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

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

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

The limitation on evictions after the first year of occupancy will likely have the biggest impact on landlords. During the first year of occupancy in a month-to-month tenancy, the landlord can evict a tenant with a written 30-day, “no-cause” notice. In a fixed-term tenancy, the landlord can similarly evict a tenant with a 30-day, no-cause notice at the end of the term IF the term falls within the first year of occupancy. After the first year, the new law essentially means that tenants can live in a rental unit for life unless they fail to pay rent, violate the rental agreement, or the landlord’s plans for the rental unit change substantially.

The main takeaway is that landlords should carefully evaluate tenants during the first year of occupancy to ensure that they would be good long-term tenants. If not, landlords should consider terminating the tenancy for no-cause before the second year of occupancy begins. There are some exceptions to the no-cause eviction rule after the first year, such as when a landlord intends to put the rental unit to a different use (i.e., to undertake substantial repairs, demolish the unit, move in family members, or sell the unit). Even then, the tenant can only be evicted with a 90-day notice and in some cases the landlord must pay the tenant one month’s rent to move out. There are also exceptions for tenants who live in the landlord’s primary residence as a tenant, or on the same property as the landlord (i.e., in a duplex).

Under SB 608, during any tenancy other than week-to-week, a landlord may not increase rent during the first year of the tenancy. After the first year, rent can only be increased with at least 90 days’ written notice. During any 12-month period, rent cannot be increased in an amount greater than 7% plus inflation as measured by the Consumer Price Index for All Urban Consumers, West Region. However, there are exemptions if the first certificate of occupancy for a rental unit was issued less than 15 years from the date of the rent increase, or if the landlord is providing reduced rent as part of a federal, state or local program or subsidy.

While most landlords would be content with 7% rent increases, the real danger is that this limit will be pushed downward by future legislatures. The 7% limit also prohibits landlords from quickly recouping large capital expenditures, such as unforeseen repair costs to their rental units. To guard against this, it seems likely that many landlords will set rents higher for new tenants, and/or regularly raise rents at 7% annually plus the CPI when they may not have done so before SB 608.

Mark L. Busch
Cornell West, Suite 200, 1500 NW Bethany Blvd
Beaverton, OR 97006
(503) 597 - 1309

mark@marklbusch.com

www.marklbusch.com

Answer: You haven'tindicated whether this person is a long-term tenant or perhaps just a "vacation occupant." Under Oregon law, a "vacation occupant" is someone who: (1) Rents the RV space for vacation purposes only, not as a principal residence, (2) has a principal residence other than at the RV park, and (3) does not occupy the RV park for more than 45 days. You would need to have these facts documented in some type of written agreement. "Vacation occupants" are not "tenants" under Oregon law. They can be asked to leave without any eviction proceedings and the sheriff can be called to assist if necessary.

Assuming this person is an actual "tenant" (weekly, monthly, or fixed-term), then in the hierarchy of the quickest ways to get him out is cash. While this might sound counterintuitive to many landlords, I always advise my clients that it is sometimes far cheaper and quicker to get a tenant out by simply paying them to leave. This tactic is most effective when done shortly after issuing an eviction notice to the tenant using a "carrot and stick" approach. If the tenant isn'twilling to settle by accepting a payment to leave, then you can rely on the eviction notice.

The type of eviction notice will depend on the type of tenancy. Fixed-term tenants will require a for-cause notice (i.e., for breaking a park rule). Weekly tenants can be given a 10-day, no-cause eviction notice. Monthly tenants can be evicted with a 30-day, no-cause notice during the first year of their tenancy. After the first year, the no-cause notice to a monthly tenant would need to be a 60-day notice. (Caveat: Portland and Milwaukie both have city ordinances requiring 90-day no-cause notices to all monthly tenants, regardless of how long they have been tenants.)

Also keep in mind that 72-hour rent nonpayment notices can be used if the tenant isn'ttimely paying the rent. This is sometimes an effective and quick tool in getting a tenant out of the park as well. Even if you've already issued a no-cause notice, you can still use a 72-hour notice in the meantime if the tenant decides to stop paying his rent.

If the tenant refuses to vacate by the deadline in whatever eviction notice you have used, then you will need to file an eviction case against him in your county's circuit court. That process can take anywhere from 3-6 weeks. However, even during that period you can still use the settlement tool of a payment to have him leave if he is willing to accept. You can point out to the tenant that if he is evicted by a court judgment, he may have a harder time finding a landlord who is willing to accept him as a tenant.

A final word of warning to seek the assistance of a competent attorney if you are unfamiliar with the strict statutory process that must be followed when issuing eviction notices. A good attorney can also help you try to settle the case with the tenant, and ideally obtain a written settlement agreement confirming the move-out terms and releasing all legal claims between the parties relating to the tenancy.

Answer. ORS 90.396 addresses acts or omissions justifying 24-hour notice of termination. This type of event is covered under the statute. If provides for termination if:

“The tenant, someone in the tenant’s control or the tenant’s pet seriously threatens to inflict substantial personal injury, or inflicts any substantial personal injury, upon a person on the premises other than the tenant;”

What you describe clearly qualifies on its face for a 24-hour notice. However, if this is not something expected, or if the tenant has some mental/anger issues which qualify for treatment, you may want to get more information before proceeding. 

Here are some things to remember:

• 24-hours’ notice is a minimum; you can always allow a longer period of time;
• This violation is not curable like the 30-day notice;

The 24-hour notice should not be used where a 30-day curable notice would likely suffice in securing compliance. Your description clearly suggests a 24-hour notice is appropriate, since allowing the right to cure may not be appropriate. Plus, there is likely too much risk in permitting the resident to return, only to cause further injury to others.

For purposes of service of the 24-hour notice you would normally send by regular mail, personally serve, or mail and attach the notice to the front entrance of the door.  However, if you know a tenant is in jail or here, being housed in a hospital, using the above methods will not likely provide the notice you need. You should contact the institution (e.g., sheriff’s office, hospital admitting desk, etc.) to find out how they permit notices to be delivered to persons in confinement.

In less serious cases, e.g., verbal abuse (not threats of imminent injury, however), the 30-day notice may be more appropriate. Now that ORS 90.630 has a 3-day “cure period” for isolated events, it can be a useful tool that does not prolong the unpleasantness for managers having to wait 30 days. 

For example, if the verbal conduct has continued, and shows no sign of abating, issuing a notice under ORS 90.630 can be used. It now becomes noncurable quickly if breached, so management can use it effectively to stop the conduct. 

Part of the issue today is using the courts to enforce evictions considering Covid delays and the housing crisis. Accordingly, you must be judicious when using termination notices, i.e., only in those cases you believe are necessary either for management safety, or the protection of other residents. 

If the conduct does not rise to “termination notice” level, you might consider using mandatory mediation to secure voluntary compliance. See, ORS 90.767.

Of course, the best solution to threats, intimidation, and more serious conduct is to avoid it by choosing your tenants carefully. This means vetting applicants closely before ever being allowing in the community. Unfortunately, that is not always an option, which is why the 24-hour notice is the tool of last resort.

Lastly, remember that judges are hesitant to terminate a tenant in such cases, unless it is an issue of health and safety of management and the residents. Before proceeding, check with your attorney to discuss how best to proceed.

We’ll explain the current state of the fair housing law governing whether landlords can be liable for tenant-on-tenant harassment. We’ll outline the seven things you can do to manage these liability risks, and we’ll give you a tool, a Model Anti-Harassment Policy for Tenants, that you can use to implement these measures. We’ll finish the lesson with a Coach’s Quiz so you can see how well you learned the material.   

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans housing discrimination on the basis of race, color, religion, sex, national origin, familial status, and handicap (disability). The FHA doesn’t specifically use the word “harassment.” But it’s well established that harassment is a form of illegal discrimination banned by general provisions of the law, including:

• Section 3604(b), which makes it illegal to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, on in the provision of services or facilities in connection therewith”; and
• Section 3617, which makes it illegal to “coerce, intimidate, threaten, or interfere” with those who exercise their fair housing rights.

These provisions enable courts to hold landlords liable for the harassment they commit personally. But establishing landlord liability gets trickier when the harassment is committed by a third party.

What’s the basis for holding landlords liable for third-party harassment? Historically, the theory is based on comparing housing discrimination banned by the FHA, a.k.a. Title VIII of the federal Civil Rights Act, to employment discrimination banned by Title VII. The employer’s Title VII duty to protect employees from workplace harassment applies not only to their own conduct but also to that of managers, supervisors, and employees under their control. Over the years, the U.S. Department of Housing and Urban Development (HUD), courts, and fair housing tribunals have looked to Title VII for guidance in interpreting Title VIII as making landlords and other housing providers liable for harassment committed by managers, leasing agents, and other third parties under their control.

But using the Title VII comparison to hold landlords liable for harassment committed by tenantstakes a bigger leap of faith. After all, landlords don’t control their tenants the way employers control their employees. To get around this hurdle, HUD, courts, and tribunals have relied on the tort law standard of negligence to argue that landlords have a duty to prevent harassment that they know or should reasonably know about. Even though landlords don’t control tenants, they are in a position to take measures to prevent them from harassing other tenants.

The 2016 HUD Regulations

On Sept. 14, 2016, HUD took the first steps to turn what had previously been just a theory into an actionable legal principle by publishing new regulations holding housing providers responsible for failing to “take prompt action to correct and end a discriminatory housing practice by a third-party, where the [provider] knew or should have known” of the conduct and “had the power to correct it.”

Using the Title VII employment analogy, the regulations (entitled “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act”) state that landlords can be liable for a “hostile housing environment” the way employers are for a “hostile work environment.”

The regulations define hostile environment harassment as unwelcome conduct that’s “sufficiently severe or pervasive as to interfere with. . . the [tenant’s] use or enjoyment of a dwelling.” Determination of whether hostile environment harassment exists is based on an objective, rather than subjective standard—that is, from the perspective of a reasonable person in the tenant’s position, as opposed to how the tenant actually experienced it. Key factors in the determination include:  

• The nature of the conduct;
• Where it took place;
• How often it took place (although a single incident may be enough if the conduct is egregious enough); and
• The relationship between the alleged harasser and the victim.

The Courts

Less than five months after their publication, the HUD regulations were relegated to the mothballs by the new Trump administration. As a result, the spotlight passed to the courts. There have been two significant federal court rulings on landlord liability for tenant-on-tenant harassment, one going for and the other against the landlord.

Landlord Is Liable: The Wetzel Case. Already grieving from the loss of her lover of 30 years to cancer, Marsha Wetzel’s life became a living hell once she moved into her Illinois retirement community. For 15 months, neighboring tenants regaled her with obscenity and verbal abuse because of her sexuality. They called her a “f***** d***” and a “lesbian f*****.” They harassed her physically, once knocking her off her motor scooter. Wetzel complained repeatedly to the landlord. But instead of stepping in to rein in the harassment, management labeled her a troublemaker and plotted her eviction.

Wetzel sued, but the federal court said that landlords aren’t responsible for tenant-on-tenant harassment under the FHA and tossed the case. In a landmark ruling, the Seventh Circuit Court of Appeals reversed, finding that she had a valid FHA claim for hostile environment harassment. To prove such a claim, a tenant must prove three things, the court reasoned:

1. The tenant suffered harassment based on a protected characteristic (in Wetzel’s case, her sexual orientation);
2. The harassment was severe or pervasive enough to interfere with her tenancy; and
3. The landlord knew about the harassment but didn’t take steps to stop it.

Although the decision tracks the HUD regulations, there’s one crucial difference: Unlike the regulations that hold landlords accountable for harassment they know or should reasonably know about, the court ruled that a landlord must have actual notice of the harassment, which the landlord in this case did [Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856 (7th Cir. 2018)].

Landlord Is Not Liable: The Francis Case. A case from New York had similar facts but a totally different outcome. Like Wetzel, the New York tenant in this case was the target of “a brazen and relentless campaign of racial harassment, abuse, and threats” authored by his neighbor. And like Wetzel, his appeals for help from the landlord fell on deaf ears.

But that’s where the similarities ended. Unlike the Seventh Circuit, the Second Circuit Court of Appeals ruled, 7 to 5, that landlords can’t be liable for tenant-on-tenant harassment, even if they know it’s taking place, because they don’t exercise control over tenants’ behavior. To rule otherwise, the majority reasoned, would force landlords to intervene in a wide range of common disputes between neighbors [Francis v. Kings Park Manor, Inc., 2021 U.S. App. LEXIS 8761, __ F.3d __, 2021 WL 1137441].

The Bottom Line. The question of whether landlords have a fair housing duty to protect tenants from harassment based on race, color, religion, sex, national origin, familial status, and handicap (disability) and additional protected characteristics under state laws, remains unresolved at this time—other than in the Seventh Circuit, where such a duty does exist and the Second Circuit where it doesn’t. But there are nine other circuits that haven’t yet addressed the issue. Meanwhile, the new administration is very likely to adopt the 2016 HUD regulations authored while President Biden served as Vice President (although HUD hasn’t yet officially addressed the issue).

Key question: What, if anything, should you do to prevent tenants from harassing other tenants?

Answer: Take action. Keep in mind that while the current law may be unsettled, for landlords there’s much more at stake than what the law requires. Ensuring a harassment-free housing environment where residents don’t harass their neighbors is not only a moral but a business imperative, at least for landlords who care about the quality of their tenants’ lives. This is true for all forms of tenant-on-tenant harassment, not just harassment based on personal characteristics protected under fair housing laws. And, contrary to what the Francis court says, this anti-harassment imperative is one that landlords can achieve without having to constantly meddle in tenants’ private affairs and squabbles between neighbors.

7 THINGS TO INCLUDE

IN YOUR ANTI-HARASSMENT POLICY FOR RESIDENTS

Preventing tenant-on-tenant harassment in housing requires the same approach as preventing employee-on-employee harassment in the workplace. The starting point is to create and implement a written anti-harassment policy for the residents of your community. Like our Model Policy: Adopt Anti-Harassment Policy, Procedure & Guidelines for Tenants, your policy should include seven elements.

Element #1: Anti-Harassment Policy Statement

Start by drawing a line in the sand on harassment. State that, as landlord, you’re committed to providing a harassment-free housing environment enabling all tenants are to enjoy their tenancy. Make it clear that harassment is unacceptable and that you’ll follow a “zero tolerance” approach if anybody at the community engages in it [Policy, Sec. 1].

Element #2: Clear Definition of ‘Harassment’

Just about any kind of unpleasant or unwelcome conduct or treatment can be interpreted as “harassment” the way that word is used in everyday language. But in the fair housing context, “harassment” has a much narrower meaning. It’s important that tenants understand what harassment is so they can regulate their conduct accordingly. Specifically, define “harassment” as “action, conduct, or comment that can reasonably be expected to cause offense, humiliation, or other physical or psychological injury or illness to a tenant or other person.” And be sure to list examples. Equally important, explain what does not constitute harassment—namely, honest, good faith, and respectful disagreements—so tenants don’t “cry wolf” and make unjustified accusations any time they get into an argument with their neighbors.

Strategic Pointer: The Model Policy definition closely tracks HUD regulations in the sense that conduct must be severe or pervasive enough to create a hostile housing environment. But recognize that discrimination comes into play only when harassment is based on a person’s race, color, national origin, religion, sex, disability, familial status, or other protected class(es) under your state’s fair housing laws. Still, your enemy isn’t just discriminatory harassment but harassment of any kind. Accordingly, your definition should use the phrase “including but not limited to” so that your policy applies to any and all forms of harassment and not just discriminatory harassment [Policy, Sec. 3] .

Element #3: Harassment Reporting Protocols

Now we come to the hard part. Having established the general principles, the balance of your policy should be dedicated to what happens if harassment actually occurs. Since you can’t do anything unless you know about the harassment, the starting point is getting tenants to come forward to report the harassment they suffer or witness. That’s easier said than done.

First Choice: The best outcome is for tenants to settle the issue civilly between themselves without your having to intervene. So, start by suggesting that tenants who feel like they’re being harassed by a neighbor approach the person with their concerns and ask him or her to stop. “Many, if not most disputes between neighbors are the product not of harassment but simple miscommunication or misunderstanding that can be resolved by respectful conversation,” notes a New York fair housing attorney.

Fallback: Harassment victims may not feel comfortable or safe confronting the person who’s harassing them; or they may try the approach and find it ineffective. That’s why you also need to give them a way to summon help from their landlord. Let tenants know that they not only can but are “strongly encouraged” to go to you and report the harassment they experience or witness. Best Practice: Provide not only a contact person but also an alternate off-site person or office to whom tenants can report harassment in case the primary contact is the one who committed (or was otherwise involved in) the alleged harassment.

Safety Net: You also need to tell tenants to call 911, the police, or other emergency responder for help in an emergency, such as where the harassment poses a threat of violence or immediate bodily harm [Policy, Sec. 4].

Element #4: Assurance of Non-Retaliation

Tenants may be hesitant to come forward and report harassment out of fears of retaliation and being labeled a troublemaker—especially when the alleged harasser is a property manager or a powerful, longstanding, or influential tenant. And, while such retaliation is highly illegal, it still happens. Just ask Marsha Wetzel, the tenant that management plotted to get rid of after she complained of harassment. Of course, you’d never let this happen at your community. The problem is that fear and perception may be stronger than reality. That’s why your policy should include clear and strong language (which our Model Policy boldfaces) assuring tenants that they won’t suffer any form of retaliation for reporting harassment [Policy, Sec. 5].

TIME OUT!

Something to Consider: Qualified Retaliation Assurance

Some landlords worry that tenants will abuse their reporting rights to engage in witch hunts or file reports they know are false to harass or carry out a vendetta against tenants they don’t like. One thing you can do to prevent this is to qualify your non-retaliation assurance by indicating that it applies to harassment that tenants report “in good faith.” Because the language is so important to an anti-harassment policy, we chose to leave this qualifying phrase out of our Model Policy.

Don’t punish the victim. Evicting or relocating a tenant for reporting discriminatory harassment is illegal retaliation even when you do it for the tenant’s own protection. Your duty under fair housing laws, in other words, is to protect tenants from harassment without taking away their right to decide where they want to live.

Element #5: Harassment Response & Resolution Protocols

Be aware that in establishing a protocol for tenants to report harassment, you may be taking on additional compliance responsibilities. Explanation: Remember that for a landlord to be liable for tenant-on-tenant harassment, two things must be true:

• The landlord must know about the harassment (this is the Wetzel standard—the HUD regulations go farther by making landlords liable for harassment they should reasonably know about); and
• They must have the power to correct the problem.

The Wetzel standard thus gives you the option of deliberately avoiding knowledge of harassment and the accompanying duty to do something about it. (This ostrich head-in-the-sand strategy wouldn’t be available under the HUD “should reasonably know about” standard.) As a result, reporting creates extra responsibility because once tenants report it to you, you have knowledge of the harassment and must take steps to address it.

The heart of the policy, then, are the provisions explaining how you intend to address the harassment reported to you. Although there’s no one formula, your policy should provide for three layers of response to harassment complaints:

Level 1: Calling for Emergency Help. The first and most immediate concern is to call 911, law enforcement, or other emergency responders if there’s a risk of violence or other emergency. Hopefully, this is something tenants do themselves before reporting the harassment to you [Policy, Sec. 6(a)].

Level 2: Mediation and Conciliation. Being the landlord puts you in the position to intervene and resolve tenant-on-tenant harassment. The most effective way to leverage that position is to empower the tenants to resolve things themselves by acting as a neutral mediator or conciliator. Bring the parties together, listen to both sides of the story, seek common grounds of agreement, and suggest resolutions [Policy, Sec. 6(b)].

Level 3: Investigation. For mediation to work, both sides must be willing to work together in good faith to resolve their dispute. So, you need to have some other mechanism to deal with harassment complaints that mediation can’t resolve. At that point, the imperative becomes to determine exactly what happened and whether the harassment accusations are true. Accordingly, your policy should provide for a full, fast, and fair investigation. While procedures vary depending on the circumstances and situations, investigations should be carried out by a qualified and neutral investigator who isn’t involved in the disputes and is deemed impartial to both parties [Policy, Sec. 6(c)].

The policy should also include assurances that you’ll keep the investigation report and other personal information about the tenants involved confidential and not disclose it to third parties unless the laws allow or require you to do so [Policy, Sec. 6(d)]. In addition, you should describe the steps you’ll take to support tenants who suffer harassment. At a minimum, that should include providing victims with information about the medical, psychological, or other support services available; if feasible, you might also want to pay all or some of the costs for such services [Policy, Sec. 6(e)].

Element #6: Potential Discipline for Harassment Violations

Having an anti-harassment policy is worse than useless if you’re not prepared to hold tenants accountable for the harassment they commit. Such accountability should include reserving the right to discipline and even evict tenants found to have engaged in harassment, particularly when that harassment is based on the victim’s race, color, national origin, religion, sex, disability, familial status, or other protected class(es) under your state’s fair housing laws.

Accordingly, your policy should state that harassment is a “material” violation of the lease that may justify termination of the harasser’s tenancy. The good news is that your standard lease probably already includes provisions governing tenant conduct that you can rely on to enforce this rule, including the requirement that tenants (and other persons on the premises with tenants’ consent):

• Conduct themselves in a civil, respectful, and lawful manner at all times;
• Refrain from annoying, harassing, embarrassing, disturbing, inconveniencing, or harming other tenants or persons on the premises; and
• Not engage in acts of discrimination, nuisance, breach of the peace, or any other illegal activity.

Be careful how you word the disciplinary provisions. What you want to do is reserve the right to evict for a first offense; what you don’t want to do is require termination automatically and fail to leave yourself leeway to impose lesser discipline for less severe offenses and/or tenants you believe are capable of correcting their behavior [Policy, Sec. 7].  

Element #7: Clarification of Tenant’s Right to File a Fair Housing Complaint

Based on best practices and principles of employment discrimination law, anti-harassment policies should include clear language spelling out that victims of harassment based on race, color, national origin, religion, sex, disability, familial status, or other protected class(es) under your state’s fair housing laws have the right to file a fair housing discrimination complaint. Otherwise, victims may think that the anti-harassment policy is designed to substitute rather than supplement their fair housing protection rights [Policy, Sec. 8].

Answer: It is now statewide law that rents cannot be raised at all during the first year of a month-to-month or fixed-term tenancy.  After the first year, you are required to give written notice to RV tenants at least 90 days prior to the effective date of the rent increase.  In addition, fixed-term tenancy rent increases must comply with whatever terms are in the fixed-term rental agreement.  (NOTE:  Week-to-week tenants can have their rent raised at any timewith at least seven days’ written notice prior to the effective date of the increase.)  

The written rent increase notice to all RV tenants must state (1) the amount of the rent increase; (2) the amount of the new rent; and, (3) the date on which the increase becomes effective.  If the notice is mailed to the tenants, you must add at least three additional days to the notice period (not counting the date mailed) to allow for mailing.  The mailing must be by regular, first class mail. Alternatively, the notice may be hand-delivered to tenants, but this means putting it directly in the tenant’s hand – posting the notice is legally ineffective.

Rent control also applies to rent increases for month-to-month and fixed-term RV tenants.  During any 12-month period, rent cannot be increased by more than 7% plus the consumer price index (CPI) from the previous year above the existing rent.  The CPI and maximum rent increase are calculated by the Oregon Department of Administrative Services and published annually in September to set the maximum rent increase amount for the following calendar year.  The maximum rent increase for month-to-month and fixed-term RV tenants in 2020 is 9.9%.  

A landlord who increases rent in violation of the rent control limits can be found liable to a tenant for three months’ rent, plus actual damages suffered by the tenant, plus attorney fees and court costs.  However, the rent control limits do not apply if:  (1) The first certificate of occupancy for the tenant’s RV space was issued less than 15 years from the date of the notice of a rent increase, or (2) the RV park is providing reduced rent to the tenant as part of a federal, state or local program or subsidy.  If one of these exemptions applies, the landlord must state facts supporting the exemption in the rent increase notice to the tenant if the rent increase exceeds the maximum allowable amount.

Finally, be aware that special rules apply within the city limits of Portland. By city ordinance, a rent increase of 10% or more within a rolling 12-month period triggers the tenant’s right to receive a “relocation assistance” payment from the landlord. These payments are based on the size of the rental unit and start at $2,900.  It is questionable whether the ordinance as written applies to RV tenancies.  However, if you ever intend to issue a rent increase of 10% or more within the City of Portland, you should first consult with a knowledgeable attorney to assess the risk of being subject to relocation assistance payments.

Answer: I assume you are referring to a sale where you carry back the security obligation (as opposed to the buyer paying cash or securing third party financing). In this respect, you are correct, subject to several limitations. MHCO worked extensively with the Oregon Department of Finance and Corporate Securities ("DFCS") and others to develop an exemption to the Oregon law that would permit park owners to engage in the sale of formerly abandoned homes to purchasers for the purpose of a primary residence without having to use a broker (referred to as a "Mortgage Loan Originator" or "MLO" under the new law). Here is a summary of the new exemption law which will be found in ORS 86A.203. - Here are the rules for those licensed as a manufactured structure dealer under ORS 446.691. _ They may offer or negotiate the terms of the loan three or fewer times in a 12 month period; _ They must use a written sale agreement that complies with certain requirements, or with DFCS rules . _ The dealer may not hold more than eight residential mortgage loans without securing a MLO license under ORS 86A.203(1). [Presumably, this means "at one time."] - Here are the rules for those licensed as a limited manufactured structure dealer under ORS 446.706. _ They may offer or negotiate terms of the loan five or fewer times in a 12 month period: _ They must have an ownership interest in a manufactured dwelling park; _ They must use a written sale agreement that complies with certain requirements, or with DFCS rules. _ They may not hold more than twelve residential mortgage loans without securing a MLO license under ORS 86A.203(1). [Presumably, this means "at one time."] But here's the rest of the story: Just because you are exempted from the MLO licensing requirements for a limited number of sales, does not mean that you are free from the tentacles of the Dodd-Frank Act. No, indeed. In fact, there are two new rules that still will apply. 1. Ability-to-Repay ("ATR") Rules. A creditor is prohibited from making a residential loan (this includes your sale of the formerly abandoned home) unless it first makes '_a reasonable, good faith determination of a consumer's ability to repay any consumer credit transaction secured by a dwelling (excluding an open-end credit plan, timeshare plan, reverse mortgage, or temporary loan) and establishes certain protections from liability under this requirement for "qualified mortgages." [See CFPB Summary, here.] In complying with the ATR rules, you must consider and verify the following borrower information: a) Current or reasonably expected income or assets [other than the value of the home that secures the loan]; b) Current employment status; c) Monthly payment on the mortgage loan; d) Monthly payment on any simultaneous mortgage loan that the creditor knows or has reason to know will be made; e) Monthly payment for mortgage-related obligations [e.g., insurance, taxes, assessments]; f) Current debt obligations; g) Monthly debt-to-income ratio, or residual income; and h) Credit history. In making the loan you will be required to calculate the mortgage loan payment based on: - The fully indexed rate or any introductory interest rate (whichever is greater); and - Substantially equal monthly installment that will fully amortize the loan amount over the loan term. At first blush, perhaps these requirements don't seem so burdensome, since one would think any smart lender would follow these protocols anyway. But remember, back in the easy money days, lenders were not keeping most of their loans on their own books; instead, the loans were "securitized", i.e. bundled and sold as securities to investors all over the world. This meant that circa 2004 - 2008, the originating banks that funded these residential loans were quickly repaid by investors and were never going to have to deal with them if and when they failed. Hence, bank underwriting was virtually nonexistent back then - except, of course, for those loans the banks were going to keep on their own books (sometimes referred to as "portfolio loans"). 2. Qualified Mortgages. The Dodd-Frank Act has established a term, "Qualified Mortgage," or "QM," that provides a safe harbor for lenders. That is, if the loan is a QM, there is a legal presumption that the lender complied with the ATR underwriting rules, and therefore the penalties for non-compliance are either eliminated or substantially reduced, as discussed below. If a presumption is "conclusive," no amount of evidence to the contrary will defeat it. But if a presumption is "rebuttable," the party opposing the presumption has an opportunity to rebut it by introducing evidence to the contrary. For a mortgage to be a "Qualified Mortgage," it must meet the following requirements: - All of the "Non-Traditional" Loan Features Must be Removed - This refers to features that we saw in the past, e.g. negative amortization, interest-only payments, and certain balloon payments.[5] - The loan may not exceed 30 years. - If the loan is for $100,000 or more, it cannot have points or fees greater than 3% of the total loan amount. There are different and stricter limits for smaller loans. Certain "bona fide discount points" for prime loans are not included in these limits. - There is an Income Verification and Monthly Debt-to-Income Ratio Cap; The borrower's total monthly debt-to-income ratio (i.e. all housing and non-housing expenses, such as food, automobile, child care, etc.) can be no greater than 43%. - Monthly payments must be based on the highest payment that will apply during the first five years of the loan. The presumptions afforded to lenders making QM loans gives lender protection as follows: - Safe Harbor QM loans - Conclusive Presumption. These are prime loans that (a) Meet the ATR compliance rules including the underwriting requirements above; (b) Are secured by a first lien on the residence; and (c) Carry an interest rate that is less than 1.5% higher than the average prime rate available.[7] The presumption of ATR compliance is conclusive. It is a complete safe harbor. - Higher-Priced QM Loans - Rebuttable Presumption. Here, the presumption of ATR compliance is rebuttable. These loans include first-position liens with an interest rate of equal to or greater than 1.5% over the available prime rate. Essentially, these loans are "higher priced" because the borrowers' credit is less than prime, i.e. the loan is, in the vernacular, "sub-prime." Noncompliance with the ATR Rules. Violations of the ATR rules are harsh, and likely to stifle any types of loans that hint of non-compliance. If a material violation is established, the borrower would have the ability to recover back all of the finance charges and fees paid, plus actual damages, statutory damages, attorney fees and court costs. The plaintiff's bar and the class action bar must be sharpening their knives. There is a three year statute of limitations from the date the violation occurred. Conclusion. I marvel at the complexity of these laws which have been implemented to "protect" consumers by confusing creditors - especially small creditors, such as park owners selling formerly abandoned homes to fill a space and provide affordable housing. If these small transactions caused the credit and housing crisis of 2008 and the ensuing Great Recession, perhaps I could understand. But they didn'. What we're are seeing is a huge net of bureaucratic regulation that has been cast over even the smallest of transactions under the guise of consumer protection. Going forward into 2014, my suggestion is for park owners to decide if: (a) They want to handle these transactions without the use of a MLO (which will add several hundred dollars to each sale) or (b) Go it alone, with knowledge that they will still be expected to comply with the ATR and QM rules. If the latter, my suggestion is to create the simplest of paper transactions, with a market rate interest, no adjustable rates, and a balloon that is not less than five years.

Answer:  First, a reminder. MHCO’s Q&As are provided as a member benefit for information only; they should not be relied upon as legal advice. You need to check with your own attorney on a detailed answer to your question.

In 2021, ORS 329A.440 was passed. There are two types of facilities addressed in the law:

(a) A “Child care center” which is a child care facility, other than a certified family child care home (see (b) below) and

(b) a “Family child care home” which is a child care facility in a dwelling that is caring for not more than 16 children and is certified (when certification is required) or is registered under ORS 329A.330 , when registration is required. A family child care home is considered a residential use of property for zoning purposes and is a permitted use in all areas zoned for residential or commercial purposes, including areas zoned for single-familydwellings.

Local governments may not enact or enforce land use regulations prohibiting the use of a residential dwelling, located in an area zoned for residential or commercial use, as a family child care home. This is the law that may apply in the case of your residents.

Without knowing what your rules state, I cannot say if they are technically in violation of the new law. But in my opinion, even though these facilities are legally permitted, there are a number of conditions you may impose on their operation. However, legal counsel should vet them first. Here are some suggestions to tighten up your rules:

• Require that the business complies with all state and local laws, rules and regulations. You need to first check with the applicable state or local agency to find out what they are and what you should do if there are violations (See: https://www.oregon.gov/delc/providers/pages/certified-family.aspx and chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.oregon.gov/delc/providers/CCLD_Library/CCLD-0085-Rules-for-…)
• You should require that liability insurance be maintained with proof provided to you yearly. The amount is not set forth in the statute. Check the administrative rules and with the licensing authority.  Check also with your insurance agent. 
• Of major concern should be traffic and reasonable restrictions on this are permitted.
• Similarly, you should have reasonable restrictions on outdoor play, bikes, trikes, games, etc., especially in streets. And remember common areas are for everyone, so you don’t want it to become a playground.
• Noise can be a problem, although the main issue to regulate is hours of the day because of neighbors (it’s impossible to regulate the sound of happy children!).
• All of your regulations should be in writing and consistently imposed. The failure to do so could lead to complaints to local authorities.
• Do not forget that federal and state housing laws prohibit discrimination against children, i.e., those under 18 years of age. Violations could lead to complaints with the Oregon Bureau of Labor and Industries (BOLI) which could eventually end up in court.

The take-away for you is that notwithstanding the fact you may not be able to prohibit such a business in your Park, if you know the regulatory rules, publish them, and consistently enforce them, you will be fine.

Three final notes: (a) Do not try to congregate these businesses in one area of the park. That, in itself, can lead to legal action; (b) the above does not apply if you are a 55+ or 62+ facility; and discuss with your attorney and insurance agent all possible legal liability issues that could result in claims. Good luck!

Answer: In Oregon, month-to-month RV tenants can be evicted with a 30-day, no-cause notice during the first year of their tenancy. After the first year, the no-cause notice to a monthly tenant would need to be a 60-day notice. Use MHCO Form 43C for no-cause RV evictions, choosing either the 30-day or 60-day notice option, depending on the length of tenancy.

Caveat: Portland and Milwaukie both have ordinances requiring 90-day no-cause notices to all monthly tenants, regardless of how long they have been tenants. The City of Bend requires 90-day notices after the first year of tenancy. In addition, Portland requires landlords to make "relocation assistance" payments to tenants evicted for no-cause, ranging from $2,900 to $4,500 - although the applicability of this requirement to RV tenants is legally questionable. Bottom line: Consult an attorney if you have an RV park in any of these cities.

If you have any week-to-week RV tenants, they can be evicted with a 10-day, no-cause notice. This applies even in the municipalities mentioned above, which all provide exceptions for weekly tenants. However, remember that to have a valid "week-to-week" tenancy, you must meet these specific requirements: (1) Occupancy is charged on a weekly basis and is payable no less frequently than every seven days, (2) there is a written rental agreement defining the landlord's and tenant's rights and responsibilities, and (3) there are no fees or security deposits (other than applicant screening charges). If your weekly tenant arrangements do not meet these specific requirements, your tenants will be treated as month-to-month tenants under Oregon law.

If you happen to have any fixed-term RV tenants, you cannot evict them with a no-cause notice until the fixed-term ends. Before that, it would require a for-cause notice (i.e., for breaking a park rule or for not paying the rent).

Finally, there is also an exception under Oregon law for RV "vacation occupants." A "vacation occupant" is someone who: (1) Rents the RV space for vacation purposes only, not as a principal residence, (2) has a principal residence other than at the RV park, and (3) does not occupy the RV park for more than 45 days. You would need to have these facts documented in a written agreement. "Vacation occupants" are not "tenants" under Oregon law. They can be asked to leave without any eviction proceedings and the sheriff can be called to assist if necessary.

As usual, you should always seek the advice of a knowledgeable attorney if you are unsure whether you can or should issue a no-cause eviction notice.

Answer: That is a good question. First, to be clear for our readers, a "security agreement" is any agreement that serves as "security" on the property. For example, a trust deed is recorded on real property, and secures the promissory note. If the note is not paid, the holder can turn to the security, and sell it to satisfy the unpaid indebtedness.

Since manufactured homes are not real property, the document is different, but the concept is the same. A Retail Installment Contract is defined in ORS 83.510(12). Its purpose is to retain a lien upon the manufactured home to secure a buyer's obligations under the contract. Form 2A informs the buyer that the seller/dealer is claiming a security interest in the home for the duration of the contract, and that in the event of default the seller/dealer will have certain remedies to foreclose and/or repossess the home. Upon a buyer's full payment and performance under the Retail Installment Contract, the seller/dealer is required to mail to the buyer good and sufficient instruments to indicate payment in full and to release all security rights in the home.

If the sale transaction is closed in escrow, there is nothing more for the seller to do to secure his/her security interest in the home, as escrow will submit the necessary documents to the Oregon Department of Business and Consumer Services.

However, if the seller/dealer does not close the transaction through escrow, they will have to perform the following steps themselves:

1. Submit to the Department of Consumer and Business Services (DCBS) an application for an ownership document on behalf of the purchaser.

1. The application must be on a DCBS-approved form, and include the following:
   1. The year, manufacturer's name, model if available, and identification number for the home;
   2. Any existing ownership document for the home or, if none, the homes certificate of origin or other document evidencing its ownership;
   3. The legal description or street address for site where the home is or will be placed;
   4. If the home is sited in a manufactured housing community, the name of the community;
   5. The name and mailing address of each person acquiring an interest in the home;
   6. The name and mailing address of each person acquiring a security interest in the home; and
   7. Any other information required by the DCBS by administrative rule.

1. If the seller/dealer is unable to comply with Sec. 2, above, within 25 business days of the sale/closing of the home, he/she must provide a notice of delay to the purchaser. The notice must contain:
   1. The reason for the delay;
   2. The anticipated extent of the delay; and
   3. A statement of the rights and remedies available to the purchaser if the delay becomes "unreasonably extended."[1]
2. Fail to comply with the above could result in the seller/dealer becoming subject to revocation or suspension of their license or being placed on probation by the DCBS pursuant to ORS 446.741.
3. If they fail to comply with Sec. 2, above within 90 days of the sale/closing, they could become subject to criminal penalties under ORS 446.746 (1)(h).
4. However, if the home buyer is not in compliance with the payment terms of their purchase or security agreement with you by the 20th calendar day after the sale/closing, the seller/dealer is not required to perform the steps in Sec. 2 until 25 calendar days after the home purchaser is in compliance with the payment terms. [Note: This does not excuse a seller/dealer from complying with Sec. 3, above, even though the purchaser is late on his/her payments.]

[1] Note: The statute does not define "unreasonably extended," nor does it identify any particular remedies you might suggest. If such a delay occurs, you should contact your own legal counsel, since you do not want to write such a letter to the purchaser identifying their "legal remedies" - that would be up to the purchaser's attorney.