Answer: RVs are not treated the same as manufactured homes. They are subject to the general landlord-tenant law (as opposed to the manufactured housing side of that law). This means that if an RV tenant is renting the space on a month-to-month basis, you cannot increase the rent during the first year, and after that only with the issuance of a 90-day written notice. Also, after the first year, you cannot terminate without cause.
Answer: The answer lies squarely in ORS 90.394 (Termination of rental agreement for failure to pay rent.) In summary, the statute provides as follows:
Answer 1: Generally, no. However, this isn'ta license to be rude to them. Let's start with the basics: If you are a legal 55+ community, you are not required to admit as residents, persons with children, i.e. those under the age of 18. If there are children in the community (perhaps before the facility converted to 55+, or simply because less than 20% of all spaces are occupied by persons with children), the park may do things that it could not do if it was a family park, such as prohibit children's Big Wheels and bicycles in the street. Generally, however, the best approach is to strive for 100% compliance with the 55+ laws in terms of occupancy. If you want to be a "safe" 55+ community, you will have rules that expressly say so; a rental/lease agreement that expressly says so; application and tenant home sale provisions that limit spaces to at least one occupant 55+; and generally hold yourself out in all advertising as a 55+ community. Of course, seniors are permitted to bring children (e.g. grandchildren, etc.) into the community, but the rules may place limits on the amount of time they may remain there.
Answer 2: You need to go through the formal rule change process described in the statute. A rule that is not legally enacted, isn'treally an enforceable rule. However, you should immediately issue a written notice to all residents that based upon legal advice, those rules (identifying them) that appear to be discriminatory against children, will not be enforced. If you own a family park and are concerned that your rules may appear to "target" children, you should consult with your attorney for advice on how to proceed. Note that even if your rules don't appear to target children, if they, in fact, affect the activities of children more heavily than adults, they could still be deemed to be discriminatory (e.g. occupancy limits). And if you are a family park, but you have over 80% of the spaces occupied by at least one person age 55 or over, you should ask your attorney about "converting" to become a legal 55+ community. Until you do, even though 99% of the community's spaces are occupied by seniors, you're still a family park, and subject to the anti-discrimination laws protecting children.
Answer: You are correct that ORS 90.630 may only be used to give residents notice of a violation and an opportunity to cure. This is not so say you couldn'tuse a 30-day notice in this case, but the "cure" would be for the resident to stop possessing the meth, which would be highly difficult to verify. Moreover, in many cases, the possession of meth can be accompanied by other activities that can pose health, safety, welfare, and peaceable enjoyment, issues to the other residents of your community.
ORS 90.396(1) provides in relevant part:
Except as provided in subsection (2) of this section, after at least 24 hours written notice specifying the acts and omissions constituting the cause and specifying the date and time of the termination, the landlord may terminate the rental agreement and take possession as provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings), if:
***
(f) The tenant, someone in the tenants control or the tenants pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. For purposes of this paragraph, an act is outrageous in the extreme if the act is not described in paragraphs (a) to (e) of this subsection [i.e. committing serious injury to persons and property in the community, etc. - PCQ], but is similar in degree and is one that a reasonable person in that community would consider to be so offensive as to warrant termination of the tenancy within 24 hours, considering the seriousness of the act or the risk to others. An act that is outrageous in the extreme is more extreme or serious than an act that warrants a 30-day termination under ORS 90.392 (Termination of rental agreement by landlord for cause). Acts that are outrageous in the extreme include, but are not limited to, the following acts by a person:
***
(B) Manufacture, delivery or possession of a controlled substance, as described in ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980), but not including [Oregon marijuana exceptions - PCQ]... .(Underscore mine.)
Note that ORS 90.396(1)(f)(B) expressly says that the manufacture, delivery, or possession of a controlled substance constitutes an act that is "outrageous in the extreme." Accordingly, it is not proscribed conduct that is open to debate about whether it may be "cured" within thirty days. Illegal drug possession is considered an automatic violation of the law.
Accordingly, the use of a 24-hour notice (MHCO form # ), would be appropriate in this case. However, just because the statute and form refer to "24-hours" does not mean you must require the resident to vacate within that time. It just means you cannot give less than 24-hours' notice.
This answer assumes that the resident's possession occurred '_on the premises (i.e. the space) or in the immediate vicinity of the premises." If not, that is, while he was arrested inside the community, the possession occurred outside of the community, your reliance ORS 90.396(1)(f)(B) would be inappropriate and would likely fail.
Additionally, based on your question, I cannot tell if the resident is causing any other problems in the community. Nor can I tell if he is - or will shortly be - in jail. Assuming that he is released and comes back into the community, you could give him the 24-hour notice, but provide the time period for compliance to be a few days, which would perhaps allow him the ability to relocate, rather than be out on the street. Based upon the urgency of having him out - assuming he returns - this call is up to you.
The Manufactured Housing Landlord Tenant Coalition met earlier this week to continue negotiations on a variety of issues. Here is a summary of what is moving, what is not and what still needs to be discussed as we prepare for the 2015 Oregon Legislative Session.
Abandoned Manufactured Home and Back Taxes
The coalition further discussed the abandoned home back tax" issue that MHCO negotiated with the Oregon Tax Assessors earlier last month. The Oregon Department of Revenue expressed concerns about the agreement specifically as it impacts tax revenue from the Oregon Senior Deferral program. The Oregon Department of Revenue typically has liens on 40 abandoned homes a year. Moving forward the coalition will need to identify back taxes that are owed to the State of Oregon and back taxes owed to Oregon Counties. We hope to have proposed language addressing this issue ready next month.
One additional concern expressed by a MHCO Board Member was clarification of when the community owner acquires the title of the abandoned home. Community owners will be reluctant to make the necessary improvements in an abandoned home if there is any question regarding the transfer of title. The general consensus is that this needs to happen early in the process and be defined in statute.
Overall we are pleased that all parties remain committed to eliminating the community owner's responsibility to pay back taxes on an abandoned home.
Changes to Annual Special Assessment on Park Residents and Community Registration Fee
As we have mentioned in earlier Legislative Updates
Although source of income isn’t a protected class under the FHA, the contention is that excluding recipients of child support, Section 8 vouchers, unemployment benefits, veterans benefits, etc., has a disparate and discriminatory impact on the disabled and people of certain races, national origins, etc., who disproportionately rely on these sources of income. Source of income is also a protected class under the fair housing laws of over 80 cities and 20 states.
Situation: A nonprofit housing group brought a massive lawsuit accusing real estate agents, brokerage firms, management companies, and landlords of violating New York City and State source of income discrimination laws. Based on the use of testers, the group claimed that the defendants refused to accept City vouchers that enable prospective tenants with income at or below 200 percent of the federal poverty level to rent apartments. The defendants denied the allegations and challenged the group’s “standing”—that is, legal status to bring the case.
You Make the Call: Did the group have a valid claim for source of income discrimination?
Answer: Yes
Ruling: The New York court denied the defendants’ motion for summary judgment, concluding that there was ample evidence supporting the group's claims, including the alleged remarks of a leasing agent that the landlord was looking for an “excellent applicant” for a rent-stabilized apartment and wouldn’t accept City vouchers for the unit [Housing Rights Initiative, Inc. v. Elliman, Index No. 154472/2022, 2023 NY Slip Op 31496(U)(Sup. Ct. NY; 5/2/23)].
Takeaway: You have every right to establish income criteria and screen prospects to ensure they meet them. If they’re not financially qualified, you may reject them. What you may not do is reject those who do meet your income criteria because of the kind of income they have. More specifically, you can’t exclude qualified prospects simply because they’re unemployed, hold housing vouchers, or receive other forms of financial assistance other than wages. Avoiding source of income discrimination means being prepared to accept not just wages but any and all forms of legal income.
The Elliman case also exposed potential blind spots in fair housing compliance training. There was evidence that real estate brokers turned away callers who indicated that they would be using vouchers to pay rent because they were seeking units in luxury buildings. You can’t afford to live in this property and should seek an apartment in a building where vouchers are accepted, the brokers allegedly said. These remarks violated fair housing laws banning statements indicating a preference or exclusion of persons from housing based on a protected class. You need to ensure that your own leasing agents don’t say or believe such things.
DEEP DIVE
States that Have Banned Source of Income Discrimination
States that have adopted laws banning source of income discrimination in housing include:
Answer. There is no such form. Perhaps there should be. But first, let's address some threshold issues, such as:
If the structure was there when the resident first rented or leased the space, there isn'tmuch question but that the landlord "owns" it, if it remains there when the space is re-rented or re-leased. Although most rental/lease agreements and rules require the resident to "maintain" the space, in most instances, the text of these provision generally apply to landscaping-type activities. If the structure is expressly identified in the park documents, and allocates maintenance responsibility to the resident, then the issue is clearer. But it is my opinion that if the documents are silent about park-owned structures on the space, the duty to maintain, paint, etc., lies with the landlord. Why? Because the landlord drafted or selected the documents for the resident to sign, and accordingly, could have delegated the responsibility in whatever manner he/she saw fit. Having failed to do so, means that the agreement or rule will most likely be construed most strictly "against the drafter" - i.e. to the landlord.
Clearly, if the structure was on the space at the inception of the tenancy (therefor presumptively belonging to the landlord), when the resident departs, it would remain there. Similarly, if some liability occurred, it would fall on the landlord, unless it was from an event caused by the resident.
For example, say there is a storage shed located on the space at the start of the tenancy, and nothing is said in the park documents about maintenance responsibility. The resident uses the shed to store family items, including old photos and collectibles. Unbeknownst to the resident, the shed is not completely water resistant, and over the course of the winter, they are destroyed. Unless there is some evidence the resident knew about the leakage and did nothing to protect their belongings, this is likely a landlord liability.
Is this an instance in which the landlord could protect themselves by having a release of liability agreement saying that the resident assumes all responsibility for destruction or loss of any valuables stored in the shed? Possibly, but not absolutely. In other words, the more specific the agreement was, the better the chances are it would be enforced to the benefit of the landlord. But a simple statement saying that the resident assumes all responsibility for the contents stored in the shed, might not go far enough. Remember, absent the resident's duty to maintain the shed, if the landlord has the maintenance responsibility, management is arguably somewhat responsible for making sure that the shed is watertight - at least that's the argument the resident's attorney would make. So how can the landlord, who has the duty to maintain the shed, abdicate responsibility for not maintaining it in a secure manner?
Accordingly, to have a more enforceable release agreement, I submit that landlords should also have an agreement providing that: (a) landlord does not have a duty to maintain, inspect, or secure it; (b) landlord does not warrant or guarantee that the shed is waterproof, or free from mold and mildew; (c) before use, the resident should assure himself/herself that it is suitable for storage of the specific contents intended to be stored there; and (d) that the resident covenants and agrees to maintain the exterior and interior of the shed for the duration of the tenancy. Only then can you expect a full release and hold harmless clause to be effective, since by signing, the resident is now making an informed decision about the scope of responsibilities under the agreement going forward.
So the take-away here is that if you have not addressed these issues for park-owned structures in the lease, rental agreement and/or rules, you should do so upon turnover of the space. Until then, it would likely be difficult to shift responsibility onto a resident, when it was not expressly bargained for at the inception of the tenancy.
Similarly, even though a resident builds the structure, you may want to address these issues in a separate written agreement before the structure is built. In addition, you want to make sure that the construction of a tenant-built structure conforms to all applicable building codes and ordinances, including, where applicable, the taking out of one or more building permits. And if the resident hires a contractor, you will want to use MHCO Form No. 52.
And importantly, you will want to address whether the resident has a duty to remove it upon sale of the home. Alternatively, you can provide that the landlord reserves the right to make that decision if/when the resident who built it gives notice of intent to sell or remove the home. And if it stays, you'll want to have an agreement with the new resident, addressing the issues described above.
Lastly, if the structure is something built for children to play on, e.g. swing sets, ladders, slides, etc., I strongly recommend that you require the resident who built it, take it with them. Under no circumstances do you want to lease or rent space to another resident with this apparatus there. It creates too much liability for management, and even if it remained after a resident left, I would remove it before permitting possession by new residents with small children.
As of July 1, 1992, all manufactured home communities renting space for manufactured dwellings have been required to provide prospective and existing tenants with a Statement of Policy. The applicants must receive their Statement of Policy before signing the rental agreement. Existing tenants who have not previously received a copy of the Statement of Policy and are on month-to-month rental agreements must receive their copy at the time the next 90-day rent increases notice is issued (ORS 90.510(3)(b). All other existing tenants shall receive a copy of the statement of policy upon expiration of their current rental agreement and before signing a new agreement.
While a Statement of Policy is not technically a contract, it is an important document. A tenant or rental applicant who makes their decisions or changes their position in reliance upon the policies set forth in the statement may be entitled to hold the landlord to those written policies. As proof of delivery of the Statement of Policy to tenants or applicants, it is advised to get a signed receipt.
A landlord who intentionally and deliberately fails to provide a Statement of Policy as required by ORS 90.510, or delivers a legally defective one, may be subject to a lawsuit.
The Statement of Policy is required to include the following information in summary form: