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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 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 noton an Occupancy Agreement, this could mean removing the tenant if the caregiver refuses to leave, and the tenant doesn'tforce them to do so);
3. 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;
4. 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);
5. 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 mustgo on an Occupancy Agreement."
6. 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.

Answer A : First, the MHCO Lease cited above addresses this. Not fixing the leaks, which are their responsibility to do, is a violation. Secondly, ORS 90.740(f) requires that tenants "(u)se electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems. The tenant is using the water system in an unreasonable manner when they refuse to fix the leaks.

ORS 90.630 (Termination by Landlord) provides, in relevant part, the following:

(1) Except as provided in subsection (4) of this section, the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days' notice in writing before the date designated in the notice for termination if the tenant:

(a) Violates a law or ordinance related to the tenant's conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;

(b) Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing... .

ORS 90.630 goes on to explain that you may issue a 30-day written notice of termination, allowing the tenant to fix the leaks within 30 days and avoid termination. If they fail to do so, you may file for eviction. If they cure, but the problem occurs again within six months following the date of your earlier 30-day notice, you may terminate the tenancy within 20 days, and there is no opportunity to cure. MHCO has the necessary forms.

Be sure you have papered your file to support your contention that these are water leaks for which the tenant is responsible, and then specifically describe the violations (there are two of them, one under the Lease, and the other under the statute) in the Notice.

Answer B: This question is same as the prior one and the answer is the same (although the placement of the requirement may not be in the same location, depending on the date of your lease or rental agreement). Just make sure you have the evidence (e.g. plumber statement) before acting, and that you adequately identify the problem and solution in the Notice.

The most effective solution is getting good tenants in the first place. Screen each and every potential tenant for credit history, criminal convictions, and evictions. Set your application standards and stick to them (i.e., don't fall for any "hard luck" stories). There are certain restrictions on what may be considered in the evaluation process, so consult an attorney on the specifics. (NOTE: If you charge an application fee, you must provide applicants with written notice of your screening criteria, the amount of the screening charge, your application process, and the applicant's right to dispute the accuracy of any reported information.)

After you approve an application, make sure that the tenant signs a written rental agreement, rules, and any other rental documents before taking possession of the rental unit. While it is possible to establish a tenancy without any rental documents, it is always more difficult to handle potential disputes without written documentation. don't agree to any "informal" tenancy arrangements - they typically lead to disputes.

After the tenancy begins, be responsive to any complaints by the tenant concerning the condition of the rental. For example, send a handyman or contractor over to inspect and/or repair any complaints made by the tenant. While there are limits on what constitutes a "habitability" issue affecting the actual livability of the rental, err on the side of making repairs unless the repair issues become unreasonable.

Finally, treat your rental like the business that it is. If rent is due on the 1st of the month, then issue 72-hour nonpayment notices on the 8th of the month when rent is late, as allowed by Oregon law. Address tenancy problems (i.e., unauthorized occupants, pets, maintenance issues, etc.) as soon as you learn of them. While it might not be possible to avoid all tenant disputes, addressing problems as soon as they arise will greatly improve your legal position if you end up in court.

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

mark@marklbusch.com

www.marklbusch.com

Can a tenant request a mediation after I send them a termination of tenancy notice?

Mediation can be requested after a notice terminating tenancy has been sent to a tenant, but only if the request is made to MMCRC or a designated mediator and a written confirmation of that request is delivered to you (the landlord) beforethe landlord files an action for possession under ORS 105.110. If the tenant delivers a notice requesting mediation before a landlord files an eviction action, the landlord may not file such action until after the mediation process concludes. If a landlord delivers a notice requesting mediation before a tenant files an action regarding a dispute, the tenant may not file such action until after the mediation process ends. 

Can I still accept rent during the mediation process?  Yes. Notwithstanding ORS 90.412, acceptance of rent or performance by a landlord after either party requests mediation and during the mediation process does not constitute waiver of the landlord’s right to terminate a tenancy following the mediation. Acceptance of rent or performance after the mediation process ends may constitute waiver. Additionally, all statutes of limitations are suspended during the mediation process. 

What happens after the mediation? If a mediation is successful, the parties should come to an agreement that resolves the dispute. The question is how enforceable is the agreement. Enforceability will depend upon the issues involved, the terms and how the agreement is drafted. I would encourage you to discuss with your legal counsel strategies on how to make the most of a mediation.For example, if an eviction action has already commenced, you may want to attempt to make the agreement a part of the ORS 105.148 mediation/agreement process. Another example is setting up an enforcement mechanism within the agreement itself.  

The CDRC or the designated mediator shall notify MMCRC of the successful or unsuccessful outcome of the mediation. The parties and the CDRC or mediator are not required to give a copy of any mediation agreement to MMCRC.

If a mediation is not successful, the parties may continue on the path they were on before the mediation. 

This sounds expensive, who is paying for it?Mediations will be performed by the existing network of CDRC mediators, funded by the existing annual assessment already paid by tenants ($10, collected with property tax assessments).  If the parties choose a private mediator, then the parties will have to determine how that mediator is paid. Additionally, the current annual fee paid by park landlords ($25 for parks of 20 spaces or fewer, $50 for larger parks) is doubled.

Very interesting (as always), Bill, but what’s this about $100,000 annual grant to the Oregon Law Center?As you may be aware, some states have allocated substantial funding to their state’s Justice Department or to create a team of private attorneys general to assist with enforcement of tenant rights. Similar systems were originally proposed by the tenants during coalition meetings and were strongly opposed by the landlord group. The ultimate compromise was a limited $100,000 per year grant to be given to the Oregon Law Centerto employ oneattorney to provide direct legal services to statewide park and marina residents on matters arising under the Oregon Residential Landlord Tenant Act.

Is mandatory mediation and the $100,000 per year in perpetuity? No. Both elements have a four-year sunset. An advisory committee has been created to monitor both elements, consisting of equal numbers of landlord and tenant representatives to present a report on the status of both elements to the 2021 and 2023 Legislatures to determine whether they should be renewed.

When does all of this go into effect? The effective date of SB 586 is January 1, 2020

The short answer to your first question is "no," you do not have to give the long-time tenant the same 30-day notice as required for mobile home tenants. That notice under ORS 90.632 is only for mobile home tenants, not RVs. Since RVs are not "manufactured dwellings," you have some better options available.

Normally, I would recommend a 30-day, for-cause notice under ORS 90.392 requiring the tenant to repair his RV. Presumably your park has a rule requiring homes and RVs to be kept in good repair, which you would use as the basis for the notice. The 30-day notice would give the tenant 14 days to repair the RV or face termination of his tenancy at the end of the 30 days.

However, in this particular case it sounds like the travel trailer has been dilapidated for quite some time. Under ORS 90.412, you waived the right to evict the long-time tenant based on the condition of his RV by accepting rent for 3 or more months with knowledge of the condition of the RV. That is why I always recommend addressing problems with a notice as soon as the condition arises. (The rule is different for mobile homes - parks don't waive the right to evict even if the condition of the home has been longstanding).

Under the circumstances, your best option is to simply issue a 60-day, no-cause notice terminating the long-time tenancy. Presumably the tenant has been there for more than one year as a month to month tenant, which requires a 60-day notice.

The newer RV tenant with the messy space is a different story. If the condition of his space only became an issue recently, you could go with the 30-day, for-cause notice mentioned above. The basis of the notice would be your park rules requiring tenants to maintain their spaces, along with ORS 90.325 (1)(b) which requires tenants to keep their spaces "clean, sanitary and free from all accumulations" of debris and rubbish.

If the messy conditions have existed for 3 or more months, then you're only left with the no-cause eviction notice option. However, if the newer RV tenant has been there less than a year as a month to month tenant, the notice can be a 30-day, no-cause notice instead of a 60-day notice.

Do You Need an Attorney?

Oregon, unlike our neighbor to the North, does not require landlords to obtain the use of an attorney to appear in FED court. The necessary summons and complaint can be obtained from the courthouse and they can be filed and served quickly. This has its advantages and disadvantages: It is good insofar as it keeps the cost of the process down, but it is bad if the owner or manager fails to strictly follow all of the legal procedures required by the statutes. Accordingly, for the inexperienced manager or new owner, it is strongly, recommended that guidance first be sought, either through MHCO, from an experienced attorney, or by consulting with a knowledgeable community management company.

Strict Compliance

Since the FED process is designed to be a "summary" or quick proceeding, the law imposes upon those seeking its assistance, i.e. owners and managers, the duty to strictly comply with all of the requirements set out in the statutes. This means, for instance, that the written notice that must precede the filing of the complaint (e.g the 72- hour nonpayment of rent notice or the 30-day notice of termination for cause) must be properly filled out to the letter. Since the notice is required to be attached to the FED complaint, and thereby becomes a part of it, if it is defective in any respect, the Court can unilaterally dismiss it - thus forcing the landlord or manager to start all over again. It is for this reason that before actually filing the summons and complaint which starts the FED court process, the plaintiff should closely review the notice to make sure it complies with the law.

The Prevailing Attorney Fees Trap

To underscore the importance of making sure the notice is correct before filing in Court, consider this scenario: Your tenant is late in paying the rent. You quickly fill out and mail a 72-hour notice, wait six days and then file in Court. At the first appearance (discussed below) you learn that the tenant is represented by legal counsel who has filed an answer alleging that the notice is defective. You are now faced with the prospect of having to go to an attorney to find out just exactly what is wrong with your notice. To your dismay, you learn that you sent the notice out on the 7th of the month, rather than the 8th.[1] You were one day too early. While this might seem to be a technical and unimportant mistake - the tenant still got five full days after the 7th of the month - it is not. In legal parlance, the defect is "jurisdictional," meaning that the Court has no alternative but to dismiss the case. To make matters worse, since the tenant's attorney filed an answer in Court, the tenant is the "prevailing party" and you must pay his or her legal fees.

Use of Current Legal Forms (MHCO has over 60 Forms Available to Members)

Too many times landlords and managers fall into the trap of using outdated legal forms - or worse - they hand-draft their own notices. This can be fatal in Court. As noted above, the Courts enforce strict compliance with the statutes. The use of a hand-drafted notice is fraught with pitfalls: The number of days to correct the default might be incorrect, the statement of the default might be insufficient, or the description of the landlord's remedies might be overstated.

Equally dangerous is the use of old forms that have become outdated due to changes in the law. Landlords and managers should always note the date appearing at the bottom of the form. If the date of the form precedes the most recent legislative year (e.g. 1997, 1999, 2001, etc.) you should check with the forms provider (e.g. MHCO) to make sure that there have not been any changes to the form.

For example, the 30-day termination for cause notice used to state that if there was a repeat violation within 6 months from the date of expiration of the 30 days, the landlord could issue a non-curable 20-day notice of termination. However, due to a change in the statute, the 6-month period is now measured from the date of issuance of the 30-day notice. In other words, the time within which the landlord may evict for a repeat violation is now measured from a different (and earlier) time period than before. Use of the old form today would incorrectly state the landlord's right to terminate, and arguably be defective.

The First Appearance

Experienced landlords and managers know full well that the first appearance is the time that many, if not most, FEDs are settled. If the default is nonpayment of rent, the landlord and tenant can simply enter into a stipulated payment arrangement providing that if it is not followed by the tenant, the landlord may come back to court and upon filing of the necessary papers, have the judge issue the judgement of eviction.

Pursuant to statute, the first appearance must occur within approximately one to two weeks following the filing of the FED complaint and payment of fees. It is imperative that the landlord or his representative appear at that time. The failure to do so will result in an automatic dismissal. Generally, the Court is more than willing to allow the parties to negotiate a resolution - such as a repayment of rent schedule - that will avoid setting the matter for trial.

Landlords and managers are encouraged to take the first appearance process seriously. If the case can be resolved at this juncture, all parties should strive to do so. If the landlord has a tenant that they fully intend to evict, i.e. no settlement can be structured because of the seriousness of the violation, the facts should be fully discussed with an attorney before the first appearance. Once the case has gone beyond that point and the tenant has secured an attorney, it may be too late. If there is a defect in the notice, for example, it is far better to settle the case early, or unilaterally dismiss it and start over, than to have the matter set for trial and take the risk that the tenant's attorney or the Court will spot the defective notice.

Pick Your Shots

As I have repeatedly emphasized, don't go into Court on a weak case. If the tenant has any sort of network within the community, it is a certainty that at least three things will occur: (1) The tenant will try to have all of his friends and neighbors testify against the landlord; (2) if you lose the case, you can fully expect that some of the tenants who have followed the dispute will try to "test" the landlord's resolve to go back into Court on related issues, and (3) if you ever have to bring another action against the same tenant, he will argue that your claim is "retaliatory,"- in other words, that you are selectively prosecuting him.

Always make sure that you have sufficiently "papered" your file. In most cases, it is helpful to precede a 30-day notice with one or more correction notices or letters requesting voluntary compliance. In this manner the Court will see that you have "walked the extra mile" with the tenant. You do not want to be accused of acting precipitously without having given the tenant fair warning of the consequences of non-compliance.

Conclusion

As noted, the FED process can be daunting to the uninitiated. Sometimes the best lesson is to lose in Court. But the cost of losing is frequently more than financial - it can threaten the landlord's ability to effectively run the community. If in doubt, the safest course of action is to first seek the assistance of those who have been there before you.

[1] You must wait seven full days from the date rent is due, before sending out the notice. If rent is due on the 1st, this means that the earliest you may send out the notice is on the 8th.

Answer:  It’s easy to get confused. There is a lot to remember.  Generally all of the answers are contained in ORS 90.630[Termination by landlord; causes; notice; cure; repeated nonpayment of rent].[1]Here is a short summary:

· The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ noticein writing before the date designated in the notice for termination if the tenant:

• Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740[Tenant Obligations];
• Violates a rule or rental agreement provision;
• Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or
• Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534or 90.536.

· The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written noticespecifying the violation and the date of termination of the tenancy.  In such cases, the tenant does nothave a right to correct the violation – and the notice must so state. 

· Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period.  [Caveat: All three notices must have been validly prepared and delivered or served. – PCQ]The “three strikes” law is found at ORS 90.630(8)-(10).As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.

The renting of spaces by manufactured homes in a manufactured home community is governed by the Oregon Residential Landlord and Tenant Act in Chapter 90 of the Oregon Revised Statutes. The Act requires that a written rental Agreement, Statement of Policy and Rules and Regulations be provided to each tenant renting a space in a manufactured housing community. This agreement, which includes or incorporates the community rules and regulations, becomes the contract that governs the relationship between the landlord and the tenant. Much of what you may or may not be able to do in your community will be addressed in the rental agreement.

Although many residents in your community may have rental agreements that are 5 or 10 years old, residents moving in to your community must be given a current rental agreement that conforms with the most recent amendments of Residential Landlord and Tenant Act and Federal Fair Housing Act. MHCO form '5A', "Manufactured Dwelling Space Rental Agreement/Dispute Resolution Addendum" (for month to month tenancies) and MHCO form '5B', "Manufactured Dwelling Space Lease Agreement/Dispute Resolution Addendum" are available through MHCO or you may have a rental agreement drafted by your attorney.

The Oregon Legislature occasionally adopts revisions to the Landlord and Tenant Act. Landlords and managers should make sure that they are utilizing the most current Rental Agreement. Rental Agreements generally may not be changed after execution, with the exception of mutual agreement of the parties; rent increases; and statutory changes (requirements of revised laws will apply even though not stated in the pre-existing agreement). ORS 90.510(4).

The MHCO Rental Agreement is designed to meet the current requirements of Oregon State Law. The Rental Agreement, which is intended for use in all classifications of parks, can be changed or altered to suit individual situations. In either event, you should consult with your attorney in order to insure that the agreement you choose meets all the legal requirements. It is important to remember that the tenant cannot be required to waive any rights that are granted to the tenant/resident by Oregon State Law.

The Rental Agreement should be completed and signed by both the landlord and the tenant/resident PRIOR to the home being moved into the community or PRIOR to the tenant/resident occupying a home already sited in the community. 

Answer:  It’s easy to get confused. There is a lot to remember.  Generally all of the answers are contained in ORS 90.630[Termination by landlord; causes; notice; cure; repeated nonpayment of rent].[1]Here is a short summary:

· The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ noticein writing before the date designated in the notice for termination if the tenant:

• Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740[Tenant Obligations];
• Violates a rule or rental agreement provision;
• Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or
• Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534or 90.536.

· The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written noticespecifying the violation and the date of termination of the tenancy.  In such cases, the tenant does nothave a right to correct the violation – and the notice must so state. 

· Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period.  [Caveat: All three notices must have been validly prepared and delivered or served. – PCQ]The “three strikes” law is found at ORS 90.630(8)-(10).As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.

Answer:  It’s easy to get confused. There is a lot to remember.  Generally all of the answers are contained in ORS 90.630[Termination by landlord; causes; notice; cure; repeated nonpayment of rent].[1]Here is a short summary:

· The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ noticein writing before the date designated in the notice for termination if the tenant:

• Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740[Tenant Obligations];
• Violates a rule or rental agreement provision;
• Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or
• Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534or 90.536.

· The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written noticespecifying the violation and the date of termination of the tenancy.  In such cases, the tenant does nothave a right to correct the violation – and the notice must so state. 

· Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period.  [Caveat: All three notices must have been validly prepared and delivered or served. – PCQ]The “three strikes” law is found at ORS 90.630(8)-(10).As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.