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Situation: A tenant claimed he was sexually harassed by his next-door neighbor, citing a series of incidents in which the neighbor allegedly:

• Insulted him in Spanish;
• Blocked his path so that his chest touched the neighbor’s chest;
• Leered at his crotch area;
• Snuck up behind him; and
• Told gardeners to use a leaf blower to blow dust toward his apartment.    

The tenant claimed that all of this amounted to a hostile housing environment and sued the landlord for sex discrimination.

You Make the Call: Did the tenant have a valid claim for tenant-on-tenant harassment?

Answer: No

Ruling: The California federal district court granted the landlord’s motion for summary judgment. A landlord could, in fact, be liable for a hostile housing environment, as long as tenants can show they were subjected to: (1) unwelcomed (2) sexual harassment that was (3) “sufficiently severe or pervasive so as to interfere with or deprive the tenant of [his] right to use or enjoy [his] home.”

However, the court continued, the neighbor’s alleged conduct in this case, while no doubt annoying, wasn’t severe enough to prove a hostile housing environment interfering with the tenant’s enjoyment of his apartment [Pardo-Pena v. Spector, 2023 U.S. Dist. LEXIS 13904, 2023 WL 2202515].      

Takeaway: The issue of landlord liability for tenant-on-tenant harassment remains unresolved, except, arguably, in the Second Circuit, which has rejected the theory. While ultimately decided in favor of the landlord, the Pardo-Pena ruling opens a new dimension in the controversy by likening housing to the workplace and exposing landlords to the risk of liability for “hostile housing environment” the way an employer can be liable for a “hostile work environment.”

Bottom Line: Regardless of what the law says, landlords have not only a moral but business imperative in seeking to provide a respectful housing environment in which no tenant has to endure harassment of any kind. Best practice: The starting point for preventing tenant-on-tenant harassment is to create and implement a written anti-harassment policy as part of your community rules. Such a policy should include seven elements:

• A statement of policy that condemns harassment and expresses your company’s commitment to provide a respectful housing environment enabling all tenants are to enjoy their tenancy;
• A clear and broad definition of harassment as including any “action, conduct, or comment that can reasonably be expected to cause offense, humiliation, or other physical or psychological injury or illness to a tenant or other person,” accompanied by a list of examples;
• A process or mechanism that tenants can use to report the harassment they experience or witness;
• Assurances that tenants will suffer no retaliation of any kind for reporting harassment in good faith;
• Protocols and procedures for responding to, investigating, and resolving the harassment complaints that you receive;
• Language indicating that tenants will be held accountable for any harassment they’re found to have committed; and
• Clarification that filing a harassment complaint with you doesn’t take away a tenant’s right to file a housing discrimination complaint (to the extent the harassment is based on race, sex, etc.) with HUD or state fair housing agencies.

You Make the Call: Did the tenant have a valid claim for refusing to make reasonable accommodations?

Answer: Yes

Ruling: The Pennsylvania federal court denied the landlord’s motion for summary judgment. To qualify for punitive damages, a plaintiff must show that a landlord’s denial of a reasonable accommodation “involves malicious intent or reckless or callous indifference” to the rights of others. The court concluded that the facts the tenant alleged were enough to allow a court to reach that conclusion and gave her the green light to try to prove those claims at trial [United States v. Dorchester Owners Ass’n, 2023 U.S. Dist. LEXIS 12432].

Takeaway: HUD Guidelines expressly state that you can’t make individuals with disabilities pay extra fees or deposits as a condition for receiving a requested accommodation. That includes charges for an assistance animal necessary to assist a person with a disability. In other words, if it’s reasonable for the applicant or tenant to have the animal, you must allow it without any additional charges. However, what you can do is hold the tenant responsible for any actual damage the animal does to the apartment after the lease ends. You can also hold the tenant accountable if the animal violates building rules, such as by creating a danger or nuisance to others in the building.

Answer:  The short answer is Yes. The utilities section of the manufactured housing side of Oregon’s landlord-tenant law is ORS 90.560(4) provides:

• “Public service charge” has the meaning given the term in ORS 90.315 (Utility or service payments).
• ORS 90.315(1) defines:
  •  “Public services” payments to mean ‘municipal services and the provision of public resources related to the dwelling unit, including street maintenance, transportation improvements, public transit, public safety and parks and open space. (Emphasis added); and
  • “Public service charge” means a charge imposed on a landlord by a utility or service provider, by a utility or service provider on behalf of a local government or directly by a local government. (Note: public service charge” does not include real property taxes, income taxes, business license fees or dwelling inspection fees.)
• ORS 90.570 provides: “A landlord, upon 60 days’ written notice to a tenant, may unilaterally amend a rental agreement[1]to require a tenant to pay to the landlord, as part of the utility or service charge, a pro rata proportion of any new or increased public service charge billed to the landlord by a utility or service provider or a local government for a public service provided directly or indirectly to the tenant’s dwelling unit or to the facility common area.” (Emphasis added.)
• ORS 90.568 addresses “pro-rata billing” as follows:
  • “If allowed by a written rental agreement, a landlord using pro rata billing may require a tenant to pay to the landlord a utility or service charge that was billed by a utility or service provider to the landlord for a utility or service provided directly to the tenant’s space or to a common area available to the tenant as part of the tenancy. A landlord may include in pro rata billing a public service charge under ORS 90.570 (Public service charge pro rata apportionment).” (Emphasis added.)
  • A pro rata billing charge for tenants’ spaces must be allocated among them by a method that reasonably apportions the cost among the affected tenants and that is described in the rental agreement.
  • Methods that reasonably apportion the cost among the tenants include, but are not limited to, methods that divide the cost based on:
    • • • • The number of occupied spaces in the facility;
          • The number of tenants or occupants in the dwelling or home compared with the number of tenants or occupants in the facility, if there is a correlation with consumption of the utility or service; or
          • The square footage in each dwelling, home or space compared with the total square footage of occupied dwellings or homes in the facility or the square footage of the facility, if there is a correlation with consumption of the utility or service.
• A utility or service charge to be assessed to a tenant for a common area must be described in the written rental agreement separately and distinctly from the utility or service charge for the tenant’s space. (Emphasis added.)

Conclusion and Caveats. So, yes, to the above question: Prepare a 60-day written Notice of Unilateral Amendment explaining the public service charge and the pro-rata allocation approach. Keep records of these utility charges for tenants to inspect if they want, and when they increase, make sure tenants are notified as soon as possible.  Just like increases in utility rates, they may be passed along – they don’t require additional advance notice.

Utility pass-throughs can be very complicated for a variety of reasons. First and foremost, the legislation is created by committees of stakeholders including industry representatives for landlords (park and non-park owners), tenants, utility companies, lenders, and other interested parties. The results can be confusing, especially so because Oregon’s landlord-tenant law contains a “soft” bifurcation between non-MHPs and MHPs. I say “soft” because the MHP side, ORS 90.505+ occasionally depends upon and includes provisions from the non-MHP side, i.e., ORS 90.100 – ORS 90.493. These observations are not to diminished the legislative drafters’ skills – they must work with what they have.

Familiarity with MHP utility laws i.e., ORS 90.560 to ORS 90.584 (including various stealth statutes that precede ORS 90.560!) requires time, patience, and care. The above summary responds only to the limited question presented. It does not address the MHP landlord’s responsibility to make sure that all park documents address the current utility rules applicable to their park and are sufficiently explained to incoming tenants. If in doubt, legal counsel should always be consulted. ~ Phil

[1] Note: I recommend that each time a landlord seeks to “unilaterally amend” the rental agreement under Oregon law, a documents entitled “Unilateral Amendment” (or similar caption) be delivered to all affected tenants pursuant to ORS 90.155with the same diligence as if they were issuing a rent increase notice. This is really the only way the 60-day notice requirement can be established.  

Answer. First, as we know, the 72-hour notice for nonpayment of rent does not require payment of the late fee in order to cure the notice. It is sufficient if the tenant only pays the rent within the specified time.  For nonpayment of rent only, you use MCHO Form N0. 42.

For nonpayment of late fees, you have two choices:

1. 1. Form 43A (Distinct Act or Omission). This arises under ORS 90.630, and gives the tenant 30-days to cure by payment. Nonpayment within the 30-days will entitle you to file for an eviction.

1. 2. Alternatively, you can ignore the nonpayment as a violation under ORS Chapter 90, treat it as an unpaid debt, and file in Small Claims Court (which generally does not allow attorneys to appear on behalf of the defendant). It’s you versus the tenant.  If the tenant is a serial late-payer of rent, and you’re constantly issuing 72-hour notices, you could accumulate the late fees until they get to a point, say $100 or $200, etc., and then file in Small Claims Court. You would get a judgment and could use it to garnish wages or bank accounts. But don’t let nonpayment of late fees go too long, as there is a one-year statute of limitations for breach of violations under ORS Chapter 90.

Also, remember that if the tenant is a serial late- payer, you can also issue a 3-strikes notice using Form 43D. See, ORS 90.630. This is non-curable, which means that the tenant cannot tender the rent and stay in the community.

Conclusion. It the tenant isn’t a serial non-payer, using the 30-day notice with MHCO Form No. 43A is probably you best bet for quick results.

Editor's Note:  MHCO is working on the revised Form 82A - we hope to have that uploaded and fillable later this month.  Thank you for your patience,

By Phil Querin

Introduction. October 1, 2022 is an important day for Oregon landlords. First, it marks the end of the “Safe Harbor” program, one of the last major restrictions on terminations to grow out of the Covid crisis. Second, it changes the timeline for nonpayment terminations under ORS 90.394 back to the shorter 72-hour requirement as it was pre-pandemic.

Safe Harbor. In 2021 the Oregon legislature enacted a series of laws creating the so-called “Safe Harbor” rules for tenants. These laws prevented a landlord from beginning or continuing the eviction process for nonpayment of rent if a tenant provided documentation that they had applied for rental assistance. Landlords could not terminate or evict a tenant until they had received notice from a rental assistance provider that the tenant’s application was no longer pending.

The final date for a tenant to apply for rental assistance was June 30, 2022, however the Safe Harbor does not officially end until October 1, 2022. Any tenants with still-pending applications for assistance are no longer protected from termination or eviction as of that date.

Practical Implications. This may have little impact on the day-to-day operations of landlords as State funding earmarked for tenant assistance ran out in the Spring of 2022. However, the end of the Safe Harbor does restore some stability and certainty to the termination and eviction process arising from nonpayment of rent. Landlords are also no longer required to send out the additional Eviction Protection Notice (MHCO Form 111) along with all terminations and summonses for FED proceedings.

Landlord Guarantee Program. Landlords who have lost income from delaying termination or eviction under the Safe Harbor program may be eligible for reimbursement under the Landlord Guarantee Program (“Program”). The Program reimburses landlords for unpaid costs such as rent and fees incurred by a tenant during the Safe Harbor, i.e., from the date they are provided documentation of an application until the earlier of the dates. 

• October 1, 2022;
• The date on which rental assistance provider makes a payment on, denies, or closes a tenant’s application for assistance;
• The date the landlord receives possession of the space or dwelling unit; or
• The date a court enters a judgment for possession.

Landlords have until October 1, 2023 to apply for reimbursement under the Program. Application materials and frequently asked questions are available at www.oregonlgp.org.

Notice of Termination for Nonpayment of Rent (ORS 90.394). During the Covid emergency the Oregon Legislature increased the notice period for nonpayment terminations under 90.394. As of October 1, 2022 the notice periods will revert to what they were before the pandemic.

• Terminations under 90.394(2)(a) will change from a 10-day notice back to a 72-hour notice; and
• Terminations under 90.394(2)(b) will change from a 13-day notice back to a 144-hour notice.[1]

Conclusion. Covid and the 2-year pandemic wrought hardships on everyone, landlords and tenants alike. It also ushered in regulatory confusion that is only now returning to sanity. It is hoped that now some stability will return to the landlord-tenant relationship, and that the need for issuance of notices of nonpayment will abate as well.

[1] MHCO does not currently provide this form, as there has been no demand. If that changes, we will provide it. If any members would like it returned, speak up!

Answer: This is a timely and important question. In March 2023 HB 2001 was enacted, which reinstated some of the earlier Pandemic tenant protections including restoring the 10-day and 13- day period in nonpayment of rent notices. It also enacted a new notice that must accompany it.[1]

Also, HB 2001 adopted a new expandeddefinition of the term “Nonpayment”:

“Nonpayment” means the nonpayment of a payment that is due to a landlord, including apayment of rent, late charges, utility or service charges or any other charge or fee as describedin the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560 to 90.584 or90.630.[2] “Nonpayment” does not include payments owed by a tenant for damages to the premises.

Of importance to the above rent-tender question is the following provision in HB 2001:

2. A court shall enter a judgment dismissing a complaint for possession that is based ona termination notice for nonpayment if the court determines that:
   1. The landlord failed to deliver the notice as required under subsection (2) of this section;
   2. The landlord caused the tenant to not tender rent, including as a result of the landlord’s failure to reasonably participate with a rental assistance program; or
   3. The tenant has tendered or caused to be tendered rental assistance or any other payment covering the nonpayment amount owed under the termination notice for nonpayment. (Emphasis added.)

So, to the question of whether the resident must pay the landlord’s filing fee after having to file the eviction the answer is a “Yes.” See, ORS 90.395(5):

(5) Notwithstanding ORS 90.302, a landlord may charge a tenant for filing fees paid under ORS 105.130, if the complaint for possession is dismissed under subsection (3)(c) of this section. Payment of the fees is not a prerequisite for dismissal under subsection (3)(c) of this section. [2023 c.13 §55]

But this does not mean the landlord should refuse the rent-tender unless it is accompanied by the filing fee.

The Take-Away.  It is my opinion[3] that HB 201 results in the following approach for MHP landlords:

1. If rent is not paid after the time prescribed in the Nonpayment of Rent Notice, and before filing the eviction, the landlord should make one last reasonable effort such as a call, visit or email, to see if the resident will pay immediately. It should not include threats or intimidation. If the resident pays, the landlord will have a right to assess late charges if provided in the rental agreement, but should accept the rent even if the late charge is not tendered.

2. If the FED is filed and the tenant pays before going to court, the landlord should accept it even if the landlord’s filing fee is not reimbursed.

3. If the tenant tenders rent at the first appearance in court the landlord should accept it even if the filing fee is not reimbursed.

4. Recovery of the landlords filing fees for the FED, late fees, and other “nonpayments” (as defined above) can be sought by following the default procedures in ORS 90.630. (I cannot forecast what the FED judge might do if the matter goes past the first appearance, but my suspicion is that unless the tenant demands a trial, the court would dismiss if rent paid at the time. Whether a judgment of restitution is issued if rent is not paid at that time is up to the judge; I would foresee a judgment of dismissal if paid the same day or a similar result to avoid the eviction and still get the rent paid.)

[1] Note there are several additional provisions including new first-appearance requirements; mandating landlord declarations for default judgments; changes to first appearance scheduling; and subject to specific court findings, an annual setting-aside of eviction-related judgments occurring after January 1, 2014; and new rent assistance fund provisions.

[2] ORS 90.630 is the statute important to MHP landlords, since it deals with defaults (other than nonpayment of rent) in manufactured housing communities.

[3] This article is not legal advice, It is my opinion only, based upon my reading of HB 2001. Members should check with their own legal counsel.

Answer. The land belongs to the landlord, and with the exception of (a) what a tenant plants on their own space[1], and (b) hazard tree responsibilities under ORS 90.727, it is my opinion that what grows out of the ground is the landlord's responsibility. Thus, the trees are the landlord's responsibility, and certainly, they cannot be left to grow to the point of prohibiting removal of a home - or to put it another way, if the trees are permitted to grow in such a manner as to block homes, it is the landlord's responsibility to deal with the cost of removal, so the home can be relocated.

As for the landlord's liability for costs to move the home, etc., I'm going out on a limb - pardon the pun - but that is really a matter of causation, i.e. why did the landslide occur? You did not state in your question that the tenant was somehow responsible for the slide, so I'm going to assume it was an "Act of God". Most good liability insurance policies do cover "Acts of God" events, and hopefully the landlord has such a policy.

So if the ground moves due to earthquake, flooding, shifting, etc., the cost to relocate the home is probably something the tenant would claim against the landlord. If the insurance carrier provides coverage, then that will be the source of payment to the tenant. If there is no such coverage, the question becomes whether a landlord can be held liable for an event the landlord did not cause, i.e. an "Act of God". Without doing a little research, I don't have a good answer, but that is a good reason for the landlord to want to have a good liability policy.

As I've written before, the landlord is in the business of renting out the ground, and therefor has the incentive to insure against risks to the ground, even those caused by "Acts of God". Tenants do not have an insurable interest in the ground, and accordingly, one would not expect them to assume the risk of something happening to property owned by the landlord.

[1] Your question did not indicate that the trees were planted by the tenant or on the tenant's space. In any event, it seems to me that other than maintaining the trees on one's space (subject to the hazard tree statute) they are still the landlord's responsibility, since they will remain when or if the tenant moves their home out.

Answer: Be aware that utility charges, late fees, etc. are not “rent.” Rent is the charge for the resident’s right to remain at the space. As you know from the MHCO 72-hour Notice, the right to evict only arises when the rent remains unpaid for seven days following the date of payment, which is usually the first of the month. The extra charges for late fees, utilities, and other expenses the landlord has a right to collect under the rental or lease agreement do not provide the basis for eviction under the 72-hour Notice. A landlord’s right to terminate a tenancy for payment of non-rent charges can be handled in two ways: (a) By issuance of a 30-day notice of termination; or (b) Small Claims Court. If the resident’s payment does not include 100% of the rent that is due, that is a different story. In that case, the landlord does not have to accept partial rent. However, if a landlord is willing to do so, he/she must secure a written agreement. Here’s what ORS 90.417 says: • A landlord may accept a partial payment of rent. • If the acceptance of a partial payment of rent is in accordance with the following protocol, it does not constitute a waiver of the landlord’s right to terminate the tenancy for nonpayment of the balance of the rent owed. • Here is the required protocol: Acceptance of a partial payment of rent waives the right of the landlord to terminate the tenant’s rental agreement for nonpayment of rent unless: o The landlord accepted the partial payment of rent before he/she gave a nonpayment of rent notice based on the tenant’s agreement to pay the balance by a time certain and the tenant does not pay the balance of the rent as agreed; o The landlord’s 72-hour notice must be served no earlier than it would have been permitted under the 72-hour notice statute, had no rent been accepted; and o The notice permits the tenant to avoid termination of the tenancy for nonpayment of rent by paying the balance within 72 hours or 144 hours, as the case may be, or by any date to which the parties agreed, whichever is later; or o The landlord accepted a partial payment of rent after giving a nonpayment of rent termination notice and entered into a written agreement with the tenant that the acceptance does not constitute waiver. The written agreement may provide that the landlord may terminate the rental agreement and file for eviction without serving a new 72-hour notice if the tenant fails to pay the balance of the rent by a time certain. • Note that a landlord and tenant may by written agreement provide that monthly rent can be paid in regular installments of less than a month pursuant to a schedule specified in the agreement. Such installment rent payments are not partial payment of rent under ORS 90.417.

Answer: Storage agreements are not specifically defined under ORS 90.100 in the Landlord-Tenant Act. They are addressed in ORS 90.425 and 90.675, the abandonment statutes that pertain to the storage of a tenants personal or real property (respectively).

Storage agreements allow for the storage of a tenant’s property (usually at the premises) after their tenancy has ended. They are most frequently used following the termination of a lease, often after default. They address the terms of the storage, the agreement’s duration, rights of access, and storage fees. 

ORS 90.675(20) deals with storage agreements between landlords and lenders who hold liens on an abandoned home in the park. The statute does not specifically address storage of the home for the tenant, although there is no reason they could not be so used if done carefully with your attorney’s direction.

The lienholder’s right to a storage agreement arises upon the failure of the tenant or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee, to remove or sell the dwelling or home within the allotted time.

However, a person who is engaged in the flipping of homes at the park should not be permitted to use the storage agreement document to facilitate their business model. Even if the person acquired the home by inheritance, etc., unless he/she is or was a “tenant” under a rental agreement, and is no longer occupying the rented space, they should not be permitted to use this instrument.

The business model of flipping homes is regulated by the Construction Contractors Board and requires that the flipper be licensed. He/she would also be subject to various consumer protection laws.

The idea of allowing a non-tenant to remodel homes at the park on speculation (i.e., for later sale to a tenant/purchaser) possibly without permits; and using various contractors or other persons to perform the work raises a plethora of liability issues; who will be liable for injuries? Fire? Construction defects? Fraud? Etc. The entire operation is well beyond the scope of services you are legally entitled to provide in a manufactured housing community. You may not even have any insurance to defend you if there was a claim.

My suggestion is that you discuss with your attorney whether you can terminate the Storage Agreement immediately.

Answer:

Please note revision from last week's article: The cities of Portland and Milwaukie, Oregon have passed local ordinances that require 90-day no-cause notices regardless of the length of the tenancy. Although of arguable legality, this would only affect RV parks located within those two cities.

Both tenants appear to be violating MHCO Form 80, Section 12 D, which prohibits any person not listed in the tenant's rental application from occupying the RV in the park. "Occupy" means living in the RV more than 7 days (consecutive or nonconsecutive) in any calendar year. It is important to act quickly once you learn of an unauthorized occupant to avoid any waiver issues.

In the first situation, it seems like it would be best to simply issue a no-cause tenancy termination notice to your tenant. The unauthorized woman is already causing problems and there is no need to give her a chance to become an approved tenant. The no-cause notice would require them both to vacate. If not, you could file an eviction case.

An RV tenancy (unlike a manufactured home tenancy) can be terminated with a no-cause notice if the tenancy is month to month. If the tenant has been in the park less than a year, the no-cause notice period can be 30 days. After the first year of tenancy, the notice period must be at least 60 days. Use MHCO Form 43C (30/60 Day Notice to Vacate - No Cause).

(NOTE: The cities of Portland and Milwaukie, Oregon have passed local ordinances that require 90-day no-cause notices regardless of the length of the tenancy. Although of arguable legality, this would only affect RV parks located within those two cities.)

You could take the same approach in the second situation, although it sounds like perhaps you would like to give this tenant an opportunity to comply. I would recommend that you speak with the tenant and explain that unless the boyfriend fills out an application for a background check, the park will have to issue a no-cause tenancy termination notice (just like in the first situation). If he complies and passes the background check, he must sign the rental agreement as a co-tenant (as required by MHCO Form 80, Section 12 D).

A typical twist on some of these scenarios is that the occupant passes the criminal/eviction background check, but fails the credit check. In such case, you would be perfectly within your rights under MHCO Form 80 to insist that the occupant vacate. However, you would also have the option of allowing the occupant to stay by signing a Temporary Occupant Agreement (MHCO Form 25). This would give you the flexibility to allow the occupant to stay, but with the requirement that he/she vacate if the tenant's tenancy ends.