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

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

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

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

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

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

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

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

Answer: There are certain facts that are missing from this question. I will supply them and then answer. So, let's assume the following: (a) This is a periodic (i.e. month-to-month) tenancy; (b) The tenant has moved out of the home and it is now vacant; (c) The rents are not being paid; and lastly, let's assume that (d) The landlord was to be paid all past-due rent from the sale proceeds.

However, before answering the question, however, let me point out a fatal error by this landlord - and many other landlords: They don't look at the Worst Case Scenario. I'm sure the Storage Agreement adequately covered what was to occur upon sale. But since we have a landlord now asking what happens if the sale does not occur by November 30, I'm led to believe the parties neglected to address (in writing) the possibility of failure. Memo to MHCO landlords: Written agreements with tenants should always address "the exit strategy" - i.e. what protocol kicks in if the home is not sold and not removed by November 30.

Without addressing this issue in the written Storage Agreement, we are left to figure out what Oregon law would provide under these facts. Here's my take:

• On December 1, the landlord should contact the ex-tenant and demand that the home be removed. This should be done in writing or e-mail, so it can be used later if necessary.
• If removal does not occur promptly, the landlord must rely upon Oregon law. Unfortunately, the law leaves landlords holding the bag if a home is abandoned.
• The landlord will have to determine if the tenant will voluntarily waive his abandonment rights, and if not, then he must follow the legal procedure under ORS 90.675.[2] If there is a lienholder on the home, the landlord will have to give them notification under the abandonment law.
• If the landlord wants to leave the home on the site and resell it to a new tenant, that option is always available[3], and probably should be pursued first, rather than going down the abandonment route, which can be costly in time and money. Care should be exercised to properly document such an arrangement, in order to avoid later complaints by the tenant that they were taken advantage of.

In Oregon, following the formal abandonment process is the only legal way for a landlord to take control of a manufactured home if the tenant fails or refuses to remove it upon termination of the tenancy.

[1] The question about a one-year rule, relates only to the closure of a park or park space, and will not be addressed here.

[2] This may mean that the landlord will have to go through the exercise of issuing a 72-hour notice, then going to court to get a judgment of restitution. Only then is it safe for the landlord to proceed with abandonment.

[3] If title to the home shows that a lienholder has a security interest, the formal abandonment procedure must likely be followed.

Answer: By your question, it appears that your community is not sub-metered. If it were, the owners of the home would likely recognize the problem and immediately and fix it.

In my experience when water is included as a part of the base rent, most owners really don't care, and don't check. But when the community institutes a sub-metering program, everyone becomes an overnight conservationist. Sub-metering is a win-win for everyone; the landlord saves money in not having to pay for wasted water, and the residents save in (a) controlling their own water bills, and (b) not having to suffer needless rent increases to recapture the cost of wasted water.

Now to your questions. Clearly, if water is visibly running out of the home, the tenants should be notified and told to fix the problem. They are responsible for their own homes.

As for the less obvious leaking problems, the only way to find out is to survey the tenants on the issue; e.g. do they hear the toilet leaking, for example.[1]Same question for faucets. Next, what about under the home? Has anyone checked lately? I have heard of management offering to do inspections under the home for free, as a part of instituting a submetering program.

But can you require residents take these proactive steps, especially hiring someone to inspect under the home. Except for the rules regarding the siting of home on a space, there are likely no regulations that mandate such action on an ongoing basis - at least if there is no present evidence of leaking. If there is evidence, ORS 90.740 can be relied upon to secure compliance, if nothing can be found in the rules or rental agreement:

90.740 Tenant obligations. A tenant shall:

(4)Except as provided by the rental agreement:

(a)Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

(e)Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;

(f)Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

If the rules do not contain such a provision, consider amending them to add language to address the issue. Rule changes can be done in a fairly straightforward manner. See, ORS 90.610. Alternatively, even if submetering is not addressed in your rules, you can unilaterally add it to your rental agreements, as a "Plan B", if you are unsuccessful in implementing the necessary rules.

[1]From the City of Portland website here: "How to check for toilet leaks: Lift of the toilet tank lid. Place 1 dye tablet in the toilet tank. Do not flush. Wait 15 minutes (or more) without flushing. Check the water in the bowl of the tank. If color appears in the bowl, the toilet has a leak."

How Age-Restrictive Rules Can Violate the Fair Housing Act: Lessons From the Plaza Mobile Estates Case

The Plaza Mobile Estates Case

United States of America v. Plaza Mobile Estates, et al., 273 F. Supp. 2d 1084 (C.D Cal. 2003) is a federal district court decision which is a cause for concern to all landlords, particularly owners of manufactured home communities. The United States and residents of several mobilehome parks sued the owners and managers, seeking a declaration that various park rules violated the FHA based on familial status, and sought injunctive relief to preclude any further publication or enforcement of the discriminatory rules. The court found that the rules at issue were discriminatory on their face because they treated children, and thus families with children, differently and less favorably than adults-only households.

The decision was reached by the district court, not the Court of Appeals, and therefore is not binding precedent on federal appellate courts, or state courts. However, it is a published decision which can be cited as authority in federal district court litigation, particularly within the central district of California.

Rules Found Discriminatory

The court invalidated the “preambles” to the rules of several of the defendant mobilehome parks which stated that the park was “designed and built as an adult facility” or “designed as an ADULT facility.” [Emphasis added]. The court found that these preambles were clear examples of illegal “steering.” The court recognized that while the preambles were not outright refusals to sell or rent to families with children, they clearly suggested a preference for adults only and discouraged families with children from applying for residency.

The specific age restrictive rules invalidated by the court fell into three categories: (1) absolute prohibitions; (2) adult supervision requirements; and (3) hours of access restrictions.

The absolute prohibitions included those rules that: (1) prohibited all children under 18 (or 21) years old from using the billiard room and from riding bicycles; (2) prohibited all children under 16 (or 18) years old from using the therapeutic pool; (3) prohibited all children under 14 (or 18) years old from using the sauna or jacuzzi; (4) required all children under 8 years old to be confined to rear fenced yard of family residence; and (5) prohibited all children from playing on park streets and any other common areas.

The court found that while the health and safety of the children and other residents of the park were legitimate concerns, these absolute prohibitions were not the least restrictive means to achieve such ends. It noted that any concerns that the community owners may have had were not necessarily linked to age, and any concerns about problem behavior could be addressed with the use of non-age related rules. The court held that requiring adult supervision rather than imposing an absolute ban was clearly a less restrictive means of achieving the park’s legitimate goals. However, the court also invalidated a number of adult supervision requirements.

Adult supervision requirements invalidated by the court included those rules that required adult supervision for: (1) children under 18 years old using recreational facilities (recreation building and/or clubhouse), swimming pool, sun deck, saunas and laundry room; (2) children under 14 years old using recreational facilities, swimming pool and tennis courts, and riding bicycles; (3) children under 10 years old using recreational facilities; and (4) all children walking around the park.

As with the absolute prohibitions, these adult supervision requirements were likewise found not the least restrictive means to achieve any health and safety objectives. The court commented that the park’s concerns could be addressed by the use of rules, and that bicycle and pool safety would be better served with a proficiency requirement.

The hours of access restrictions included those rules that prohibited use of the swimming pool and sundeck to children under 18 years old except during specified hours. The court summarily rejected defendants’ attempt to justify these swimming pool hours restrictions as “equitably accounting for the interest of tenants,” noting that this clearly was not a compelling interest. The court further noted that the interest or desire of the adult tenants to discriminate against children could never justify such discrimination.

Compelling Business Necessity Standard

Having found that the age-restrictive rules were discriminatory on their face, the court held that the burden passed to the community owners to justify the rules. The standard applied by the court was whether the owners had a legitimate justification for the discrimination rising to the level of a compelling business necessity as to which the least restrictive means to achieve such end was used. Both criteria, compelling business necessity and least restrictive means, must be satisfied to defeat the claim of unlawful discrimination. The court in Plaza Mobile Estates found that the owners had failed to make this showing.

HUD Approval: No Defense

What is particularly distressing about the Plaza Mobile Estates opinion is that the court invalidated rules which had been approved as part of a Conciliation Agreement entered into with the intervention and approval of HUD. The owners contended that HUD’s approval of the Conciliation Agreement required the conclusion that the rules approved thereunder did not violate the FHA. The court noted that it is the court, not HUD, that is the final arbiter in determining whether the rules are in compliance with the FHA. It therefore appears that a community owner cannot even rely upon the opinion of HUD or the state enforcement agency as a defense against a claim of discrimination.

How Community Owners Can Protect Themselves

In view of the Plaza Mobile Estates decision, landlords need to carefully review their rules and regulations and revise them to eliminate rules which appear to discriminate against families with children. Particularly suspect are rules which expressly refer to children, or persons under age 18. Other rules, which may not contain an express age restriction, are still subject to attack if they have a disparate impact on persons under age 18 or tend to “steer” toward an “adult only” preference.

For instance, community advertising and residency documents obviously must not contain discriminatory phrases and language, such as “adults only,” “retirement community,” or “community for active adults.” In “all-age” communities, there should not be any “adults only” restrictions on the use of common areas, recreational facilities or equipment (except where authorized by state law or regulations). Access to the community’s facilities should not be prohibited to children, and unreasonable supervision requirements must be avoided.

Also, review signs posted throughout the community (whether in the clubhouse or the laundry room, by the swimming pool, or along the streets) for discriminatory words or phrases.

For approval of new tenants, have written policies and guidelines and follow them consistently. Always offer an application to a potential resident, and keep those applications you reject (as well as those you accept).

In speaking to prospective residents, avoid words which might discourage a family with children; avoid “steering” someone to another community or to limited areas within your own community; do not ask about the ethnic, religious or national background of any applicant; do not discuss the problems which a disabled person may encounter in a manufactured home or in your community. Certain words should be avoided, such as: compatible (as in, “Your type is not compatible with our community”), prefer (as in, “We prefer married couples”), discourage (as in, “We discourage children because we have so many elderly residents”), or suitable (such as, “A mobilehome park is not suitable for small children”).

Even if you have adopted good policies and procedures and have trained your management team to be aware of fair housing principles, there is the chance that the policies are not followed. Make sure your staff does follow through!

The following are some additional suggestions:

--Always take an application from any interested person.

--Deal the same with all prospective residents: be pleasant, courteous and non-judgmental. Answer all questions.

--Keep a record of each inquiry and try to obtain as much information as possible about each person. Also, keep all tenancy and application records for at least two years.

What age-restrictive rules are still permissible? At least in California, it is probably still permissible to require children under the age of 14 to be supervised by an adult (but not specifically a parent) when using the swimming pool or spa pool. This is based upon section 65539 of Title 22 of the California Code of Regulations (“CCR”), which provides that, where no lifeguard service is provided, a warning sign shall be placed in plain view which shall state, “Children Under the Age 14 Should Not Use Pool Without an Adult in Attendance.” Interestingly, even this code section only says “should,” not “shall.” Local counsel should be consulted regarding similar provisions in other states.

For years in California, the CCR language has been used by analogy to require adult supervision for the use of other recreational facilities. It is no longer safe to do this. The community may still be able to require adult supervision where needed to minimize risk of injury or death in situations in addition to the swimming pool and spa pool situation referenced in the CCR. Again, the adult supervision cannot be restricted to a parent; any responsible adult can perform the required supervision.

A park may be able to prohibit an activity which is more likely to be engaged in by children than by adults if there is an express ordinance in the municipality where the park is located prohibiting this activity. A primary example of this would be a municipal ordinance prohibiting skateboarding.

It must always be kept utmost in mine that the basic test is that any age-restrictive rule or regulation must satisfy both criteria stated by the Plaza Mobile Estates court: There must be a compelling business necessity for the policy, and the rule must be the least restrictive means to achieve that policy. This is a standard which is difficult to satisfy. Community owners should consult with legal counsel in reviewing and revising their rules to minimize the risk of liability under state and federal laws prohibiting discrimination against families with children.

Robert G. Williamson, Jr. and Linda J. Lester are attorneys with Hart, King & Coldren in Santa Ana, California. They specialize in manufactured housing issues.

Just make sure that the rules don’t unfairly target families with children—or anyone else protected under fair housing law. You may have legitimate concerns about outdoor play activities that could disturb neighbors or damage your property, but avoid rules that specifically target children’s behavior. Rules banning children from playing in common areas—or placing unreasonable limits on what they can do outside—could lead to accusations that you are treating families with children less favorably than adult households living at the community.

Example: In January 2015, a court approved a $20,000 settlement in a fair housing case against a California community filed by a mother on behalf of her two young children. The complaint alleged that the children, ages 7 and 5, were repeatedly warned against riding their scooters in the common area of the complex. Allegedly, an employee said they couldn’t ride scooters, bikes, or skateboards and threatened to evict her if he caught them again. When he saw them the next day, the employee allegedly used his cell phone to record them and yelled at them. Some weeks later, the mother said the children were were riding their scooters when the manager ran up and screamed at her son, and then handed her a formal warning.

After receiving another warning, the mother sued the community for discrimination. The parties settled the case by signing a confidential agreement, which called for the court to approve $10,000 payments to each child to be held until they reached adulthood. The court ruled that the settlements were reasonable given the alleged wrongs and injuries described and were consistent with the range of settlements in similar cases [Milton v. Regency Park Apartments, January 2015].

Even if you adopt rules that govern all residents—not just children—you could still face a discrimination claim if you enforce the rule only against children. Singling out children for breaking the rules against noisy behavior in common areas while ignoring similar transgressions by adults could lead to a fair housing claim based on familial status.

Answer:  By your question, it appears that your community is not submetered.  If it were, the owners of the home would likely recognize the problem and immediately and fix it.

In my experience when water is included as a part of the base rent, most owners really don’t care, and don’t check. But when the community institutes a submetering program, everyone becomes an overnight conservationist. Submetering is a win-win for everyone; the landlord saves money in not having to pay for wasted water, and the residents save in (a) controlling their own water bills, and (b) not having to suffer needless rent increases to recapture the cost of wasted water.

Now to your questions. Clearly, if water is visibly running out of the home, the tenants should be notified and told to fix the problem. They are responsible for their own homes.

As for the less obvious leaking problems, the only way to find out is to survey the tenants on the issue; e.g. do they hear the toilet leaking, for example.[1] Same question for faucets. Next, what about under the home? Has anyone checked lately? I have heard of management offering to do inspections under the home for free, as a part of instituting a submetering program.

But can you require residents take these proactive steps, especially hiring someone to inspect under the home. Except for the rules regarding the siting of home on a space, there are likely no regulations that mandate such action on an ongoing basis – at least if there is no present evidence of leaking. If there is evidence, ORS 90.740 can be relied upon to secure compliance, if nothing can be found in the rules or rental agreement:  

90.740 Tenant obligations. A tenant shall:    

(4) Except as provided by the rental agreement:

      (a) Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

      (e) Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;

      (f) Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

If the rules do not contain such a provision, consider amending them to add language to address the issue.  Rule changes can be done in a fairly straightforward manner. See, ORS 90.610. Alternatively, even if submetering is not addressed in your rules, you can unilaterally add it to your rental agreements, as a “Plan B”, if you are unsuccessful in implementing the necessary rules.

1. How to Initiate Mediation or Informal Dispute Resolution

Mediation may be initiated by a Landlord, a Tenant or Group of Tenants. Either party may contact the mediation services available through: (a) park/marina manager, (b) Local Community Dispute Resolution Center (CDRC), or (c) Manufactured and Marina Communities Resource Center (MMCRC) hotline: 1-800- 453-5511 (Toll Free in Oregon) or email:hcs.mmcrc@oregon.gov or the MMCRC Website.

2. Disputes Eligible for Mandatory Mediation

• Those between the landlord and one or more tenants, initiated by any party.

• Those between more than one tenant as initiated by the landlord.

• Information dispute resolution, disputes between two tenants, initiated by either party. Consistent with statute, upon intake the CDRC will determine the eligibility of an issue for mediation (reference Section 6 below).

3. Good Faith Efforts

Participants must make good faith effort to: (a) schedule a mediation within 30 days after initiation: (b) attend and participate; and (c) cooperate with reasonable requests of the mediator.

4. Mandatory mediation only:

 If a party refuses to participate in good faith in mandatory mediation with another party, or uses mediation to harass another party, the other party:

(a) has a defense to a claim related to the subject of the dispute for which mediation was sought; and

(b) is entitled to damages of one month’s rent against the party.

Effect of Filing for Mandatory Mediation

Between the commencement and conclusion of the mediation:

• If the request for mandatory mediation is made before the landlord files a Forcible Entry5. 6.and Detainer, Oregon Revised Statute 90.767 calls for a “stay” or “toll” (suspension) of

any related court action until conclusion of the mandatory mediation.

• A party may not file a court action over the dispute until conclusion of the mandatory mediation; (c) tenant has continuing duty to pay rent; and (d) landlord’s receipt of rent does not constitute a waiver under Oregon Revised Statute 90.412(2).

5. Matters Subject to Mandatory Mediation

Except as provided in Section 6, below, the following disputes are eligible for mediation:

(a) landlord or tenant compliance with the rental agreement or Oregon Revised Statute Chapter 90 (Oregon landlord/tenant statutes); (b) landlord or tenant conduct within the Park/Marina; and (c) rule changes initiated under Oregon Revised Statute 90.610.

Matters Not Subject to Mandatory Mediation

Unless specifically provided for in a mediation policy established under this section, or agreed to by all parties, no party may initiate mediation for:

(a) Facility closures consistent with ORS 90.645 or 90.671.

(b) Facility sales consistent with ORS 90.842 to 90.850.

(c) Rent increases consistent with ORS 90.600.

(d) Rent payments or amounts owed.

(e) Tenant violations alleged in a termination notice given under ORS 90.394, 90.396 or

90.630 (8).

(f) Violations of an alleged unauthorized person in possession in a notice given under ORS

90.403.

(g) Unless initiated by the victim, a dispute involving allegations of domestic violence,

sexual assault or stalking or a dispute between the victim and the alleged perpetrator.

(h) A dispute arising after the termination of the tenancy, including under ORS 90.425,

90.675 or 105.161.

7. Confidentiality

Subject to Oregon Revised Statute 36.220 (confidentiality of mediation communications and agreements), all communications between the parties and mediator are strictly confidential and may not be used in any legal proceedings.

8. Limitations on Mandatory Mediation Process

Participation in mediation does not require any party to: (a) reach an agreement on any or all issues submitted; (b) participate in more than one mediation session; (c) participate foran unreasonable length of time in a mediation session; or (d) waive or forego any legal rights or remedies.

9. Designees for Parties

Any party may designate any other person, including a non-attorney(“Designee”), to represent the interests of that party provided that the Designee has complete written authority to bind that party to any resolution of the dispute reached in mediation. The Designee shall be equally bound by all rules of the mediation, including confidentiality.

10. Resolution/Nonresolution

The mediator shall notify Oregon Housing and Community Services whether a dispute was resolved but may not disclose the contents of any resolution.

This article was created by Oregon Housing and Community Services

Answer: Much depends on your rules and rental agreement, which you've not addressed. For purposes of my response, I will assume that one or both of these documents require that if a resident wants to have a person live with them at the home, they must so notify the landlord, get a background check and have management approval. If they are going to go onto the lease, then their credit record becomes important, and they would have to provide financial information as well. If the person will not be living there as a resident, then they could enter into a temporary occupancy agreement under ORS 90.275.

However, in your case, assuming that this person is actually a pedophile with a criminal record, he is not someone you want in the community under any circumstances. If he was a resident who signed a rental agreement or lease, Oregon law provides that you may terminate it by giving him not less than 30 days' notice if he is classified as a level three sex offender under ORS181.800 (Risk assessment tool) (3) or is determined to be a predatory sex offender under ORS 181.838 (Juvenile predatory sex offender defined). (See, 90.630(1)(c).

However, this person is a visitor/guest - you are not legally obligated to permit him in the community if he poses a threat to other persons, or interrupts their peaceful enjoyment. You certainly do not have to give 30-days' notice for him to vacate.

You should promptly contact the mother and tell her that the son must leave. If you are willing to give him a short period of time to find other living arrangements, make sure that he is not loitering around the community. If this is a family park, I would not permit him much more than three days to be gone. He should be warned not to come back. If he and his mother want to visit, it must be outside the community.

If the mother refuses to cooperate, you should contact the local police, and ask them what protocol they would like to you follow to have him removed as a trespasser. In most cases, you would first issue him a written notice (with copy to the mother) informing him that he is not welcomed in the community, and if he comes back after a certain date, you will call the police and have him removed as a trespasser.

Hopefully, this will resolve the matter. If it does not, either because he is seen still coming back into the community, you may have to issue the mother a 30-day notice under ORS 90.630 for violating the rules and/or rental agreement. The rule that would likely apply would prohibit persons from staying in homes as occupants or guests without landlord approval. In such case, you would have to issue her a 30-day notice for cause.

Lastly, until this matter is resolved, I don't recommend accepting rent from the mother (or son). If she pays, return it within ten (10) days after receipt. See, ORS 9i0.412(3)(a).

Answer: Interestingly, the current submetering statutes do not have a protocol dealing solely with passing through utilities for common area, separately from that for spaces. In other words, at the time of submetering the spaces, you could do it using the prorate method you describe, in which case it would be preceded by a 180-day notice. See, ORS 90.537. It provides:

A landlord that converts to a submeter billing method under this section from the rent billing method described in ORS 90.532 (Billing methods for utility or service charges) (1)(b)(C)(i) may unilaterally, and at the same time as the conversion to submeters, convert the billing for common areas to the pro rata billing method described in ORS 90.532 (1)(b)(C)(ii) (Billing methods for utility or service charges) by including the change in the notice required by subsection (1) of this section.

However, the balance of this subsection provides that "(i)f the landlord continues to use the rent billing method for common areas, the landlord may offset against the rent reduction [that was a part of the pass-through conversion] an amount that reflects the cost of serving the common areas."

If your utility or service provider cannot provide an accurate cost for the service to the common areas, this subsection allow you to "...assume the cost of serving the common areas to be 20 percent of the total cost billed. However, this offset is not available if you choose to bill for the common areas using the pro rata method.

Your question raises the issue whether you may now convert the common area costs from the base rent to submetering. Here are your choices as I see them, keeping in mind you should vet this issue with your own lawyer:

• Convert to submetering solely for the common area, following the same protocol as you did at the time of converting the spaces. However, this will require you to know with some certainty the actual cost of sewer and water to the common areas. However, this approach is not expressly described in the statutes.
• Forego submetering - as you have done - and check with your utility provider to see if you can obtain an accurate cost for the common area service, and follow the same rent reduction and notice protocol under ORS 90.537, as if you were converting to submeters. If so, you could use the prorate apportionment as you propose. This would also require a "unilateral amendment" of the rental agreements. The only legal objection to this would be that it was not at the same time you converted the spaces to submetering.
• If your provider cannot provide an accurate cost, you could make the 20% offset assumption against the rent reduction taken when you first converted to submetering the spaces. You would follow the same unilateral amendment, and 180-day notice as the alternative above. I acknowledge that this offset is subject to distortion, since the 20% is against a rent reduction in the past. There may be an equitable way to arrive at a figure, but it would likely require some consensus of the residents.

Caveat: All of these protocols are based upon following ORS 90.537(5) as if they were occurring at the time of submetering the spaces. Since the statute does not expressly address common area conversion separate from the process when converting to submeters for the space, there is always the argument that it simply is not permitted. That is why I think you will need tenant buy-in. Or you could do it through a rule change, which would likely be safer than a "unilateral amendment". Again, be sure to address this with your own legal counsel. The above discussion should not be treated as legal advice.

Answer: This was covered in a December 2016 MHCO Article. The major change in the law since then was due to the elimination of 72-hour notices of nonpayment of rent. Now a 10-day notice must be issued. (MHCO does not have a form for 144-hour notices, but it too has been eliminated. It has been replaced by a 13-day notice.)  For partial payments, MHCO members do have access to "MHCO Form 12: Receipt and Agreement for Partial Payment of Rent" available on-line at MHCO.ORG.

Withour a legal agreement to make specific and timely installment payments, tenants are required to tender to the landlord the full amount of rent owed under the rental or lease agreement no later than the date provided. Without a proper written agreement, the landlord may refuse to accept the tenant’s tender of rent that is for less than the full amount of rent due.[1]

If landlord is willing to accept partial payments, doing so must strictly follow ORS 90.417. If so, the acceptance of a partial payment will not constitute a waiver under ORS 90.412 (Waiver of termination of tenancy) or the landlord’s right to terminate the tenancy for nonpayment of the balance of the rent owed. Notwithstanding any acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent.

However, the agreement must be in writing. It must specify the amount and date of the required payments. If the tenant fails to pay the balance due as agreed, landlord may issue a 10-day notice of termination under ORS 90.394 (Termination of tenancy for failure to pay rent). The written agreement should provide that the landlord may terminate the rental agreement and take possession under the eviction statutes (ORS 105.105  to 105.168) without serving a new 10-day notice under ORS 90.394 if the tenant fails to pay the balance of the rent by the agreed-upon time.

However, there are two important rules against giving the landlord rights under the written agreement that are more favorable than already permitted under the law. Specifically:

• It cannot permit the landlord to issue a termination under ORS 90.394 any sooner than would have been permitted had no rent been accepted; and
• The notice of termination must permit the tenant to cure it by paying the balance within the time period already allowed under ORS 90.394  (or by any date to which the parties agree, whichever is later.

Note that if the landlord already accepted a partial payment of rent after giving a nonpayment of rent termination notice under ORS 90.394, and then entered into a written agreement for installment payments, doing so will not constitute a waiver.

As always, before entering into a written agreement, landlords should consult with their legal counsel should they have any ques

[1]  Similarly, the landlord is not legally required to accept the tender of a late payment even if it is for the correct amount. However, if the rules or rental agreement provide for a late payment fee, I do not believe the landlord should refuse a late payment tender within the late-fee period. Can the landlord insist on payment of the fee with the tender of the late payment? My concern about doing so is the argument that the “fee” is not “rent.” I would not recommend refusing to accept any late payment unless there was a collateral issue involved, such as waiver – in which legal counsel should be consulted. If rent is tendered after issuance of the 10-day notice but before an eviction is filed, I would still advise my client to accept it. My belief is that once the court learns that rent has been tendered, albeit late, the judge would not likely grant an eviction. My belief is that the “3-strikes” rule under ORS 90.630(10) should suffice for habitual late payers. In all other case, granting some latitude (with collection of a late fee under the rental agreement of rules) should suffice in most cases. Some attorneys may disagree. Legal counsel should always be consulted if there are any questions.