Search

Answer:  The answers to some of your questions can and should be found in the rules and regulations. For example, addressing whether attachments and outbuildings stay or are removed.[1] It is problematic to me to permit a resident to make such additions at the outset, without addressing what happens when the home is put up for sale.  If additions have been made for which consent was never obtained, or which do not conform to the applicable building codes, management should move quickly, since acceptance of rent with knowledge of the noncompliance could lead to waiver.

Assuming that the attachments and outbuildings are in a state of disrepair, SB 277 provides a remedy to management at any time, including the time of sale. However, without knowing the exact nature of these “improvements” it is hard to know whether insisting upon complete removal is appropriate or legal. 

Also, much depends upon other factors. How much will this cost the resident? How long will it take? Are the “improvements” not really beneficial to the space, and detract from the appearance of the whole area? Are they code-compliant, or can they be made so? As discussed below, SB 277 continued parts of the earlier disrepair/deterioration law found in ORS 90.632, but tightened up portions of it, due to resident complaints about abuses.[2] And interestingly, it now includes reference to “aesthetic” and “cosmetic” improvements, which may be helpful in your situation.

MHCO has significantly changed its current form No. 55 to address the changes in the new law. The major issue going forward is for managers and landlords to be able to recognize when to use Form No. 55 to address disrepair and deterioration conditions, versus Form No. 43C, which is appropriate for violations relating to maintenance and appearance of the space.

If the disrepair or deterioration to the exterior of the home or related structures creates a risk of imminent and serious harm to dwellings, homes, or persons in the Community (e.g. dangerously unstable steps, decking or handrails), there is a 30-day period to repair.

For all other (i.e. non-dangerous) conditions, the minimum period to cure is now 60 days.  As before, the new Form 55 provides a place for landlords and managers to specifically describe the item(s) in need of repair.

Trap: If there is imminent risk of harm, and the landlord/manager intends to give the tenant 30 days rather than 60 days, SB 277A requires that they not only describe the item(s) in disrepair, but also describe the potential risk of harm.  There is little question but that the failure to do so would invalidate the notice. The new Form 55 prompts users to describe both the violation and the potential risk of harm.

Tip: The new Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. Remember, you cannot expect the tenant to be a mind reader – just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity. 

SB 277A now provides that at the time of giving a prospective purchaser the application and other park documents, the landlord/manager must also give them the following:

• Copies of any outstanding notices of repair or deterioration issued under ORS 90.632;
• A list of any disrepair or deterioration of the home;
• A list of any failures to maintain the Space or to comply with any other provisions of the Rental/Lease Agreement, including aesthetic or cosmetic improvements; and
• A statement that the landlord/manager may require a prospective purchaser to complete the repairs, maintenance and improvements described in the notices and lists provided.

Tip: Note that the new law combines not only the original ORS 90.632 notices relating to damage and deterioration of the home or structures, but also a list of failures to maintain the space and other defaults, including aesthetic or cosmetic improvements. This may or may not include 30-day curable notices under ORS 90.630 for failure to maintain the space. But in both cases (i.e. defaults relating to structures, and those relating to the space), the new tenant appears to get the six-month period to comply. It may be that if the “improvements” are aesthetically an eyesore, SB 277A may be of use in getting them either cleaned up or removed.

This represents and interesting shift in Oregon law, and possibly for the better. Many parks historically gave “resale compliance notices” to tenants who were placing their homes up for sale. However, until now, there was some question whether a landlord could “require” as a condition of resale, that the existing tenant make certain repairs – absent having first sent a 30-day notice.[3] Now, under the new version of ORS 90.632, it appears landlords may make that list, and let the tenant/seller know that unless the work is completed before sale, it will be given to the tenant’s purchaser upon application for tenancy.

So, if the landlord/manager accepts a prospective purchaser as a new tenant, and notwithstanding any prior landlord waivers of the same issue(s), the new tenant will be required to complete the repairs, maintenance and improvements described in the notices and lists.

Under Section (10) of SB 277A, if the new tenant fails to complete the repairs described in the notices within six months from commencement of the tenancy, the landlord “may terminate the tenancy by giving the new tenant the notice required under ORS 90.630 or ORS 90.632.”  This appears to say that a new tenant who fails to complete the items addressed in the notices and lists within the first six months, will thereafter be subject to issuance of a curable 30-day or 60-day notice to complete the required repairs. Accordingly, this is how the new MHCO Form 55 will read.

[1] Caution should be exercised in drafting, however.  If the rule says the “improvements stay” but they are an eyesore, management may be left with more than it bargained for. So whether it stays should be phrased as an option for management, if and when the time comes.

[2] Without commenting on the nature or cause of the complaints, suffice it to say that when the press gets ahold of a tenant/park dispute, the legislators are not far behind, and the end result is not usually helpful to landlords. The not-so-subliminal message here is that such disputes are better resolved quietly and quickly, lest they become a cause célèbre.

[3] This is because ORS 90.510(5)(i) provides that the rental or lease agreement for new tenants must disclose “(a)ny conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

Answer: In a word - No. Or, to be more precise, as discussed below, if you do not renew the lease, it will automatically become a month-to-month tenancy on the same terms as the lease. In other words, your non-renewal will not result in forcing the tenant to vacate the space.

When this law was first being discussed, this issue was addressed. Prior to enactment, there was an open question whether fixed term tenancies [i.e. leases - those with definite start and ending dates] were even legal. From the tenants' perspective, under the manufactured housing landlord-tenant laws, since a landlord cannot terminate a tenancy "without cause," a lease that expires without renewal is the same thing i.e. termination without cause. Accordingly, ORS 90.545 was enacted, which provided protections to tenants against the possibility of unilateral nonrenewal.

Is this unfair to a landlord, such as yourself, when an applicant is approved, ostensibly based upon a satisfactory application, who then becomes the "Tenant From Hell?" Some would say that the landlord's best protection is at the front end of the business relationship, since he/she is given a full and complete opportunity to set out all screening criteria and performing a thorough vetting of the applicant's financial, rental, and criminal background. But once the landlord approves the applicant - presumably because he/she passed the vetting process - they have the right to remain at the space, so long as they don't commit certain material violations, such as nonpayment of rent, breach the rules, rental agreement, state law, or commit certain actions outrageous in the extreme.

Here is how the fixed term tenancy law, found at ORS 90.545 and 90.550, works:

• At least 60 days prior to the ending date of the lease term the landlord must provide to the tenant a proposed new lease, together with a written statement that summarizes any new or revised terms, conditions, rules or regulations.
• The new rental agreement may include new or revised terms, conditions, rules or regulations, if:
• They fairly implement a statute or ordinance adopted after the creation of the pre-existing lease; or
• They are the same as those offered to new or prospective tenants at the time the new proposed lease is submitted to the tenant and for the preceding six-months prior to submission period;
• If there have been no new or prospective tenants during the six-month period, the new lease terms must be same as are customary for the rental market; and
• They are consistent with the rights and remedies provided to tenants under ORS Chapter 90; and
• Do not relate to the age, size, style, construction material or year of construction of the manufactured dwelling [or floating home] contrary to ORS 90.632 (2) (Footnote 1); and
• Do not require an alteration of the manufactured dwelling [or floating home] or alteration or new construction of an accessory building or structure.
• The tenant may accept or reject a landlord's proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.
• Note that if a landlord fails to submit a proposed new rental agreement as allowed, the tenancy renews as a month-to-month tenancy under the same terms as the prior lease, except that the landlord has the right to increase the rent unilaterally, pursuant to ORS 90.600.
• If the tenant fails to accept or unreasonably rejects a landlord's proposed new rental agreement, the fixed term tenancy terminates on the ending date without further notice and the landlord may take possession through the eviction process, assuming the tenant does not vacate the space and remove the home.
• However, if the tenant surrenders possession of the space prior to the filing an eviction, he/she has the right to enter into a written storage agreement with the landlord, and then has the same rights and responsibilities of a lienholder during an abandonment, i.e. pay storage fees, maintain the space, and sell the home within six months [rather than 12 for lienholders]. See, ORS 90.675 (19).

Conclusion. My suggestion is that if your tenant is continually causing problems, paper your file thoroughly, showing the efforts you've made to work with that person. If there are complaints from other residents, document them. Eventually, the tenant will slip up - doing something that gives you the basis for an eviction. If he is a chronic late payer, consider using the three strikes law, found in ORS 90.630(8). Then find a good landlord attorney and discuss the best method to evict the tenant. You will then be armed with good evidence for the judge or jury to show that you walked the extra mile with this person, but they simply refused to cooperate. And remember that although there are restrictions on the contents of the new lease you offer, it may contain provisions that will give you a better foundation for the eviction. Good luck!

Footnote 1: This specific protection was important to the tenant lobby, since until it was enacted, there was an open question as to whether landlords could impose as a condition upon accepting an applicant who was purchasing an older home, that it must be removed upon subsequent resale. In addition, ORS 90.632 was enacted which permits landlords to expressly require that homes be repaired due to damage or deterioration.

Answer: By way of refresher, ORS 90.630 pertains to curable maintenance/appearance violations relating to residents' spaces. However, if the violation relates to the physical condition of the home's exterior, ORS 90.632 applies, to address repair and/or remediation that can take more time to cure, either due to the weather, the amount or complexity of the work, or availability of qualified workers.

SB 277A, became law on June 14, 2017 ("Effective Date"), applies: (a) To rental agreements for fixed term tenancies - i.e. leases - entered into or renewed on or after the Effective Date; and, (b) To rental agreements for periodic tenancies - i.e. month-to-month tenancies - in effect on or after the Effective Date.

Both ORS 90.632 and the MHCO form (No. 55) provides that if the tenant performs the necessary repairs before the end of the compliance date, or extended compliance date, they have the right to give the landlord/manager a written notice that the issues have been corrected. There is no fixed time for management's response as to whether the repairs have been satisfactorily and timely performed; it is sufficient if it is within a reasonable time following the tenant's written notice. However, if a tenant gives this notice to management at least 14 days prior to the end of the completion deadline, or extended deadline, their failure to promptly respond is a defense to a landlord's termination of tenancy.

I am assuming the tenant gave you no such notice, otherwise, you would have responded that the color was too bright.

MHCO Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. As I said in an article last year on this form, '_you cannot expect the tenant to be a mind reader - just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity."

Is there a technical argument that since the requirement was not in the Form 55 Notice, that it is not effective? In other words, he complied with the Notice, but not the letter. As you said: "He did paint like we asked him, but it was not a color approved by management." I personally think such an argue is specious - assuming that the letter accompanied, or quickly followed the Notice.

But to the question whether you can proceed under the Notice, I don't think I would recommend that, because the Notice was complied with. Assuming you have some rule about pre-approval on painting in your rules, I would issue a 30-day notice.

If you do not have such a rule, you will likely have to tread lightly, as you may not be in a good position to declare a violation upon which to issue a termination notice. In other words, you should try to reach a compromise, which may result in some form of cost sharing. I'm sorry to reach this conclusion, but without the requirement of management approval somewhere (i.e. in the rules or the Form 55 Notice) you may find that it the tenant secures legal counsel, you options are limited.[1]

The cautionary tale here is to make sure that when issuing Form 55 Notice, you not only need to identify what the problem is, but all completely explain what is necessary to cure. Had the pre-approval requirement been set out in the Form, you would have at least had a reasonable argument of non-compliance. I say "reasonable" because there still remains an argument by the tenant that you are imposing a requirement (i.e. management pre-approval), that is not contained in the rules or rental agreement.

[1] There is an argument that the Letter was part of the Form 55 Notice, and therefore the tenant is in violation. However, unless one of them referred to this cross-reference, it is not a pitch I would try to make in court.

Answer. This sounds like a cross between Fatal Attraction and Pacific Heights! It appears your friend never saw either film, or if he did, he failed to get the message.

Here is a short - and not comprehensive - summary of the temporary occupancy agreement law, which is found in ORS 90.275:

• The temporary occupancy agreement may be terminated by:
  • The tenant without cause at any time; and
  • The landlord - but only for a cause that is a material violation of the temporary occupancy agreement.
• The temporary occupant does not have a right to cure a for-cause violation issued from the landlord.
• Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record.
  • However, the landlord may not screen the proposed temporary occupant for credit history or income level, since they are not a "tenant" and their financial capacity to pay rent is immaterial.
• A temporary occupancy agreement:
  • May provide that the temporary occupant is required to comply with any applicable rules for the premises; and
  • May have a specific ending date.
• A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement.
• A temporary occupant is treated as a squatter if they continue to occupy the dwelling in violation of the agreement.

In this case, the landlord does not appear to have a basis for termination, since you did not mention any "cause", such as a violation of the community rules, etc. However, since the tenant can terminate at any time, it appears that going forward, the occupant's right to remain has been terminated, and her continued presence makes her a squatter. ORS 90.100(43) defines a "squatter" as '_a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit." A squatter is not a holdover tenant.

Pursuant to ORS 90.110(5) the Oregon Residential Landlord Tenant Act ("ORLTA") does not apply to squatters. Accordingly, it would appear[1] that the tenant will have to file his own eviction. No notice is necessary. The complaint would be under ORS 105.126, for occupancies in which ORLTA does not apply.

As for the deputy, while his answer was technically wrong, since she had no legal right to occupy the premise after the temporary agreement was terminated, I would submit that he was interpreting the situation as he saw it at the time, not knowing the technicalities of ORLTA. And I would agree, to avoid a breach of the peace, an eviction is the safer way to go, where the squatter refuses to voluntarily leave.

And tell your friend to download Fatal Attraction and Pacific Heights. Together they provide a cautionary tale for the future.

[1] I am hedging here, because that statute applies where the person entered lawfully. In this case, however, I would argue that once the tenant revoked permission and she refused to leave, she was entering possession unlawfully.

Answer. Wow! Asking me if God caused a windstorm could get me in trouble. What if I’m wrong?  

Question No. 1. Generally, an “Act of God” is considered to be a natural disaster that is outside of human control. That would include earthquakes, windstorms, floods, tsunamis, etc. If you are asking about insurance exclusions for Acts of God, you’ll have to read you policy. Generally, however, as a landlord, you should make sure you have broad general casualty insurance coverage (as opposed to liability insurance coverage), since the former would cover casualty losses (fire, wind, flood, etc.), regardless of causation or negligence, whereas the latter would providecoverage for you only if you causedthe damage. Broad insurance coverage against casualty losses, e.g. from Acts of God, is what community owners should have. Whether residents have such coverage is less certain, since the rental/lease agreements I’ve seen either do not require any form of insurance, or occasionally only liability insurance. And unless their lender requires it, it is unlikely that many owners of older homes have any insurance against loss or damage.

Question No. 2. As to uprooted trees, let’s go to the legal definitions. A “hazard tree” under ORS 90.100(20)must include the following elements:

• It is located  onarentedspacein  amanufactureddwellingpark;

· It measures  at  least  eight inches DBH[2]; and

· It is  considered,by  an arboristlicensed asa landscape  constructionprofessionalpursuant toORS  671.560and  certifiedbythe  InternationalSociety ofArboriculture,toposean unreasonablerisk  ofcausing serious  physical harm  or damage toindividualsor  propertyin the  near  future. (Emphasis mine.)

I draw certain corollaries from this definition – some may disagree:

• A tree is a large living plant that grows out of the ground; if it is blown down, it is no longer a “tree” in the conventional sense. I have no recollection of discussing downed trees as “trees” that would somehow be subject to the hazard tree legislation. I would defer to John VanLandingham’s recollection on this, however.  This answer would seem to dispose of the above question, but I will continue, just to address the other unasked questions that will inevitably arise.
• If a tree does not measure at least eight inches, DBH, it is nota “hazard tree”. This is not to say that the tree is necessarily “safe” or that it may be ignored by landlord or resident.  In the final analysis, landlord and managers should monitor the condition of all trees, both in the common areas, and on the tenants’ spaces. Just because a tree is not a hazard tree does not mean they can be ignored. Similarly, just because the tree is a resident’s responsibility does not mean it should be ignored by management. If it is the resident’s responsibility, management should encourage compliance – since a falling tree limb or the entire tree, may cause damage or injury to other spaces and other residents.
• If a licensed arborist has either said the subject tree does not pose a risk of harm, or the arborist has never opined at all, it is nota “hazard tree”. Again, this does not mean the tree may, or should be, ignored.
• Lastly, remember that all of the above three elements (on the resident’s space; eight inches DBH, and considered dangerous by a licensed arborist) must occur together before a tree can be considered a “hazard tree”.  

Once it meets the statutory definition, then the legal obligations found in ORS 90. 725, 90.727, 90.730, and 90.740apply.  See discussion in my prior post here.

Questions Nos. 3 & 4. I believe the answer to who responsibility for maintenance, removal and disposal are addressed inORS 90.727(Maintenance of trees in rented spaces). Although the statutes do not referral to “disposal” they do refer to removal.  I read these words as interchangeable in this context. For example, removal of garbage and debris from one’s yard, reasonably includes disposal.  The statute provides: 

(1) As used in this section:

      (a) “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.

      (b) “Removing a tree” includes:

      (A) Felling and removing the tree; and

      (B) Grinding or removing the stump of the tree.[3]

I suppose the next question is whether “removing a tree” can refer to downed trees. I think not, since the follow text quoted above, refers to “felling” it.   

Conclusion.  As noted above, landlords, more likely than residents, have insurance that deals with Acts of God. These types of natural events do not distinguish between whose property is affected, e.g. common areas vs. resident spaces. In some instances, strict enforcement of the hazard tree statute could impose a catastrophic expense to a resident that might be covered under the landlord’s insurance. In such cases, consideration should be given to providing assistance/coverage rather than forcing a tenant into bankruptcy or financial distress.

Answer:  In a word – No.  Or, to be more precise, as discussed below, if you do not renew the lease, it will automatically become a month-to-month tenancy on the same terms as the lease.  In other words, your non-renewal will not result in forcing the tenant to vacate the space.

When this law was first being discussed, this issue was addressed.  Prior to enactment, there was an open question whether fixed term tenancies [i.e. leases - those with definite start and ending dates] were even legal.  From the tenants’ perspective, under the manufactured housing landlord-tenant laws, since a landlord cannot terminate a tenancy “without cause,” a lease that expires without renewal is the same thing i.e. termination without cause.  Accordingly, ORS 90.545was enacted, which provided protections to tenants against the possibility of unilateral nonrenewal.

Is this unfair to a landlord, such as yourself, when an applicant is approved, ostensibly based upon a satisfactory application, who then becomes the “Tenant From Hell?”  Some would say that the landlord’s best protection is at the front end of the business relationship, since he/she is given a full and complete opportunity to set out all screening criteria and performing a thorough vetting of the applicant’s financial, rental, and criminal background. But once the landlord approves the applicant – presumably because he/she passed the vetting process - they have the right to remain at the space, so long as they don’t commit certain material violations, such as nonpayment of rent, breach the rules, rental agreement, state law, or commit certain actions outrageous in the extreme.   

Here is how the fixed term tenancy law, found at ORS 90.545 and 90.550, works:

• At least 60 days prior to the ending date of the lease term the landlord must provide to the tenant a proposed new lease, together with a written statement that summarizes any new or revised terms, conditions, rules or regulations.
  •  The new rental agreement may include new or revised terms, conditions, rules or regulations, if:
    • They fairly implement a statute or ordinance adopted after the creation of the pre-existing lease; or
    • They are the same as those offered to new or prospective tenants at the time the new proposed lease is submitted to the tenant and for the preceding six-months prior to submission period;
    • If there have been no new or prospective tenants during the six-month period, the new lease terms must be same as are customary for the rental market; and
    • They are consistent with the rights and remedies provided to tenants under ORS Chapter 90; and
    • Do not relate to the age, size, style, construction material or year of construction of the manufactured dwelling [or floating home] contrary to ORS 90.632 (2);[1] and
    • Do not require an alteration of the manufactured dwelling [or floating home] or alteration or new construction of an accessory building or structure.
• The tenant may accept or reject a landlord’s proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.
• Note that if a landlord fails to submit a proposed new rental agreement as allowed, the tenancy renews as a month-to-month tenancy under the same terms as the prior lease, except that the landlord has the right to increase the rent unilaterally, pursuant to ORS 90.600.
• If the tenant fails to accept or unreasonably rejects a landlord’s proposed new rental agreement, the fixed term tenancy terminates on the ending date without further notice and the landlord may take possession through the eviction process, assuming the tenant does not vacate the space and remove the home.
  • However, if the tenant surrenders possession of the space prior to the filing an eviction, he/she has the right to enter into a written storage agreement with the landlord, and then has the same rights and responsibilities of a lienholder during an abandonment, i.e. pay storage fees, maintain the space, and sell the home within six months [rather than 12 for lienholders].  See, ORS 90.675 (19).

Conclusion.  My suggestion is that if your tenant is continually causing problems, paper your file thoroughly, showing the efforts you’ve made to work with that person. If there are complaints from other residents, document them. Eventually, the tenant will slip up – doing something that gives you the basis for an eviction.  If he is a chronic late payer, consider using the three strikes law, found in ORS 90.630(8). Then find a good landlord attorney and discuss the best method to evict the tenant.  You will then be armed with good evidence for the judge or jury to show that you walked the extra mile with this person, but they simply refused to cooperate.  And remember that although there are restrictions on the contents of the new lease you offer, it may contain provisions that will give you a better foundation for the eviction.  Good luck!

[1] This specific protection was important to the tenant lobby, since until it was enacted, there was an open question as to whether landlords could impose as a condition upon accepting an applicant who was purchasing an older home, that it must be removed upon subsequent resale. In addition, ORS 90.632 was enacted which permits landlords to expressly require that homes be repaired due to damage or deterioration.

By:  Phil Querin, MHCO Legal Counsel

Always Assume The Matter Will Go To Court

While most legal notices will have their desired effect – e.g. the tenant will pay the rent, or maintain the space, or do what is necessary to comply – there are a small number of tenants who will fight. Of those who fight, some will secure an attorney. Most attorneys know that the easiest way to win is to attack the notice for some deficiency. If the notice is legally insufficient, the landlord’s case will fail without any examination of the merits of the case. The failure to win in court oftentimes leaves management with an unmanageable tenant.

Accordingly, when landlords and managers prepare notices, they should alwaysassume that the notice will be contested. This approach is the best protection landlords have in securing compliance in those cases where the tenant decides to fight. 

What does it mean to draft a notice as if the matter will go to court? It means that someone – the judge or jury - will be scrutinizing the document. It means making sure that everything is filled out correctly before mailing or delivering it. It means using a form, if one is available, rather than hand-drafting a notice. It means making sure that the proper form is used. In some circumstances, it may mean having your attorney review the form beforesending it out.

Always Use A Calendar

Virtually all legal notices in the landlord-tenant law give a certain number of days (or hours) for compliance. If a 30-day notice is mailed, three additional days must be added. This means that the deadline for compliance is at least 33 days. However, landlords and managers frequently count the day of mailing toward the 33 days. This is incorrect. Additionally, the 33d day is frequently identified as the deadline, when it should be the day afterthe 33d day. When notices are sent in the month of February, the 33-day calculation can get confusing, since there are only 28 days – or 29 in the case of leap years. Rather than trying to do it in your head, it is far better to physically count the number of days on a calendar. Don’t do it once. Count out the necessary number of days at least three times, just to make sure that you’ve gotten it right.

Don’t Cut Deadlines Too Close

Frequently, landlords and managers give only the minimal number of days for compliance. This can be dangerous. While the court will always throw out a notice that is too short, it cannot throw one out that is too long. Since the risk of error is so high in the calculation of the necessary number of days, it is always prudent to give a couple of extra days, just to be safe. Rather than giving just 33 days on mailed 30-day notices, give 35. The statute governing the calculation of days can be confusing. Rather than trying to remember each rule, it is far better to simply add a couple of extra days, in order to avoid the risk of miscalculation.

Avoid All Ambiguity

For all maintenance and repair notices, be as specific as possible. Assume that a judge or jury will be looking at it. Assume that they know nothing about the problem. Will they be able to understand it? For example, saying “Clean up your yard” will not be understood by a judge or jury to mean “Mow and edge the lawn, and remove the weeds and blackberry bushes.” While tenants may know, in their heart of hearts, exactly what the landlord is referring to when he says “Clean up your yard,” by the time the matter gets into court, the tenant’s attorney will argue that the notice was so vague as to make compliance impossible. 

On disrepair notices, landlords and managers should be sure to tell the tenant exactly what is wrong with the home and exactly what is necessary to remedy it. To say “fix the steps” will be argued as too vague. This cannot be said of a notice that says “repair or replace the broken steps and handrail located along the side of the sundeck behind the house.” 

Use Current MHCO Forms

Most forms have a copyright date at the bottom. Remember that the Oregon Legislature meets every two years and that a session never goes by without some changes being made to the landlord-tenant laws. There is a good chance that a 1996 form will not legally comply with those laws generated during the 2001 Legislative Session. Accordingly, if you have a form that is copyright dated before the latest legislative year, you should check to find out if it is still current. 

Make Sure You’re Using the Right Form

While this seems obvious, errors can occur. This is especially true when sending out notices to repair a home due to damage or deterioration. ORS 90.632 expressly governs this situation. There is a special form that must be used. The law requires that the form must contain specific notice to the tenant regarding their rights to obtain an extension of time for compliance if certain repairs, such as painting, are required by the landlord. Landlords and managers frequently confuse damage and deterioration situations with failure to maintain issues. If a house is in need of paint or the skirting is rusted and broken, a notice under ORS 90.632 must be issued, since this deals with damage or deterioration. However, this is not so, if the problem is simply maintenance, such as debris in the yard, or the home needs to be power-washed.

Be Careful Using 24-Hour Notices

While there are several good reasons to use a 24-hour notice, before issuing one, you should first ask two questions: (a) Is the conduct expressly prohibited by the park rules, and (b) is it of such a magnitude that it jeopardizes the health and safety of the tenants or managers in the park. If the violation is a breach of the rules, but is nota health or safety issue, it is better to give a 30-day notice for a rules violation. Here’s why: 24-hour notices are not curable. This means that the court will be faced with having to kick someone out of their home. If there is any doubt whatsoever, the judge or jury will normally come down on the side of the tenant. However, a 30-day notice is curable. If the conduct stops, there is no further issue for the landlord. If it is repeated within six months of the date of the 30-day notice, the landlord may issue a 20-day non-curable notice. If the landlord must file an eviction based upon the tenant’s failure to vacate after the issuance of a 20-day notice, the judge or jury will know that the tenant was first given an opportunity to avoid termination of the tenancy but they ignored it. 

Only Use Notices of Termination As A Last Resort

Several changes ushered in by the 2001 Legislative Session make it easier for landlords and managers to first seek voluntary compliance from a tenant before issuing notices of termination. The waiver statute is not as harsh as it once was. Additionally, since informal notices are not intended to be the basis of an eviction action, they do not need to be in any particular form. They can be mailed or hand delivered without the necessity of counting days. They do not have to threaten termination of the tenancy. They do not need to have a fixed deadline for compliance. They can say “please.” Perhaps most important, they make management look better, since they show that the landlord or manager “walked the extra mile” with the tenant, rather than simply terminating the tenancy. Most landlord attorneys would prefer to be in court with a tenant’s file that is thick with requests for voluntary compliance. By the time a legal notice of termination is sent, it should say to the judge or jury “this was the landlord’s last resort.”

Only Use Notices Of Termination If You Mean It

Landlords and managers who issue notices without enforcing them create the appearance they are “crying wolf.” If a notice is issued, say for failure to maintain the yard, but no enforcement occurs upon noncompliance, the notice loses importance. If this occurs park-wide, the minute an eviction is filed based upon a particular tenant’s refusal to comply, the argument occurs that management is engaging in “selective enforcement,” since it had never done it before.  Consistent with the “last resort” approach, discussed above, landlords and managers should reserve the legal notice of termination only for those cases in which they intend to follow through.

Conclusion

While legal notices of termination are a necessary precondition to filing an eviction, they can also prove to be management’s undoing, if not properly used. They should be reserved for those cases in which the landlord or manager has no other viable alternative, and when used, they mustbe properly prepared.  Indiscriminate use or sloppy preparation of notices of termination will do management more harm than good.

Always Use A Calendar

Virtually all legal notices in the landlord-tenant law give a certain number of days (or hours) for compliance. If a 30-day notice is mailed, three additional days must be added. This means that the deadline for compliance is at least 33 days. However, landlords and managers frequently count the day of mailing toward the 33 days. This is incorrect. Additionally, the 33d day is frequently identified as the deadline, when it should be the day after the 33d day. When notices are sent in the month of February, the 33-day calculation can get confusing, since there are only 28 days – or 29 in the case of leap years. Rather than trying to do it in your head, it is far better to physically count the number of days on a calendar. Don’t do it once. Count out the necessary number of days at least three times, just to make sure that you’ve gotten it right.

Don’t Cut Deadlines Too Close

Frequently, landlords and managers give only the minimal number of days for compliance. This can be dangerous. While the court will always throw out a notice that is too short, it cannot throw one out that is too long. Since the risk of error is so high in the calculation of the necessary number of days, it is always prudent to give a couple of extra days, just to be safe. Rather than giving just 33 days on mailed 30-day notices, give 35. The statute governing the calculation of days can be confusing. Rather than trying to remember each rule, it is far better to simply add a couple of extra days, in order to avoid the risk of miscalculation.

Avoid All Ambiguity

For all maintenance and repair notices, be as specific as possible. Assume that a judge or jury will be looking at it. Assume that they know nothing about the problem. Will they be able to understand it? For example, saying “Clean up your yard” will not be understood by a judge or jury to mean “Mow and edge the lawn, and remove the weeds and blackberry bushes.” While tenants may know, in their heart of hearts, exactly what the landlord is referring to when he says “Clean up your yard,” by the time the matter gets into court, the tenant’s attorney will argue that the notice was so vague as to make compliance impossible.

On disrepair notices, landlords and managers should be sure to tell the tenant exactly what is wrong with the home and exactly what is necessary to remedy it. To say “fix the steps” will be argued as too vague. This cannot be said of a notice that says “repair or replace the broken steps and handrail located along the side of the sundeck behind the house.”

Use Current MHCO Forms

Most forms have a copyright date at the bottom. Remember that the Oregon Legislature meets every two years and that a session never goes by without some changes being made to the landlord-tenant laws. There is a good chance that a 1996 form will not legally comply with those laws generated during the 2001 Legislative Session. Accordingly, if you have a form that is copyright dated before the latest legislative year, you should check to find out if it is still current.

Make Sure You’re Using the Right Form

While this seems obvious, errors can occur. This is especially true when sending out notices to repair a home due to damage or deterioration. ORS 90.632 expressly governs this situation. There is a special form that must be used. The law requires that the form must contain specific notice to the tenant regarding their rights to obtain an extension of time for compliance if certain repairs, such as painting, are required by the landlord. Landlords and managers frequently confuse damage and deterioration situations with failure to maintain issues. If a house is in need of paint or the skirting is rusted and broken, a notice under ORS 90.632 must be issued, since this deals with damage or deterioration. However, this is not so, if the problem is simply maintenance, such as debris in the yard, or the home needs to be power-washed.

Be Careful Using 24-Hour Notices

While there are several good reasons to use a 24-hour notice, before issuing one, you should first ask two questions: (a) Is the conduct expressly prohibited by the park rules, and (b) is it of such a magnitude that it jeopardizes the health and safety of the tenants or managers in the park. If the violation is a breach of the rules, but is not a health or safety issue, it is better to give a 30-day notice for a rules violation. Here’s why: 24-hour notices are not curable. This means that the court will be faced with having to kick someone out of their home. If there is any doubt whatsoever, the judge or jury will normally come down on the side of the tenant. However, a 30-day notice is curable. If the conduct stops, there is no further issue for the landlord. If it is repeated within six months of the date of the 30-day notice, the landlord may issue a 20-day non-curable notice. If the landlord must file an eviction based upon the tenant’s failure to vacate after the issuance of a 20-day notice, the judge or jury will know that the tenant was first given an opportunity to avoid termination of the tenancy but they ignored it.

Only Use Notices of Termination As A Last Resort

Several changes ushered in by the 2001 Legislative Session make it easier for landlords and managers to first seek voluntary compliance from a tenant before issuing notices of termination. The waiver statute is not as harsh as it once was. Additionally, since informal notices are not intended to be the basis of an eviction action, they do not need to be in any particular form. They can be mailed or hand delivered without the necessity of counting days. They do not have to threaten termination of the tenancy. They do not need to have a fixed deadline for compliance. They can say “please.” Perhaps most important, they make management look better, since they show that the landlord or manager “walked the extra mile” with the tenant, rather than simply terminating the tenancy. Most landlord attorneys would prefer to be in court with a tenant’s file that is thick with requests for voluntary compliance. By the time a legal notice of termination is sent, it should say to the judge or jury “this was the landlord’s last resort.”

Only Use Notices Of Termination If You Mean It

Landlords and managers who issue notices without enforcing them create the appearance they are “crying wolf.” If a notice is issued, say for failure to maintain the yard, but no enforcement occurs upon noncompliance, the notice loses importance. If this occurs park-wide, the minute an eviction is filed based upon a particular tenant’s refusal to comply, the argument occurs that management is engaging in “selective enforcement,” since it had never done it before.  Consistent with the “last resort” approach, discussed above, landlords and managers should reserve the legal notice of termination only for those cases in which they intend to follow through.

Conclusion

While legal notices of termination are a necessary precondition to filing an eviction, they can also prove to be management’s undoing, if not properly used. They should be reserved for those cases in which the landlord or manager has no other viable alternative, and when used, they must be properly prepared.  Indiscriminate use or sloppy preparation of notices of termination will do management more harm than good.

Situation: A condo association with a no-pets policy lets a tenant keep two service dogs to accommodate his disability. After several years of good behavior, the dogs turn into incessant barkers who disturb their neighbors. The association orders the tenant to get rid of them or face eviction.  

You Make the Call: Did the association violate its FHA duty to accommodate the tenant?

Answer: No

Ruling: The Florida state court refuses to grant the tenant an injunction to block the association from enforcing the rule, and the federal court upholds the ruling on procedural grounds [Mercier v. Turnberry Isle S. Condo. Ass’n, 2021 U.S. Dist. LEXIS 243301].

Takeaway: Even service animals that are reasonably necessary to enable disabled prospects and tenants an equal opportunity to use and enjoy a dwelling and public and common use areas must behave and not create an unreasonable nuisance for other tenants. The broader point is that the FHA duty to accommodate reasonable requests for service animals doesn’t preclude you from enforcing rules necessary to ensure your other residents a quiet, clean, and healthy community.

One level deeper: The agreement resolves claims that the housing authority failed to fulfill a reasonable accommodation request to provide the tenant’s brother with copies of all correspondence sent to the tenant, resulting in the tenant failing to respond to a recertification notice and being evicted.

The tenant also alleged that the housing authority violated Section 504 of Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability by recipients of federal financial assistance. As a result of the housing authority’s failure to provide the tenant’s brother with her recertification notice, the tenant lost her housing.

What you need to know: The Fair Housing Act (FHA) prohibits housing providers from discriminating against people with disabilities, including refusing to make reasonable accommodations in policies or practices when such accommodations may be necessary to provide persons with disabilities an equal opportunity to use or enjoy a dwelling.

In other words, changes in the way things are customarily done that enable a person with disabilities to enjoy housing opportunities is a reasonable accommodation. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, HUD says that treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling.

Takeaway: Remember to carefully consider each reasonable accommodation request you receive. When you get an accommodation request, it’s up to you to evaluate whether the person is entitled to a reasonable accommodation because of a disability and whether the requested accommodation is reasonable and necessary.