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2024 Fair Housing Litigation - Cases of Significance - Single Incident Must Be Egregious to Constitute Hostile Environment Harassment

(First in a series of Six Articles)

Why do landlords need a briefing on fair housing cases? The answer to that question is based on four facts:  

Fact 1: The federal Fair Housing Act (FHA) bans landlords and their agents from discriminating against rental applicants and tenants based on race, color, religion, sex, national origin, family status, or disability. 

Fact 2: The FHA and its regulations also spell out things landlords must do to ensure fair and equal housing, such as make reasonable accommodations for persons with disabilities and refrain from discriminatory advertising. 

Fact 3: Like most landlords in Oregon and America, you already know of all of this, and you train your leasing agents and staff to know it, too. 

Fact 4: Despite all of this, individuals, organizations, and government agencies file thousands of fair housing lawsuits against landlords every year. 

That housing discrimination remains a problem in America is a fact that few would deny. But the other disturbing takeaway from these facts is that even landlords who embrace and try diligently to comply with the principles of fair housing law end up as targets for litigation. Of course, many of these discrimination claims are simply unfounded. But there’s more to it than that. 

The problem is that well-meaning landlords may commit discrimination without intending to. Inadvertent discrimination is typically the product of ambiguity and uncertainty in the law. Thus, for example, the FHA requires “reasonable accommodations” for persons with disabilities but doesn’t specifically define what constitutes “reasonable.” While guidelines from the Department of Housing and Urban Development (HUD) help fill in the details, every situation is different. That leaves it for courts and tribunals to decide the issue case-by-case. Result: The only way to know for sure whether a particular requested accommodation is reasonable is to go to court and let the judge or jury decide the issue.

Obviously, that’s not a very practical strategy. The idea of compliance and managing liability risk is to take proactive action to prevent fair housing claims in the first place. But case law can play a vital role in helping you achieve this objective. That’s because the cases illustrate how the general principles of fair housing law play out in actual, real-life situations. So, reviewing court cases involving other landlords can bolster your own compliance efforts. 

HUD receives approximately 30,000 fair housing complaints each year. But there’s a big difference between a complaint and a reported court case. Most of the former get dropped, resolved, or dismissed out of hand. Only a few actually make it to court and get reported. These cases are where the rubber meets the road and, therefore, the focus of our Scorecard. 

The vast majority of cases pose the threshold question of whether a discrimination complaint should even go to trial. More precisely, most Scorecard cases aren’t the results of a trial but a ruling on a landlord’s motion for summary judgment—basically a ruling in favor of the landlord on the law on the basis of the pleadings (or complaint), without a trial. The landlord’s argument: There’s no point in holding a trial because even if everything the complaint alleges is true, we still wouldn’t be guilty of an FHA violation. 

TOP 10 REPORTED DOJ FHA SETTLEMENTS OF 2024

Although they don’t count in our Scorecard, it’s worth noting that the U.S. Department of Justice (DOJ) reported a number of significant FHA settlements in 2024. 

Top 10 FHA Consent Order Settlements Reported by DOJ in 2024 

Settlement

Amount

Case

Alleged FHA Violation(s)

1

$623,000

United States v. Donahue (W.D. Wis.)     

Landlord sexually harassed female tenants by offering to reduce rent in exchange for sex, making unwelcome sexual comments and advances, and evicting or threatening to evict tenants who refused his sexual advances

2

$600,000

United States v. Shambayati, et al. (S.D. Ga.)

Landlord sexually harassed female tenants and prospects by making unwelcome sexual comments and advances, inappropriately touching their bodies, entering their homes without permission, requesting sex in exchange for rent or other benefits, and retaliating against tenants who rejected his advances or complained about harassment

3

$460,000

United States v. Chicopee Housing Authority and Monica Blazic (D. Mass.)

Landlord made discriminatory statements to and about Black and Hispanic tenants, demanded that Spanish-speaking tenants speak English, and dragged its feet on reasonable accommodations, such as transfers to first-floor or elevator-accessible units

4

$300,000

United States v. Butters (D. Colo.)

Property manager sexually harassed a husband and wife and their two minor children

5

$250,000

United States v. Rutherford Tenants Corp., et al. (S.D.N.Y.).  

Co-op apartment building and president of its board of directors denied a disabled tenant’s request for a reasonable accommodation for an assistance animal and retaliated against her for exercising her FHA rights

6

$190,000

United States v. Hussein (E.D. Mich.)

Landlord sexually harassed actual and prospective female tenants

7

$170,000

United States v. Martin (S.D. Ohio)

Landlord sexually harassed actual and prospective female tenants

8

$137,500

United States et al. v. Teruel et al. (N.D. Cal.)

Landlord pressured a couple, who had two babies during their tenancy, to move out of their one-bedroom apartment

9

$112,500

United States v. Kailua Village Condominium Association, et al. (D. Haw.)

Homeowners’ association, board members, property managers, sellers, and selling agents refused to sell a condo unit to a man with paraplegia, subjected him to discriminatory terms and conditions, made discriminatory statements, refused to make reasonable accommodations, refused to permit reasonable modifications, and harassed him

10

$100,000

United States v. Joel Nolen et al. (E.D. Cal.)

Landlord sexually harassed multiple female tenants dating back to at least 2011

KEY LESSONS FROM 2024 FAIR HOUSING CASES (1st in a series of 6)

Lesson #1: Single Incident Must Be Egregious to Constitute Hostile Environment Harassment

In recent years, failure to make reasonable accommodations and family status discrimination have been the most commonly asserted FHA claims against landlords. This year, though, the most common allegation was landlord harassment and retaliation, figuring in over 10 percent of the Scorecard cases. In addition, six of the DOJ’s 10 biggest reported FHA settlements of 2024 involved allegations of harassment (see the table on p. above). 

Most of the harassment cases accused the landlord of creating a hostile environment on the basis of a tenant’s race, disability, or other protected characteristic. To prove this allegation, a tenant must show that a landlord’s conduct was “severe or pervasive enough to unreasonably interfere” with the tenancy, such as by forcing the tenant to move out. Although possible, this is tough to prove when the alleged harassment involved a single incident. Thus, in 2024, two different landlords successfully defended against hostile environment harassment charges by demonstrating that the complained of conduct was just an isolated incident that wasn’t severe enough to meet the harassment threshold.

Landlord Wins: A fair housing organization accused an Oklahoma landlord of harassing a disabled tenant, citing a single incident in which the landlord took photographs of the tenant’s apartment while he was moving out. “While tense conversations and being photographed in public areas might not be preferable, they do not rise to the level of unlawful harassment,” the federal court reasoned. Besides, the incident took place after the tenant had already decided to move out and thus didn’t factor into that decision [Metropolitan Fair Hous. Council of Okla., Inc. v. Feiock, 2024 U.S. Dist. LEXIS 140180, 2024 WL 3696458].

Landlord Wins: A 74-year-old Black tenant sued her landlord for racial harassment discrimination after a building security guard falsely accused her of stealing a neighbor’s jewelry and called the police. While acknowledging that this was “a distressing event,” the New York court ruled that the incident wasn’t, by itself, “extraordinarily severe" enough to constitute an “intolerable alteration of the conditions of [the tenant’s] housing environment” [Dickerson v. BPP PCV Owners LLC, 2024 U.S. Dist. LEXIS 59765, 2024 WL 1348497]. 

Compliance Takeaway: In most cases, hostile environment harassment involves a course or pattern of conduct that occurs over time. A single incident of harassment may be enough to create a hostile environment. But it must be extremely egregious to cross the line.

Answer: You are correct that ORS 90.630 may only be used to give residents notice of a violation and an opportunity to cure. This is not so say you couldn'tuse a 30-day notice in this case, but the "cure" would be for the resident to stop possessing the meth, which would be highly difficult to verify. Moreover, in many cases, the possession of meth can be accompanied by other activities that can pose health, safety, welfare, and peaceable enjoyment, issues to the other residents of your community.

ORS 90.396(1) provides in relevant part:

Except as provided in subsection (2) of this section, after at least 24 hours written notice specifying the acts and omissions constituting the cause and specifying the date and time of the termination, the landlord may terminate the rental agreement and take possession as provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings), if:

***

(f) The tenant, someone in the tenants control or the tenants pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. For purposes of this paragraph, an act is outrageous in the extreme if the act is not described in paragraphs (a) to (e) of this subsection [i.e. committing serious injury to persons and property in the community, etc. - PCQ], but is similar in degree and is one that a reasonable person in that community would consider to be so offensive as to warrant termination of the tenancy within 24 hours, considering the seriousness of the act or the risk to others. An act that is outrageous in the extreme is more extreme or serious than an act that warrants a 30-day termination under ORS 90.392 (Termination of rental agreement by landlord for cause). Acts that are outrageous in the extreme include, but are not limited to, the following acts by a person:

***

(B) Manufacture, delivery or possession of a controlled substance, as described in ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980), but not including [Oregon marijuana exceptions - PCQ]... .(Underscore mine.)

Note that ORS 90.396(1)(f)(B) expressly says that the manufacture, delivery, or possession of a controlled substance constitutes an act that is "outrageous in the extreme." Accordingly, it is not proscribed conduct that is open to debate about whether it may be "cured" within thirty days. Illegal drug possession is considered an automatic violation of the law.

Accordingly, the use of a 24-hour notice (MHCO form # ), would be appropriate in this case. However, just because the statute and form refer to "24-hours" does not mean you must require the resident to vacate within that time. It just means you cannot give less than 24-hours' notice.

This answer assumes that the resident's possession occurred '_on the premises (i.e. the space) or in the immediate vicinity of the premises." If not, that is, while he was arrested inside the community, the possession occurred outside of the community, your reliance ORS 90.396(1)(f)(B) would be inappropriate and would likely fail.

Additionally, based on your question, I cannot tell if the resident is causing any other problems in the community. Nor can I tell if he is - or will shortly be - in jail. Assuming that he is released and comes back into the community, you could give him the 24-hour notice, but provide the time period for compliance to be a few days, which would perhaps allow him the ability to relocate, rather than be out on the street. Based upon the urgency of having him out - assuming he returns - this call is up to you.

By:  Phil Querin, MHCO Legal Counsel

Always Assume The Matter Will Go To Court

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

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

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

Always Use A Calendar

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

Don’t Cut Deadlines Too Close

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

Avoid All Ambiguity

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

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

Use Current MHCO Forms

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

Make Sure You’re Using the Right Form

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

Be Careful Using 24-Hour Notices

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

Only Use Notices of Termination As A Last Resort

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

Only Use Notices Of Termination If You Mean It

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

Conclusion

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

Always Use A Calendar

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

Don’t Cut Deadlines Too Close

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

Avoid All Ambiguity

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

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

Use Current MHCO Forms

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

Make Sure You’re Using the Right Form

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

Be Careful Using 24-Hour Notices

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

Only Use Notices of Termination As A Last Resort

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

Only Use Notices Of Termination If You Mean It

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

Conclusion

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

Answer. Notwithstanding the fact that you do not have anything in your Rules or Rental Agreement prohibiting the use, growing, or selling marijuana does not mean you cannot prohibit the activity. Granted, it would be far better if you had something in the park documents about this topic, but the still require that residents obey state and federal laws, rules, and ordinances.

Here is the short version of my answer:

Under the Federal Controlled Substances Act, 21 U.S.C. _ 801, et seq. ("the Act"), it is illegal to manufacture, distribute, and possess marijuana, also known as "cannabis. Under the Act, possession of marijuana, even when used for medical purposes, is a violation of Federal law.

In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342. Commencing on July 1, 2015, subject to certain limitations and restrictions, the recreational use of marijuana also became legal.

Federal law supersedes state law where there is a direct conflict between these laws. This means that even though Oregon permits medical and recreational use of marijuana, and marijuana products, Federal law controls, and these activities remain illegal. (See, Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Ore. 159, 230 P.3d 518 (2010)).

Accordingly, find the sections in your Rules and Rental Agreements requiring that residents obey the law. Include it in a 30-day notice under ORS 90.630(1)(a), which provides:

'_the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days' notice in writing before the date designated in the notice for termination if the tenant: (a)Violates a law or ordinance related to the tenants conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant Obligations);

ORS 90.740(3) (Tenant Obligations) provides:

Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenants behavior as a tenant.

You may also cite ORS 90.740(4)(j) in the 30-day notice. It provides that tenants must:

Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors.

You should then enact a rule change, and institute a policy that prospectively prohibits the use, cultivation and selling of marijuana and marijuana products.

Answer:  The answers to some of your questions can and should be found in the rules and regulations. For example, addressing whether attachments and outbuildings stay or are removed.[1] It is problematic to me to permit a resident to make such additions at the outset, without addressing what happens when the home is put up for sale.  If additions have been made for which consent was never obtained, or which do not conform to the applicable building codes, management should move quickly, since acceptance of rent with knowledge of the noncompliance could lead to waiver.

Assuming that the attachments and outbuildings are in a state of disrepair, SB 277 provides a remedy to management at any time, including the time of sale. However, without knowing the exact nature of these “improvements” it is hard to know whether insisting upon complete removal is appropriate or legal. 

Also, much depends upon other factors. How much will this cost the resident? How long will it take? Are the “improvements” not really beneficial to the space, and detract from the appearance of the whole area? Are they code-compliant, or can they be made so? As discussed below, SB 277 continued parts of the earlier disrepair/deterioration law found in ORS 90.632, but tightened up portions of it, due to resident complaints about abuses.[2] And interestingly, it now includes reference to “aesthetic” and “cosmetic” improvements, which may be helpful in your situation.

MHCO has significantly changed its current form No. 55 to address the changes in the new law. The major issue going forward is for managers and landlords to be able to recognize when to use Form No. 55 to address disrepair and deterioration conditions, versus Form No. 43C, which is appropriate for violations relating to maintenance and appearance of the space.

If the disrepair or deterioration to the exterior of the home or related structures creates a risk of imminent and serious harm to dwellings, homes, or persons in the Community (e.g. dangerously unstable steps, decking or handrails), there is a 30-day period to repair.

For all other (i.e. non-dangerous) conditions, the minimum period to cure is now 60 days.  As before, the new Form 55 provides a place for landlords and managers to specifically describe the item(s) in need of repair.

Trap: If there is imminent risk of harm, and the landlord/manager intends to give the tenant 30 days rather than 60 days, SB 277A requires that they not only describe the item(s) in disrepair, but also describe the potential risk of harm.  There is little question but that the failure to do so would invalidate the notice. The new Form 55 prompts users to describe both the violation and the potential risk of harm.

Tip: The new Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. Remember, you cannot expect the tenant to be a mind reader – just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity. 

SB 277A now provides that at the time of giving a prospective purchaser the application and other park documents, the landlord/manager must also give them the following:

• Copies of any outstanding notices of repair or deterioration issued under ORS 90.632;
• A list of any disrepair or deterioration of the home;
• A list of any failures to maintain the Space or to comply with any other provisions of the Rental/Lease Agreement, including aesthetic or cosmetic improvements; and
• A statement that the landlord/manager may require a prospective purchaser to complete the repairs, maintenance and improvements described in the notices and lists provided.

Tip: Note that the new law combines not only the original ORS 90.632 notices relating to damage and deterioration of the home or structures, but also a list of failures to maintain the space and other defaults, including aesthetic or cosmetic improvements. This may or may not include 30-day curable notices under ORS 90.630 for failure to maintain the space. But in both cases (i.e. defaults relating to structures, and those relating to the space), the new tenant appears to get the six-month period to comply. It may be that if the “improvements” are aesthetically an eyesore, SB 277A may be of use in getting them either cleaned up or removed.

This represents and interesting shift in Oregon law, and possibly for the better. Many parks historically gave “resale compliance notices” to tenants who were placing their homes up for sale. However, until now, there was some question whether a landlord could “require” as a condition of resale, that the existing tenant make certain repairs – absent having first sent a 30-day notice.[3] Now, under the new version of ORS 90.632, it appears landlords may make that list, and let the tenant/seller know that unless the work is completed before sale, it will be given to the tenant’s purchaser upon application for tenancy.

So, if the landlord/manager accepts a prospective purchaser as a new tenant, and notwithstanding any prior landlord waivers of the same issue(s), the new tenant will be required to complete the repairs, maintenance and improvements described in the notices and lists.

Under Section (10) of SB 277A, if the new tenant fails to complete the repairs described in the notices within six months from commencement of the tenancy, the landlord “may terminate the tenancy by giving the new tenant the notice required under ORS 90.630 or ORS 90.632.”  This appears to say that a new tenant who fails to complete the items addressed in the notices and lists within the first six months, will thereafter be subject to issuance of a curable 30-day or 60-day notice to complete the required repairs. Accordingly, this is how the new MHCO Form 55 will read.

[1] Caution should be exercised in drafting, however.  If the rule says the “improvements stay” but they are an eyesore, management may be left with more than it bargained for. So whether it stays should be phrased as an option for management, if and when the time comes.

[2] Without commenting on the nature or cause of the complaints, suffice it to say that when the press gets ahold of a tenant/park dispute, the legislators are not far behind, and the end result is not usually helpful to landlords. The not-so-subliminal message here is that such disputes are better resolved quietly and quickly, lest they become a cause célèbre.

[3] This is because ORS 90.510(5)(i) provides that the rental or lease agreement for new tenants must disclose “(a)ny conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

Question:  A cable company has offered to install all of the equipment and infrastructure for park-wide cable services at no charge.  We are to receive a one-time payment in exchange for which we give the company an exclusive right to market their services to our residents. They have asked that we sign a written contract which is recordable.  The amount paid is confidential and that portion of the agreement may not be recorded.  There are several provisions that cause us some concern, one of which is whether there might be some violation of the Oregon landlord-tenant law.  What is your opinion?

Answer:  Without actually seeing the contracts, I can only address what I know about such agreements in general.  To that extent, this response must be considered general in nature, and not specific to any particular cable company or park.  I do not practice any form of law that deals with the regulation of utilities, so cannot comment on whether this arrangement complies with those laws.  You may wish to contact the appropriate regulator, just to make sure.

Oregon Landlord-Tenant Law.  In general, I know of no specific laws that would be directly violated by such agreements.  Cable services are covered under the law as "utilities. -"  Accordingly, ORS 90.532 governs, and you should review it.  I am assuming by your question, that the cable company has the right to contact the park residents and market their services.  Your question does not mention any costs to the park, so I assume the monthly service would be charged directly to the residents, if they choose to subscribe.  It is important that you become familiar with the subscription policies and fees, especially whether they are consistent with those provided outside the park.  Remember that you will be giving the company a "captive audience"and it may be difficult, if not impossible, to terminate the service, once you are under contract.  Will the marketing occur before installation of the infrastructure.  Will there be any minimum number of subscribers?  Will rates change and if so, could residents demand you change companies because their rates are not competitive?  How easily may the residents terminate their subscription services?

If you currently provide some type of cable service, either from this company or another, what is your billing arrangement?  If it is buried in the base rent, you may have to deal with whether you should treat this arrangement like a utility "conversion,"such that you must pull the charge out of your base rent, so that the residents are not double-billed.

Park Documents.  What do your rules and rental agreements say?  Is there anything in them that could run afoul of the agreements the company is asking you to sign?  While nothing specific comes to mind that could pose a problem, the best way to avoid the unexpected is to verify that there is no risk of some violation of the park documents by the cable agreements, or vice versa. 

General Observations. Here is a checklist of general issues you may wish to consider:

• Confidentiality always concerns me.  Why does the company want it?  I suspect they don't want parks "comparing notes"on the deal they cut with their company.  While that is understandable, it poses the risk of inadvertent disclosure.  What is the "penalty"for disclosure?  Do you have to refund the initial payment made?  If so, does that mean the deal is over, or does the remainder of the agreement survive - that is, does the company still have the exclusive right to provide services in the park?  I think I would like to see some language which penalized only intentional or willful disclosures (assuming you have any ability at all to negotiate some of these terms).

• I assume the company will own all of the equipment.  Are there certain limitations on their ability to come and go inside the park?  Specifically, is there a risk of noise, inconvenience, traffic issues, etc?  How long will installation take?  Will the park grounds be restored to their original condition?  Again, remember, once these agreements are signed, you're at the company's mercy on what they do.  Make sure their reputation for service and cooperation is good. 

• What is the term of the agreement? I suspect it contains a provision for automatic renewal, absent one party or the other giving notice of termination?  While that is fair, you have to carefully read the agreements to see if there is any right to terminate without cause.  In other words, can you get out of the deal "just because,"or does there have to be a breach? 

• If either side terminates does the initial payment have to be returned to the company?  If so, you might consider making that payment "nonrefundable"after a certain length of time, say five years.  You want to make sure that if the agreements become unenforceable due to some law or similar situation over which you have no control, that you do not have to refund the money.  That is why I suggest a period of years, after which the money becomes refundable.

• Recording of any agreement is significant.  Once recorded, it will act as a sort of restrictive covenant on the land, and will continue ad infinitum.  In your case, I suspect that the recorded agreement will act as a sort of "floating"easement, giving the company general rights of ingress and egress to install, maintain and repair the equipment.  If the easement rights are not specifically defined, you may want to make sure you understand, in advance, where the equipment will be located.  You want to make sure there will be no risk that the company's right of access interferes with the residents' spaces.  It's easy to record such agreements on the public record, but much more difficult to remove them in the event of a dispute.  Do either of your agreements address that issue?  If you part ways with the company, are they obligated to remove their easement rights from the public record (e.g. by a recorded notice of abandonment of their rights under the agreement)?   Will you have to pay any costs to have this done?

• You want to make sure that if the agreement is terminated the equipment must be removed promptly and the land returned to its general pre-installation condition.

• What about liability?  It is not uncommon for these agreements to have cross indemnification provisions, whereby you agree to indemnify them for your negligence, and they do the same. 

• Are there limitations on damages in the agreement?  Most companies attempt to place limits on the kinds of damages that may be recovered (e.g. prohibitions on punitive damages).  Generally, that is fine, but just make sure that these limits apply just to park ownership, as you cannot limit the residents' right vis a vis the cable company.

• If the company has an exclusive right to market its services to the residents, you want to make sure you know what their marketing efforts will consist of.  You want to make sure it will not include personal solicitation to residents.

• Check with other parks to find out whether they have similar agreements.  I acknowledge that they may not talk about it due to the confidentiality provisions, but suspect the agreement that may be recorded is not "confidential. -"  Your main concern should be whether other park owners are satisfied with this particular company. 

• Before jumping into anything, find out if there are competing companies that may have similar programs.

• How will you deal with residents if they ask you whether you received any payment for giving the company its exclusive rights?  The best response might be that your practice is not to discuss the park's financial arrangement with vendors.  Nevertheless, you should expect someone might press the issue.

• How will the exclusivity provisions in the agreement affect a resident's right to have satellite service?  Does the agreement deal with the possibility that satellite providers may want to market in the park?  You may have some difficulty in preventing a resident from signing up for such service, so this issue should be addressed with the cable company ahead of time.  "Exclusive"is a pretty broad term.  Find out what it entails and make sure that it is sufficiently spelled out in the agreement before you sign.

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Answer: As to your question regarding the assessment of a late fee, here is what ORS 90.260(1) provides:

(1)A landlord may impose a late charge or fee, however designated, only if:

(a)The rent payment is not received by the fourth day of the weekly or monthly rental period for which rent is payable; and

(b)There exists a written rental agreement that specifies:

(A)The tenant's obligation to pay a late charge on delinquent rent payments;

(B)The type and amount of the late charge, as described in subsection (2) of this section; and

(C)The date on which rent payments are due and the date or day on which late charges become due. (Underscored text in italics are mine.)

I know of no other statute that directly addresses this issue. So assuming that:

• Your Rental Agreement makes it clear that the rent check must be received on or before the fourth of the month;
• The type and amount of late charge; and
• The date (a) rent payments are due (e.g. the first of the month), and (b) when the late charge would be due (e.g. the fifth of the month, or later),

I would conclude that you may assess a late charge where residents mail in their rent checks, but they are not received until the fifth of the month or later.

However, a word of caution: If you are going to institute this policy, it must be done uniformly and consistently for all residents. I suspect that some folks may believe that by mailing their checks on the fourth (based upon the postmark), their rent payment is timely, i.e. no late charge will be assessed. You want to make sure your residents understand that since they have the option of manually delivering their rent to the manager's office (or presumably dropping it into a box when the office is closed), that selecting the use of the mails requires that the rent is received - not simply deposited in a mailbox - could result in the assessment of a late charge if the check is received on the fifth or later.

Note, that ORS 90.394(4) provides:

(4) Payment by a tenant who has received a (72-hour or 144 hour) notice *** is timely if mailed to the landlord within the period of the notice unless:

(a)The notice is served on the tenant:

(A)By personal delivery as provided in ORS 90.155(Service or delivery of written notice) (1)(a); or

(B)By first class mail and attachment as provided in ORS90.155 (Service or delivery of written notice) (1)(c);

(b)A written rental agreement and the notice expressly state that payment is to be made at a specified location that is either on the premises or at a place where the tenant has made all previous rent payments in person; and

(c)The place so specified is available to the tenant for payment throughout the period of the notice. (Underscored text in italics are mine.)

Although this statute does not expressly say that proof of mailing is determined by the postmark (and I have not researched this based upon Oregon case law), for purposes of the payment of property taxes in Oregon, as well as state and federal income taxes, the postmark date is what is relied upon in determining whether the payment was timely. In other words, by analogy (without the benefit of legal research), I would conclude that timely mailing, based upon the postmark, does work for payment of rent following the issuance of a 72-hour or 144-hour notice of nonpayment under ORS 90.394. To be absolutely certain, however, you should obtain a legal opinion, based upon legal research, from your own attorney.

As to the second part of your question, i.e. what costs and fees you may assess to a resident, who tenders rent after the expiration of a 72-hour or 144-hour notice, if the eviction is actually file, the answer is contained in ORS 90.255:

In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, prevailing party means the party in whose favor final judgment is rendered. (Underscored text in italics are mine.)

ORCP 68(A)(1) Provides:

Attorney fees. "Attorney fees" are the reasonable value of legal services related to the prosecution or defense of an action.

ORCP 68(A)(2) Provides:

Costs and disbursements. "Costs and disbursements" are reasonable and necessary expenses incurred in the prosecution or defense of an action, other than for legal services, and include the fees of officers and witnesses; the expense of publication of summonses or notices, and the postage where the same are served by mail; any fee charged by the Department of Transportation for providing address information concerning a party served with summons pursuant to subparagraph D(4)(a)(i) of Rule 7; the compensation of referees; the expense of copying of any public record, book, or document admitted into evidence at trial; recordation of any document where recordation is required to give notice of the creation, modification, or termination of an interest in real property; a reasonable sum paid a person for executing any bond, recognizance, undertaking, stipulation, or other obligation therein; and any other expense specifically allowed by agreement, by these rules, or by any other rule or statute. The court, acting in its sole discretion, may allow as costs reasonable expenses incurred by a party for interpreter services. The expense of taking depositions shall not be allowed, even though the depositions are used at trial, except as otherwise provided by rule or statute. (Underscored text in italics are mine.)

Based upon the above, it is my opinion that the cost of the private company you employ to prepare the eviction complaint, would not normally be recoverable, even if you filed the complaint. Without addressing whether this is the "unlawful practice of law", I will note that if you paid your attorney to perform this service, it would be recoverable as attorney fees, if the complaint was filed. The only exception might be if you had a specific provision in your Rental Agreement that expressly permitted it as a recoverable court cost. I say "might", since the court has a certain amount of discretion in the matter of the amount of costs, fees, and disbursements it will award, and may or may not permit it.

If you file the eviction, but reach a settlement with the resident for payment of your court costs, attorney fees, and disbursements, you may have to enter into a Stipulated Judgment of Restitution, permitting the resident to pay these additional costs over a period of time.

If no eviction is filed, i.e. the resident tenders rent after the running of the 72-hour or 144-hour written notice of nonpayment, but before the filing of a complaint in court, you cannot condition your acceptance upon the simultaneous payment of late charges. And since you have not filed in court, the best you can expect is to recover late charges through the use of a 30-day notice under ORS 90.630(1). Additionally, remember that if the resident is a serial later payor, you may issue a 20-day non-curable notice of termination, under the 3-strikes provisions of ORS 90.630(8).

Answer. By all means. The bases for terminating a tenancy are found in ORS 90.630; there are several. It provides that '_the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the resident not less than 30 days' notice in writing before the date designated in the notice for termination if the resident. Among others, the following are listed:

• If the resident violates a law or ordinance related to the resident's conduct as a resident, including but not limited to a material noncompliance with ORS 90.740 (Resident obligations); and

• If the resident violates a rule or rental agreement provision related to the resident's conduct as a resident and imposed as a condition of occupancy.

The definition of a "law" is a state statute. The section of the landlord-resident law (ORS 90.100) does not expressly define "ordinance" but does define "building and housing codes" to include '_any law, ordinance or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises or dwelling unit."

Elsewhere, a good definition of an ordinance is the following:

An ordinance is a law enacted by a municipal body, such as a city council or county commission (sometimes called county council or county board of supervisors). Ordinances govern matters not already covered by state or federal laws such as zoning, safety and building regulations. (See, http://www.lectlaw.com/ def2/ o045.htm)

So, do you need to expressly provide in your rules or rental agreement that residents must obey all state laws and local ordinances? No. In legal parlance, ORS 90.630 is "self-executing", i.e. it is effective by its own terms. [1]

However, if you are using the MHCO Lease or Rental Agreement, the forms contain text that expressly states what ORS 90.630 already provides. This is the "belts and suspenders" approach to park management.

So if a resident has a pet, you want to make sure they comply with all of the local ordinances as well as any specific rules and regulations you may have - even if the rules and regulations are stricter than the local ordinances.[2] In order to avoid unpleasant surprises, I suggest you prepare a separate "Pet Policy" handout for residents, prospective and current, making sure that it correctly states exactly which ordinances you intend to apply,[3] together with all park rules that are not already covered by the applicable laws.

[1] To be clear, however, if the park is located in Deschutes County, you may not enforce a Jefferson County ordinance unless you have incorporated that ordinance in your rules, either directly or by reference. As I said above, you may impose rules that are stricter than those found in your local jurisdiction, but you have to expressly include them in your rules.

[2] Note that if you have not been enforcing current laws, ordinances or park rules regarding pets, you may run into some push-back if you have not enforced them previously, e.g. pet size, breed, or number. Certainly, if a resident has one pet, and your pet policy is set at one, you want to make sure that you keep all non-violating residents at that number. In my opinion, your failure to enforce a rule, law or ordinance against one resident who has two pets, does not mean you may not enforce it against other residents with only one, on a going forward basis.

[3] Out of an abundance of caution, I would identify all the important ordinances, either verbatim or carefully summarized, but make it clear that this Pet Policy is for "informational purposes only", and is not to be construed as being in lieu of the actual law or ordinance. Always include the citation to the law or ordinance you are summarizing or quoting.