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

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

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

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

Your alternatives seem to be the following:

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

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

Answer. Much depends on circumstances. Here are your options:

There are three acceptable methods:

(1) Personal delivery;

(2) First class mail; or

(3) Only if the lease/rental agreement permits for both landlord and tenant, either party may use "nail and mail." This allows a written notice to be sent from the landlord to the tenant by first class mail addressed to the tenant at the premises and a copy of the notice to be attached in a secure manner to the main entrance to that portion of the premises; and

Here are the rules for calculating the time periods, depending on the method of service:

(1) Where the time for compliance is measured in days, they are calculated by consecutive calendar days, not including the initial day of service, but including the last day until 12 Midnight of the last day.

(2) Where the time for compliance is measured in hours, they are calculated in consecutive clock hours, beginning immediately upon service.

(3) When "nail and mail" is used for a 72-hour or 144-hour nonpayment notice, the time period for compliance begins at 11:59 p.m. the day the notice is both mailed and attached to the premises. The time period ends 72 hours or 144 hours, as the case may be, after the time started to run at 11:59 p.m. on the day of mailing.

Here are some rules of thumb; they may not be for everyone, but they generally work for me. My approach is to assume that Murphy's Law is ever-present, so I err on the side of being too cautious.

1. When calculating days or hours, always add a few extra just to be safe. Just because it's called a "72-hour notice," doesn'tmean you can't add a few more hours. Same for 24-hour notices.
2. don't forget the additional 3-day period for mailing. It applies to virtually all written notices you give, from 30-day notices, to park closure notices. I frequently add five days rather than three.
3. If you're going to serve a written notice personally, take a witness, just to avoid the possibility of the resident denying service. If someone other than the tenant comes to the door, I'd think twice about making "substituted service," as it's too easy for the person answering to "forget," and you've now got an issue you could have avoided. I suggest finding out when the resident is returning, and come back. Never deliver the notice to a child or teenager - for obvious reasons. If they won't answer the door, don't think you can slip it under the door, behind the screen, or drop it in an open window. Just go back to the office and mail it regular mail.
4. Never, never, never use certified mail or any other form of delivery like UPS or Fed Ex.
5. Remember, if the written notice is properly addressed, stamped and posted, the law "presumes" receipt. While the resident can try to deny it, the "presumption" requires them to prove a reason for non-receipt, which is pretty difficult to do. I've never seen the argument work. A good precaution is to obtain a certificate of mailing from the post office, which confirms that you posted the letter.
6. I'm not a fan of nail and mail. Unless your rental agreement permits it both ways, i.e. from landlord to tenant, and vice versa,[1] you should not use this method. If you're insistent on using this method, don't forget the 11:59 PM rule.
7. don't forget to keep true copies of the notice. You'll have to attach it to eviction complaint, if the matter isn'tresolved by the notice.
8. "Measure twice, cut once." In other words, calculate the number of days or hours a couple of time, just to make sure you've got the proper amount of time. Have someone else review it, just to make sure.

Conclusion. If time is of the essence, and the resident will actually answer the door (not their 6-year old child, or a friend), I would say personal service will suffice. However, my strong preference is to mail all notices, making sure to add at least three days. I prefer this approach since the law presumes receipt, so long as it was properly addressed, stamped and posted. It also avoids the potential for a confrontation at the door.

[1] The MHCO complies with this requirement.

Earlier this week the 2015 Oregon Legislative Session adjourned.    This session was notable for two reasons - the first for passing MHCO's long awaited changes eliminating past due taxes on abandoned homes and the second for the tenacity of rent control to raise it's head in floor debates, a legislative work group proposal and amendments. 

The increase in the cost of housing  particularly in many of Oregon's urban areas manifested itself in a drive to bring forward rent control in various forms.  This will not be the last we hear of rent control as we head into 2016.  Considering that in many cases MHCO was able to defeat rent control by just one vote in committee raises concerns as we set our sights on the February 2016 Oregon Legislative Session and especially the 2017 Oregon Legislative Session if elections continue to go as badly as they have for the business community over the past four years. 

In the end, MHCO is thrilled with what we were able to accomplish in the 2015 Legislative Session - one of the best pieces of pro-landlord legislation in the last decade, but we have serious reservations where the Legislature is headed on issues that are of great concern to landlords and business owners. 

MHCO will be providing extensive information on the new tax rules for abandoned homes later this year at the MHCO Annual Conference as well as information on other issues in the 2015 Landlord Tenant Coalition Bill that passed in this Legislative Session.  The new laws do not go into effect until January 1, 2016.  New forms will be necessary - MHCO will have those available to members on-line later this year as well.

Finally, here is a summary of some of the legislation that MHCO worked to defeat this session.  Other than the Coalition Bill (HB 3016) there were no other bills that MHCO supported - that in itself is a sad commentary on this legislative session considering the thousands of bills introduced.

MHCO Legislative Summary - MHCO Defeated Proposed Legislation

HB 2564 - (Inclusionary Zoning) Permits local governments to impose conditions on approved permits that effectively establish sales price for up to 30 percent of residential development or limit purchase to class or group of purchasers in exchange for one or more developer incentives.

This bill was the source of a lot of angst this session - with rent control advocates mentioning the need for rent control during the House Floor debate on this bill.  In the Senate rent control advocate drafted a rent control amendment (dash 5) - amendment defeated by just one vote in committee.

HB 2573 - Authorizes residential tenant to install on premises and use electric vehicle charging station for personal, noncommercial use.  Likely to be re-visited in Feb 2016.

HB 3494 - Prohibits landlord from requiring applicant or tenant to declaw or devocalize animal otherwise allowed on premises or to advertise in manner that discourages application from potential applicant with otherwise allowed animal that has not been declawed or devocalized.  Fine up to $1,000.

HB 3076A - Requires Oregon Health Authority to analyze ground water contaminant data and provide education in problem areas.  Would have increased reporting requirements for manufactured home communities operating wells.  Likely to be re-visited in Feb 2016.

HB 3081 - Directs Department of Consumer and Business Services to adopt by rule standards to address conflicts of interest of manufactured structure dealers that are also residential landlords.

HB 3129 - Authorizes tenant to whom real estate has been leased by landlord to install and use electric vehicle charging station for personal, noncommercial use.

SB 592 - Repeals law that prevents local governments from imposing conditions on approved permits that effectively establish sales price for residential development or limit purchase to class or group of purchasers. 

This bill became the vehicle for a proposed Legislative Work Group on Manufactured Housing.  This amendment was defeated in committee by one vote. 

Answer. Let's brush up on Oregon's hazard tree law as it relates to landlord-tenant responsibilities:

1. Definitions.

• "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

• "Hazard tree" means a tree that:
  • Is located on a rented space in a manufactured dwelling park;
  • Measures at least eight inches DBH; and
  • Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future. (Italics and underscore mine.)

1. Resident Duties re Trees Located on Space. A resident shall maintain and water trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees.

• "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.
• "Removing a tree" includes:
  • Felling and removing the tree; and
  • Grinding or removing the stump of the tree.

1. Landlord Duties re Hazard Trees.

• Landlord shall maintain a hazard tree that was not planted by the current resident if the landlord knows or should know that the tree is a hazard tree;
• Landlord may maintain a tree on the rented space to prevent the tree from becoming a hazard tree;
  • Landlord must provide residents with reasonable written notice and reasonable opportunity to maintain the tree themselves.
• Landlord has discretion to decide whether the appropriate maintenance of a hazard tree is removal or trimming.
• Landlord is not responsible for:
  • Maintaining a tree that is not a hazard tree; or
  • Maintaining any tree for aesthetic purposes.
• A landlord must comply with the access provisions of ORS 90.725 before entering a resident's space to inspect or maintain a tree. [Generally, 24-hour notice. - PCQ]
• Subject to the preceding, a resident is responsible for maintaining the non-hazard trees on the resident's space at the resident's expense.
  • The resident may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the resident's space at the resident's expense;
  • If the arborist determines that the tree is a hazard, the resident may:
    • Require the landlord to maintain the tree as a hazard tree; or
    • Maintain the tree at the resident's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report.

The first question is whether this is a "hazard tree"? You say it is not, but based upon measurement, it is. Note that the statutory definition above says it is a hazard tree if it poses '_ an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future."

My take is that this is a hazard tree, since it meets the physical specs, and not only is capable of causing serious damage, but its root system already has. At the risk of oversimplification, botanically speaking, the tree is the entire plant, not just the above-ground portion. While it is does not sound like it is in danger of toppling on anyone or anything, it does sound as if its root system is interfering with the resident's sewage system.[1]

Again, at the risk of oversimplification, I don't believe the issue is who actually owns the resident's lateral sewer line. Why? Because I suspect that the sewer system was not installed by the resident - it was likely installed at the time the park was developed. It is in the ground, and the ground is owned by the landlord.

Moreover, I believe ORS 90.730 (Landlord's habitability duties) applies in this case. It provides:

(2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord's habitability duty under this section includes only the matters described in subsections (3) to (6) of this section.

(3) For purposes of this section, a rented space is considered uninhabitable if it substantially lacks:

(a) A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord; (Emphasis added.)

The roots of the tree are interfering with the operation of the resident's sewer system, and you as a landlord have a maintenance obligation '_to the extent that the sewage disposal system can be controlled by the landlord."

And if the tree is deemed to be a hazard tree because of the damage to the lateral servicing the resident's space, then ORS 90.730(4), would arguably apply, which provides that the failure to maintain it can constitute a separate habitability violation by the landlord.

Conclusion. Unfortunately, it appears to me that: (a) Absent some language in the hazard tree statutes indicating an intent to exclude that root systems, and (b) your statutory habitability duty to maintain the sewage disposal system, a strong case could be made that remediating the damage caused by the tree roots (regardless of whether it's a "hazard tree" and regardless of whether the resident technically "owns" the lateral - which I doubt) the cost of keeping the system clear of tree roots, is on your shoulders.

[1] Since I was involved with John VanLandingham and others in the drafting of this legislation, I can only speak for myself, but admittedly, it seemed our focus was on the above-ground risks, e.g. toppling trees or branches falling on residents, their homes and automobiles.

The owners and managers of a Midwest community recently agreed to pay $35,000 to settle a lawsuit filed by the Justice Department, alleging that they violated fair housing law by placing undue conditions on a resident’s request to live with her assistance animal and then refused to renew her lease.

The Backstory: The case is about a resident who moved into an 800-unit community, which allowed pets and assistance animals, but had a “no dangerous breeds” policy that prohibited pit bulls. Before moving in, the resident allegedly had been in treatment for mental health disabilities that stemmed, at least in part, from witnessing the traumatic deaths of her boyfriend and mother. A family member gave her a young pit bull, which her treating psychologist said helped alleviate the symptoms of her disability and was a “major and required part of her treatment program.”

She apparently didn’t mention the dog when she moved into the community later that year. When the community discovered the pit bull, the resident requested a reasonable accommodation so she could keep it as an emotional support animal. Allegedly, the community denied the request and told her to remove it.

What followed were communications involving the resident, community representatives, and their lawyers, and ultimately, a series of court proceedings. During the process, the resident produced documentation from her treating psychiatrist that the specific animal was necessary for her to be able to live there and essential to her recovery from the severe trauma she suffered. In an interview before a court reporter, the psychiatrist said much the same thing.

It was about half-way through the one-year lease term when the parties came to terms. In lieu of granting her requested accommodation, the community allegedly gave her two options: either immediately terminate her lease and get some rent back or keep the dog through the end of the lease, but with conditions. Allegedly, the conditions included obtaining an insurance policy to cover the dog, requiring the dog to wear an emotional support vest whenever he left her unit, and repaying the community for any harm caused by the dog.

According to the resident, she picked the second option, but a few months later, she received notice that her lease would not be renewed. Renewed negotiations were unsuccessful, and she moved out. 

After the resident filed a HUD complaint, the Justice Department sued the community for discrimination and retaliation against the resident on the basis of her disability.

The community denied the allegations, but the parties reached a settlement to resolve the matter. Without admitting liability, the community agreed to pay $35,000 to the former resident and adopt policies, including a reasonable accommodation policy that specifically addressed requests for assistance animals. Under the new policy, assistance animals are not subject to breed restrictions or required to wear vests or other insignia that identify them as assistance animals; residents are not required to pay any fees or obtain insurance as a condition of keeping assistance animals.

Lessons Learned: 

1.   Assistance Animals Are NOT Pets: Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, security deposits, or additional rent charges. Whatever your pet policy, you must consider a request to make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the community. That includes a request to keep a pit bull as an assistance animal—despite any policies banning so-called “dangerous breeds”—unless there’s evidence that the particular animal poses a direct threat to the safety or property of others.

2.   Requests for Assistance Animal Can Come Anytime: Don’t get thrown off because the resident makes a reasonable accommodation only after you discover she’s been keeping an animal in violation of your pet policy. Under fair housing law, reasonable accommodation requests may be made at anytime before or during the tenancy. The timing may be off, but it’s risky to deny the request—or make the resident jump through hoops—to overcome suspicions that she’s trying to get around your rules by falsely claiming a pet is an assistance animal. Instead, follow your standard policies for handling reasonable accommodation requests, including verification of the disability and need for the assistance animal if either or both are not known or readily apparent.

3.   Don’t Impose Extra Conditions to Allow Assistance Animals: Don’t require residents with disabilities to pay pet fees or get extra insurance coverage as a condition of allowing them to keep assistance animals. Conditions and restrictions that communities apply to pets may not be applied to assistance animals, according to HUD, though you do have recourse against residents for damages caused by assistance animals. HUD says you may require a resident to cover the cost of repairs for damage the animal causes to his unit or the common areas, reasonable wear and tear excepted, if it’s your policy to assess residents for any damage that they cause to the premises. Allowing for reasonable wear and tear, you may assess the costs against the standard security deposit charged to all residents, regardless of disability.

Obviously, if the elderly or infirm resident, or their family, sell the home before the resident transfers to an assisted care facility, the problem goes away. If not, i.e. the home is vacated and space rent is not paid, the landlord should try to determine the intent of the departing resident, either from the resident themselves, or their family.[1] Are they intending to "abandon" the home?[2] If the resident, or their family, intends to try to resell the home, and make space rental payments in the meantime, then there is probably room for an agreement. But if - as is all too often the case - the intent is to either to simply "walk away" or not make any payments until the home is sold, then the landlord must evaluate his or her alternatives.

When the Resident Leaves Under these circumstances, assuming that the resident or their family did not contact the landlord in advance, and there is no way to find out where they have gone, the only alternative is to issue a 72-hour notice for nonpayment

of space rent. If it is not paid, the FED must be filed, and if the resident does not show up, the court will grant a judgment of restitution. After the lapse of 7 days following issuance of the judgment of restitution, the landlord may commence an abandonment, and proceed to auction as permitted by Oregon law.

It is precisely because the landlord's alternatives are so limited, that it is important to try to determine, in advance, what is going on with the tenant. If they are sick or infirm, this means trying to contact a close relative or friend. Are they planning on leaving? Are they going into an assisted care facility? Are they working with a social worker? If so, what agency is it? Having the answer to these questions make it much easier on the landlord and ultimately the elderly tenant, when the time comes for the tenant to relocate because of advanced age or health.

When the Resident Acquires State Assistance Where the resident obtains state assistance, and that agency acquires lien rights in the home as a result, the landlord still has the right to enforce payment of the rent. Similar to the situation where the resident "walks away" if rent isn'tpaid, an eviction may be filed and abandonment commenced following 7 days after the court's issuance of a judgment of restitution. As discussed below, while the state agency has certain rights during the abandonment process, they are not any different than other lienholders. However, if the space rent is not paid, either by the tenant or the state agency, the landlord has the right to commence the eviction process, by first giving a 72-hour notice of nonpayment.

Dealing with the Estate Most estate attorneys and heirs, do not understand the statutory abandonment process. In a nutshell, the estate has substantially the same rights to resell the home under a storage agreement as a lienholder, except that the resale period lasts for 90 days or close of probate, whichever is longer. Unfortunately, in most cases where the resident has passed away, the attorney, if one has been retained, or the beneficiaries, if not, assume that they do not have to pay space rent until the home is sold. This is patently incorrect. If the estate does not return the signed storage agreement within 60 days following the issuance of the abandonment and storage agreement, the landlord may proceed to auction.

In those cases in which the state agency has a lien (e.g. the Oregon Department of Revenue where the personal property taxes are paid under the senior citizens' deferral program), they must be notified of the abandonment the same as any other lienholder. However, in many instances, the state agency fails to file its lien with the Department of Motor Vehicles ("DMV"), which is the primary source for landlords to determine whether there are any liens filed against the home. Unless the landlord has actual notice of the lien, the failure of the agency to record it with the DMV will likely prevent it from being notified of a pending abandonment.[3]

Conversely, if a landlord is notified that the state agency providing assistance to the resident intends to claim a lien, then he or she should make sure to give them notice, once the resident has left the home (with no intent to return) and the abandonment process has been started. In this manner the state agency will have to decide - like all lienholders - whether to sign the storage agreement and commence making storage fee payments, or (b) give up the right to resell the home on site, to satisfy the lien.

[1] A related problem arises where the elderly tenant leaves, after transferring possession (and sometimes ownership) of the home to a younger relative - without the landlord's consent. Assuming that the landlord has not consented or accepted rent from the unauthorized occupant, this is a violation of ORS 90.400(3)(d) and the landlord has the right to issue a 24-hour notice to the occupant of the home, and, if necessary, terminate the tenancy.

[2] By "abandonment" I mean that the resident has, or will leave, with no intent of returning.

[3] Although this issue has not been addressed in any Oregon appellate court case, it is hard to see how a landlord could be required to notify a state agency, if he or she did not know that the agency claimed a lien on the home. Unless or until ORS 90.675 is amended, it would seem incumbent on any state agency claiming a lien to become familiar with the statute and record their lien with the DMV.

By: Phil Querin, MHCO Legal Counsel

Current Oregon Law. ORS 90.680 is the statute governing the on-site sale of homes in a manufactured housing community. It previously contained no limitations on landlords who required, as a condition of tenancy, that residents selling their homes must enter into a consignment agreement with the landlord. That will change on January 1, 2016.

New Oregon Law. ORS 90.680 is now amended as follows:
1. It defines the term "consignment" to mean a written agreement in which a resident

authorizes a landlord to sell their manufactured dwelling or floating home in the

community for compensation.

2. It prohibits landlords from requiring as a condition of occupancy, that residents enter

   into consignment agreements with the landlord.

3. It prescribes the specific conditions under which a landlord may sell a resident's home

   on consignment:

a. The landlord must be licensed to sell dwellings under ORS 446.661 to 446.756;

i. The license may be held by a person other than the community owner, so long as there is common ownership between them;

b. The landlord and resident must first enter into a written consignment contract that specifies at a minimum:

1. The duration of the contract, which, unless extended in writing, may not exceed 180 days;

2. The estimated square footage of the home, together with the make, model, year, vehicle identification number and license plate number, if known;

3. The price offered for sale of the home;

4. Whether lender financing is permitted, and the amount, if any, of the

   earnest money deposit;

5. Whether the transaction is intended to be closed through a state-licensed

   escrow;

6. All liens, taxes and other charges known to be in existence against the

   home that must be removed before the resident can convey marketable

   title to a prospective buyer;

7. The method of marketing the sale of the home (e.g. signs posted in the

   community; Internet advertising; print publications, etc.);

8. The form and amount of compensation to the landlord (e.g. fixed fee

   with amount stated; commission percentage, etc.); and

ix. In determining the resident's net sale proceeds, the order by which the gross sale proceeds will be applied toward payoff of the liens, taxes, actual costs of sale, landlord compensation, and other closing costs.

c. Within 10 days after a sale, the landlord is to pay the resident their share of the sale proceeds, and provide a written accounting for all funds received;

d. The above-described process (i.e. through a written consignment agreement with landlord acting as the resident's representative) is the only permissible way a landlord may recover any commission, fee (however designated), or retain a portion of the sale proceeds of a resident's home in the community.

4. In cases in which a landlord is attempting to sell a home under ORS 90.680 and so is a resident in the community, the following new rules will apply:

1. If a landlord advertises a home for sale within the community, a resident selling their home may do so as well, by posting a sign in a similar manner and location;

2. A landlord may not knowingly make false statements to a prospective purchaser about the quality of a resident's home also being offered for sale;

3. Note: Nothing prevents a landlord from selling a home to a prospective purchaser at a price or on terms, including space rent, that are more favorable than the price and terms offered for homes offered by residents.

5. Miscellaneous:
a. If a landlord requires a prospective purchaser to submit an application for

occupancy, upon request from the purchaser, the landlord must provide, a copy

of the application;

2. Upon a prospective resident's request for a copy of the rental/lease agreement,

   the landlord may require payment of a reasonable copying charge;

3. If the prospective purchaser agrees, a landlord may provide these requested

   documents in an electronic format;

4. When a landlord considers an application for tenancy from a prospective

   purchaser of a resident's home, the landlord shall apply substantially similar credit and conduct screening to a prospective purchaser of a home from the landlord;

5. A landlord or resident who sells a home located inside the community is required to deliver title to the purchaser within 25 business days after completion of the sale;

6. If the sale by the landlord or resident includes paperwork whereby the seller is carrying back a contract or security interest and the purchaser is paying some or all of the purchase price with installment payments, where applicable, the landlord or resident is required to notify the county that the purchaser is responsible for property tax payments;

7. If a person violates ORS 90.680 three or more times within a 24-month period, a person damaged thereby has a cause of action against the violator for the damages caused as a result of the third or subsequent violation or $500, whichever is greater.

Answer. The Multnomah County Moratorium does not declare a “rent-holiday” or anything close. Rent is still due and payable. The only exception is that if there is a timely request for partial payments, and the tenant has an objectively verifiable proof of loss of cash-flow related to COVID, you and the tenant are encouraged to enter into an agreement for partial payments for a period of time. Keep in mind that the state courts are not hearing FED evictions for nonpayment of rent, so your options are limited. Reaching a repayment program ahead of time is better that not getting any rent money and not being able to do anything about it.

MHCO has issued a recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon).

Question.Regarding Form 13-A (Mult. Co.), what if the resident decides they cannot pay anything?  Is that acceptable? Is that what I put in the agreement?

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

In order to qualify, the resident needs to demonstrate a “substantial loss of income”, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic. Note, this includes loss of income related to County, State, and Federal restrictions imposed to mitigate the spread of COVID-19.

So what is your resident providing to establish the substantial loss of income? Presumably, if the resident is no longer employed, he/she can no longer pay the rent. If so, documentation or other information must be provided to establish this. If that is not the case, i.e. if there is no job loss, or it’s not related to COVID, or there is not a substantial loss of income, etc. they don’t qualify.

Keep in mind that if both residents are working and one loses their job for COVID-related reasons, this, of itself, does not automatically qualify them for partial rent payments. If the remaining resident is still working and generating income, you will want to explore how much rent can still be paid. Paying nothing should not be an option where the household is still generating some income, and the resident can pay a portion of the rent, but chooses not to.

Remember, whatever is deferred will have to be repaid within 6 months after the Governor’s Declaration of Emergency expires, so if the tenant is just trying to get out of paying anyrent, there is no real advantage to entering into the agreement today if it results in six months of rent abate, only to have to file an eviction the. The bottom line is that before you enter into the partial rent agreement, you should thoroughly vet the resident’s COVID-related issues and ability to pay at least something. However, as noted above, no Oregon courts are hearing nonpayment of rent evictions, so you alternatives are limited. 

Question.  Regarding having to demonstrate they have substantial loss of income due to the virus, can we:

• Ask to see their final pay stub and current bank statement so we can help figure out what they can pay us?  
•  Can we ask for a letter from their employer stating that they were laid off?  How are they supposed to prove they can't pay in full?

Answer.  Good questions. the Declaration of Emergency is not specific, except only to say that the proof has to be “through documentation or other objectively verifiable means.”

Here are the elements of proof as I see them:

• Is it COVID-related?
• Is there a substantialloss of income? 
• Does it prevent the resident from paying some or all of the space rent?

What you decide to accept as “evidence” is between you and the resident. But other than requiring that he/she provide sensitive, confidential, personally identifiable information (e.g. social security number) I submit that pay stubs, account information is OK, so long as the protected information is redacted, i.e. blacked out. An employer statement is probably unnecessary in most cases, as there would likely be some form of written or emailed announcement.

Question. The  Multnomah County Order says near the bottom that for landlords of communities within Multnomah County they should inform their tenants about the Moratorium. How should I do that?

Answer.I believe reliable information is your best approach so residents trust you as a source. MHCO has distributed material on the Multnomah County Moratorium, and developed two forms which are self-explanatory and follow the law. 

You want residents to know what the law is ahead of time. It is important to convey that the law does not “forgive” any deferred rent; there is no “rent holiday”; and any rent abatement must be supported by verifiable documentation or information showing a substantial loss of cash flow. Without such information, a tenant does not technically qualify for partial payments. 

Unless a tenant has lost their entire source of income, e.g. job loss and is unable to qualify for unemployment, most situations would seem to result in a possible wage reduction, rather than a total loss of income.

Question.Does the Moratorium apply to utilities?

Answer. As for utilities, here is the rule: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 

Question.  If residents do not get hold of me by the 1^stof the month, are we still under the obligation to enter into these agreements? 

Answer.  Only the Multnomah County form, 13-A requires the request to be made before the first of the month, since that is what the ordinance says. We developed Form 13-B (for areas outside of Multnomah County/City of Portland) and followed generally, Form 13-A. We did so because we believed it was a good approach. However, the Oregon Legislature has not developed a comparable law for areas outside Multnomah County/City of Portland – although we expect one shortly.

Accordingly, there are some differences between the two forms, one of which is that Form 13-B does not expressly require that the request must be made before the first of the month.

Nevertheless, assuming your community is inside the Portland/Multnomah County area, and rent has not yet been paid, say for April, and the resident requests to make partial payments, I suggest that a certain amount of latitude is important during these tough times. In other words, if the resident is a legitimate candidate for partial payments, you should consider having them sign Form 13-A. 

Question. Do we fill out either Form 13A or 13B each month?

Answer.  No. Form 13-A (Portland/Multnomah County) lasts for the duration of the Moratorium because that is what the law says; Form 13B last for the duration of the “Concession Period” which is the amount of time both landlord and resident agree rent shall be abated. 

However, directly above the resident’s signature in both forms, the following provisoappears in bold print:

By signing below, Resident certifies that the documentation or other objectively verifiable information supporting a substantial wage loss is true and correct to the best of his/her knowledge. In the event that through other income or employment, Resident’s wage loss is reduced or eliminated, Landlord will be promptly notified, and this Agreement shall either be terminated or modified accordingly.

Question. I've had my first call regarding nonpayment of rent.  The daughter called me to say her mother had been laid off.  She said the Governor said they have six months to pay rent.  I cautioned her that we needed some proof of wage loss, and if so, the parents would need to enter into an agreement for partial payments.  She said we can't evict them. I said not now, but eventually if rent isn't paid an eviction would occur.  
 

I don't think this conversation went very well.  A script of what we should be asking for or saying would help - even just bullet points so I know I am doing it correctly?

Answer. We cannot develop a script for many reasons, the first of which all circumstances can vary. However, I believe the following information distills exactly what landlords and residents can and cannot do: - but you should not treat tenant requests with a one-size-fits-all approach.
 

• The Multnomah County Moratorium does not declare a “rent-holiday”;
• Rent is still due and payable. 
• Deferred rent is not forgiven;
• The only exception to payment of full rent is a timely request for partial payments, in which case the tenant must establish with reasonable evidence:
  • An objectively verifiable proof of substantial loss of cash-flow;
  • It must be related to COVID;
  • MHCO has recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon);
  • Deferred rent must be repaid with 6-months after the Moratorium ceases in Form No. 13A (Multnomah County)  and an agreed-upon period of time in No. 13B (Rest of Oregon);
• Oregon courts are not hearing FED evictions for nonpayment of rent for the time being – we don’t know how long that will last;
  • If the resident engages in some activity that endangers the health, safety and welfare of the residents, management, or visitors/guests, you should check with your county court to see if a proceeding would be timely heard if you filed for eviction.
• For utilities: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 
• The above rules are fluid, and we do not yet know what the Oregon Legislature might do. Once that occurs, we anticipate having to make adjustments in the current rules upon which the above information is based.

According to the American Psychological Association, “Don't let your fear of meddling in someone else's business stop you from reporting your suspicions. You could be saving someone's life. . . ”

You can help. You do not need to evict. You can help your abused resident oust the abusive caregiver immediately.  You can report, help with “move-out” orders, “stay-away” orders, and other relief for your abused residents in your parks. 

■ California Mobilehome Residency Law’s 

Absence of Protection for Seniors Can be 

Supplemented with Management Help (E.g., 

Elder Abuse and Dependent Adult Civil Protection

Act (EADACPA), Domestic Violence Prevention Act (DVPA)

     The common wisdom is that evicting an abusive co-occupant, even a criminal, is fraught with difficulty and uncertainty. But the elder subject to an abusive caregiver, or other abusive household members, can seek an order to oust them by court order and without notice. The California Mobilehome Residency Law (Civil Code §§798, et seq.) (“MRL”) is no help here. The MRL is a prime enabler of elder abuse by its “hands off” policy to any occupants, and its unintended consequences welcome every predatory opportunist who cajoles his or her way into a senior’s coach. This while management is handcuffed from interceding with prevention, remedies, or even effective detection. But if we choose, we can do plenty to help the resident once we know.

     Evictions take forever.  Management must always wait for a 60 day notice to expire (once prepared and served) to even file suit to evict the abuser. That 60 day period enables the abuser to intimidate, terrify and coerce witnesses not to testify. Horrified, residents take shelter, lock themselves in and become prisoners in their homes. When WMA introduced legislation to evict such violent criminals, the State Senate Judiciary Committee killed the bill: not enoughreason to give management this remedy. So, the park owner’s hands remain tied for 60 days after notice of termination of possession based on outrageous abuse or even dangerous felonies (all on a “substantial annoyance” grounds) if anyone will testify as to the annoyance. But an at-risk elderly frail resident can go to court nowand obtain a “move-out” order without notice. We, as management, can educate and help.

     Move-Out Order Issue NOW- Without Notice.  In summary, management can assistthe abused or harassed senior and help get to court and get the abusive caregiver out NOW. Many residents cannot afford a lawyer, and often, it is the family that is responsible for the abuse. Management can do more than report. Maybe senior protective services will respond, maybe not. But court forms are designed for non-lawyers. We can help with these preprinted forms–and attend court with the resident, offer to be a witness, and also report to the police, County agencies and other family. As for courts, there are no filing fees or service costs.

     As the numbers of elder victims climbs, understanding management options will become a customary “best” management practice: a sign of good quality management, and a reflection of care and concern for frail and vulnerable residents. Actively enhancing lifestyle and atmosphere has always been a hallmark of the manufactured housing industry. 

     We can help end pain and misery to elder abuse victims of caregivers, family and deceitful predators. There are ways to bring immediate relief to desperate, life-threatening situations which usually are never detected, and which the Mobilehome Residency Law does not allow a park owner to initially prevent.

■ The Scope of the Mushrooming Epidemic:

For Every Reported Elder Abuse Case, 24 More are Unreported.

     The New York State Elder Abuse Prevalence Study found that for every case known to programs and agencies, 24 were unreported. Another reports that 1 in 10 older adults report emotional, physical, or sexual mistreatment, or neglect. Often, physical, emotional or psychological abuse accompanies financial abuse. Neglect and abandonment, for example, when the kids get a power of attorney and ability to withdraw money. 

     For about 40 years now, from 55+ to “all-age” parks, owners and management bring me problems that they observe or their residents bring to them. This is because of genuine concern, not out of sense of legal duty or obligation.  Because they care.       

■ Warning Signs and Indicators of Caregiver Elder Abuse.

     Watch for the following from your residents. There are signs that elder abuse may be occurring at the hands of the caregivers residing on the space. Bear in mind that the homeowner may not be capable of telling us of the abuse. The elder may also be ashamed, fearful of retaliation or punishment, or somehow assuming some of the blame for his or her own condition. 

     Who are The Exploitive and Abusers?  They May be Closer Than They Appear.

■        Family members, abusive children, nieces, nephews, past or present paramours, homeless 

■        Caretaker/caregiver/care custodian - any person who has the care, custody, or control of or who stands in  position of trust with, an elder or a dependent adult.

■        Banks, mortgage brokers, lenders

■        Insurance companies and their agents

■        Financial advisors and life agents

■        Trust mills

■        Real estate agents, title and escrow companies

■        Attorneys (and others holding themselves out as having legal expertise–tax preparers, paralegals, assistants, J.D. graduates)

■        Scams – lotteries, sweepstakes

■        Home repair, unsolicited work

■        Sweetheart scams

SUMMARY OF SIGNS OF ELDER ABUSE

Physical Abuse

■ Unexplained signs of injury such as bruises, welts, scars, broken bones or sprains

■ Report of drug overdose or apparent failure to take medication regularly

■  Signs of being restrained, such as rope marks on wrists

■  Caregiver's refusal to allow you to see the person alone

■ Physical or chemical restraints for caregiver's convenience 

■ Repeated unexplained injuries

Emotional Abuse

■ Threatening, belittling, or controlling caregiver behavior that you witness

■ Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling

■ Uncommunicative and unresponsive

■ Unreasonably fearful or suspicious 

■ Lack of interest in social contacts

■ Evasive or isolated 

■ Unexplained or uncharacteristic changes in behavior

■ Unexplained venereal disease or genital infections

■ Torn, stained, underclothing

Financial Exploitation

■ Significant or unauthorized withdrawals from the elder's accounts

■ Sudden changes in the elder's financial condition

■  Items or cash missing from the household

■ Suspicious changes in mobilehome title, legal owner, wills, power of attorney, titles, and policies

■ Addition of names to the elder's signature card

■ Unpaid bills or lack of medical care, although the elder has enough money to pay for them

■ Financial activity the elder couldn't have done, such as an ATM withdrawal by a bedridden account holder

■ Unnecessary services, goods, or subscriptions

■ New caregiver cars in the driveway; new high frequency of deliveries

■  Evidence of inadequate care when bills are paid in full

Elders May Contribute to Abuse, Secreting of Abuse, Fail to Recognize or Report

■  May lack cognitive ability to recognize abuse and/or their rights to safety and protection 

■ May be in denial; distorted view of treatment

■ May not have functioning neuro-pathways; not feeling normal pain, discomfort

■ May be incapacitated– unable to message out

■ Are often reluctant to report or prosecute

■ “Report me and I will put you in a home”

■ Afraid of removal from home

■ Fear of retribution

■ Dependence on others to assist with activities of daily living and personal care;

■  Communication or physical impairments which may limit ability to verbally or physically defend against a perpetrator and disclose abuse

■ FIVE (5) IMMEDIATE ACTIONS TO CONSIDER NOW:

★  CONTACT FIRST RESPONDERS: USUALLY, ADULT PROTECTIVE SERVICES.

                        ■             Adult Protective Services (“APS”) can provide investigations, needs assessments, remedial and preventative social work activities, food, transportation, emergency shelter.

■          Cross report to police for criminal restraining orders.

■          State mandates that each County establish a 24/7 emergency response adult protective services program to take and investigate reports of abuse of an elder or a dependent adult. Cal. W&I Code §15763)

■          “Protective services” include investigations, needs assessments, remedial and preventive social work activities; the necessary tangible resources such as food, transportation, emergency shelter, and in-home protective care; the use of multi-disciplinary teams; and a system in which reporting of abuse can occur on a 24- hour basis. (Cal. W&I Code §15760).

Keep Adult Protective Services Honest–Insist They Do Their Jobs: Mandatory Effort to Investigate

■          When an allegation of abuse of an elder or dependent adult is reported; and,

■              The agency social worker has reason to believe an elder or dependent adult has suffered or is at substantial risk of abuse pursuant to  Cal. W&I Code §15630; 

■          The social worker is required to attempt to obtain consent to:

–          enter and meet privately with the elder or dependent adult in the residence or dwelling in which the elder or dependent adult resides, 

–          without the presence of the person's caretaker, attendant, or family or household member, unless the person requests the presence of the attendant, care giver, or family member, or refuses to meet with the social worker. (Cal. W&I Code §15762)

■          APS action requires victim consent unless a Penal Code violation has been alleged. Cal.  W&I Code § 15636)

■          If the victim is incapacitated and cannot legally give or deny consent to protective services, APS may initiate a petition for temporary conservatorship.

★  HELP RESIDENT GET ORDER TO IMMEDIATELY OUST THE ABUSER. 

The courts make the applications, declarations and orders available as consumer friendly forms. No lawyers needed. Lawyers may be helpful in many circumstances. But do not let the absence of a lawyer stop a valid  application to the court from being made. 

Help the resident obtain a Move-Out Order (“Elder Abuse Restraining Order”) under the Elder Abuse and Dependent Adult Civil Protection Act. Originally, the Elder Abuse Act was designed to encourage the reporting of abuse and neglect of elders and dependent adults and continues to be a major component of the Elder Abuse Act as it stands in its current form today.

            The Elder Abuse Act now permits and even requires certain heightened remedies subject to statutory criteria and limitations, including attorney's fees, punitive damages, pain and suffering damages even after the abused elder's death, and fees for a conservator who successfully brings an elder abuse claim.

■          EADACPA allows a court to issue an order protecting an elder or dependent adult from further abuse by an individual including ordering a move-out from the property.  Cal. W&I Code §15657.03(c) provides that an order may be issued with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, proof of a past act or acts of abuse of the petitioning elder or dependent adult. 

The evidence of past abuse is sufficient even without a particularized showing of evidence or risk that  wrongful acts will continue or be repeated.

■          Does Your Resident Qualify? In order to obtain an Elder Abuse Restraining Order, or EARO, the person requesting the order:

■          Must be an elder or dependent adult;

■          Must have suffered abuse.

■               An “Elder” is one who is 65 years of age or older.

■          For a Move Out Order, Must be a Legal or equitable Owner, and Defendant cannot be sole owner. 

■          Also included is the “Dependent Adult”, defined as a person between the ages of 18 and 64 who has physical or mental limitations that restrict the person's ability to carry out normal activities or to protect his or her rights.

■          If the Resident hires counsel, there is an entitlement to attorney’s fees. No reason park owner cannot supply counsel with reimbursement agreement. There is a right to recovery of attorney’s fees.

■          Does Your Resident Qualify for a Move Out Order?  The court may issue a restraining order excluding the abusive caregiver (including family members) from the resident’s home on a showing of the following:

■          Proof that the resident has a right of possession.

■          Proof that the abusive caregiver assaulted or threatens to assault the resident or other named family or household member including a conservator.

■          Proof that physical or emotional harm would otherwise result to the person to be protected.

■           After the restraining order is issued (without notice), the court may issue, after notice and hearing, an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner.

■          An order excluding the abusive caregiver from the dwelling is permitted, except not if legal or equitable title to, or lease of, the residence is in the sole name of the abuser, or is in the name of the party to be excluded and any other party besides the petitioner. Cal. W&I Code §15657.03 (b) (3) (B).

The courts provide pre-printed forms. This makes it easier to go to court and get the orders. The courts are familiar with the forms and often provide relief with the right language. Of course, management can assist in the preparation of the papers, if the resident is unable to do so in a winning fashion. 

The law states that (Cal. W&I Code §15657.03(d)) on filing a petition for protective order, “the petitioner may obtain a temporary restraining order.” The law says that an injunction is available without notice if:

■          It appears that great or irreparable injury will result before the matter can be heard on notice. 

■          The resident or his or her attorney certifies one of the following: 

–          That within a reasonable time prior to the application the applicant informed the opposing party or the opposing party's attorney at what time and where the application would be made. 

–          That the applicant in good faith attempted but was unable to inform the opposing party and the opposing party's attorney, specifying the efforts made to contact them. 

–          That for reasons specified the applicant should not be required to so inform the opposing party or the opposing party's attorney.

Note, that the court may grant a an elder abuse restraining order on a preponderance of the evidence.

★         HELPKICK-OUT THE ABUSER!!

(DOMESTIC VIOLENCE PREVENTION ACT– DVPA). 

Your resident may seek a DVPA “move-out” order to immediately oust the abusive, dangerous or harassing caregiver. The “kick out” order forces an ouster of an abusive caregiver.  An order can be issued to restrain contact either directly or indirectly:

■         By mail or otherwise, 

■         Coming within a specified distance of, or

■         Disturbing the peace of the other party.  Cal.Family Code §6320, 6211.

            The law provides that a court may issue an order, without notice, to exclude a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence. “Domestic violence” is abuse perpetrated against spouses, co-habitants, children and blood relatives within the second degree.  But the order may issues regardless of the owner of the property. 

            Types of “domestic violence protective orders” includes an order enjoining specific acts of abuse (Cal.Family Code §6320), excluding a person from a dwelling (Cal.Family Code §6321) and enjoining other specified behavior. (Cal.Family Code §6322).

■         For an order excluding a party from a dwelling, the following proof is required:

--         The resident has a right to possess the mobilehome; 

--         The resident’s spouse or significant other has assaulted or threatened to assault the abused resident,  child, or any person that is under the resident’s care, custody, and control;

--         If the exclusion order were not granted, physical OR emotional harm would otherwise result. 

While title ownership is not required, still, the relationship to the victim is a requirement must be established.  The resident must reasonably show that if the order were not granted, that physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party. (Cal.Family Code §6321)

■   What is  “Abuse”within the meaning of the DVPA? (Cal.Family Code §§6203 (a), (b), (c), (d).)

--         Intentionally or recklessly causing or attempting to cause bodily injury; or

--          Sexual assault; or

--         “Reasonable apprehension” of imminent serious bodily injury to person or

 another; or

--         Engaging in any behavior that has been or could be enjoined

 (Cal. Family Code  §6320).

Thus, the requisite “abuse” need not be actual infliction of physical injury or assault.

★         HELPGET A HARASSMENT INJUNCTION!! 

CAL. CODE OF CIVIL PROCEDURE §527.6

Civil injunctive scheme has a separate procedure to prevent civil harassment to prevent unlawful violence, threats of violence and suffering of emotional distress. (Cal. Code of Civil Procedure §527.6).

■   Court forms are available: ttp://www.courts.ca.gov/documents/ch100.pdf

■   Civil injunction requires demonstrating imminent irreparable harm, probability of success on the merits and a balancing of equities. An elder who has suffered financial abuse may seek a protective order, including a TRO:

            --         Enjoining someone from abusing, intimidating, molesting, attacking, stalking, threatening, sexually assaulting, battering, or harassing the petitioning elder,

            --         Preventing the destruction of the elder’s personal property, and

            --         Excluding someone from the elder’s home.

            ■   Family members residing in the home with the elder and caregivers can be added as protected parties to receive the full protection of the temporary restraining order.

★         HELPARREST A “SHORT TERM” ABUSER, GET JUDGMENT FOR POSSESSION FOR LONGER TERM ABUSER (CAL. CIVIL CODE §1946.5)

■              If there is a single lodger in the home:  Your resident can seek to oust the abusive occupant, boarder, lodger or caregiver.  Cal. Civil Code §1946.5 applies, only, if requirements are satisfied.

            --         The mobilehome must also be occupied by the resident; 

            --         The resident retains a right of access to all areas of the mobilehome and have overall control; 

            --         The abusive person is the sole, other, occupant, and 

            --         The abusive person must have contracted either for room, or room and board.

            ■         If all of the above conditions apply, the law prescribes an expedited procedure to bring about the removal of the lodger.The resident may terminate tenancy by serving written Notice of termination. The length of time must be equal to the tenancy period (e.g., 30 days for a month-to-month).  Note the occupant has no tenancy rights and is not subject to the MRL. 

            ■         At the expiration of the required Notice period, the resident must file an action for unlawful detainer. For short term occupants, the occupant can also be arrested if required conditions are met. A private person's arrest is authorized, on condition, for violation of Penal Code §602.3 (an infraction). 

            ■         In summary, if the situation involves a single occupant, the resident can make a private person arrest for Cal. Penal Code §602.3 in lieu of proceeding through the eviction process.  Penal Code§602.3 states:

  (a) A lodger who is subject to Section 1946.5 of the Civil Code and who remains on the premises of an owner-occupied dwelling unit after receipt of a Notice terminating the hiring, and expiration of the Notice period, provided in Section 1946.5 of the Civil Code is guilty of an infraction and may, pursuant to Section 837, be arrested for the offense by the owner, or in the event the owner is represented by a court-appointed conservator, executor, or administrator, by the owner's representative. Notwithstanding Section 853.5, the requirement of that section for release upon written promise to appear Shall not preclude an assisting peace officer from removing the Person from the owner-occupied dwelling unit.

(b) The removal of a lodger from a dwelling unit by the owner pursuant to subdivision (a) is not a forcible entry under the provisions of Section 1159 of the Code of Civil Procedure and Shall not be a basis for civil liability under that section.

            * * * 

            (f) This section applies only to owner-occupied dwellings where a single lodger resides. Nothing in this section shall be construed to determine or affect in any way the rights of persons residing as lodgers in an owner-occupied dwelling where more than one lodger resides.

■              No “Good Samaritan” standing:  Management is not entitled to be a party to assist the resident. But we may be of assistance and help save a life. 

There is no “Good Samaritan” standing to help an abused senior escape elder abuse. A park owner cannot assert claims directly for residents. Management can report claims and keep up the pressure to insist on positive and prompt action. As revealed by various cases of recent elder abuse, not even the agencies touting their dedication to ending elder abuse take any action in very clear cases. 

There are limits as to who may have standing to bring an elder abuse action on behalf of an alleged victim during the elder’s lifetime.

            The EADACPA supports third-party standing for certain representativesto bring an elder abuse claim on behalf of an abused elder while he or she is still alive. Such as conservators. But not many others, including concerned family members. There is also no “Good Samaritan” standing, which would allow concerned persons to intercede and seek relief.

★         YOUR RESIDENT HAS THE RIGHT TO DEMAND RETURN OF PROPERTY

WRONGFULLY TAKEN–ITSELF AN ACT OF ELDER ABUSE¹

■         The elder or a “representative of the elder” may demand the return of real or personal property from a person or entity who took, secreted, appropriated, obtained, or retained, or assisted in those acts when the elder or dependent adult lacked capacity or was of unsound mind.

■        The failure to return the property on demand gives rise to a separate claim for financial elder abuse, even if the original taking was not financial elder abuse within the meaning of EADACPA.

★        DEFINITIONS, LAWS, REGULATIONS, FURTHER INFORMATION 

              ■  What is Elder Abuse??  

Cal. W&I Code§15600 et seq.defines elder abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment resulting in physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. This definition applies to elders and dependent adults. Cal.W&I Code§15610.63:  

As defined by Penal Code, “physical abuse” includes: 

■  Assault, battery, sexual assault, battery or rape, 

■  Prolonged or continual deprivation of food or water,

■  Use of physical or chemical restraints for punishment,

    convenience, or without or beyond the scope of the doctor's order.

■  What Is “Neglect” And “Self-Neglect”?

“Neglect”means either of the following:

■ The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

■  The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

■  Neglect includes, but is not limited to, all of the following:

■  Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

■  Failure to provide medical care for physical and mental health needs.

■  Failure to protect from health and safety hazards.

■  Failure to prevent malnutrition or dehydration.

■ Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4) for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

         ■  What is “Isolation” ? 

“Isolation”means any of the following:

■ Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.

■  Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.

■ False imprisonment, as defined in Section 236 of the Penal Code.

■ Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.

         ■  What is “Financial Elder Abuse”?

“Financial abuse”of an elder or dependent adult occurs when a person or entity does any of the following:

■  Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

■ Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

■ Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence.

■ A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.

■ A person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.

■  Watch for “Powers of Attorney”  as Another Form of Elder Abuse

Powers of attorney are a frequent tool of abuse. These are low cost, easy to execute, can grant very broad powers and available on the internet without the need for legal counsel. The “POA” often grants the agent the same broad general powers of a Trustee but, unlike revocable trusts, generally lack provisions defining duties owed by the agent to the principal.  Because general POAs are not tied to particular assets, there may be multiple conflicting instruments empowering multiple agents.

■  Care-Giver Cannot Take from Estate of Deceased Resident 

California  law prohibits bequests to caregivers–they are barred from receiving anything from a homeowner.   A caregiver cannot move in with the hope of convincing residents to give them property after death. Cal. Probate Code §§21360 -21392. A caregiver, or "care custodian,"  means any ". . . person providing health services or social services. . . " Cal. W&I Code §15610.17(y). Fraud or undue influence is presumed if a bequest is made. Cal. Probate Code §21380(a)(3). The bequest is invalid.

Caregivers Can Steal Our Residents Blind (and do). Do they try to be signed on title for a "quick flip" of the mobilehome? Nothing stops that. And management must approve the buyer and not interfere with a sale. 

■ Conclusion: Make A Difference 

The expansive rights of “care-givers” and “companions” is a product of a pro-mobilehome-resident legislature that actively prevents park owners from ejecting even serious criminals. Moreover, the potential for resident abuse is drowned out by claims that owners will abuse such a remedy. So, the needy continue to suffer for sake of appeasement of tenants, who oppose anythinga park owner proposes. Usually, we do not evict without resident support. 

Plainly, the probability of resident abuse increases as the numbers of retirees grows in leaps and bounds. These people live in your parks. The additional occupant has an open invitation for interloping, domineering, and controlling the frail resident.  All these visitors–usually abusive family--are empowered to quash the free will of your frail resident, take the check book and lock them away. And the MRL provides no management rights to approve, affect or detect elder abuse. Management has no ability to intervene even if requested by a resident.

Watch for signs of elder abuse. Report it. You could be saving someone's life. Remember: The resident has five (5) options which can be pursued as soon as discovered.

Management’s powers of observation are therefore needed to report and persistently complain if needed. When objective evidence tells your instincts that something is “just not right,” report it and ask questions. Legally, is there a duty to do so? Absolutely not. But that is not us. We are in business to serve.

Answer. The hazard tree legislation is relatively new; it was passed by the Oregon Legislature in 2013. Here is a summary:

1. Definitions.

• "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

• "Hazard tree" means a tree that:
  • Is located on a rented space in a manufactured dwelling park;
  • Measures at least eight inches DBH; and
  • Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.

1. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act.

1. Resident Duties re Trees Located on Space. A resident shall maintain and water trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees.

• "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.
• "Removing a tree" includes:
  • Felling and removing the tree; and
  • Grinding or removing the stump of the tree.

4. Landlord Duties re Hazard Trees.

• Landlord shall maintain a hazard tree that was not planted by the current resident if the landlord knows or should know that the tree is a hazard tree;
• Landlord may maintain a tree on the rented space to prevent the tree from becoming a hazard tree;
  • Landlord must provide residents with reasonable written notice and reasonable opportunity to maintain the tree themselves.
• Landlord has discretion to decide whether the appropriate maintenance of a hazard tree is removal or trimming.
• Landlord is not responsible for:
  • Maintaining a tree that is not a hazard tree; or
  • Maintaining any tree for aesthetic purposes.
• A landlord must comply with the access provisions of ORS 90.725 before entering a resident's space to inspect or maintain a tree. [Generally, 24-hour notice. - PCQ]
• Subject to the preceding, a resident is responsible for maintaining the non-hazard trees on the resident's space at the resident's expense.
  • The resident may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the resident's space at the resident's expense;
  • If the arborist determines that the tree is a hazard, the resident may:
    • Require the landlord to maintain the tree as a hazard tree; or
    • Maintain the tree at the resident's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report.

1. Tree Obstructing Removal of Home From Space. If a manufactured home cannot be removed from a space without first removing or trimming a tree on the space, the owner of the home may remove or trim the tree at the owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the home.

1. Use of Landscape Professional. The landlord or resident that is responsible for maintaining a tree must engage a landscape construction professional with a valid landscape license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more.

1. Access to Resident's Space [ORS 90.725].

• An "emergency" includes but is not limited to:
  • A repair problem that, unless remedied immediately, is likely to cause serious physical harm or damage to individuals or property;
  • The presence of a hazard tree on a rented space in a manufactured dwelling park.
• An "unreasonable time" refers to a time of day, day of the week or particular time that conflicts with the resident's reasonable and specific plans to use the space.
• "Yard maintenance, equipment servicing or grounds keeping" includes, but is not limited to, servicing individual septic tank systems or water pumps, weeding, mowing grass and pruning trees and shrubs.
• A landlord or a landlord's agent may enter onto a rented space to:
  • Inspect or maintain trees;
  • A landlord or the landlord's agent may enter a rented space solely to inspect a tree despite a denial of consent by the resident if the landlord or the landlord's agent has given at least 24 hours' actual notice of the intent to enter to inspect the tree and the entry occurs at a reasonable time.
  • If a landlord has a report from an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture that a tree on the rented space is a hazard tree that must be maintained by the landlord under this Act, the landlord is not liable for any damage or injury as a result of the hazard tree if the landlord is unable to gain entry after making a good faith effort to do so.
• If the resident refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement pursuant to ORS 90.630 (1) and take possession in accordance with the Oregon eviction statutes. In addition, the landlord may recover actual damages.

8.Statement of Policy. It shall include the facility policy regarding the planting of trees on the resident's rented space. [See ORS 90.510]

Discussion. As you can see from the above, the definition of a hazard tree relates to whether it poses an unreasonable risk of serious physical harm or damage to individuals or property in the near future. The size of the tree alone, i.e. exceeding eight inches or more DBH, does not, in itself, make it a hazard tree; there must be potential for injury or damage in the near future.

Secondly, you will note that the hazard tree statutes make no distinction as to what part of the tree causes damage or injury. Although I had some involvement, along with John Van Landingham and others, in the creation of the legislation, speaking for myself, I was focused on the tree or branches falling on a home or resident. I was not thinking about damage from root systems.

Third, a landlord's removal obligation for hazard trees speaks to felling and removing them, and removing or grinding the stumps. Again, speaking only for myself, I was not thinking about tree roots that might remain after the stump is removed. (As a layperson, I think of the stump as the unremoved portion of the downed tree, and that portion below ground necessary to return the ground to its original level, sans the tree. But I certainly didn't focus on requiring that landlords remove root systems.

All of this is to say that my reading of the hazard tree statutes seems to make no distinction between damage above or below ground. Moreover, I suspect we would agree that damage to the foundation of a resident's home, could fall within the definition of what constitutes a hazard tree.

Remember that pursuant to ORS 90.730(4), the failure to maintain a hazard tree can constitute a habitability violation for which a tenant could bring a claim against their landlord.

Conclusion. Unfortunately, it appears to me that absent some language in the hazard tree statutes indicating an intent to exclude that portion of a tree below ground, i.e. its root system, a case could be made that remediating the damage caused by a hazard tree to a resident's home, or the cost to relevel it, is on your shoulders.

This does not mean, however, that the root systems of all felled hazard trees need to be removed. Once the tree is downed, and the trunk removed, the root system will not (as I understand it[1]) continue to grow. That being the case, if the roots are not posing a danger to a resident's space or the common area, there should be little reason to remove it.

The take-away here, is that landlords should be proactive in assessing hazard tree issues. This may include inspection of resident spaces. And when evaluating risk, landlords should look down, as well as up.

One interesting question, which I will not opine on here, is what a landlord should do about an otherwise healthy tree that is least eight inches DBH, if its root system poses, or could pose, a risk of damage to a resident's home. Must the tree be removed now?

[1] I suspect the major exception is bamboo trees, whose root systems seem to have a zombie-like life of their own.