of the time of day, it should conform to the new law.
• If the 72/144 hour NOD has been delivered but not expired, the safest approach is to start over under the new law. You don’t want to do otherwise, then get into court and try to convince the Judge the eviction process had already “commenced” before the Governor signed the Bill. If in doubt, the court will generally default for the most tenant-favorable position. Why? Because judges don’t like to get reversed on appeal.
• If FED has already been filed in court, what timelines apply are likely up to the Judge.
• Similarly, if the tenant does not show up for an eviction based on an NOD sent before March 29, 2023, landlord should be prepared to possibly have to testify under oath or submit an affidavit or declaration as discussed above.

[1] Enforcing the duty to tender rent in for-cause evictions can have a filtering effect in separating good faith tenant claims vs. those interposed to avoid the payment of rent.

EXECUTIVE RULE NO. 388 ADDENDUM

Declaration of Emergency-Additional Measures

Multnomah County/Portland. Effective immediately, Multnomah County (which includes the City of Portland) has issued a temporary moratorium on nonpayment of rent evictions caused by wage loss resulting from COVID-19.

To establish eligibility, affected tenants must:

1. Demonstrate a substantial loss of income, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic (including County, State, and Federal restrictions imposed to mitigate its spread); and 

2. Notify their landlords on or before the day rent is duethat they are unable to pay rent due to a substantial loss of income as a result of the COVID-19 pandemic.

The Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID 19. 

For example, a restaurant service worker who no longer has a job due to closure would likely be eligible under this Moratorium if timely notification is made to the landlord.

The Executive Rule clarifies that:

• Nothing in the Moratorium relieves tenants of liability for unpaid rent;
• Any deferred rent must be paid within six months after expiration of Oregon’s Declaration of Emergency;
• No late fees may be charged for rent that has been deferred due to the Moratorium;
• Landlord may not file for eviction due to unpaid rent deferred by the Moratorium.

Multnomah County Circuit Court hearings for eviction proceedings are suspended until April 30, 2020, or later.  So the question for landlords is how to proceed if there is a non-payment of rent for which the tenant has not sought, or has not qualified for, rent deferral under the Executive Rule? 

Should a 72-hour notice be sent? What happens if it is not paid? Can an eviction complaint be filed, even though the FED court is closed?

These are judgment calls up to each landlord. Much depends on the tenant. Is he/she a serial late-payer, in which case, this Moratorium might come as a welcome excuse for nonpayment.  In other cases, the tenant may be legitimately short of funds due to COVID-related job loss. In the former case, perhaps the 72-hour notice should be sent – after all, there is a non-curable right of termination when three such notices are sent within a rolling 12-month period. The same approach could be said about filing for eviction, even though the courts are currently closed.

For landlords of communities within Multnomah County/City of Portland, they should inform their tenants about the Moratorium, so they can apply for the Moratorium, i.e. rent deferral. Otherwise, if rent is not paid, a landlord is left to wonder about the cause. With non-communicative tenants, written notices are the only real alternative, even if landlords cannot act on them right now.  

The Rest of Oregon.Subject to jurisdictional changes in other cities or counties, at the current time,there are no abate/deferral of rent laws similar to those discussed above. However, residents elsewhere are seeking rent concessions, and some landlords may be willing to voluntarily cooperate. 

Accordingly, MHCO felt that the Multnomah County/Portland model had certain merits, since we felt it was better for landlords to adopt voluntary arrangements, such as partial payments consistent with ORS 90.417, versus having residents unilaterally paying reduced rent or nothing at all with no explanation.  Although we do not agree with the mandatory moratorium on non-payment of rent evictions, that issue is, for now, moot, since Oregon circuit courts are closed to such proceedings.

What MHCO is Doing.  We are creating two new forms to address rent deferrals. The first one is limited to communities located withinthe Multnomah County/City of Portland area (Form 13-A). The second one is similar to the first insofar as allowing deferred/partial payments, but apples to the rest of the state (Form 13-B).  Both forms have certain similarities, although Form 13-B gives more latitude to negotiate with tenants over the length of the repayment period. The Multnomah County/Portland Form 13-A mandates a 6-month term.

Final Note.  When using either form, it is important to remember that resident participation in both rent deferral programs is based upon several prerequisites:

1. The request and documentation must occur before the applicable rental period for which the relief is sought; 
2. There must be evidence of actual or impending “substantial loss of income”;
3.  The evidence must be in the form of “documentation” or through other “objectively verifiable means”; and
4. The loss of income must “result” from the COVID-19 Pandemic.  

Lastly, this is not to suggest that if a resident was in dire straits for reasons unrelated to COVID-19, landlords should not try to assist if possible. We’re all in this together.

COVID 19 - Nonpayment of Rent In Multnomah County/City of Portland And The Rest of Oregon

Declaration of Emergency-Additional Measures

Multnomah County/Portland. Effective immediately, Multnomah County (which includes the City of Portland) has issued a temporary moratorium on nonpayment of rent evictions caused by wage loss resulting from COVID-19.

To establish eligibility, affected tenants must:

1. Demonstrate a substantial loss of income, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic (including County, State, and Federal restrictions imposed to mitigate its spread); and 

2. Notify their landlords on or before the day rent is duethat they are unable to pay rent due to a substantial loss of income as a result of the COVID-19 pandemic.

The Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID 19. 

For example, a restaurant service worker who no longer has a job due to closure would likely be eligible under this Moratorium if timely notification is made to the landlord.

The Executive Rule clarifies that:

• Nothing in the Moratorium relieves tenants of liability for unpaid rent;
• Any deferred rent must be paid within six months after expiration of Oregon’s Declaration of Emergency;
• No late fees may be charged for rent that has been deferred due to the Moratorium;
• Landlord may not file for eviction due to unpaid rent deferred by the Moratorium.

Multnomah County Circuit Court hearings for eviction proceedings are suspended until April 30, 2020, or later.  So the question for landlords is how to proceed if there is a non-payment of rent for which the tenant has not sought, or has not qualified for, rent deferral under the Executive Rule? 

Should a 72-hour notice be sent? What happens if it is not paid? Can an eviction complaint be filed, even though the FED court is closed?

These are judgment calls up to each landlord. Much depends on the tenant. Is he/she a serial late-payer, in which case, this Moratorium might come as a welcome excuse for nonpayment.  In other cases, the tenant may be legitimately short of funds due to COVID-related job loss. In the former case, perhaps the 72-hour notice should be sent – after all, there is a non-curable right of termination when three such notices are sent within a rolling 12-month period. The same approach could be said about filing for eviction, even though the courts are currently closed.

For landlords of communities within Multnomah County/City of Portland, they should inform their tenants about the Moratorium, so they can apply for the Moratorium, i.e. rent deferral. Otherwise, if rent is not paid, a landlord is left to wonder about the cause. With non-communicative tenants, written notices are the only real alternative, even if landlords cannot act on them right now.  

The Rest of Oregon.  Subject to jurisdictional changes in other cities or counties, at the current time,there are no abate/deferral of rent laws similar to those discussed above. However, residents elsewhere are seeking rent concessions, and some landlords may be willing to voluntarily cooperate. 

Accordingly, MHCO felt that the Multnomah County/Portland model had certain merits, since we felt it was better for landlords to adopt voluntary arrangements, such as partial payments consistent with ORS 90.417, versus having residents unilaterally paying reduced rent or nothing at all with no explanation.  Although we do not agree with the mandatory moratorium on non-payment of rent evictions, that issue is, for now, moot, since Oregon circuit courts are closed to such proceedings.

What MHCO is Doing.  We are creating two new forms to address rent deferrals. The first one is limited to communities located withinthe Multnomah County/City of Portland area (Form 13-A). The second one is similar to the first insofar as allowing deferred/partial payments, but apples to the rest of the state (Form 13-B).  Both forms have certain similarities, although Form 13-B gives more latitude to negotiate with tenants over the length of the repayment period. The Multnomah County/Portland Form 13-A mandates a 6-month term.

Final Note.  When using either form, it is important to remember that resident participation in both rent deferral programs is based upon several prerequisites:

1. The request and documentation must occur before the applicable rental period for which the relief is sought; 
2. There must be evidence of actual or impending “substantial loss of income”;
3.  The evidence must be in the form of “documentation” or through other “objectively verifiable means”; and
4. The loss of income must “result” from the COVID-19 Pandemic.  

Lastly, this is not to suggest that if a resident was in dire straits for reasons unrelated to COVID-19, landlords should not try to assist if possible. We’re all in this together.

Multnomah County landlords temporarily won’t be able to evict tenants who can’t pay rent due to coronavirus.

County Chair Deborah Kafoury and Portland Mayor Ted Wheeler announced Tuesday that they have signed emergency orders that ban eviction of tenants who fall behind on rent due to coronavirus-related challenges.

They also announced the county will open hundreds of new shelter bedsin public buildings and other spaces for people experiencing homelessness and Portland’s economic development agency will provide $150,000 in grant to aid businesses in Portland’s Jade District along 82nd Avenue. They said city and county government meetings will be held virtually for the time being.

Under the temporary eviction moratoriums, tenants will have up to six months after March 26, when city and county state of emergencies end, to repay any rent they owe, officials said. The moratoriums apply to people whose jobs are shut down, whose work hours are reduced, who miss work to provide child care due to school closures or who are unable to work because they or a relative are sick from the virus.

Tenants will have to provide letters of proof from their employer, school, doctor or other source to verify their hardship. Landlords who don’t comply with the order could be sued and liable for civil damages as well as other sanctions.

“Yes, everyone should pay their rent on time," Kafoury said. "But for people who are losing their wages due to COVID-19 and find themselves unable to pay rent, we want you to be able to stay in your home.”

Kafoury said discussions are underway with the state courts and county sheriff’s office “to make changes that will keep people housed during this emergency.” She did not elaborate on what those changes would be.

On Monday, Multnomah County Circuit Court suspended all eviction hearings and trials that were scheduled through March 27 and indicated they will be rescheduled for after March 30.

Kafoury said the county will continue to offer motel vouchers for some people who are in shelters and hotels and motels will be banned from refusing occupancy to any of them. She also said some of the newly opened beds will provide space for people who show symptoms of coronavirus and allow them to recuperate.

Wheeler said the grant money for small businesses is being made available first to Portland’s Jade District because the shopping and dining district, centered on Southeast 82nd Avenue and Division Street, is home to many Asian business owners, some of whom seen their revenue drop by as much as 60% amid the coronavirus crisis. There are plans to expand the aid to other businesses throughout the city in the future, Wheeler.

Affected business owners should call 311 for more information, he said.

Wheeler said a city task force was created Monday dedicated to coming up with ideas to help ailing small and large Portland employers and employees. A commercial eviction prevention strategy and other financial relief are also in the works and city officials plan to meet with bank authorities to see if aid can be provided for Portland landlords, Wheeler said. He called on Oregon legislators to increase rental assistance programs statewide.

The mayor said he was proud to hear stories from all over the city of people providing meals and other help to one another during the outbreak.

“We’re in this together. You’re not alone,” Wheeler said. “We will get through this and we’ll get through it together.”

On Monday, Home Forward, the Multnomah County housing authority, announced the same moratorium on evictions for its own buildings.

The moratorium doesn’t go far enough, said Margot Black, co-chair of Portland Tenants United and candidate for City Council. She wants total rent forgiveness -- meaning that renters wouldn’t have to pay back the rent they miss during the state of emergency.

“When this recession or depression hits, we’re not going to be able to pay rent for a long time,” Black said. “It’s not like when things get back to normal, whatever that normal looks like, we can carry a six month rent debt with us and figure out a payment plan.”

Protesters interrupted Tuesday press conference to demand that same, including one person who threatened to cough on Wheeler.

Wheeler acknowledged that forgoing rent payments for six months could hurt some landlords. He said the city of Portland will be calling on banks and credit unions to extend loan repayment timelines in some circumstances.