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Answer. Oregon law requires that unless exempted, an individual must use a "mortgage loan originator" ("MLO") [e.g. mortgage bankers or mortgage brokers] license if he/she:
- Takes a residential mortgage loan application; or
- Negotiates the terms or conditions of a residential mortgage loan.

It is the second of these two requirements that affect you as a park owner re-selling formerly abandoned homes. You must either use a MLO or be covered by an exemption. However, as you will see under the Oregon MLO laws below, the statute is not limited only to "abandoned homes" - just "previously owned homes."

The Safe Act. The federal Secure and Fair Enforcement for Mortgage Lending Act ("S.A.F.E. Act") of 2008 requires that MLOs register with the Oregon Department of Business and Consumer Services ("DCBS"). As required by the S.A.F.E. Act, all states must adopt their own set of laws governing MLOs. Oregon's version is found at ORS 86A.200 to 86A.239. The Consumer Finance Protection Bureau (CFPB"), a Dodd- Frank created mega-agency, and DCBS have taken the position that the S.A.F.E. Act applies not only to third-party loans, but also to seller-carried transactions, including manufactured homes both inside and outside of parks.

Oregon MLO Laws. An individual may not engage in business as a mortgage loan originator in Oregon without first:
- Obtaining and maintaining a MLO license; and
- Obtaining a unique identifier from the Nationwide Mortgage Licensing System and Registry ("NMLS").

Exemptions to MLO Laws:
- A registered MLO acting within the scope of their employment;
- One who offers or negotiates terms of a residential mortgage loan with or on behalf of the individual's spouse, child, sibling, parent, grandparent, grandchild or a relative in a similar relationship with the individual that is created by law, marriage or adoption;
- One who offers or negotiates terms of a residential mortgage loan that is secured by a dwelling that served as the individual's residence;
- An Oregon-licensed attorney [subject to limitations]:
- An individual licensed as a manufactured structure dealer under ORS 446.691 and who:
o Offers or negotiates terms of a residential mortgage loan related to a sale for occupancy of a previously owned manufactured dwelling in a manufactured dwelling park three (3) or fewer times in any 12- month period; and
o Uses a written sale agreement form with the purchaser that: (a) complies with the requirements of ORS 646A.050, 646A.052 and 646A.054; (b) with any applicable administrative rules; and (c) any other applicable requirements for residential mortgages for manufactured dwellings.
o Note: This exemption does not permit the individual to hold more than eight (8) residential mortgage loans at any one time.
- An individual who is licensed as a limited manufactured structure dealer, and who:
o Has an ownership interest in a manufactured dwelling park;
o Offers or negotiates terms of a residential mortgage loan related to a sale for occupancy of a previously owned manufactured dwelling in any manufactured dwelling park in which the individual has an ownership interest, five (5) or fewer times in any 12-month period; and
o Uses a written sale agreement form with the purchaser that: (a) complies with the requirements of ORS 646A.050, 646A.052 and 646A.054, (b) with any applicable administrative rules, and (c) with any other applicable requirements for residential mortgages for manufactured dwellings.
o This exemption does not permit the individual to hold more than twelve (12) residential mortgage loans at any one time.
- An employee of a licensed manufactured structure dealer is not subject to the MLO licensing requirements if the employee:
o Performs only administrative or clerical tasks; and
o Receives only a salary or commission that is customary among dealers and employees of dealers.
- An employee of a dealer may become subject to the licensing provisions if the CFPB determines, in a guideline, rule, regulation or interpretive letter that this exemption granted is inconsistent with requirements set forth in 12 U.S.C. 5101 et. seq. (S.A.F.E. Act)

ADA

Under revised ADA regulations, a "service animal" is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or task performed by the service animal has to be directly related to the handler's disability.2 The service animal fulfills what the regulations refer to as "recognition and response" tasks and is distinguish from animals that provide emotional support, well-being, comfort, or companionship. The key under ADA is that the animal must be specifically trained to "recognize and respond" a disabled person's certain mental or physical condition, e.g., a diabetic's dog may be trained to notice when the person's blood sugar reaches critical levels and alert the person.3 The ADA service animal test makes no reference to a dog's breed, size or weight, any required professional training or certification or registration or required wearing of a vest, patch or special harness. (Same under FHAA) The DOJ suggests that these are not factors in determining ADA compliance. A so called service animal certification or registration documents that can be obtained online confer no rights under ADA and are not recognized by the DOJ as proof that a dog is a "service animal." 4 On the other hand, DOJ notes that a service animal may be required under local law to be licensed and vaccinated.5

In determining whether an animal meets the ADA service animal test community management may make only two inquires of the disabled person: (1) Is this a service animal that is required because of a disability? and (2) What work or tasks has the animal been trained to perform? Management may not require documentation proving the animal has been "certified," trained or licensed as a service animal. Further, these inquiries cannot be made if it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (for example, an individual is using a dog to assist with vision, or the dog is pulling a person's wheel chair or is providing stability or balance for a person with an observable mobility disability). A "no" answer to no. 1 renders ADA inapplicable, likewise if the task described is unrelated to a disability or is a "non-response" type task. In such cases the answers may drift into areas which must then be assessed under FHAA regulations pertaining to reasonable accommodations for support or comfort animals, discussed below.

Can management ask a disabled person to remove an ADA qualified service animal from the community? No... unless, the animal is out of control to the extent the handler is unable to control it or the animal is not house broken or based on an individualized assessment of animal's actual conduct the animal poses a direct threat to the health and safety of other residents that cannot be mitigated by other means.6 (Same under FHAA) Community rules or guidelines governing "pet" conduct therefore, should be written to apply to "animals" not simply "pets" which make it clear the community may enforce its rules or guidelines to remove a problematic service animal according to ADA standards.

Finally, ADA applies to places of public accommodation. Manufactured home communities and mobile home parks experiencing a HUD or DOJ ADA violation charge have contended that as private property not open to the public ADA is inapplicable. However, it's well established under the regulations and case law that an area within a mobile home community (usually office or clubhouse), apartment complex or condominiums where sales and leasing activities are conducted with members of the general public and areas such as parking lots or spaces that serve these areas are within the definition of a public accommodation subject to ADA. Does this mean the entire community is then a public accommodation? No. However, U.S. District Courts in Arizona and California have held that allegations of a mobile home park hosting and conducting Bingo in the park clubhouse where the public was invited or where estate, garage or rummage sales were conducted in the community where the public was invited could state a claim under ADA that the community was a place of public accommodation. The take away... do not allow the general public to be invited

to attend events conducted in your community or risk becoming "a place of public accommodation."

FHAA

FHAA prohibits discrimination in housing and housing related mattes based on a person's disability defined as: (1) a physical or mental impairment which substantially limits one or more of such person's major life activities, or (2) a record of having such impairment . . . . 7The FHAA's definition of prohibited discrimination encompasses "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 8 This applies to assistance animals that may not satisfy the ADA definition of a "service animal" but nevertheless provide emotional support, comfort, well-being or companionship for a disabled person seeking an exception to a community's "no pet" or "restrictive pet" rules or guidelines.

Generally, an "assistance or emotional support animal" is a "companion animal" that provides a therapeutic benefit by alleviating or mitigating some symptom caused by an individual's mental or psychiatric disability as confirmed by a professional health care provider. Unlike ADA, these animals require no specific "recognition and response" training and management may ask the person for documentation of a disability and disability related need for the assistance animal, but may not request access to medical records or medical providers or to provide detailed or extensive information or documentation of the persons physical or mental impairments. These animals are not limited to dogs but may be any other animal within reason if the person requesting the accommodation has a confirmed disability supported by a medical professional.9

Thus, prohibited conduct under FHAA is refusing to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. A request for a reasonable accommodation may be denied only if providing the accommodation is unreasonable, defined as imposing an undue financial and administrative burden on the community or if it would fundamentally alter the nature of the community's operations. This could include a denial based on increased liability insurance costs if an "aggressive dog breed" were allowed in the community thus potentially creating an undue financial burden.

Requests for a reasonable accommodation regarding assistance animals must be evaluated objectively and thoroughly through an interactive process with the person requesting the accommodation. Each request should be evaluated on a "case by case basis" promptly and fairly, on its own facts. Naturally, if questions arise, consult the community's counsel, especially regarding state law that may parallel ADA and FHAA or be more expansive in coverage regarding definitions of service and assistance animals. The above is not intended as legal advice but offered as general information. Consult your legal counsel for specific questions or issues regarding your particular communities.

Robert G. Williamson, Jr. is partner with Hart King. He represents manufactured home community owners and managers with their various legal issues including FHA and ADA compliance issues. He may be reached at rwilliamson@hartkinglaw.com or at 714.432.8700

1 Set forth in HUD's Fair Housing and Equal Opportunity Notice

(FHEO-2013-01) issued April 25, 2013 ("HUD Notice").

2 28 C.F.R. _ 36.104

3 DOJ, Frequently Asked Questions about Service Animals and

ADA, July 20, 2015, www.ADA.gov.

4 Ibid.

5 Ibid.

6 28 C.F.R. _ 36.302(c); HUD Notice, supra., fn. 1.

7 42 U.S.C. _ 3602(h)

8 Giebeler v. M&B Associates, 343 F.3d 1143, 1146-47 (9th Cir.

2003); 42 U.S.C. _ 3604(f)(3)(B).

9 HUD Notice.

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. 

House Bill 3054A affects four sections of Oregon’s manufactured housing  laws. Below is a summary of the changes.

ORS 90.324 (Calculation of maximum rent increases). The text in bold print is new:

1.   No later than September 30th of each year, the Oregon Department of Administrative Services shall calculate the maximum annual rent increase percentage allowed for the followingcalendar year:

(a) For tenancies subject to ORS 90.600(1)[1] in facilities with more than 30 spaces, assix percent.

(b) For tenancies subject to ORS 90.600 (1) in facilities with 30 or fewer spaces or for tenancies subject to ORS 90.323,[2] as the lesser of: (A) Ten percent; or (B) Seven percent plusCPI.

2.   No later than September 30th of each year, the Oregon Department of AdministrativeServices shall publish the maximum annual rent increase percentages allowed under thissection, along with the provisions of ORS 90.323 and 90.600, in a press release.

3. The term “CPI” means the September annual 12-month average change in theConsumer Price Index for All Urban Consumers, West Region (All Items), as most recentlypublished by the Bureau of Labor Statistics of the United States Department of Labor.

Comment: This change bifurcates rent caps for MHP month-to-month tenancies into those with more than 30 spaces and those with 30 or fewer spaces. For those with over 30 spaces, the rent cap is six percent (6.00%) and for 30 or less it is the lesser of 10.00% or 7.00% plus CPI.

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ORS 90.545 (Fixed term tenancy expiration). The text in bold print is new:

A landlord’s proposed new rental agreement may include new or revised terms, conditions, rulesor regulations, if the new or revised terms, conditions, rules or regulations:***Are consistent withthe rights and remedies provided to tenants under this chapter, including the right to keep a petpursuant to ORS 90.530 and limits on rent increases under ORS 90.600 (1);

Comment: Prior to HB 3054, , the legislative drafters overlooked leases (i.e., “fixed term tenancies”). The result was that landlords using leases were not limited in their rent formulas (within reason at least) by the same caps as month-to-month tenancies. This new legislation eliminates that oversight, and subjects rental increases in leases to the same rental caps found in month-to-month tenancies.

Since the effective date of this Bill is September 1, 2025, landlords may wish to consider putting their new tenants on fixed term leases before then. This is not to suggest that the rent formulas should be open-ended without limits or guidelines. But a well- drafted rent formula based upon reasonable and objective criteria should survive attack. After all, before the caps, there were never any limits on rent increases (other than the existing good faith provision under ORS 90.130.)

ORS 90.600 (Increases in rent). The text in bold print is new:

A rent increase is not subject to [the rent cap for month-to-month tenancies] if:

***[It] is:

(A) For a facility with more than 30 spaces;

(B) Not greater than 12 percent;

(C) In lieu of and not in addition to a rent increase allowed within the 12-month period asdescribed [above];

(D) Occurring at least five years following a previous rent increase authorized under this paragraph, if any;

(E) Related to a significant project to add, replace, repair or upgrade infrastructure for thefacility;

(F) Approved by a written affirmative vote of 51 percent of the spaces in the facility that areoccupied by tenants on a vote that contains the signature and identifies the space of the voter;

(G) Approved by votes ***that are collected:

(i) At least 30 days after the landlord has provided in writing to each tenant the proposedinfrastructure project, a documented estimate of the cost of the project, an estimated timeline for the start and completion date for the project and the estimate of the rentincrease necessary to cover the cost of the improvement; and

(ii) At least 14 days after the landlord has met with the tenants to discuss the proposal; and

(H) Fully refunded to tenants by the landlord, without demand, less the maximumallowable rent increase under ORS 90.324, if the project is not substantially completed asdescribed [above] in the notice [described above] within 12 months of the estimatedcompletion date in the notice.

(4) A landlord that increases rent in violation of [this subsection] *** shall be liable to the tenant inan amount equal to three months’ rent plus actual damages suffered by the tenant.

Comment:  The purpose of this new text is self-explanatory. It provides an exception to the rent increase statute for communities with over 30 spaces to recover the cost of adding, replacing, repairing or upgrading park infrastructure.

ORS 90.680 (Sale of home on rental space). The text in bold print is new:

A landlord may not require that a selling tenant, prospective purchaser or purchaser consentto the inspection of the interior of the dwelling or home or obtain an inspection of theinterior of the dwelling or home by a third party, including as a condition of:

(a) Acceptance of the [required] notice of sale under subsection (8)(a) of this section;

(b) Approval of a sale under this section; or

(c) Approval of a new tenancy by the purchaser.

Comment: Not having been present during the negotiations of this Bill, I cannot explain its rationale. I will attempt to find out more. But since I participated in the (now discontinued)  landlord-tenant coalitions, I cannot resist the following observation: ORS 90.740(4)(c) imposes upon tenants the duty to “Keep the dwelling or home, and the rented space, safe from the hazards of fire.” (Emphasis added.) This is a required tenant duty to the landlord. So today when the home sells, if the owner had made dangerous non-code wiring alterations to its interior, those risks can be discovered by a required inspection upon transfer. Then the tenant and prospective purchaser can reach agreement upon bringing the wiring up to code and averting electrical fires.

It is for that reason that the current MHCO Rental and Lease Agreements provides that as a condition of landlord’s consent, the homeowner/seller must provide

“…a copy of a current written inspection report from an Oregon-certified and licensed Home inspector, verifying that as of the date of the inspection: (a) the Home, including, but not limited to all heating, cooling, and electrical systems and all appliances located therein, are safe from the hazards of fire; (b) the Home has one or more smoke alarms approved under applicable law, and, where applicable, one or more carbon monoxide alarms****The cost of this inspection shall be the responsibility of the TENANT, but may be negotiated with the prospective purchaser as part of the sale transaction.”

By prohibiting professional inspections upon resale, it would seem HB 3054 creates the risk that dangerous conditions such as defective wiring and resulting fire hazards will be perpetuated. Fire endangers not just the new purchaser but the entire community.

Going forward, landlords may wish to consider including an inspection advisory to all prospective purchasers emphasizing the importance of home inspections prior to closing a sale. While this cannot make inspections a condition of landlord’s consent to the sale, it can certainly encourage the practice.

The above information is general in nature and should not be construed as legal advice. MHCO Members should consult with their own attorney if they have any questions or concerns on the above legislation.

[1]  ORS 90.600(1) applies to tenancies that are governed by ORS 90.505 – 90.850, the manufactured housing statutes.

[2]  ORS 90.323 applies to tenancies that are not governed by ORS 90.505 – 90.850, the manufactured housing statutes.

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.