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Answer: Not in my opinion. The temporary occupant agreement concept is that the person is not going to be a “co-renter”. They are being permitted to come onto the space as an accommodation by the landlord to the current resident who wants them there. If they are to become a temporary occupant, but your background check inadvertently reveals derogatory references related to financial information, and that concerns you, then limit the amount of time they can remain there, and take things a month, or six months, at a time. You might consider having tenants fill out a form in advance explaining exactly why they want the temporary occupant there. If a tenant wants them there to share the rental obligation then you should know that before offering the temporary occupant status. If that is the case, then have them apply as a tenant. If they don’t pass the financial background check, then reject them on that basis.

Question: The temporary occupancy agreement states that the temporary occupant must comply with the laws/Rules Regulations & Policies of the community. Who is responsible to provide this information to the temporary occupant and when should it be given?

Answer: I understand that the temporary occupant law does not specifically address this point. But you have the most to lose if the rules are not given to them at the outset of the temporary occupant relationship. That being the case, I would suggest you append the rules to the temporary occupant agreement, and have them sign both the agreement and the attached rules. Then there is no question about whether they got them.

Question: The temporary occupant agreement and the law state that a temporary occupant can be terminated “for cause” if there is a material violation of the occupancy agreement and that the temporary occupant does not have a right to cure the violation. The other option is termination by automatic expiration of the agreement (if the box is checked that specifies this). If the landlord needs to issue a for cause termination (instead of termination by automatic expiration) the termination must be done in accordance with the law outlined in ORS 90.392 (for non-MHP tenancies) or 90.630 (for MHP tenancies). However after reading these statutes, they do not give an option for the landlord to issue a for cause notice with no right to cure. How is a landlord supposed to issue a for cause termination notice with no right to cure and have it held up in court? If a landlord issues a for cause notice with no right to cure, what form should be used and what is the time frame for the termination?

Answer: The temporary occupant law is addressed in ORS 90.275. You may terminate the temporary occupant for a material violation of the temporary occupancy agreement. That agreement also terminates by its own terms when it expires (if you checked that box on the form). The law says that upon termination or expiration, the temporary occupant shall “promptly vacate.” If they don’t, then the landlord can issue a for cause termination under 90.630 (for MHP tenancies) to the tenant – not the temporary occupant. That means you would issue a termination notice under 90.630 for the tenant to vacate if the temporary occupant failed to do so as required. The opportunity to cure is for the tenant to get the temporary occupant to vacate. If they temporary occupant fails to vacate within the 30-day cure period given by law to the tenant, then the entire space tenancy is terminated. In such case, the law says the temporary occupant – if they remain – is treated as a “squatter.” ORS 90.403 then permits you to give a 24-hour non-curable termination notice to the “squatter” and evict, if necessary, through the normal FED process.

We are now approaching the halfway point in the 2016 Oregon Legislative Session. We are starting to get a much better sense of what legislative proposals are moving forward and which ones will likely remain in committees and not see the light of day until perhaps the next legislative session in 2017.

The "tenant rights" bill HB 4143A passed out of the Oregon House Rules Committee late yesterday afternoon with the "dash 14A" amendment which addressed MHCO's last issue - the extension to 90 days for "no cause" evictions. This amendment returns "no cause" evictions to 60 days for tenancies over 1 year. With the adoption of this amendment manufactured home communities in Oregon will face NO SIGNIFICANT CHANGES from this legislative session. There will be no rent control or rent justificiation. The one year limit on rent increases will impact only apartments - NOT manufactured home communities. HB 4143A heads to the House floor for a vote then on to the Senate. MHCO does not expect any "anti-landlord" language to be added as we head over to the Senate chamber.

The other legislation MHCO is watching is SB 1533 the "inclusionary zoning" bill. This bill is up for a public hearing tomorrow in the Senate Committee on Finance and Revenue. Since it is only scheduled for a public hearing the bill will not move out of committee until possibly later this week. Time is starting to run out on this legislative session and there is little room for bills to stall.

This has turned out to be a very successful legislative session for community owners in Oregon. It is the first Oregon legislative session in 20 years to not have any signficant legisaltive changes impacting community owners. We still have a couple weeks to go - but things are looking good. MHCO will keep you up to date as we head into the final weeks of the 2016 Oregon Legislative Session.

Answer: This isn'tdirectly addressed in the Bill, but since it is the space that is being rented, and the home with tenants have been there three years, I don't view this as a new tenancy. As I see it, rent increases going forward are for a home that has been on the space to the same residents for three-years; bringing in an additional tenant who has been there less than one year is not a factor, since the base rent is for the home on the space, and is not measured on a per tenant basis. But this could be subject to differing interpretations.

By the way, I do not view the first-year freeze on rent increases as particularly harsh, since the landlord can negotiate the first year's rent before allowing the tenant to come in. For example, if current residents are paying $400/month for space rent, but you are planning a rent increase - or have already issued one, for $40 dollars, you would presumably accept the new tenant at $440 - thus making the first-year freeze irrelevant.

On month-to-month tenancies, there is no "cap" on the amount of the initial base rent - it may start at whatever level the landlord and tenant agree upon. However, it cannot be increased thereafter during the first year of the tenancy. For fixed term tenancies, i.e. leases, landlords generally have their rents established through a formula contained in the written agreement. SB 608 only modified ORS 90.600, which governs periodic tenancies, such as month-to-month tenancies.

A: HB 4038, which has not yet been codified, requires an owner to give written notice of the owner's interest in selling the park before the

owner markets the park for sale or when the owner receives an offer to purchase that the owner intends to consider, whichever occurs

first. If possible, I advise my clients to send the notice before entering into a listing agreement but definitely before actively listing the property.

Q: Does the notice need to be sent to each tenant individually versus all tenants (e.g. "Dear Mr. Johnson" vs. "Dear Tenant")?

A: The plain language of the law states "all tenants," but the 2014 Summary of Legislation states that the purpose of the bill is to require park owners to notify "individual park residents" if the owner is interested in selling the park. Because it appears that the original intent was to notify each individual, the safer course is to send the notice to each tenant individually.

If a tenants committee has been formed, and the purpose of the committee is (in part) to purchase the park, and you have met with the committee in the previous 12 months, you can send a notice to the tenants' committee in lieu of all tenants. Also note that you must send a copy of the notice to the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department (say that 5 times fast).

Q: What does the notice have to include?

A: (1) The owner is selling the park; (2) The tenants, through a tenants committee, have an opportunity to purchase the park; (3) In order to compete to purchase the park, within 10 days after delivery of the notice, the tenants must form (or identify) a single tenants committee for the purpose of purchasing the park and notify the owner in writing of: (a) the tenants' interest in competing to purchase the park; and (b) the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase; (4) The representative of the tenants committee may request financial information described in section 2(2) of the act within the 10 day period; and (5) information about purchasing a park is available from the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department.

Q: Does 10 days really mean 10 days?

A: The law discusses "delivery of the notice." I advise my clients that all notices should be sent by first class mail and 3 days should be allowed for mailing just as if you were sending a 30 day notice or a 72 hour notice. Certificates of Mailing (Not certified mail!!) for each notice are strongly encouraged. By way of example, if you send the notice on June 1, then the "10 days" would run on June 13.

Q: What do the tenants have to do after I send them the notice?

A: If the tenants are interested in competing to purchase the park, within the 10 days, the tenants must notify the owner in writing of their interest in competing to purchase the park, the formation or identification of a single tenants committee formed for the purpose of purchasing the park and the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

Q: Do I have to give the tenants my tax returns?

A: No. But, during the 10 days of delivery of the notice, and in order to perform a due diligence evaluation of the opportunity to compete to purchase, your tenants may request specific financial information which may include: the asking price, if any (this provision contemplates that you may not yet know your asking price when you send your notice); the total income collected from the park and related profit centers, including storage and laundry, in the 12-month period immediately before delivery of the notice; the cost of all utilities for the park that were paid by the owner in the 12-month period immediately before delivery of the notice; the annual cost of all insurance policies paid by the owner as shown by the most recent premium; the number of homes in the park owned by the owner; and the number of vacant spaces and homes in the park. Please note that I have seen requests that ask for additional information; providing information outside of what is outlined above is discretionary.

Bill Miner is currently Partner in Charge of the Portland office of Davis Wright Tremaine. DWT is a full service law firm with 500 attorneys on both coasts and in Shanghai, China. The Portland office consists of approximately 80 attorneys and over 80 staff. He works with clients to resolve their legal problems through pre-litigation counseling, litigation, and mediation. He tries cases in state and federal courts and through private arbitration. His experience includes defending and prosecuting business torts; breach of contract claims; disputes between and among members of limited liability companies; residential and commercial real estate matters, including landlord-tenant, title, lien, and timber trespass disputes; and probate and trust cases. He is a frequent and popular speaker at MHCO seminars and conferences. You can reach Bill at: http://www.dwt.com/people/WilliamDMiner/

Bill Miner | Davis Wright Tremaine LLP1300 SW Fifth Avenue, Suite 2300 | Portland, OR 97201Tel: (503) 778-5477 | Fax: (503) 778-5299 Email: billminer@dwt.com | Website: www.dwt.comAnchorage | Bellevue | Los Angeles | New York | Portland | San Francisco | Seattle | Shanghai | Washington, D.C.

A landlord may require the payment of a security deposit (ORS 90.295). The landlord may claim from the security deposit only the amount reasonably necessary to:

1. Remedy the tenant's defaults in the performance of the rental agreement including but not limited to unpaid rent.
2. To repair damages caused by the tenant and not caused by ordinary wear and tear.

A landlord may not claim any portion of the deposit due to the tenant/resident failure to maintain a minimum number of months in a month-to-month tenancy.

Upon termination of the tenancy, the landlord shall account for and refund to the tenant the unused balance of any prepaid rent. Within 31 days after the termination of the tenancy and delivery of possession the landlord shall give to the tenant a written accounting which states specifically the basis of the claim. The landlord shall give a separate accounting for security deposits. 

Last week the Manufactured Housing Landlord Tenant Coalition held it's final meeting.  Some changes were made to the In Park Sales Conflict" issue but the other three issues remained substantially unchanged from our meeting in January. 

The MHCO Board of Directors has reviewed the proposed coalition bill and voted unanimously to support the proposed legislation.  Phil Querin is working on some last minute adjustments to the "In Park Sales" section of the proposal.  The coalition proposal will go to Legislative Counsel early this week to be drafted into a House Bill. 

MHCO has been working on bi-partisan support for the proposal.  There will be Democratic and Republican sponsors.   All this should make it easier to pass the proposal this spring.  In all likelihood the public hearing for this bill will be in March.

Here is a brief summary of the proposed legislation:

1. Unpaid Taxes on Abandoned Homes

This issue was MHCO's top legislative priority for the 2015 Legislative Session.  We are very happy with the agreement that we were able to reach which nearly eliminates all unpaid taxes on an abandoned home.

In general

Answer. There are several that come into play:

• A tenant may terminate a rental agreement upon written notice if the tenant provides the landlord with proof of official orders showing that the tenant is:

(a)Enlisting for active service in the Armed Forces[1] of the United States;

(b)Serving as a member of a National Guard or other reserve component or an active service component of the Armed Forces of the United States and ordered to active service outside the area for a period that will exceed 90 days;

(c)Terminating active service in the Armed Forces of the United States;

(d)A member of the Public Health Service of the United States Department of Health and Human Services detailed by proper authority for duty with the Army or Navy of the United States and: (A) Ordered to active service outside the area for a period that will exceed 90 days; or (B) Terminating the duty and moving outside the area within the period that the member is entitled by federal law to the storage or shipment of household goods; or

(e)A member of the commissioned corps of the National Oceanic and Atmospheric Administration ordered to active service outside the area for a period that will exceed 90 days.

• Termination of a rental agreement is effective on the earlier of:

1. A date determined under the provisions of any applicable federal law; or (b) The later of: (A) 30 days after delivery of the notice; (B) 30 days before the earliest reporting date on orders for active service; (C) A date specified in the notice; or (D) 90 days before the effective date of the orders if terminating duty described under subsection (1)(d)(B) of this section or terminating any active service described in this section.

• A tenant who terminates a lease on account of the reasons listed above is not: (a) Subject to a penalty, fee, charge or loss of deposit because of the termination; or (b) Liable for any rent beyond the effective date of the termination.

[1] "Armed Forces of the United States" means the Air Force, Army, Coast Guard, Marine Corps or Navy of the United States.

Answer: You may accept the prospective tenant. Under federal law, at least 80% of the spaces must be occupied by at least one tenant age 55 or over. The remaining 20% was originally reserved as "padding" in the event that one or more of the spaces became occupied by someone under 55, say, through death of the qualifying tenant and inheritance by a nonqualifying tenant. It use to be that the federal regulations suggested that intentionally renting some of the remaining 20% to nonqualifying tenants jeopardized the park's 55+ exemption, since it failed to demonstrate that the owner "intended" to hold the park out as a 55+ facility. That interpretation has been changed, and now landlords may rent out some of the remaining spaces to persons under 55 years of age.

However, remember that if you fall below the minimum 80%, the 55+ exemption will be automatically lost and the park will automatically become a family park - meaning that you will not be immune from a fair housing claim if you refuse to rent a space to a tenant with children.

Answer: No, the park should definitely not use a regular manufactured home rental agreement for RVs. By doing so, the park might inadvertently give the RV tenants more rights than they are otherwise entitled to under Oregon's Landlord-Tenant Laws.

Specifically, the MHCO manufactured home rental agreement (and most other, similar manufactured home rental agreements) typically define the rented space as being used for a "manufactured home." This could used against the park in an eviction action. The RV tenant's attorney could very well argue that the RV is a "manufactured home," and therefore not subject to a 30-day, no-cause eviction, as RV tenants typically may be evicted.

Tenant attorneys might also try to argue that the termination provisions in a manufactured home rental agreement similarly do not allow no-cause evictions. All in all, using a regular rental agreement is not a good idea.

Instead, use MHCO Form 80 (Recreational Vehicle Space Rental Agreement). It includes all of the usual landlord protections, plus these specific requirements under Oregon law: (a) That the tenancy may be terminated by the landlord without cause upon 30 or 60 days' written notice for a month-to-month tenancy or upon 10 days' written notice for a week-to-week tenancy; (b) that any accessory building or structure paid for or provided by the tenant belongs to the tenant and is subject to a demand by the landlord that the tenant remove the building or structure upon termination of the tenancy; and, (c) that a state agency or local government may not prohibit the placement or occupancy of an RV, or impose any limit on the length of occupancy, if the RV is located in a manufactured dwelling park, mobile home park or recreational vehicle park, occupied as a residential dwelling and lawfully connected to water and electrical supply systems and a sewage disposal system.

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

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

Answer: No, the park should definitely not use a regular manufactured home rental agreement for RVs. By doing so, the park might inadvertently give the RV tenants more rights than they are otherwise entitled to under Oregon's Landlord-Tenant Laws.

Specifically, the MHCO manufactured home rental agreement (and most other, similar manufactured home rental agreements) typically define the rented space as being used for a "manufactured home." This could used against the park in an eviction action. The RV tenant's attorney could very well argue that the RV is a "manufactured home," and therefore not subject to a 30-day, no-cause eviction, as RV tenants typically may be evicted.

Tenant attorneys might also try to argue that the termination provisions in a manufactured home rental agreement similarly do not allow no-cause evictions. All in all, using a regular rental agreement is not a good idea.

Instead, use MHCO Form 80 (Recreational Vehicle Space Rental Agreement). It includes all of the usual landlord protections, plus these specific requirements under Oregon law: (a) That the tenancy may be terminated by the landlord without cause upon 30 or 60 days' written notice for a month-to-month tenancy or upon 10 days' written notice for a week-to-week tenancy; (b) that any accessory building or structure paid for or provided by the tenant belongs to the tenant and is subject to a demand by the landlord that the tenant remove the building or structure upon termination of the tenancy; and, (c) that a state agency or local government may not prohibit the placement or occupancy of an RV, or impose any limit on the length of occupancy, if the RV is located in a manufactured dwelling park, mobile home park or recreational vehicle park, occupied as a residential dwelling and lawfully connected to water and electrical supply systems and a sewage disposal system.

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

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