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Answer: Yes, there are a few new laws plus a few new twists on existing laws. In a shameless plug, I encourage all park owners renting RV spaces to attend my RV Law Seminar at the MHCO Annual Convention. The RV seminar is on Monday, October 20th at 3:30.

Liability Insurance

One of the new laws we'll cover is the tenant liability insurance statute. This new law allows landlords to require RV tenants to obtain and maintain liability insurance during their tenancy. The amount of coverage may not exceed $100,000. To implement this policy, landlords can give RV tenants a 30-day notice informing them of this requirement. New RV tenants can be required to obtain insurance as long as you notify them in writing when they apply for tenancy.

If you have long-term RV tenants, it might be worthwhile to make liability insurance a requirement in your park. It adds another layer of protection for you as a landlord if a tenant does something causing major damage or injury in the park. (NOTE: The law does not apply to mobile home park tenants.) There are some restrictions on the insurance requirement, which we will cover in more detail at the RV seminar.

Noncompliance Fees Charged to RV Tenants

There have been a few changes to the laws which allow a landlord to charge tenants a noncompliance fee for certain violations. These fees can be a useful tool in getting tenants to follow the park rules without having to issue an eviction notice. Landlords can charge fees for (1) late utility payments, (2) failing to pick up pet waste, (3) failing to clean up garbage, (4) parking violations, (5) improper use of vehicles on the premises, (6) smoking in non-smoking areas, and (7) keeping unauthorized pets. The fees can't be charged without first giving a written warning and there are several other restrictions that we will cover at the RV seminar.

Section 8 Rental Payments

A new law now makes it unlawful for you as a landlord to refuse to rent to Section 8 tenants for that reason alone. The rationale is to give low income tenants the opportunity to rent anywhere regardless of how they make their income. While this doesn'tusually arise in RV park rentals, all landlords should be aware of the new law.

Prior Evictions, Arrests of Crimes

RV tenant applicants now cannot have their evictions considered if the case was dismissed or a judgment entered in the applicant's favor. Eviction cases 5 or more years old at the time of the rental application similarly cannot be considered in evaluating the applicant.

The law also specifies that only certain types of crimes can be considered in evaluating an applicant: (1) Drug related crimes, (2) crimes against another person, (3) sex offenses, (4) financial fraud, and (5) a "catchall" provision that includes any crime that might affect the landlord's or other tenants' property or safety. Arrests in the person's past on any of these issues that did not result in a conviction cannot be considered. However, pending arrests that have not been adjudicated at the time of the application may be considered.

RV Restroom Requirements

While not a new law, Oregon law requires that parks provide bathroom facilities to "vacation or recreational" campers. Less clear is whether parks are obligated to keep or install restrooms if they only rent to long-term residential RV tenants. At the RV seminar we will explore this issue and how it might affect your park - particularly if you have a mixed-use park of both RVs and mobile homes.

On July 6, 2023 the Oregon Legislature passed SB 611 which lowered the existing cap on annual rent increases for residential tenancies.  With the Governor's signature the bill is now the law.

Every year in late September, the state of Oregon calculates a maximum rent increase for residential tenancies based on the preceding year’s September Consumer Price Index for the West Region (CPI). The formula is a base of 7% plus the CPI. Typically, this results in a maximum rent increase of around 9%. Last year, due to pandemic-related inflation the CPI shot up to 7.6%, resulting in a maximum allowable residential rent increase for 2023 of 14.6%.

A new 10% cap has gone into effect as of July 6, 2023. Any rent increases going into effect from this date until December 31, 2023 may not be more than 10% [see note about rent increases in the City of Portland, below]. The new rental cap for 2024 will be calculated and published by the State of Oregon in the fall.

New Cap: SB 611 retains ORS 90.600’s the statutory formula of 7% plus the CPI, however residential rent increases will now be capped at 10%, regardless of whether the CPI exceeds 3%. All tenancies subject to ORS 90.600, except week-to-week tenancies, are subject to the following rules:

1. A landlord may only increase rent with written notice to the tenant at least 90-days prior to the rent increase; and
2. A landlord may not increase the rent more than once in any 12-month period.

Exemptions: Landlords are exempt from the rent cap under two circumstances:

1. The first certificate occupancy for the unit was issued less than 15 years from the date of the notice of rent increase; or
2. The unit is affordable housing under a federal, state or local program and the increase in rent:
   1. Does not increase the tenant’s portion of subsidized rent; or
   2. Is required by the federal, state, or local program or because of a change in the tenant’s income.

If a landlord is claiming exemption from the cap on the grounds mentioned above, the exemption must be noted in the 90-day rent increase notice.

City of Portland: Landlords in the City of Portland should note that the new statewide 10% rental cap does not override the City of Portland’s Relocation Assistance Program requirements under  Portland City Code 30.01.085(c). Any rent increase of 10% or above, even if allowed under SB 611, will trigger a requirement that the landlord pay relocation assistance if their affected tenants request it. There are limited exemptions to Portland’s 10% increase rule. Landlords should consult with an attorney to inquire about exemptions before increasing City of Portland rents more than 9.9%.

If the son is on parole, you may want to try to contact his parole officer. I fully suspect that there may be conditions of his parole that may apply to keep him out of the park.

At the risk of sounding harsh, it is a fact that "sexual predators" are not a protected class under the state and federal constitution. In short, you can have rules forbidding them to be in the park due to the proximity of children.

If you don't have such rules, you may want to enact some. But even though you don', I believe you did the right thing to require that he not occupy the home. You can and should do the same thing with regards to forbidding him to come into the park at all. If his family wants to see him, they can go to where he currently lives. The person(s) who has/have hired him to do odd jobs should be told that he cannot come into the park for ANY reason.

If you wonder whether this can be done without some specific rules, my response is that I would prefer rules to be in place. But even though you presumably have nothing on point, it would not stop me from banning him from the park. If he legally objects and wins, then it was a court that said he could come in - not you. Your main duty is to the park residents and their children. Better to try to remove him and fail than not to try at all.

Lastly, for your information, ORS 90.630(1)(c) permits a landlord to terminate a tenant if it is determined that they are "a predatory sex offender under ORS 181.585 to 181.587." From your question, I could not tell whether the adult son was on the rental agreement, but if so, he is a "tenant." The statute is not clear whether it can be applied to only a single tenant, without terminating the tenancy of the remaining occupants. Of course, the statute doesn'taddress the larger issue of whether you may prohibit him from coming into the park, but I believe you are fully within your rights, as discussed above. However, you should first clear any such action with the park ownership, and they should secure legal advice on how to proceed.

Introduction.  As most MHCO members may remember, ORS 90.630 had a “one-size-fits-all” approach to tenant violations. There was a 30-day cure period for all violations of the law, rules or rental/lease agreement, and if not cured by the 30thday following delivery of the notice, the tenancy was terminated.

The problem with that approach was that some violations consisted of isolated single acts, such as speeding through the park in violation of the community rules. This raised the question, what to do about repeat violations withinthe 30-day period? As long as the conduct ceased before last day of the 30-day cure period, was a tenant in compliance with the termination notice? Without getting into the reasons why I believe such an approach was incorrect, the issue is now moot.

Revisions to ORS 90.630. Pursuant to the new Landlord-Tenant Coalition Bill, SB 586, ORS 90.630 has been amended to specifically deal with single, isolated violations that are notof a continuing nature (such as, for example, the failure to maintain the space, or exterior of the home).

Although MHCO has made the appropriate changes to its forms, members are encouraged to review them in advance of using them. The protocols are different and may take some getting used to. We now have two forms, (a) one for “continuing” violations, and (b) another for those that consist of a single, non-repetitive act. There are also some changes to the statute that apply to both types of violations. Here is a summary:

1. All violations for which a notice is issued must be “material”. Although this term is not defined in the legislation, suffice it to say, you (should) know it when you see it. An isolated failure to mow the front yard one week is not a “material” violation that should trigger a 30-day notice of termination. That is what clean-up notices are for. 

2. The 30-day notice now must separately designate a “termination date”. It is not sufficient to say that the tenancy will terminate if the violation continues past the last day of the 30-day cure period. The MHCO form has been appropriately revised.

3. Conduct is “ongoing” if:

1. 1. It is “constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing”; and
   2. The violation does not involve a pet or assistance animal;
   3. If it is ongoing, the same rules apply as previously, i.e. there is a 30-day cure period (however now a separate “termination date” must be identified, which can simply be the date following the last day of the cure period – as long as it is specifically identified).

4. A critical difference with the separate conduct 30-day notice is that there are now two time periods.

1. 1. The resident has a cure period of “…at least three days after delivery of the notice.” If not so cured within that time (e.g. tenant continues to speed through park) the tenancy will terminate on a date at least 30 days following delivery of the notice. 
   2. Note: it will be important for management to specifically identify the date three or more days hence. Otherwise, the cure period would end on the designated termination date not less than 30 after the delivery of the notice (or 33 if sent by regular mail).

5. Similar to the ongoing violation, for the separate conduct violation, at least one possible method for correction must be identified.

6. The six-month period for the repeat violation (which, if it occurs, entitles management to issue a 20-day non-curable notice) has been corrected. 

1. 1. Previously, the 6-month period commenced from the date of delivery of the violation notice, which was effectively only a 5-month period. 
   2. The new law, and the new MHCO violation form, now begin 6-month period from the termination date designated in the notice. 

7. There were no other material changes to ORS 90.630, including the 3-strikes law.

Conclusion. On its face, the changes appear to address the isolated violation issue with a shortened cure period, and automatically terminating the tenancy within 30-days if not so cured. 

Since I was not present during the discussion of these changes at the Coalition, I cannot comment on the rationale that resulted in this approach. But I cannot help but feel that a resident who fails to cure within the 3-day period – and now has 30 days hang around the park before vacating – has little incentive to be on his/her best behavior. What more can management do to protect the safety and welfare of the other residents while the terminated resident remains in the community?  Perhaps the 24-hour notice provisions of ORS 90.396could be amended to address this issue.

Answer:  Disclaimer: Certain folks, especially those of the regulatory bent, will likely disagree with my answer.  The reason stems, I believe, from one of four sources: (a) Rigid (some might say “stubborn” or “dogmatic”) adherence to a law or regulation, regardless of how illogical and silly it may be; (b) A belief that everyone is a victim, and deserves to pampered and coddled even in the face of obvious evidence they are gaming the system; (c) Political correctness run amok; or (d) A combination of some or all of the preceding causes.

I admit I am one of those folks who have watched in disbelief as some residents have taken the most outlandish positions in an effort to keep a pet they know full well violates the community rules.  I recently saw a situation where a new tenant, knowing that the community did not permit pets, moved in and promptly moved her large dog in to live with her, having paid to get the necessary sham certifications and paperwork online, no questions asked. 

 Here are some general rules:

• The Americans with Disabilities Act, or “ADA” does not apply to private residential housing – only public accommodations. 
• ORS 659A.143 governs the use of assistance animals in public accommodations.  The rules seem rational and reasonable, but technically do not directly apply to private housing.
• The Fair Housing Act applies to the use of assistance animals in housing.
• HUD has set out the issues to be vetted for a landlord to make a determination whether to grant a resident the right to have an assistance animal.
• Assistance, emotional support and service animals are not pets, and accordingly, pet rules do not strictly apply (such as requiring pet deposits).
• Service animals (or “assistance animals” under Oregon’s definitions) are required to be certified as such. Not so for emotional support animals. Nevertheless, all such animals are to serve the disability of the requesting resident. But getting a doctor’s letter, or that of another person in the medical profession is not that difficult.
• You do not have to accept just any animal as an assistance animal.  If it requires some additional cost to the landlord, it is not required. (See, HUD article here.)

Here is what HUD says in the above article (HUD footnotes omitted):

“For purposes of reasonable accommodation requests, neither the FHA nor Section 504[1] requires an assistance animal to be individually trained or certified.  While dogs are the most common type of assistance animal, other animals can also be assistance animals.

Housing providers are to evaluate a request for a reasonable accommodation to possess an assistance animal in a dwelling using the general principles applicable to all reasonable accommodation requests. After receiving such a request, the housing provider must consider the following:

1. Does the person seeking to use and live with the animal have a disability - i.e., a physical or mental impairment that substantially limits one or more major life activities?

1. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?

If the answer to question (l) or (2) is "no," then the FHA and Section 504 do not require a modification to a provider's "no pets" policy, and the reasonable accommodation request may be denied.

Where the answers to questions (1) and (2) are "yes," the FHA and Section 504 require the housing provider to modify or provide an exception to a "no pets" rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider's services. “(Emphasis added.)

The Fair Housing law basically requires that if one has a disability, they may request that their landlord grant them a “reasonable accommodation” – that is, an exception to the community rules, allowing the resident permission to do that which is otherwise prohibited. 

Thus, size limits don’t strictly apply. And occasionally, residents attempt to have a second pet, claiming that it isn’t a “pet,” but an assistance animal.  However, here is where the line blurs. How far does the landlord have to bend to accommodate residents, especially in those situations where the resident is gaming the system?

MHCO has forms for dealing with requests for reasonable accommodations, whether they be a non-compliant animal, or some other issue, such as an additional parking space, etc.  First and foremost, I suggest following the same protocols in all cases, from the legitimate to the illegitimate.

Secondly, I suggest following the 3-prong test (besides cost, which doesn’t really apply in most cases) as follows:  Would granting of the request endanger the Health, Safety, or Welfare of other residents or guest in the community.  If the resident, for example, asks to have a pit bull as an assistance animal, it is not altogether unreasonable, after vetting the dog’s demeanor, socialization, etc., to propose another less aggressive animal as a “reasonable accommodation.” 

Third, for such breeds with known vicious propensities, you should check with your liability insurance carrier to see if they have a short list of animals they will not insure if there is an attack.  If the carrier says that animal is on that short list, then you should propose another less aggressive animal. In discussing this with the Fair Housing Council of Oregon while drafting the reasonable accommodation request portions of MHCO’s form, they acknowledge the financial burden exception – however, suggested another step, i.e. finding an insurance carrier that would insure such aggressive animals if it was not overly expensive for the landlord to do so. I will leave extra step for discussion with your own attorney.

Then there are cases in which the request is clearly a ruse to get a pet approved as an assistance animal, when and it is clear to any reasonable person, it is a ruse.  You will have to decide on your own, or with the assistance of your attorney, how to proceed.  If, after giving the resident the MHCO form to complete, you are satisfied that it is a ruse, you are going to have to decide whether to call their bluff, or relent. If you relent, you will have done so only after requiring them to complete the necessary paperwork. However, be prepared for more copycats - pardon the pun.

1. If the tenant, in violation of the rental agreement, keeps on the premises a pet capable of causing damage to persons or property, the landlord may deliver a written notice specifying the violation and stating that the tenancy will terminate upon a date not less than 10 days after the delivery of the notice unless the tenant removes the pet from the premises prior to the termination date specified in the notice. If the pet is not removed by the date specified, the tenancy shall terminate and the landlord may take possession in the manner provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings).

1. For purposes of this section, a pet capable of causing damage to persons or property means an animal that, because of the nature, size or behavioral characteristics of that particular animal or of that breed or type of animal generally, a reasonable person might consider to be capable of causing personal injury or property damage, including but not limited to, water damage from medium or larger sized fish tanks or other personal injury or property damage arising from the environment in which the animal is kept.

1. If substantially the same act that constituted a prior noncompliance of which notice was given under subsection (1) of this section recurs within six months, the landlord may terminate the rental agreement upon at least 10 days written notice specifying the breach and the date of termination of the rental agreement.

1. This section shall not apply to any tenancy governed by ORS 90.505 (Definition for ORS 90.505 to 90.840) to 90.840 (Park purchase funds, loans). [Formerly 91.822; 1995 c.559 §28; 1999 c.603 §25]

While I suppose there is an argument that this statute doesn’t apply, since it pertains to “pets,” I believe that argument begs the question, since it is your position that these are pets disguised as “assistance animals.” If the resident believes you’re prepared to commence an eviction proceeding, perhaps they will relent.  If not, the judge can decide. Of course, be prepared for the resident to bring in some doctor, chiropractor, or therapist, to claim the resident needs the animal for some protected purpose. 

If the animal is dangerous, I strongly believe you are correct to take the issue to the mat, since doing nothing could result in injury to a resident or guest, and you can be sure you will then be accused of permitting the animal to remain when you should not have. Unfortunately, these issues can become expensive, and there is no assurance of victory in court.

It is possible for you and your attorney to develop some type of agreement which closes the loophole that is occurring at your community.  I can envisage language that with the proper recitals and provisions, would give you more protection than you now have.  However, as we know, until the matter is litigated, you’ll never know if the form is bullet-proof.  But having it in place is probably better than where you are now, and would likely make a resident think twice about trying to play the “support animal” card, if the agreement expressly says the animal is a pet and that was the sole reason for their wanting it.

The take-away here is that landlord must deal with reasonable accommodation requests on a case-by-case basis. Each set of facts are different. Not long ago I had a park client who refused a reasonable accommodation request, because it was too outlandish. A complaint was filed with BOLI, and we butted heads for a while. Eventually, BOLI relented, largely because the resident was too unreliable. Landlords must remember to pick their shots. Some principles are worth defending, and others not. In this case we believed that the issue was worth defending, to send a message to the tenant, and others who might be waiting to see the outcome, before they stepped up to test the landlord.

Lastly, there are indications that HUD may be tightening the definitions and loopholes so that landlords do not continue dealing with either gamesmanship, or accepting the risk of a dangerous breed, just to avoid a fight.

[1] Section 504 of the 1973 Rehabilitation Act was the first disability civil rights law to be enacted in the United States. It prohibits discrimination against people with disabilities in programs that receive federal financial assistance, and set the stage for enactment of the Americans with Disabilities Act. Section 504 works together with the ADA and IDEA to protect children and adults with disabilities from exclusion, and unequal treatment in schools, jobs and the community. [See link here.]

Answer: Disclaimer: Certain folks, especially those of the regulatory bent, will likely disagree with my answer. The reason stems, I believe, from one of four sources: (a) Rigid (some might say "stubborn" or "dogmatic") adherence to a law or regulation, regardless of how illogical and silly it may be; (b) A belief that everyone is a victim, and deserves to pampered and coddled even in the face of obvious evidence they are gaming the system; (c) Political correctness run amok; or (d) A combination of some or all of the preceding causes.

Whew! I feel better already!

I admit I am one of those folks who have watched in disbelief as some residents have taken the most outlandish positions in an effort to keep a pet they know full well violates the community rules. I recently saw a situation where a new tenant, knowing that the community did not permit pets, moved in and promptly moved her large dog in to live with her, having paid to get the necessary sham certifications and paperwork online, no questions asked.

Here are some general rules:

• The Americans with Disabilities Act, or "ADA" does not apply to private residential housing - only public accommodations.
• ORS 659A.143 governs the use of assistance animals in public accommodations. The rules seem rational and reasonable.
• The Fair Housing Act applies to the use of assistance animals in housing.
• HUD has set out the issues to be vetted for a landlord to make a determination whether to grant a resident the right to have an assistance animal.
• Assistance animals are not pets, and accordingly, pet rules do not strictly apply (such as requiring pet deposits).
• You do not have to accept just any animal as an assistance animal. If it requires some additional cost to the landlord, it is not required. (See, HUD article here.)

The Fair Housing law basically requires that if one has a disability, they may request that their landlord grant them a "reasonable accommodation" - that is, an exception to the community rules, allowing the resident permission to do that which is otherwise prohibited.

Thus, size limits don't strictly apply. And occasionally, residents attempt to have a second pet, claiming that it isn'ta "pet," but an assistance animal. However, here is where the line blurs. How far does the landlord have to bend to accommodate residents, especially in those situations where the resident is gaming the system?

MHCO has forms for dealing with requests for reasonable accommodations, whether they be a non-compliant animal, or some other issue, such as an additional parking space, etc. First and foremost, I suggest following the same protocols in all cases, from the legitimate to the illegitimate.

Secondly, I suggest following the 3-prong test (besides cost, which doesn'treally apply in most cases) as follows: Would granting of the request endanger the Health, Safety, or Welfare of other residents or guest in the community. If the resident, for example, asks to have a pit bull as an assistance animal, it is not altogether unreasonable, after vetting the dog's demeanor, socialization, etc., to propose another less aggressive animal as a "reasonable accommodation."

Third, for such breeds with known vicious propensities, you should check with your liability insurance carrier to see if they have a short list of animals they will not insure if there is an attack. If the carrier says the animal is on that short list, then you should propose another less aggressive animal.

Then there are cases in which the request is clearly a ruse to get a pet approved as an assistance animal, when and it is clear to any reasonable person, it is a ruse. You will have to decide on your own, or with the assistance of your attorney, how to proceed. If, after giving the resident the MHCO form to complete, you are satisfied that it is a ruse, you are going to have to decide whether to call their bluff, or relent. If you relent, you will have done so only after requiring them to complete the necessary paperwork. However, be prepared for more copycats - pardon the pun.

1. If the tenant, in violation of the rental agreement, keeps on the premises a pet capable of causing damage to persons or property, the landlord may deliver a written notice specifying the violation and stating that the tenancy will terminate upon a date not less than 10 days after the delivery of the notice unless the tenant removes the pet from the premises prior to the termination date specified in the notice. If the pet is not removed by the date specified, the tenancy shall terminate and the landlord may take possession in the manner provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings).

1. For purposes of this section, a pet capable of causing damage to persons or property means an animal that, because of the nature, size or behavioral characteristics of that particular animal or of that breed or type of animal generally, a reasonable person might consider to be capable of causing personal injury or property damage, including but not limited to, water damage from medium or larger sized fish tanks or other personal injury or property damage arising from the environment in which the animal is kept.

1. If substantially the same act that constituted a prior noncompliance of which notice was given under subsection (1) of this section recurs within six months, the landlord may terminate the rental agreement upon at least 10 days written notice specifying the breach and the date of termination of the rental agreement.

1. This section shall not apply to any tenancy governed by ORS 90.505 (Definition for ORS 90.505 to 90.840) to 90.840 (Park purchase funds, loans). [Formerly 91.822; 1995 c.559 _28; 1999 c.603 _25]

While I suppose there is an argument that this statute doesn'tapply, since it pertains to "pets," I believe that argument begs the question, since it is your position that these are pets disguised as "assistance animals." If the resident believes you're prepared to commence an eviction proceeding, perhaps they will relent. If not, the judge can decide. Of course, be prepared for the resident to bring in some doctor, chiropractor, or therapist, to claim the resident needs the animal for some protected purpose.

If the animal is dangerous, I strongly believe you are correct to take the issue to the mat, since doing nothing could result in injury to a resident or guest, and you can be sure you will then be accused of permitting the animal to remain when you should not have. Unfortunately, these issues can become expensive, and there is no assurance of victory in court.

It is possible for you and your attorney to develop some type of agreement which closes the loophole that is occurring at your community. I can envisage language that with the proper recitals and provisions, would give you more protection than you now have. However, as we know, until the matter is litigated, you'll never know if the form is bullet-proof. But having it in place is probably better than where you are now, and would likely make a resident think twice about trying to play the "support animal" card, if the agreement expressly says the animal is a pet and that was the sole reason for their wanting it.

Answer: One of the most common types of residential eviction is also the most misunderstood - the nonpayment of rent eviction. A good tenant's attorney can frequently retain possession for his/her client, even though they clearly failed to pay the rent when due. All it takes is a little familiarity with that labyrinthine set of statutes in the Oregon Residential Landlord Tenant Act, or "ORLTA."

It is common knowledge that unless the parties have agreed otherwise, rent is due on the first day of each month. Rent does not become delinquent until after the expiration of seven days, including the date rent is first due. An eviction cannot be filed until after the expiration of 72 hours' written notice. This means that the earliest a 72-hour notice may be delivered to the resident is on the 8th day of the month, and the earliest one may file for eviction is on the 11th day of the month, i.e. 72 hours hence.[1]

However, oftentimes it is not until the first appearance following the filing of the eviction that the landlord discovers that the resident has gone to an attorney and is now raising various counterclaims under ORLTA. Some of these counterclaims may be without any real factual basis, and may have been raised primarily to secure either more time or some other concession from the landlord.

Assuming that the resident either has the money to pay the rent, or can somehow gather it together prior to a trial, this is a battle that the landlord is almost sure to lose. The reason is found in the rent-tender statute, ORS 90.370. Essentially, this statute, and several cases that have construed it, permit the resident to tender the past due rent into Court, even though it was not paid during the 72-hour period set forth in the notice. At the conclusion of the case, if the Court finds that the amount tendered into Court covers the amount found to be due, the resident automatically retains possession.

Example: Landlord files an eviction against resident based upon the failure to pay monthly rent of $400. Resident files counterclaims alleging ORLTA violations, and claims that because of the deficiencies, the "market rent" (as opposed to the "contract rent", i.e. the amount due under the rental agreement) for the premises is only $100 per month - not $400 per month. Resident has had possession for seven month, six of which he paid the full rent that was due, and on the seventh month, i.e. the one for which the eviction was filed, he withheld the monthly rent. But he tendered the full $400 rent into court for the seventh month, and counterclaimed for $1,800, i.e. $300 for each of the prior six months' possession for which he "overpaid". Assuming that the counterclaims were made in good faith, here are the various scenarios:

1. Worst Case for Landlord: The Court finds in favor of the resident, awarding him a judgment for $1,800 (6 months X $300) plus costs and attorney fees.

2. Best Case for Landlord: Although the Court finds against the resident on his counterclaims, and finds that the amount due to the landlord is the full $400, since it has already been tendered into Court, the resident is allowed to retain possession, and may submit a request for recovery of his costs and attorney fees. This is because subsection (1)(b) of ORS 90.370 provides that "If no rent remains due after application of this section and unless otherwise agreed between the parties, a judgment shall be entered for the tenant in the action for possession. (Italics mine.) Thus, the resident is still the prevailing party and entitled to an award of attorney fees.[2]

The only exception to the "Best Case" scenario is where the landlord is able to convince the Court that the resident's counterclaims are improper and/or have been filed in bad faith. If so, the rent tender will do the resident no good, and if he loses his counterclaims, he will be evicted and become subject to a judgment for the landlord's costs and attorney fees.

So, when should the landlord fight to evict a resident for nonpayment of rent, where the resident has tender rent into Court? Only in the following situations: (a) Where the landlord is confident that he/she can convince the Court that the counterclaims were filed in bad faith; or, (b) Where the rent tender is believed to be inadequate and the resident's attorney does not realize that the shortfall could be tendered into Court so that no rent would remain due '_after application of this section... ." In virtually every other situation, the odds of winning a contested nonpayment of rent eviction where there has been a full rent tender are virtually nonexistent.[3]

[1] This analysis does not consider the 144-hour notice provisions of ORS 90.394(2)(b). However, the rationale is exactly the same whether the notice is based upon 72 hours or 144 hours. The only difference is the calculation of the time periods.

[2] ORS 90.255 provides: In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, prevailing party means the party in whose favor final judgment is rendered. (Italics mine.)

[3] These conclusions are based not only upon a reading of the statute, but also several well-established Oregon cases construing it.

By Troy Brost Owner SongBrook MHC, Eugene, Past President and Legislative Chair of Manufactured Housing Communities of Oregon The title of this Community Update should have caught your attention. It is not a gimmick, I have done it myself. Adam Cook's MHCO Community Update article, "Can You Afford to Keep Utilities Included in Your Rent?" from last week is spot on! My answer is no, I cannot and no longer do". Both Landlords and Tenants agree of the importance of sub-metering; it is a win-win proposition. Enduring years of Landlord/Tenant Coalition, one of the most daunting tasks was demonstrating Landlords do not have safes' locked full of money. Financing options simply did not exist to fund mandatory sub-metering. Where were Landlords to find upwards of $750+ per homesite to install water sub-meters? Of course, Landlords proved their argument and negotiated the right to unilaterally amend rental agreements to permit community-wide sub-metering; creating provisions to recapture installation expenses by billing Tenants. Considering a new program now available, I believe every Landlord should sub-meter sooner than later! Now available is a sub-meter and installation program at zero expense to any Landlord wanting to install new or replace old sub-meter systems. No applications, no qualifications, and no money down gets you state of the art wireless monitored sub-meters (water, electric, and gas are all available). What's the catch? ... the Landlord signs a 10 year Billing Agreement with the provider, in which the Tenant pays. So, how does it work? First, the meters are purchased/installed/administered/maintained/repaired/monitored/insured/read/etc. by an Independent 3rd party. Just as all meter reading companies, this 3rd party charges a monthly fee for their service ... it is their cost of doing business. In Eugene, this 3rd party charges nearly 1/2 less of what EWEB (Eugene Water and Electric Board) charges it's customers. Second, per ORS 90, the 3rd party bills the Tenant the cost of the sub-meter and installation over a minimum of 60 months. The sub-metering process is complicated; no worries, this 3rd party is experienced, has been in business for nearly a decade, has all the systems and sample notices in place, and handles the entire process on behalf of the Landlord. The Bottom line: local government agencies and utility companies use Landlords to pass through their exorbitant "fees" and rate increases, in which Landlords are forced to carry until the next "rent" increase ... making the Landlord the greedy bad guy. Prior to sub-metering, utility expenses were 23% of my rent; my monthly invoices now line item sub-meter every utility possible. My rents are now very competitive within the market and I have direct control over costs. I see every reason why all Landlords should do the same. Indeed, it sounds too good to be true ... it is. Contact me at troybrost@gmail.com, 541-554-1499, or visit www.infrasystems.us to find out for yourself. I will provide you with the contact and information you need and assist you along the way. -- Troy Brost

Answer: By your question, it appears that your community is not sub-metered. If it were, the owners of the home would likely recognize the problem and immediately and fix it.

In my experience when water is included as a part of the base rent, most owners really don't care, and don't check. But when the community institutes a sub-metering program, everyone becomes an overnight conservationist. Sub-metering is a win-win for everyone; the landlord saves money in not having to pay for wasted water, and the residents save in (a) controlling their own water bills, and (b) not having to suffer needless rent increases to recapture the cost of wasted water.

Now to your questions. Clearly, if water is visibly running out of the home, the tenants should be notified and told to fix the problem. They are responsible for their own homes.

As for the less obvious leaking problems, the only way to find out is to survey the tenants on the issue; e.g. do they hear the toilet leaking, for example.[1]Same question for faucets. Next, what about under the home? Has anyone checked lately? I have heard of management offering to do inspections under the home for free, as a part of instituting a submetering program.

But can you require residents take these proactive steps, especially hiring someone to inspect under the home. Except for the rules regarding the siting of home on a space, there are likely no regulations that mandate such action on an ongoing basis - at least if there is no present evidence of leaking. If there is evidence, ORS 90.740 can be relied upon to secure compliance, if nothing can be found in the rules or rental agreement:

90.740 Tenant obligations. A tenant shall:

(4)Except as provided by the rental agreement:

(a)Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

(e)Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;

(f)Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

If the rules do not contain such a provision, consider amending them to add language to address the issue. Rule changes can be done in a fairly straightforward manner. See, ORS 90.610. Alternatively, even if submetering is not addressed in your rules, you can unilaterally add it to your rental agreements, as a "Plan B", if you are unsuccessful in implementing the necessary rules.

[1]From the City of Portland website here: "How to check for toilet leaks: Lift of the toilet tank lid. Place 1 dye tablet in the toilet tank. Do not flush. Wait 15 minutes (or more) without flushing. Check the water in the bowl of the tank. If color appears in the bowl, the toilet has a leak."

Answer: The applicable statute is ORS 90.304. In summary, it provides as follows:

1. If you require an applicant to pay a screening charge and the application is denied (or if the applicant makes a written request following your denial of an application) you must promptly provide the applicant with a written statement of one or more reasons for the denial.

2. Your statement of reasons for denial may consist of a form with one or more reasons checked off. MHCO has such a form. The reasons for rejection under the statute include, but are not limited to, the following:

- Rental information, including:

o Negative or insufficient reports from references or other sources;
o An unacceptable or insufficient rental history, such as the lack of a reference from a prior landlord;
o A prior eviction action for possession under ORS 105.105 to ORS 105. 168 that resulted in a general judgment of restitution in the landlord's favor; and
o The inability to verify information regarding a rental history.

- Criminal records, including:

o An unacceptable criminal history;
o The inability to verify information regarding criminal history.

- Financial information, including:

o Insufficient income;
o Negative information provided by a consumer credit reporting agency; and
o Inability to verify information regarding credit history.

- Failure to meet other written screening or admission criteria in your lease or rental agreement. (See Footnote 1)

- The dwelling unit has already been rented.

3. If you fail to comply with these provisions, the applicant may recover from you $100.

Footnote 1: The MHCO Lease (MHCO Form 5B) and Rental (MHCO Form 5A) forms list the screening criteria which a landlord may impose when the resident is seeking to sell their home to an applicant who wants to become a resident in the community. They are the following: (a) unsatisfactory rental references; (b) the absence of any prior tenant history or credit history; (c) unsatisfactory credit history; (d) unsatisfactory character references; (e) any criminal history; (f) insufficient income to reasonably meet the monthly rental and other expense obligations under this Agreement; (g) presence of pets or the number, type or size of pets; (h) if the Community is an age 55+ or 62+ Community, reasonable evidence verifying that at least one occupant is age 55 or 62, or over, as the case may be; (i) evidence that the prospective tenant has provided LANDLORD with falsified or materially misleading information on any material items; (j) if the prospective tenant refuses to sign a new written rental or lease agreement; (k) the number of additional occupants; or, (1) adverse information contained in the public record.