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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.

Answer. MHCO Form No. 21 (Pet Agreement) provides that:

*** in the event of breach of this Pet Agreement, subject to Oregon law, Management reserves the right, in its sole discretion, to: (a) immediatelyterminate this Pet Agreement and demand removal of the pet(s) and/or (b)terminate the Rental Agreement in accordance with ORS 90.630 or 90.400.[2]

So, if your tenant signed this form, one option you have is to demand removal of the pet. Alternatively, you could proceed under ORS 90.630.

However, your question points up a difference today between the continuing violation form (No. 43) and the one for distinct and separate violations. (No.43 A).

In the past, all violations were given the same period to cure, i.e., 30-days. But changes to the law in 2019 recognized a distinction between violations involving (a) ongoing conduct and (b) those involving separate and distinct events of misconduct. 

This made sense, since certain violations, such as speeding through the community, could violate a Rule, but once issued, had to be followed by another repeat violation notice for the second or subsequent violation within the next six months. 

Now that the law has bifurcated these two types of violations, MHCO developed the two different termination forms.

ORS 90.630 (Termination by landlord) provides, in part, that:

“*** (e)xcept as provided in subsection (5) of this section, the landlord may terminate a rental agreement for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days’ notice in writing before the termination date designated in the notice, if the tenant: *** (b) Materially violates a rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy;

It defines the two distinct types of conduct:

1. Ongoing Conduct:  *** (4) For the purposes of subsection (3) of this section, conduct is ongoing if:

      (a) The conduct is constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing; and

      (b) The violation does not involve a pet or assistance animal.[3]

2. Separate and Distinct Conduct: *** (B) If the violation involves conduct that was a separate and distinct act or omission and is not ongoing, at least three days after delivery of the notice;

      (d) [The notice must state] that the violation is conduct that is a separate and distinct violation and that the date designated for correcting the violation is different from the termination date; and

      (e) At least one possible method by which the tenant may correct the violation.

Discussion. You have treated the pet problem as “ongoing” and issued Form No. 43. But that form and the statute prohibit its use for pet violations. However, the statute does not impose such a limitation for separate violations. Accordingly, Form No. 43 A would be appropriate.  I agree that the distinction can be blurry, since repetitive single acts, such as speeding through the community, could be viewed as “ongoing.” But ignoring the niceties of the distinction, we can agree that the separate act of a pet violation, is best treated using Form 43 A.

However, the take-away here is that requiring the use of Pet Agreements is preferable; it has the benefit of finality, since it allows you to demand removal of the pet, rather than the tenant.[4]

Answer: The Oregon landlord-tenant law does not "require" that a landlord accept partial payments. To the contrary, it provides that it is a "tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement... ."

A landlord may refuse to accept the tender of partial rent of rent that is not paid on time. However, if the landlord agrees to accept a partial payment of rent he/she may do so, although it should be clearly described in a well-drafted written agreement.

Such partial payments do not constitute a waiver of the right to later demand prompt performance in the future. Nor do they prevent the landlord from terminating the tenancy if the balance of the rent is not paid as agreed.

However, there are some pitfalls that the landlord must be aware of: Acceptance of a partial payment waives the right of termination if accepted after issuance of a 72-hour or 144-hour notice of termination.

When presented with a partial payment issue, landlords are wise to closely review ORS 90.417. Lastly, consistent application is important - i.e. if the landlord has permitted partial payments by some residents, he/she would be hard-pressed to disallow others the right to do so without good reason.

Here are a summary of how ORS 90.417 applies to this case:

• A tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement.
• A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.
• A landlord may accept a partial payment of rent. Doing so does not constitute a waiver, if properly documented. Here is what the landlord must do to avoid waiver:
  • The partial payment must have been made before the landlord issued a 72-hour or 144-hour notice for nonpayment.
  • The landlord must enter into a written agreement with the tenant stating that the acceptance does not constitute waiver.
  • The agreement should provide that the landlord may terminate the rental agreement and take possession as provided in the Oregon FED laws if the tenant fails to pay the balance of the rent by a time certain.
  • The tenant must agree in writing to pay the balance by a date/time certain.
• If the balance is not paid according to this written agreement, the landlord may serve a 72-hour or 144-hour nonpayment of rent notice - but it must be served no earlier than would have been permitted under the rental agreement and the law, had no rent been accepted.[1]
• Notwithstanding a landlord's acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent. In other words, acceptance of partial rent does not eliminate the duty to pay the balance.

[1] This somewhat confusing statement is meant to avoid a situation where the agreement for partial payment called for payment of the balance before rent would have otherwise been due. For example, if rent is due on the first and late on the 7th, then the earliest a 72-hour or 144-hour notice could be served would be the 8th day of the month. Thus the agreement for payment of the balance of the rent may not require that the tenant pay it before the 7th day of the month.

Answer: The Oregon landlord-tenant law does not "require" that a landlord accept partial payments. To the contrary, it provides that it is a "tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement... ."

A landlord may refuse to accept the tender of partial rent of rent that is not paid on time. However, if the landlord agrees to accept a partial payment of rent he/she may do so, although it should be clearly described in a well-drafted written agreement.

Such partial payments do not constitute a waiver of the right to later demand prompt performance in the future. Nor do they prevent the landlord from terminating the tenancy if the balance of the rent is not paid as agreed.

However, there are some pitfalls that the landlord must be aware of: Acceptance of a partial payment waives the right of termination if accepted afterissuance of a 72-hour or 144-hour notice of termination.

When presented with a partial payment issue, landlords are wise to closely review ORS 90.417. Lastly, consistent application is important - i.e. if the landlord has permitted partial payments by some residents, he/she would be hard-pressed to disallow others the right to do so without good reason.

Here are a summary of how ORS 90.417 applies to this case:

• A tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement.
• A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.
• A landlord may accept a partial payment of rent. Doing so does not constitute a waiver, if properly documented. Here is what the landlord must do to avoid waiver:
  • The partial payment must have been made beforethe landlord issued a 72-hour or 144-hour notice for nonpayment.
  • The landlord must enter into a written agreement with the tenant stating that the acceptance does not constitute waiver.
  • The agreement should provide that the landlord may terminate the rental agreement and take possession as provided in the Oregon FED laws if the tenant fails to pay the balance of the rent by a time certain.
  • The tenant must agree in writing to pay the balance by a date/time certain.
• If the balance is not paid according to this written agreement, the landlord may serve a 72-hour or 144-hour nonpayment of rent notice - but it must be served no earlier than would have been permitted under the rental agreement and the law, had no rent been accepted.[1]
• Notwithstanding a landlord's acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent. In other words, acceptance of partial rent does not eliminate the duty to pay the balance.

[1]This somewhat confusing statement is meant to avoid a situation where the agreement for partial payment called for payment of the balance before rent would have otherwise been due. For example, if rent is due on the first and late on the 7th, then the earliest a 72-hour or 144-hour notice could be served would be the 8thday of the month. Thus the agreement for payment of the balance of the rent may not require that the tenant pay it before the 7thday of the month.

Answer. ORS 90.537(3) provides:

If the cost of the tenant's utility or service was included in the rent before the conversion to submeters, the landlord shall reduce the tenant's rent on a pro rata basis upon the landlord's first billing of the tenant using the submeter method. The rent reduction may not be less than an amount reasonably comparable to the amount of the rent previously allocated to the utility or service cost averaged over at least the preceding one year. *** Before the landlord first bills the tenant using the submeter method, the landlord shall provide the tenant with written documentation from the utility or service provider showing the landlord's cost for the utility or service provided to the facility during at least the preceding year.

The source of this confusion lies in the fact that utilities are paid for in arrears (i.e. based on meter readings after the service has been provided). However, rent is always paid for in advance (i.e. before the occupancy commences for the current month).

So, on December 1, when you were still charging residents a gross rent figure (inclusive of utilities) from their point of view it was to cover all utilities for the entire month, going forward. Thus, their first direct utility payment on January 15 would appear, from their point of view, to include the December 15 - 31 period, and therefore be a "double payment" - i.e. something they'd effectively paid for in their December gross rent payment.

But in actuality, when the residents paid their gross rent on December 1 - inclusive of utilities - it was correctly used by you to pay the December 15 utility bill which covered the November 15 - December 15 period. What you paid for on December 15 was never applied by your provider to the remainder of the month going forward, i.e. December 15 to December 31. Thus, the December 15-31 utility period remained unpaid, and could not be paid until the following month, i.e. January 15.

On January 1, when the residents pay their new reduced rent, it will not include sewer and water. And on January 15, when they directly pay their utility provider, it will be based upon the water meter readings for the period of December 15 to January 15.

Does this mean that when the residents pay the utilities on January 15, they are picking up one half of a utility bill you should be paying, i.e. the December 15 - 31 utilities? I don't believe so. Until their January 15 payment, the utility bill for the December 15-31 period had never been paid.

Conversely, if you were required to make a partial payment toward the utility bill on January 15, 2017 covering the last 16 days of December, the result would be that (a) on December 15 you would have paid for utilities going back to November 15, and (b) on January 15 you would have paid for utilities covering the period from December 15 to December 31, i.e. a 45-day period - even though the residents only paid December's rent.

As confusing as this is, I'm comfortable that the residents are not making a "double payment", in that they are not paying for something that was already paid before, and now they are paying again. The utilities for the period of December 15 - 31 were never paid in December.

Question No. 2. Our community was submetered a few years ago. At first the tenants paid exactly what the city's charges were for water and sewer. The city had a structured billing arrangement for sewer, which annualized the costs over the entire calendar year. Since sewer bills are tied to the water consumption, annualizing them reduced the summer sewer bills (when water consumption is higher) than they would have been if directly tied to actual water consumption. Then the sewer rates changed with no further annualization. So the sewer bill is now quite high in the summer. My question is: What do the submetering statutes say about what can be charged to the residents? Can a park charge exactly what the city charges for residential water and sewer? I have read that the owner of the park cannot make a profit on the water charges. But charging the same as the city shouldn'tcause a profit for the owner, should it?

Answer. ORS 90.536 provides that subject to the following exceptions, a landlord may not bill or collect more money from tenants for utilities or services than the utility or service provider charges the landlord. The statute further provides that a utility or service charge assessed to a tenant may not include any additional charges, including landlord costs for the installation or maintenance of the utility or service system, or any profit added on. Following are the only recognized exceptions under the statute:

1. The cost of the utility or service provided to the tenants space and under the tenants control, as measured by the submeter, at a rate no greater than the average rate billed to the landlord by the utility or service provider, not including any base or service charge;

2. The cost of any sewer service for wastewater as a percentage of the tenants water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided;

3. A pro rata portion of the cost of sewer service for storm water and wastewater if the utility or service provider does not charge the landlord for sewer service as a percentage of water provided;

4. A pro rata portion of costs to provide a utility or service to a common area;

5. A pro rata portion of any base or service charge billed to the landlord by the utility or service provider, including but not limited to any tax passed through by the provider; and

6. A pro rata portion of the cost to read water meters and to bill tenants for water if: (a) a third party service reads the meters and bills tenants for the landlord; and (b)The landlord allows the tenants to inspect the third party's billing records pursuant to ORS 90.538 (Tenant inspection of utility billing records).

By:  The Oregonian Editorial Board

Printed 9-16-18

Portland's elected officials are doing their part to promote the $652.8 million regional housing bond going to voters this November. They have contributed to  the campaign, offered their heartfelt support in public meetings and signed on as official endorsers for the bond.

But if they really want to help get and keep families housed, they should focus on how their own policies stand in the way. Because regardless of the bond's success or failure, the duration and severity of this housing crisis hinge on whether leaders encourage the market as a whole to add more housing or quash it.

Unfortunately, a sweeping proposal being developed by Portland City Commissioner Chloe Eudaly falls squarely in the latter category.

Eudaly announced months ago that her office was looking at the process with which landlords screen potential tenants. The intent, policy director Jamey Duhamel told The Oregonian/OregonLive Editorial Board, is to ensure fair rental practices while helping needy renters, whose monthly income, criminal background, or credit history would typically turn off potential landlords.

The motivation seems understandable. The method, however, leaves much to be desired. Eudaly's eight-page proposal as currently drafted is heavy-handed, overly complicated and forces so much financial and legal risk onto landlords that many may opt to leave the rental business altogether. And the bigger question remains: How do these policies make housing any more affordable?

Among the many concerns in the latest version released: landlords aren't allowed to require that applicants show a monthly income of more than twice the monthly rent, even though three times monthly rent is more typical as assurance that a tenant can afford the payments. 

Landlords must go through an extensive and confusing matrix of questions in evaluating whether an applicant's criminal history merits a denial. And landlords must issue a written explanation to tenants who are denied after being vetted. The "notice of denial" must detail the reasons for turning down the applicant and establish that they are "highly and substantially more probably to be true than not that the applicant as a tenant will adversely affect the substantial, legitimate, non-discriminatory interest of the landlord."

It's not just a daunting set of poorly-written requirements. It's also an invitation to rejected applicants to sue.

Duhamel said Eudaly's office is focusing on how to "fine-tune" the proposal, which is tentatively scheduled to go before the City Council next month, to ease the administrative burden. But the flaws in the policy aren't going to be fixed by fine-tuning. The problems are baked into the fundamental assumptions underlying the policy.

For example, the screening proposal seems to assert that the city - not landlords - should get to decide how much financial risk landlords should bear. Citizens have not and should not hand over that kind of authority to city commissioners who believe their policy choices trump an individual's financial autonomy.

It also fails to consider that there are many landlords and affordable-housing groups that already accept tenants with criminal histories or credit problems. They do so not by following a rigid list of criteria but after considering the mix of tenants or other location-specific issues that make a tenant more suitable in one building than another.

And it neglects to address the underlying reason that people are struggling to find affordable places to live - a lack of housing on every income level caused by years of underbuilding. Instead, such onerous mandates on landlords - with limited ways to protect against the risk - could prompt some to drastically raise rent when units become vacant or take the property out of the rental market entirely.

Duhamel said that, in her opinion, only a handful of landlords would likely get out of the business altogether, dismissing "what if" concerns as "fearmongering." But she acknowledges the city has no data on how a previous policy - mandatory relocation assistance to tenants whose leases are not renewed - may have affected the rental market.

Others, who admittedly represent the landlord viewpoint, say it has definitely led to the loss of many rentals. Since the beginning of the year, 30 landlords who used the Garcia Group property management firm decided to sell their properties, owner Ron Garcia told The Oregonian/OregonLive Editorial Board. That's a tenth of the ownership portfolio, he said, and many of the properties were condos or single-family homes that likely went to buyers seeking to occupy, rather than rent, the property.

The region's housing crisis is real with thousands of homeless people living on the street and many more on the brink as wages don't keep pace with rent. But landlords' screening policies aren't the reason Portland is in a housing crisis. Leaders should focus on the true culprit - the need for more housing at all income levels - and make sure they don't unwittingly become an accomplice.

-Helen Jung for The Oregonian/OregonLive Editorial Board

Answer: It is now statewide law that rents cannot be raised at all during the first year of a month-to-month or fixed-term tenancy.  After the first year, you are required to give written notice to RV tenants at least 90 days prior to the effective date of the rent increase.  In addition, fixed-term tenancy rent increases must comply with whatever terms are in the fixed-term rental agreement.  (NOTE:  Week-to-week tenants can have their rent raised at any timewith at least seven days’ written notice prior to the effective date of the increase.)  

The written rent increase notice to all RV tenants must state (1) the amount of the rent increase; (2) the amount of the new rent; and, (3) the date on which the increase becomes effective.  If the notice is mailed to the tenants, you must add at least three additional days to the notice period (not counting the date mailed) to allow for mailing.  The mailing must be by regular, first class mail. Alternatively, the notice may be hand-delivered to tenants, but this means putting it directly in the tenant’s hand – posting the notice is legally ineffective.

Rent control also applies to rent increases for month-to-month and fixed-term RV tenants.  During any 12-month period, rent cannot be increased by more than 7% plus the consumer price index (CPI) from the previous year above the existing rent.  The CPI and maximum rent increase are calculated by the Oregon Department of Administrative Services and published annually in September to set the maximum rent increase amount for the following calendar year.  The maximum rent increase for month-to-month and fixed-term RV tenants in 2020 is 9.9%.  

A landlord who increases rent in violation of the rent control limits can be found liable to a tenant for three months’ rent, plus actual damages suffered by the tenant, plus attorney fees and court costs.  However, the rent control limits do not apply if:  (1) The first certificate of occupancy for the tenant’s RV space was issued less than 15 years from the date of the notice of a rent increase, or (2) the RV park is providing reduced rent to the tenant as part of a federal, state or local program or subsidy.  If one of these exemptions applies, the landlord must state facts supporting the exemption in the rent increase notice to the tenant if the rent increase exceeds the maximum allowable amount.

Finally, be aware that special rules apply within the city limits of Portland. By city ordinance, a rent increase of 10% or more within a rolling 12-month period triggers the tenant’s right to receive a “relocation assistance” payment from the landlord. These payments are based on the size of the rental unit and start at $2,900.  It is questionable whether the ordinance as written applies to RV tenancies.  However, if you ever intend to issue a rent increase of 10% or more within the City of Portland, you should first consult with a knowledgeable attorney to assess the risk of being subject to relocation assistance payments.

Answer: The short answer is "no," you cannot evict an existing RV tenant who has been there for more than one year for no reason.

Under newly enacted Senate Bill 608, landlords cannot evict RV tenants for no reason after the first year of occupancy. After the first year, the tenant cannot be evicted as long as the tenant (1) pays the rent, and (2) follows the park rules. Since your existing RV tenant has been in the park for more than one year, you cannot evict the tenant with a no-cause notice.

The new law forces landlords to primarily rely on for-cause notices after the first year of tenancy (i.e., rent nonpayment, violation of park rules, etc.). As such, I recommend that you carefully monitor RV tenants during the first yearof tenancy and evict tenants who seem likely to become "problem" tenants. During the first year, month-to-month RV tenants can be evicted with a 30-day, no-cause notice.

Please note that there are some exceptions that would allow a landlord to evict long-term tenants on 90 days' notice if the RV rental space is being converted to another use, or substantial repairs are planned. Even then, the tenant must be paid one month's rent if evicted with a 90-day notice. However, these exceptions would generally apply only if the park (or parts of it) are closed and converted to another use.

Since the last MHCO Legislative Update" last week there has been significant progress in moving the "inclusionary zoning" bill (SB 1533) and the "tenant protection" bill (HB 4143).  

No hostile amendments have been added to either bill.  At one point the Port of Portland objected to HB 4143 - turns out they have some RV property - but the amendment we had already added in committee sufficed and the bill moved forward.  

Both of these bills as well as two land use/housing affordability are moving forward as well.  We are in very good shape - somewhat remarkable given the of the media last autumn.  This is the last full week of the 2016 Oregon Legislative Session.

Here are two articles from the "Oregonian" that might be of interest.  Remember - the "tenant protection" bill and "inclusionary zoning" do not have an impact on MHC's.

http://www.oregonlive.com/politics/index.ssf/2016/02/housing_crisis_inclusionary_zo.html#incart_email

http://www.oregonlive.com/politics/index.ssf/2016/02/which_bills_are_alive_and_dead.html#incart_email

Changes to Tenant Screening Notice. If a landlord intends to charge an applicant for screening, the landlord must provide notice of various information related to screening and landlord policies (see MHCO Form 1B). One of the things an applicant must be notified of is the landlord’s commitment to non-discrimination. HB 2680 adds “gender identity” to the list of non-discrimination categories. A landlord may not discriminate against a tenant based on their gender identity, and this fact must be stated in the tenant notice.

The new law also requires that the screening notice inform the applicant of their right to a refund of the screening fee and their potential right to recover damages for a landlord failing to comply with the refund process.

Screening Fee Refund. While the law already provided that a landlord must refund the screening fee under certain conditions, HB 2680 now requires that a fee be refunded within 30 days if the landlord fills the vacancy before screening the applicant OR the landlord has not screened the applicant (for any reason) prior to the applicant withdrawing their application in writing.

Penalty. If the landlord fails to comply with these sections or does not screen the applicant for any reason and fails to return the unused screening fee within 30 days, the applicant may recover twice the screening fee plus $250.