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WHAT DOES THE LAW SAY?

Section 3604(f)(1)(B) of the federal Fair Housing Act (FHA) bans discrimination against rental applicants, tenants, or the people associated with them, such as a tenant’s child, because of their disability. It’s also illegal (under Section 3604(f)(3)(B)) to refuse “to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”

According to the U.S. Department of Housing and Urban Development (HUD), “a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations” (if they’re in federally assisted housing). Examples:

• A community that doesn’t assign parking spaces makes an exception so that a mobility-impaired tenant will always be able to park near the building entrance;
• A community that requires tenants to pay their rent in person each month makes an exception for a tenant with a mental disability that makes her afraid to leave her apartment; and
• A community with a no-pets policy makes an exception allowing a sightless tenant to keep a seeing-eye dog in his apartment.

DEEP DIVE:

Reasonable Accommodations vs. Reasonable Modifications

Section 3604(f)(3)(A) of the FHA also bans refusing to allow “reasonable modifications of existing premises.” Like reasonable accommodations, reasonable modifications are reasonable changes necessary to afford a disabled applicant or tenant “full enjoyment” of the premises, but with two key differences:  

• A reasonable modification is a structural change made to the property, while a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service; and
• More significantly, tenants are responsible for the costs of modifications while landlords must pay for accommodations. 

You may also have to comply with more stringent accommodations requirements under other laws, including:

• If you open all or part of your community to the public, you must make “reasonable modifications” and ensure it’s designed, constructed, and maintained to be fully accessible to the disabled under federal Americans with Disabilities Act (ADA) requirements;  
• Section 504 of the of the federal Rehabilitation Act of 1973, which imposes stricter discrimination rules on landlords that participate in HUD housing and other federal assistance programs; and
• State and local fair housing laws, which are often much stricter than the FHA.

10 STEPS FOR PROPERLY HANDLING

REASONABLE ACCOMMODATION REQUESTS

Complying with your FHA duty to provide reasonable accommodations is one part substance and one part process. The first and most obvious challenge is to determine whether a requested accommodation is reasonable; the part that often gets overlooked relates not so much to the actual decisions you make but how you make them. Accordingly, the game plan below incorporates both challenges.

Step 1: Ensure Requestor Is (or Is Acting on Behalf of) a Disabled Person

Remember that while the FHA bans housing discrimination based on race, color, national origin, religion, sex, familial status, and disability, entitlement to reasonable accommodation applies to just one group: persons with disabilities. In other words, protection from fair housing discrimination doesn’t necessarily equate to the right to accommodation.

DEEP DIVE:

Are Other Protected Classes Entitled to Accommodations?

Although the FHA doesn’t expressly provide it except in the context of disabled persons, the argument has been made that reasonable accommodations are also required when necessary to allow a person protected by the law equal opportunity to “use and enjoy” housing. A notable case testing these principles involved a Chicago condo community whose tenants included the Blochs, a family of strong Jewish faith that posted a religious symbol called a Mezuzah on their door post. For over three decades, nobody said a word about the Mezuzah. But after a repainting, the condo board adopted a new rule banning tenants from posting any mats, signs, or other displays on their door posts. The Blochs requested a religious exemption allowing them to keep their Mezuzah, but the board said no.

The result was years of litigation, culminating in a U.S. Court of Appeals Seventh Circuit ruling denying the board’s motion to dismiss and allowing the Blochs to take their religious accommodations lawsuit to trial [Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009)].

What “disability” means: The FHA defines “disability” broadly as a physical or mental impairment that substantially limits one or more “major life activities.” Protection against discrimination and entitlement to accommodation extends to a person who:

• Actually has such a disability;
• Is perceived as having such a disability, even if that perception is wrong, such as where a landlord rejects an applicant that it wrongly believes has HIV; and
• Has a record of such an impairment, such as a recovered drug addict.

What “major life activities” are: “Major life activities” are those of central importance to daily life, such as walking, seeing, hearing, breathing, performing manual tasks, caring for one’s self, learning, and speaking. Conditions that substantially limit mobility are deemed disabilities, regardless of whether they’re plain to see or due to physical or mental conditions that aren’t readily apparent, such as heart disease, muscle weakness, or breathing ailments.

Step 2: Don’t Reject an Accommodation Because of How or When It’s Requested

You don’t have to make accommodations unless they’re specifically requested. On the other hand, you can’t make a big deal over the timing and formalities of a request. There’s no rule saying that requests must be in writing. Nor do requestors have to use the words “reasonable accommodation,” “fair housing,” “disability,” or any other magic language. All they need to do is make it clear that they’re requesting an accommodation. Note also that an accommodation request can come from either the rental applicant/tenant or a person acting on his or her behalf. According to HUD/U.S. Department of Justice (DOJ) Guidelines (which we’ll refer to as the “Guidelines”), a landlord is on notice “that a reasonable accommodation request has been made if a person, her family member, or someone acting on her behalf requests a change, exception, or adjustment to a rule, policy, practice, or service because of a disability.”

Other key things to keep in mind:

• Accommodation requests can be made by rental applicants as well as tenants at the start or at any time during their tenancy;
• You can ask requestors to put their requests in writing, but you can’t require them to do so; and
• While a family member, guardian, or other third party may request a reasonable accommodation on a disabled person’s behalf, a third party can’t demand an accommodation solely for his or her own benefit, such as an assigned parking space.

Tip: HUD recommends that landlords create forms and procedures that people can use to submit written requests for accommodations. This can facilitate and speed up the processing of requests and “prevent misunderstandings regarding what’s being requested, or whether the request was made.” However, the Guidelines add, landlords “must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the [landlord’s] preferred forms or procedures for making such requests.”

Step 3: Promptly Respond to Accommodation Requests

Don’t ignore an accommodation request, no matter how baseless and frivolous you think it is. While there’s no specific deadline, the Guidelines make it clear that landlords and other housing providers must provide a “prompt response” to a reasonable accommodation request. “An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation,” according to HUD/DOJ.

Step 4: Engage Your Accommodation Process

Engage in an interactive process with the requestor to gather the necessary information about the request and disability (which we’ll discuss under Step 5) and discuss ways to accommodate it. Recognize that failure to reach agreement on an accommodation request is tantamount to a denial. Result: The requestor can file a disability discrimination complaint with HUD or the equivalent state or local fair housing agency, which will then perform an investigation to determine whether there’s “reasonable cause” to believe you violated your accommodation duties. If so, you’ll end up having to defend yourself in a federal court or HUD Administrative Law Judge proceeding.  

Example: A Missouri landlord had to shell out $44,000 for denying a tenant’s request to transfer to a unit with fewer stairs to accommodate her mobility-impaired daughter. The landlord flatly refused the request, saying it had no apartments available. In dishing out the fine, the federal court cited the landlord’s failure to even engage the tenant, evaluate the daughter’s medical needs, and explore ways to accommodate them [United States v. Dunnwood, (E.D. Mo.) July 16, 2020].  

Strategy: Although the FHA doesn’t expressly require it, HUD recommends that landlords implement formal rules and procedures for handling accommodation requests. Advantages of having a formal accommodations process include:

• Ensuring that all accommodations requests get a prompt response and that no requests fall through the cracks;
• Enhancing the likelihood of agreement and preventing misunderstandings and miscommunications that can lead to complaints and investigations; and
• Generating a paper trail documenting the proper consideration you gave to the request, setting up your legal defense in case complaints and investigations do occur.

Caveat: The Guidelines warn that you can’t refuse to consider a reasonable accommodation request just because the requestor won’t follow your formal procedures or use your preferred forms.

Step 5: Properly Verify the Requestor’s Disability and Need for Accommodation

Let’s turn to how to actually make decisions on particular accommodation requests. The first step is to verify the need for the requested disability accommodation. Normally, you’re not allowed to ask applicants or tenants if they’re disabled or about the nature and extent of their disability. However, the Guidelines give landlords some leeway to gather information about a person’s disability in response to a reasonable accommodation request to the extent the information is necessary to determine three things:

1. The person meets the FHA definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities;
2. Exactly what accommodation is being requested; and
3. Whether there’s a “nexus,” or relationship, between the disability and the need for the requested accommodation.  

Example: A tenant requested an assigned parking space as an accommodation for his Alzheimer’s Disease. The landlord said no. The California federal court dismissed the tenant’s failure-to-accommodate complaint because of the lack of evidence showing the link between Alzheimer’s and parking and how having an assigned parking spot was an accommodation necessary to “ameliorate” the disease’s effects [Elliott v. QF Circa, Case No. 16-cv-0288-BAS-AGS, June 18, 2018].  

Beware: There are limits on what information you can and can’t ask for, depending on what you already know or can easily surmise.

Rule 1: If the person’s disability and need for the accommodation is obvious, or otherwise known to you, you can’t request any additional information about the disability or disability-related need for the accommodation.

Rule 2: If the disability is known or readily apparent to you, but the need for the accommodation is not, you may request only information that’s necessary to evaluate the disability-related need for the accommodation.

• OK to request verification: A rental applicant in a building without elevator service wants a ground-floor apartment, claiming she can’t climb steps due to asthma or some other respiratory ailment. Since the claimed disability isn’t readily apparent, the landlord would be justified in asking for verification of the ailment and why she needs a first-floor apartment to accommodate it.
• Not OK to request verification: Same scenario but instead of a respiratory ailment, the applicant uses a wheelchair. Since the physical disability (that is, a mobility impairment) and disability-related need for the requested accommodation are both readily apparent, the landlord can’t require the applicant to provide any additional information about the disability or need for a ground-floor apartment.

Strategy: You may be able to get the information you need to verify that the person meets the FHA definition of disability directly from the requestors themselves, such as in the form of credible statements from the individuals, or the fact they have government-issued disability license plates or placards on their vehicle or receive Supplemental Security Income or Social Security Disability Insurance benefits despite being under age 65.

If necessary, the Guidelines say landlords may also seek verification from a doctor or other medical professional, peer support group, non-medical service agency, or reliable third party in a position to know about the individual’s disability. However, they must limit the request to only the information needed to verify the disability and need for the accommodation. 

Step 6: Determine If Requested Accommodation Is Reasonable

You need only grant requested accommodations that are reasonable. According to HUD, a request for an accommodation is reasonable if it:

• Doesn’t cause landlords to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available;
• Won’t cause harm or damage to others; and
• Is technologically possible.

These criteria are critical, so let’s look at them more closely.

Financial and administrative burden. You can’t deem a requested accommodation unreasonable simply because it costs time and money to provide. The burden must be “undue,” based on the accommodation’s costs, the landlord’s financial resources, the benefits to the requestor, and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. Examples of accommodations for disabilities that would impose undue financial or administrative burden would include making structural changes to common areas or completely paving over and reconstructing the entire parking lot for the sake of one tenant.  

Fundamental alteration. Accommodations require “fundamental alterations” when they alter the essential nature of a landlord’s operations.

Example: A tenant with a severe mobility impairment asks his landlord to transport him to the grocery store and help him with his grocery shopping. The request wouldn’t be a reasonable accommodation to the extent that the landlord doesn’t provide any transportation or shopping services for any of its tenants, according to the Guidelines.

Harm or damage to others. You don’t have to make accommodations that would endanger the health and safety of others or pose the risk of unreasonable damage to property, such as by making an exception to a no-pets policy to allow a tenant to keep a full-grown elephant or camel in her apartment as a “therapy animal.”   

Detrimental to other disabled persons. Accommodations aren’t reasonable if they require you to deprive other disabled applicants or tenants an equal opportunity to use and enjoy their own apartments. For example, you don’t have to force one mobility-impaired tenant to vacate a ground-floor apartment or give up a reserved accessible parking space in favor of another tenant who’s “more disabled.” If resources are limited, create a waiting list for granting requests as things open up in the order you receive them based on which disabled tenant has been waiting the longest.

Technologically impossible. Accommodations aren’t reasonable if they’re technologically impossible. Thus, for example, the owner of a three-story prewar urban brownstone building wouldn’t have to—and probably wouldn’t be able to—install an elevator just so a mobility-impaired tenant could continue living on the third floor.   

Strategy: It’s a good idea to consult an attorney for advice before notifying the requestor of your decision if, for whatever reason, you determine that a requested accommodation is unreasonable.

Step 7: Consider Alternative Accommodations If Request Is Unreasonable

The accommodations process shouldn’t end simply because you conclude that a requested accommodation is unreasonable. Before you reject the request, dig deeper and ask yourself this question: Is there some other change you can make or action you can take that would enable the requestor to more fully use and enjoy his or her home?

Example: Let’s go back to the example above where a disabled tenant’s request that a landlord drive him to the grocery store would be deemed an unreasonable accommodation to the extent such services aren’t offered to any tenants. Even though the landlord can deny the request, it should consider alternatives that would meet the tenant’s needs without forcing a fundamental alteration of operations. For example, maybe it can alter its parking policy to allow a local volunteer to park her car close to the tenant’s apartment so she can drive him to the store and help him shop for groceries.

You can also offer easier or cheaper alternatives to those who make reasonable requests. However, if an accommodation is reasonable, the requestor isn’t obligated to accept any of your suggested alternatives.

Step 8: Don’t Charge Accommodation Request Fees or Deposits

The Guidelines state that you can’t make individuals with disabilities pay extra fees or deposits as a condition for receiving a requested accommodation. That includes charging an administrative fee for processing an accommodation request. If an accommodation is reasonable, you must pay the associated costs out of your own pocket and not charge the requestor a fee or deposit to defray the associated expenses.  

Example: A Pennsylvania seniors housing provider had to shell out $80,000 to settle discrimination claims brought by mobility-impaired tenants and fair housing agencies, including for allegedly charging disabled tenants as much as $350 for designated parking spaces necessary to make their apartments accessible [Clover Group, May 2020].

Similarly, if an accommodation is reasonable, you must provide it without imposing financial or other conditions, such as by requiring tenants to pay “pet deposits” or carry extra insurance coverage for their service animals.

Example: A Minnesota apartment community paid $35,000 to settle claims of placing undue conditions on a tenant’s request for a service animal by requiring her to:

• Buy an insurance policy covering the dog and listing the landlord as a co-insured;
• Make the dog wear a special emotional support animal vest at all times outside the apartment; and
• Sign an “indemnification and hold harmless waiver” covering the landlord against any harm the dog caused [United States v. Brooklyn Park 73rd Leased Housing Assoc., LLC, (D. Minn., Jan. 22, 2016)].

Step 9: Don’t Retaliate Against Persons for Requesting Accommodations

You can’t evict, reject, or take any other adverse action against any person for requesting a reasonable accommodation. You can be liable even if retaliation is just one motive for a decision—for example, evicting a tenant for not paying rent and for requesting an accommodation.

Example: A Tennessee landlord evicted a disabled tenant after he requested reasonable modifications (removal of a concrete parking bumper) and accommodations (two assigned parking spaces). The tenant filed a complaint with HUD, claiming the eviction was retaliatory. Rather than risk a trial, the landlord paid $52,500 to settle the claims [United States v. Fairfax Manor Group, LLC, (W.D. Tenn., March 19, 2018)].

Step 10: Keep Requestor’s Personal Information Confidential

The personal information you collect to process an applicant or tenant’s request for a disability accommodation is protected by privacy laws. Result: You must keep the information confidential and secure, use it only for purposes of processing the accommodation request, and not disclose it to others except when you’re legally required to do so, such as when  a court issues a subpoena requiring you to disclose the information. These privacy obligations apply regardless of whether you ultimately grant or deny the accommodation request.

Answer: It is unclear to me whether your complaint is with the housing authority running the voucher program or the tenant using the program.

I do not recommend you refusing to allow Section 8 housing applicants. ORS 59A.421 (Discrimination in selling, renting or leasing real property prohibited) provides:

(2) A person may not, because of the race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income of any person:

(a) Refuse to sell, lease or rent any real property to a purchaser. This paragraph does not prevent a person from refusing to lease or rent real property to a prospective renter or prospective lessee:

(A) Based upon the past conduct of a prospective renter or prospective lessee provided the refusal to lease or rent based on past conduct is consistent with local, state and federal law, including but not limited to fair housing laws; or

(B) Based upon the prospective renter's or prospective lessee's inability to pay rent, taking into account the value of the prospective renter's or prospective lessee's local, state and federal housing assistance, provided the refusal to lease or rent based on inability to pay rent is consistent with local, state and federal law, including but not limited to fair housing laws. (Emphasis added.)

This means that landlords it is permissible to screen and reject any applicant, including those with a Section 8 voucher, for past conduct and ability to pay rent. But they may not be rejected simply because they use Section 8 vouchers.

There is a required contract between the landlord and the public housing authority (called the Housing Assistance Payment Contractor "HAP Contract"), which lists the landlord's rights and responsibilities. Part of he HAP Contract, called the Tenancy Addendum, becomes a part of he rental agreement between the Section 8 tenant and the landlord.

The local housing authority does not guarantee the tenant's performance, and will not have screened the applicant for his or her suitability as a tenant - that is the landlord's responsibility. However, a Section 8 voucher tenant's failure to pay his or her portion of the rent or to comply with rules regarding maintenance of the property can lead to termination of the tenant from the Section 8 voucher program.

There are two sources of rental payments; the tenant pays approximately 30%-40% percent of the rent (with some exceptions) and the housing authority pays the balance. This leads me to believe that your issue is with the tenant, not the program. If the tenant is blaming the program, that is something they need to take up with the housing authority. If you are not getting the rent payments from the housing authority you should contact them.

A tenant's failure to pay their share of the rent, or being consistently late, can jeopardize their right to continue to receive a Section 8 voucher. You are not required to accept partial rent. If the public authority pays its share, but the tenant does not, you may file for eviction. However, before doing so, you should contact an attorney familiar with Section 8 housing issues.

Editors Note: MHCO is very happy to welcome Mark Busch as a presenter at MHCO's next mandatory training seminary in Bend on July 17th

Answer: The short answer is "not always." More specifically, the laws covering RV tenants are sometimes different from those covering mobile home park tenants. As such, your park will need some separate forms specifically for RV tenants, although there are certain forms that work for both types of tenants.
First and foremost, use a rental agreement form designed for RV tenancies. As mentioned in a previous article, MHCO Form 80 is an excellent recreational vehicle space rental agreement.
Beyond the rental agreement, the basic forms every RV landlord should have are tenancy application and move-in forms (i.e., MHCO Form 01 - Rental Application, Form 03 - Criminal Check Authorization, Form 10 - Application Denial). With proper training, these forms are easily filled out and used during the RV tenant application process.

You will also need eviction notice forms. Here are the most common eviction forms:

1. 72-hour rent nonpayment forms - MHCO Form 82 -(these forms can be the same for mobile home and RV tenants).

2. 30-day or 60-day no cause notice forms (these are different from mobile home park forms).

3. 30-day for cause eviction forms - MHCO Form 83 - (these are different from mobile home park forms).

4. 24-hour eviction notice forms (these forms can be the same for mobile home and RV tenants).

Keep in mind that a form is only as good as the knowledge of the person filling it out. If a form is filled out incorrectly, a landlord risks losing an eviction case to a tenant. This means that not only will the tenant be allowed to stay on the RV space, but you would also likely be held responsible for the tenant's attorney fees and court costs. These fees and costs can run several thousand dollars or more. And you have to start over with evicting the RV tenant.

The best way to ensure a legally enforceable form is to have a knowledgeable landlord attorney spend 5 minutes reviewing it before you serve it on the RV tenant. It all goes back to the old adage that "an ounce of prevention is worth a pound of cure." If an attorney reviews your form before you use it, you immediately and significantly reduce the chances that you will lose an eviction case.

After you or your manager become comfortable filling out your forms, it is not as necessary to involve your attorney. Basic forms - if filled out correctly - typically present no problems later. However, it is always wise to have your attorney review eviction notices, particularly for-cause notices. For-cause notices are typically the ones most challenged by tenants and their attorneys.

A final caveat on RV forms is that you should never purchase forms online or elsewhere that are not specifically tailored for Oregon law. Such forms are typically missing provisions that are either required by Oregon law or are beneficial to landlords under Oregon law.

Mark L. Busch, P.C.
Attorney at Law
Cornell West, Suite 200
1500 NW Bethany Blvd.
Beaverton, Oregon 97006

Ph: 503-597-1309
Fax: 503-430-7593
Web: www.marklbusch.com
Email: mark@marklbusch.com

Answer.The question is an important one. It calls into play a balancing of two statutes, ORS 90.730and ORS 90.740. Rather than set them out verbatim, below, I will discuss below only those portions of the statutes that deal with the issues you have raised.[1]

Tenant Obligations (ORS 90.740)

First, note that these are those tenant duties imposed by the statute. The rental agreement could – though unlikely – could alter them. I say “unlikely” because elsewhere in Chapter 90 the law imposes liability on landlords that try to “shift” to tenants certain statutory duties imposed on landlords.[2]

The main requirements dealing with utility systems are as follows:

• First, if the home is being installed by the tenant (or more likely their contractors) it must be in compliance with applicable laws and the rentalagreement.
• Second, they must install and maintain storm water drains on the roof of the home and connect them to the drainage system (ifany).
• Third, they must use all electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to thosesystems.

Additionally, there are some collateral conduct obligations that could indirectly interfere with the operation of various park-wide systems, and thereby incur liability. They include:

• As an ongoing obligation, tenants must dispose ashes, garbage, rubbish and other waste in a clean, safe and legal manner. 
• They must keep the rented space in every part free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin as the condition of the rented space permits and to the extent that the tenant is responsible for causing the problem. 
• The tenant shall cooperate to a reasonable extent in assisting the landlord in any reasonable effort to remedy theproblem.
• They must keep the home and the space, safe fromthe hazards of fire. This includes installing and maintaining a smoke alarm approved under applicable law.
• They must refrain from deliberately or negligently destroying, defacing, damaging, impairing or removing any part of thefacility, other than the tenant’s own dwelling or home, or knowingly permit any person to doso

Comment: If an obligation belongs to the tenant, say, installation of the home itself, it continues from homeowner to homeowner. It is never a landlord liability issue. But as discussed below, since the stability of the ground is a landlord duty, the stability of the home could be affected by the ground and become a landlord liability. 

Landlord Obligations (ORS 90.730)

The landlord’s primary duty to residents is “habitability”. The statute provides that at to park-wide systems, a rented space is considered unhabitable if it substantially lacks:

• 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;
• If required by applicable law, a drainage system must be reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;
• A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;
• An electrical supply and connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;
• A natural gas or propane gas supply 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 gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

As to duties that can indirectly affect park-wide systems and cause landlord liability, ORS 90.730further provides that:

• At the time of commencement of the rental agreement, buildings, grounds and appurtenances must be kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
• Excluding the normal settling of land, the park’s surface/ground must be capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; and

As to common areas, if systems are supplied or required to be supplied by the landlord, they are considered unhabitable if they substantially lack:

• A water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord.

Comment: The first point to note is that these landlord duties (a) commence at the time of installation, and (b) continue as maintenance obligations throughout the term of the tenancy. Generally, tenant responsibilities to the community and its systems are governed by usage. If the usage is reasonable and the system fails, generally liability  will fall on the landlord pursuant to ORS 90.730.  The only major exceptions relate to tenant-required duties, i.e. (a) installation/stability of the home and (b) installation of storm water drains on the roof and their connection to the drainage system. Generally, these are where the “lines of responsibility” begin and end.

Conclusion.So with regard to the (allegedly) collapsing sewer pipe, unless there is some evidence of tenant responsibility, it is likely a landlord maintenance issue under ORS 90.730.

As to discoloration in the tap water, the solution is to immediately get the water tested and find out if others in the community are experiencing the same issue. Testing will likely disclose the source of the problem and whether it is dangerous. In both instances, unless there is some evidence of tenant-related causes, it is a landlord problem (to the extent the water supply system can be controlled by the landlord) the remedy will likely be on your dime. But installation of an “expensive filtration system” was likely premature, and the result of a good sales pitch. Ask the tenant for copies of all tests run before the system was installed.

Answer: If the rent is past-due for the current month, the answer is a 72-hour rent nonpayment notice. Assuming the notice is properly prepared and served, the tenant has until the deadline in the notice to pay the rent in full. If the tenant doesn'tpay, you can file an eviction case. But even after you file an eviction, there is no guarantee that you'll get paid. While most nonpayment eviction cases are settled with a court-approved payment plan, if not, then the court will give you possession of the RV space. However, in most cases the court doesn'thave authority to award you a money judgment for the rent.

What to do now? Look first to your security deposit to cover any unpaid rents. If you don't have a security deposit, or if it is insufficient, you may need to file a small claims action. Even then, the best that you can do is get a money judgment that still needs to be collected. Bank accounts and wages can be garnished, but this whole process might be more trouble than it's worth to most landlords. (Hint: Consider turning over cases to a collection company. They will typically charge a high percentage fee, but recovering debts is their business.)

You also mentioned that some RV tenants owe late charges. Since late charges are not "rent," they must be handled separately. The solution is a 30-day, for-cause notice giving the tenant 14 days to pay the late charges. A 30-day notice is also the remedy for security deposits that haven'tbeen paid, rents that are over 2 months old, and any other charges the tenant might fail to pay (e.g., NSF fees). If a 30-day notice doesn'twork, the alternative is again an eviction case, followed by a small claims action if necessary.

But all of this still begs the question of "how do I get paid" when a tenant defaults. The best remedy for every landlord is a security deposit. There is no limit on the amount of a security deposit in Oregon, so I recommend that landlords get as much of a security deposit as they can from RV tenants, but at least enough to cover one month's rent. The security deposit is a cushion against losses for landlords.

The other thing you should do as a landlord is be vigilant. Take action on payment defaults right away and don't let them linger for months - or longer. The longer you wait, the more you stand to lose as the unpaid charges accumulate. (Note: There is a one-year statute of limitations to recover unpaid amounts from the date the tenant fails to pay.)

Answer: You are right that it can't continue - this is your business and you need to treat it as a business. However, there is a chance that you can give this tenant an opportunity to redeem himself, yet still protect your interests as well.

The first step is to give the tenant a 72-hour rent nonpayment notice. Use MHCO Form 82, fill it in following the directions on the form, and serve it on the tenant. If the tenant pays the rent by the 72-hour notice deadline, then life goes on and the tenancy continues. If not, you should file an eviction case at your county courthouse.

The court clerk will have several "check the box" forms that you can use to file an eviction - but be sure to bring along several copies of the 72-hour notice that you will need to attach to the eviction complaint. After you file the paperwork and pay the filing fee, you can then have the sheriff serve the eviction summons and complaint. The court clerk will be able to show you to the sheriff's office to have them serve the paperwork.

The court clerk will set a "1st court appearance hearing" when you file the eviction complaint. Both sides need to show up at this hearing. If the tenant doesn'tappear, then you win automatically and get a judgment entitling you to an eviction by the sheriff. The court clerk can give you the paperwork to finish that process.

If the tenant does show up, you will get a chance to negotiate a "stay and pay" agreement that the court will sign off on as an enforceable court order. (Most courts will have a form that you can use for this agreement.) Under Oregon law, the payment agreement can and should include: (1) All past-due rent; (2) late fees; (3) unpaid utilities; (4) court costs; (5) attorney fees (if any); and, (6) any other unpaid charges. The payment agreement can extend for up to six months, with payments made at monthly intervals or any other schedule that both sides agree on. The agreement can also include the next three regular monthly rent payments, sort of a "probationary period" to make sure the tenant gets back on track.

If the tenant complies with the payment terms, the tenancy continues and the court will automatically dismiss the eviction case after the payment agreement expires. If the tenant misses any payment, then you will file a "declaration of noncompliance" with the court and finish the eviction process.

These "stay and pay" agreements are very useful to my landlord clients and I use them regularly. They give you an opportunity to keep good tenants that may have temporarily fallen on hard times, but also keep open your eviction options.

As the landlord, you will also need to appear in court unless you have an attorney or other agent (such as a property manager) appear in court at the "1st appearance hearing." This hearing is usually set 8 days after the FED is filed. The purpose of the hearing is to see whether the parties can work out a payment plan, move-out agreement, or other arrangement. If not, the case will be set for trial.

If you are unable to settle the case at the first appearance hearing, by law the trial must be scheduled within 15 days from the 1st appearance hearing. Sometimes, the parties or the court will delay the trial beyond this time frame, but most cases move quickly. This leaves little time for preparation, meaning it is important to have your witnesses, exhibits, and trial arguments ready to go.

You do not necessarily need an attorney for court appearances, but you will increase your chance of success if you do. The eviction statutes are very technical, and most people aren't familiar with courtroom procedures. You will especially be at a disadvantage if the RV tenant has an attorney. If your case gets to the point of a trial, it is usually worth it to hire an attorney.

Answer.  Senate Bill 608 applies to this situation. You have not indicated whether the resident’s period of occupancy exceeded one year.[1]For purposes of the answer below, I will assume it is. I will also assume the resident owns their own home, in not in violation of the rules or rental agreement, and is current on rent, i.e. you are not seeking to terminate the tenancy based upon nonpayment, which, as you know, has been prohibited pursuant to HB 4213 which was passed in the Special Session and became immediately effective on June 26, 2020. 

Based upon the above assumptions, here are the rules for what is to happen at the end of a lease term:

The fixed term lease becomes a month-to-month tenancy upon the expiration,unless: 

(a) You and the tenant agreetoanewfixedtermtenancy;

(b) The tenant gives you notice of terminationin writing not less than 30 days prior to the ending date of the lease (or the date designated in the notice for the termination of the tenancy, whichever is later);or 

(c) You give written notice to the tenant under the Qualified Landlord rules.[2]

I suggest you try to find out what the tenant wants to do. Reach out and ask. It may be he or she is just being coy, knowing that the right of occupancy cannot terminate at the end of the lease term, i.e. under SB 608 it automatically becomes a month-to-month tenancy. 

Note that if the tenant remains in occupancy over one year, he or she automatically becomes a month-to-month tenant. If that is the case, you may not reject the tender of rent. However, with 90 days’ notice, you are entitled to increase the rent, so long as it is no greater than 7% plus the change in CPI.

If the tenant plans on withholding rent, that is another issue, since the Special Session rules have imposed limitations on a landlord’s ability to terminate a tenancy for non-payment of rent. This is why you need to contact your tenant to see what’s going on.  Oregon’s laws today do not give residential landlords many options - at least until some of these regulations disappear.[3]  

This article is not intended as legal advice for any specific issue that might arise, since every situation is different. Always consult a knowledgeable landlord attorney with your specific legal issues.

By Mark Busch, Attorney

A Multnomah County jury just awarded an injured tenant over $20 million for injuries the tenant suffered on an apartment walkway that failed. The tenant partially fell through a hole in a concrete walkway that crumbled beneath his footstep. He ended up with injuries to his right leg and right knee that required surgery.

The tenant sued two related landlord companies that owned and managed the large apartment complex in southeast Portland. The tenant's attorneys alleged negligence and failure to maintain common areas for normal and reasonably foreseeable uses" as required by Oregon law. The jury awarded damages in the sum of $45

1. If the provider doesn'tqualify 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'tforce them to do so);

• You can pre-qualify the person as a care provider, i.e. required 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 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 Aagreement. 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'taddress the problem where the person doesn'tfinancially qualify to be on the Rental Agreement, but I suspect FHCO would say it's a "reasonable accommodation" by the L 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.

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

Background

Emergency Period. The Covid-19 pandemic hit Oregon in Spring, 2020; Governor Brown declared a State of Emergency and a temporary ban on evictions (FEDs) in March, 2020. The Oregon legislature then extended the eviction moratorium by enacting a series of bills, beginning with HB 4213 in June 2020 and ending with SB 282 in May of 2021.[1]

Collectively, the legislative bills created an “Emergency Period” where landlords were prohibited from terminating tenancies or evicting tenants for non-payment of rents, charges, and fees. The Emergency Period lasted from April 1, 2020 to June 30, 2021. All unpaid rents charges and fees from the Emergency Period are known as “nonpayment debt.” All tenants were required to pay their current rent beginning July 1, 2021.

Grace Period: Along with the Emergency Period, the Oregon Legislature also defined a “Grace Period,“ which was a time during which Landlords were prohibited from terminating or evicting a tenant based on the outstanding non-payment debt remaining from the Emergency Period. Tenants had from June 30, 2021 to February 28, 2022 to pay off their nonpayment debt.

Safe Harbor Period. In June and December 2021, the legislature passed SB 278 and SB 891. Together the bills provided for what is called a “Safe Harbor” for tenants who were still having difficulty paying their rent. The bill prevents Landlords from terminating tenancies or evicting tenants who are seeking rental assistance. The rental assistance programs established by Oregon can provide up to 12-month of back-rent and three months of prospective rent to tenants who qualify. The Oregon rental assistance program will close to applications on March 14, 2022. Landlords are prohibited from terminating or evicting for non-payment until they either receive notice that the tenant’s application has been denied, or June 30, 2022, whichever comes first.[2]

What Now?

Continuing Safe Harbor. While there are a number of actions that a landlord may now take to address nonpayment debt owed by tenants, they are still protected from eviction if they have applied for rental assistance. 

• If a landlord receives written proof of application for rental assistance, they may not:
  • Issue a termination notice for nonpayment; or 
  • Initiate/continue an FED action based on nonpayment. This prohibition lasts until the landlord receives notice that the application is no longer pending.
• The last day a landlord may receive notice of an application for rental assistance is June 30, 2022. 
• All Safe Harbor protections expire on October 1, 2022. 
• The Oregon Emergency Rental Assistance Program will close on March 14, 2022 at 11:59 pm. [It is uncertain if there will be additional funds offered after this date.]

Nonpayment of Rent Terminations. Termination notices for nonpayment of rents, charges, and fees accrued during the Emergency Period (April 1, 2020 to June 30, 2022) are now permitted. Landlords must still use the 10-day or 13-day nonpayment notice until October 1, 2022.[3] If the rental unit is a park-owned home, the landlord may also use a 30-day for-cause termination notice under ORS 90.392.

Termination notices no longer need to include language stating: “eviction for nonpayment of rent, charges and fees that accrued on and after April 1, 2020, and before June 30, 2021, is not allowed before February 28, 2022;” and “Information regarding tenant resources is available at www.211info.org.”

Note: Landlords must still send the Notice of Protection Against Eviction for Nonpayment form with any notice requiring payment of money to the landlord (e.g.,. notice of termination for nonpayment, and summons for a nonpayment eviction complaint). (See, MHCO Form 111)

Notices to Tenant – Balance Due. Notices to tenants regarding outstanding debt due are no longer required to state that “eviction for nonpayment of rent, charges and fees accrued from April 1, 2020 to June 30, 2021, is not allowed before February 28, 2022.”

Collection of Nonpayment Debts. Landlords may now file a civil action in court to recover the nonpayment balance accrued during the Emergency Period (April 1, 2020 to June 30, 2022). Debts may also be sent to collection agencies. [Note: Landlords are prohibited from reporting any Emergency Period debt (April 1, 2020 to July 1, 2021) to a consumer credit reporting agency.]

Application of Payments. The eviction moratorium bills temporarily changed the order in which landlords apply tenant payments. As of March 1, 2022 payments must be applied as outlined in ORS 90.220(9), unless otherwise altered by the rental agreement. The order of payments is: 

• First – outstanding rent from prior periods;

• Second – current rents; 
• Third – utility/service charges; 
• Fourth – late fees; and
• Fifth – all other fees/charges owed under the rental agreement.

Nontenant Guests. Landlords may once again enforce restrictions on nontenant guests, including assessing fees or terminating a tenancy for violations. [Note: removal of any nontenant guests who had entered into a Temporary Occupancy Agreement with the landlord is subject to the terms and expiration of that agreement.]

Statute of Limitations. Section 7 of Oregon House Bill 4212 enacted certain Covid-related tolling (i.e., “suspension”) provisions for nonpayment of rent claims under ORS 12.125 (Actions arising under rental agreement). March 1, 2022 marked the end of the tolling period. Landlords now have one year (i.e., to March 1, 2023) to recover outstanding nonpayment debt accruing during the Emergency Period.[4]

The tolling of the statute of limitations under the Eviction Moratorium bills only applies to debt generated duringthe Emergency Period. The language of the legislations specifically designates that it applies to “claims by a landlord based on a tenant’s nonpayment or nonpayment balance.” 

“Nonpayment” is a defined term in the legislation and specifically means “nonpayment of a payment that becomes due during the emergency period” and “nonpayment balance” refers to “all or a part of the net total amount of all items of nonpayment by a tenant during the emergency period.” (Italics added.)

Rents, charges or fees arising before April 1, 2020 and after July 1, 2021 do not appear to be protected by the tolling of the statute of limitations in the Eviction Moratorium Bills. However, landlords should check with their own  attorneys to verify whether the statute of limitations provisions enacted by HB 4212 may apply to actions accruing before or after the Emergency Period. 

Oregon’s State of Emergency is set to expire April 1, 2022, after which time there should be a 90-day window in which certain claims may be brought.[5]

Ongoing Tenant Screening Prohibitions. When screening prospective tenants, landlords are prohibited from considering FED actions and unpaid rents, charges and fees – including nonpayment of judgment debt and debt referred to a collection agency – that arose between April 1, 2020 and March 1, 2022. 

Tenants may also apply to have their FED judgments set aside and sealed for eviction actions arising between April 1, 2020 and March 1, 2022. These screening prohibitions and moratorium-related judgment set-asides will expire in 2028.

Landlords Receiving Federal Funding. If a landlord is receiving federal funds (affordable housing, federally backed mortgage, HUD) they must assure that they are complying with any rules set down by the proper federal agency, or other covid-related federal programs like the CARES Act. Commonly these rules require a 30-day nonpayment notice and additional federally-mandated disclosures. Check with your attorney to assure you’re in compliance with federal tenant protections, if applicable.

Partial Payments and Waivers. Acceptance of partial payments of rent during the Grace Period did not constitute waiver under the Eviction Moratorium legislation. However, that provision expired on March 1, 2022. While Oregon landlord-tenant law does address waiver (ORS 90.412 to 414) and the effect of partial acceptance of rent (ORS 90.417) it does not directly address situations created by the Covid pandemic. 

The current statutes are clear that acceptance of partial rent may, under certain circumstances, constitute a waiver of the right to terminate for nonpayment of rent. ORS 90.417(4) may provide some guidance. There are two ways to avoid acceptance as a waiver: 

• The landlord accepts partial payment before issuing a notice of termination for nonpayment because the tenant agreed to pay the balance by a set date. The tenant must then fail to pay the balance. If so, then the landlord’s notice of termination is served no earlier than if no rent had been accepted, AND the notice must provide that the tenant can cure by paying the balance by a time set by statute or by agreement of the parties; or

• The landlord accepts partial payment after issuing a notice of termination but enters into a written agreement with the tenant that acceptance does not constitute waiver. The agreement may also provide that the landlord may terminate and evict without further notice if the tenant does not pay the balance by the agreed-upon date.

Since the statutes do not specifically address situation created under the Eviction Moratorium, it is currently unclear how the courts will address the waiver issue. If the landlord is inclined to accept partial payment or create a payment plan, it is suggested that an express non-waiver provision be included. Landlords may also consider terminating for-cause. Landlords should consult with their own legal counsel before accepting past-due rent arising after the end of the Grace Period.

[1] The bills were as follows: HB 4213 (June 2020), HB 4401 (December 2020), SB 282 (May 2021).

[2] June 30, 2022 is the last day a tenant can provide proof of application for assistance. Protection under the Safe Harbor itself ends on September 30, 2022. 

[3] The 10 or 13-day notice will revert to a 72 or 144-hour notice on October 1, 2022 (SB 891, Section 8, (3))

[4] For a more detailed discussion of the effect of HB 4212’s tolling provisions, see: https://www.osbplf.org/blog/inpractice/covid-19-state-of-emergency-extended-through-december-31-2021/

[5] Section 7(1) of HB 4212 states: “If the expiration of the time to commence an action or give notice of a claim falls within the time in which any declaration of a state of emergency issued by the Governor related to COVID-19, and any extension of the declaration, is in effect, or within 90 days after the declaration and any extension is no longer in effect, the expiration of the time to commence the action or give notice of the claim is extended to a date 90 days after the declaration and any extension is no longer in effect.” (Emphasis added.)