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Oregon, unlike our neighbor to the North, does not require landlords to obtain the use of an attorney to appear in FED court. The necessary summons and complaint can be obtained from the courthouse and they can be filed and served quickly. This has its advantages and disadvantages: It is good insofar as it keeps the cost of the process down, but it is bad if the owner or manager fails to strictly follow all of the legal procedures required by the statutes. Accordingly, for the inexperienced manager or new owner, it is strongly, recommended that guidance first be sought, either through the MHCO, from an experienced attorney, or by consulting with a knowledgeable community management company.

Strict Compliance

Since the FED process is designed to be a "summary" or quick proceeding, the law imposes upon those seeking its assistance, i.e. owners and managers, the duty to strictly comply with all of the requirements set out in the statutes. This means, for instance, that the written notice that must precede the filing of the complaint (e.g the 72- hour nonpayment of rent notice or the 30-day notice of termination for cause) must be properly filled out to the letter. Since the notice is required to be attached to the FED complaint, and thereby becomes a part of it, if the notice is defective in any respect, the Court can unilaterally dismiss it - thus forcing the landlord or manager to start all over again. It is for this reason that before actually filing the summons and complaint which starts the FED court process, the plaintiff should closely review the notice to make sure it complies with the law.

The First Appearance

At the time the summons and complaint for eviction are filled out, a "first appearance date" will be inserted in the summon. This date is the time for both landlord and tenant to appear before the court. At that time, if the matter cannot be mediated or resolved, the tenant has to inform the judge whether he/she will either move out at a designated time, or request a trial to contest the eviction proceeding. If the tenant wants to fight the eviction, the judge will usually require that they promptly file an answer setting forth their legal defenses, and set the matter for trial. Experienced landlords and managers know full well that the first appearance is the time that many, if not most, evictions are settled. If the default is nonpayment of rent, the landlord and tenant can simply enter into a stipulated payment arrangement providing that if it is not followed by the tenant, the landlord may come back to court and upon filing of the necessary papers, have the judge issue the judgment of restitution. It is imperative that the landlord or his/her representative appear at the first appearance. The failure to do so will result in an automatic dismissal of the eviction, and the landlord will have to start all over.

The Judgment of Restitution

As noted above, the judgment of restitution is the equivalent of the court's order in favor of the landlord's complaint for eviction, and requires that the tenant vacate the premises - which in a manufactured housing community, is the space upon which the home is situated. In most cases, the court will insert a date in the judgment of restitution that will give the tenant a reasonable time to remove their belongings. Once that date has expired, however, the tenant has no further right to come upon the premises. Under the abandonment statute, assuming that the tenant voluntarily vacates the space, after seven (7) days of the tenant's absence following the date of issuance of the judgment of restitution, to commence the abandonment procedure, which is legally initiated by issuance of the 45-day letter to the tenant and other parties required by law. During this 45-day period (assuming there is no lienholder), the tenant may contact the landlord to make arrangements for removal of the home. However, such removal is conditioned upon payment of all "storage charges" which cannot exceed the existing rents. However, as discussed below, the landlord may not require the payment of accrued storage charges prior to removal of the home if the tenant was forced to vacate the space as a result of the landlord's executing upon the judgment of restitution.

Execution Upon a Judgment of Restitution

Sometimes the tenant may refuse to move, even when the court has given them a firm date to do so in the judgment of restitution. In such cases, the landlord must go to the clerk of the court to obtain a notice of restitution giving the tenant four (4) days to move out. The notice of restitution is mail and personally served (or attached to the front entrance) by the sheriff or a civil process server. After execution of the four (4) day period, if the tenant has still not vacated, then the landlord must ask the sheriff to execute upon the judgment of restitution originally granted by the court at the conclusion of the eviction trial. The means that the sheriff will go to the premises, remove the occupants and post a trespass notice on the home, advising the tenants that any further entry will result in arrest and prosecution. Although the abandonment law does not require the landlord to wait seven more days before commencing an abandonment, it does prohibit the landlord from recouping any accrued storage charges, should the tenant elect to remove the home following receipt of the 45-day abandonment letter. It is for this reason that landlords should only seek execution upon the judgment of restitution when absolutely necessary - i.e. when the tenant simply refuses to voluntarily vacate following the court's issuance of a judgment of restitutio

[1] The only exception would be if, prior to the tenant's abandonment, the landlord and tenant entered into a written agreement whereby the tenant waived his/her rights under the abandonment statute. See, ORS 90.675(21)(A).

Answer: There is no need to create a new rental agreement unless there is a good reason. A “good reason” might be because the existing rental agreement is old and outdated. But if you are to use a new rental agreement for the existing and new tenant, the existing tenant will have to agree, since technically you cannot “force” the existing tenant to sign a new one.

If that is not an issue, just have the new tenant sign an addendum to the existing rental agreement. I think that is cleaner that having the new tenant just sign and date the existing rental agreement. (This isn’t fatal in just signing the existing document – it is just my preference for a clean paper-trail.)

If using an addendum, all it needs to say is that the new tenant agrees to be bound by all (a) existing rules and regulations currently in place, the existing Statement of Policy, and all pending notices such as rules changes, utility changes, and related documents, which the new tenant confirms they have read and understand. You should make sure that you list all such documents in the addendum, just to make sure there is no confusion by the new tenant about what they are signing on to. You and the new tenant should then date and sign the addendum, giving him or her a copy and keeping one for the file.

As for whether this new tenant will be subject to the rent increase you have planned in six months, the answer is “Yes.”  There is a common misconception that MHP landlords cannot increase rent during the first year of tenancy. While it is true that rent cannot be increased during the first year of a non-MHP tenancy[1] (i.e., where the tenant does not own the home, or it is an RV) that limitation does not apply to MHP tenancies where the tenant owns their home. See, ORS 90.600, the MHP rent increase statute. It does not contain any limitations on increases within the first year of tenancy.

Caveat: If you have park-owned homes or RVs in spaces, the one-year prohibition of ORS 90.323 (3)(a) does apply.

[1] See, ORS 90.323 (3)(a).

Answer: Under Oregon law, the property of deceased tenants is considered "abandoned" and must be treated as such. The park must issue an abandoned property notice as required by ORS 90.425.

As required by the statute, the abandonment notice must state that: (a) The RV and any other property left behind is considered abandoned; (b) Any lienholder, owner or heir must contact the landlord within 45 days to arrange for the removal of the RV; (c) All other personal property (including the pickup truck) must be "claimed" by contacting the landlord within 8 days after the notice is mailed, and removed within 15 days after contacting the landlord; (d) The RV and other property are stored at a place of safekeeping; (e) Any lienholder, owner or heir may arrange for removal of the RV and other property by contacting the landlord at a described telephone number or address on or before the specified dates; (f) The landlord will make the RV and other property available for removal by appointment at reasonable times; (g) The landlord may require payment of removal and storage charges; (h) If any lienholder, owner or heir fails to contact the landlord by the specified date, or after that contact, fails to remove the RV within 30 days or other property within 15 days, the landlord may sell or dispose of the RV and other property; and, (i) If there is a lienholder, owner or heir of the RV or other property, they have a right to claim the property.

The park must send the notice to the tenant's park address addressed to "The Estate of [Tenant]." The notice must also be sent to any other known address for the tenant's relatives or contact person (sometimes listed on the tenant's rental application). The park must additionally conduct a title search on the RV and send the notice to any lienholder or other owners listed on the title. (Contact the Oregon DMV with the license plate number to determine lienholders or owners on title.) The notice must be sent by regular first class mail, except that lienholders and owners listed on the title (if any) must additionally be sent the notice by certified mail.

While not required by the statute, I also recommend that my clients also conduct a similar DMV search for lienholders or owners on abandoned vehicles (besides the RV). If any are listed, the abandonment notice should also be sent to them via 1st class and certified mail. However, the statutes do allow park owners to post a 72-hour tow notice on abandoned motor vehicles that can then be towed away by a qualified tow company instead of following the abandoned property notice requirements. Most tow companies can provide information on the process that needs to be followed in such circumstances.

In any event, after the park issues the abandonment notice, the RV, pickup truck, and other property can be removed from the rented space to open it up for a new RV tenant. The abandoned RV, vehicle and personal property must be stored in a "place of safekeeping," such as an on-site storage lot.

If the RV remains unclaimed after the 45-day period expires, the park can either throw away or give away the RV if the park estimates that the current fair market value is $1,000 or less, or so low that the cost of storage and conducting an auction probably exceeds the amount that could be realized from a sale. The same holds true for the vehicle and other personal property if unclaimed after the required 8/15 day claiming periods. If the estimated value of any particular piece of personal property (e.g., the RV, vehicle, or other property) is more than $1,000, the park must hold an abandonment auction using the procedures described by the abandonment statute. Since the abandonment auction process is complicated, the park should consult a knowledgeable attorney to handle that aspect, if necessary.

Mark L. Busch
Cornell West, Suite 200, 1500 NW Bethany Blvd
Beaverton, OR 97006
(503) 597 - 1309

mark@marklbusch.com

www.marklbusch.com

Answer: Both approaches are incorrect, as they do not comply with 90.610and 90.155for proper rule changes. This is exceeding risky, since, in my opinion, it creates the potential tenant argument that not being effectively enacted means the new rule is not enforceable. Any legal action to enforce a violation of an improperly enacted rule would be a nullity.

Below is the correct procedure in adopting new rules. It should not be varied from or ignored without first discussing with legal counsel:

• The landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlord's bargain with a tenant.
• It should be by written notice and served as described in 90.155.
• Unless tenants of at least 51 percent of the "eligible spaces"[1]in the community object in writing within 30 days of the date the rule change notice was served, the change shall become effective for all tenants of those eligible spaces on a date not less than 60 days after the date that the notice was properly served by the landlord.
  • One tenant of record per eligible space may object to the rule or regulation change through either: (i) A signed and dated written communication to the landlord; or (ii)A petition format that is signed and dated by tenants of eligible spaces and that includes a copy of the proposed rule or regulation and a copy of the notice.

• If a tenant of an eligible space signs botha written communication to the landlord and a petition, or signs more than one written communication or petition, only the latest signature of the tenant may be counted.
• Aproxy may be used only if a tenant has a disability that prevents them from objecting to the rule or regulation change in writing.
  • The landlord's notice of a proposed change in rules or regulations must be given or served as provided in 90.155and must include: (i) Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change; and (ii) A statement substantially in the following form, with all blank spaces in the notice to be filled in by the landlord:

______________________________________________________________________________

(MHCO FORM 60) NOTICE OF PROPOSED RULE

OR REGULATION CHANGE

The landlord intends to change a rule or regulation in this facility.

The change will go into effect unless tenants of at least 51 percent of the eligible spaces object in writing within 30 days. Any objection must be signed and dated by a tenant of an eligible space.

The number of eligible spaces as of the date of this notice is:_____. Those eligible spaces are (space or street identification):___________________________.

The last day for a tenant of an eligible space to deliver a written objection to the landlord is _________ (landlord fill in date).

Unless tenants in at least 51 percent of the eligible spaces object, the proposed rule or regulation will go into effect on _________.

The parties may attempt to resolve disagreements regarding the proposed rule or regulation change by using the facility's informal dispute resolution process.

______________________________________________________________________________

• A good faith mistake by the landlord in completing those portions of the notice relating to the number of eligible spaces that have tenants entitled to vote or relating to space or street identification numbers does not invalidate the notice or the proposed rule or regulation change.
• After the effective date of the rule or regulation change (i.e. "a date not less than 60 days after the date that the notice was served by the landlord"), when a tenant continues to engage in an activity affected by the new rule or regulation to which the landlord objects, the landlord may give the tenant a notice of termination of the tenancy pursuant to ORS 90.630.
  • The notice shall include a statement that the tenant may request a resolution through the facility's informal dispute resolution process by giving the landlord a written request within seven (7) days from the date the notice was served.
  • If the tenant requests an informal dispute resolution, the landlord may not file an action for possession (i.e. eviction action) until 30 days after the date of the tenant's request for informal dispute resolution or the date the informal dispute resolution is complete, whichever occurs first.
• NOTE: Informal dispute resolution does not apply to disputes relating to:
  • Facility closure;
  • Facility sale; or
  • Rent, including but not limited to amount, increase and nonpayment.
• NOTE: Requiring a landlord to provide a Statement of Policy, do not create a basis for a tenant to demand informal dispute resolution of a rent increase.

[1]An "eligible space" means each space in the community as long as: (a) It is rented to a tenant and the tenancy is subject to ORS 90.505 to 90.850 (the manufactured housing section of the landlord-tenant law); and (b) The tenant who occupies the space has not: (i) Previously agreed to a rental agreement that already includes the proposed rule or regulation change; or (ii) Become subject to the proposed rule or regulation change as a result of a change in rules or regulations previously adopted under ORS 90.610.

Answer. ORS 90.396 addresses acts or omissions justifying 24-hour notice of termination. This type of event is covered under the statute. If provides for termination if:

“The tenant, someone in the tenant’s control or the tenant’s pet seriously threatens to inflict substantial personal injury, or inflicts any substantial personal injury, upon a person on the premises other than the tenant;”

What you describe clearly qualifies on its face for a 24-hour notice. However, if this is not something expected, or if the tenant has some mental/anger issues which qualify for treatment, you may want to get more information before proceeding. 

Here are some things to remember:

• 24-hours’ notice is a minimum; you can always allow a longer period of time;
• This violation is not curable like the 30-day notice;

The 24-hour notice should not be used where a 30-day curable notice would likely suffice in securing compliance. Your description clearly suggests a 24-hour notice is appropriate, since allowing the right to cure may not be appropriate. Plus, there is likely too much risk in permitting the resident to return, only to cause further injury to others.

For purposes of service of the 24-hour notice you would normally send by regular mail, personally serve, or mail and attach the notice to the front entrance of the door.  However, if you know a tenant is in jail or here, being housed in a hospital, using the above methods will not likely provide the notice you need. You should contact the institution (e.g., sheriff’s office, hospital admitting desk, etc.) to find out how they permit notices to be delivered to persons in confinement.

In less serious cases, e.g., verbal abuse (not threats of imminent injury, however), the 30-day notice may be more appropriate. Now that ORS 90.630 has a 3-day “cure period” for isolated events, it can be a useful tool that does not prolong the unpleasantness for managers having to wait 30 days. 

For example, if the verbal conduct has continued, and shows no sign of abating, issuing a notice under ORS 90.630 can be used. It now becomes noncurable quickly if breached, so management can use it effectively to stop the conduct. 

Part of the issue today is using the courts to enforce evictions considering Covid delays and the housing crisis. Accordingly, you must be judicious when using termination notices, i.e., only in those cases you believe are necessary either for management safety, or the protection of other residents. 

If the conduct does not rise to “termination notice” level, you might consider using mandatory mediation to secure voluntary compliance. See, ORS 90.767.

Of course, the best solution to threats, intimidation, and more serious conduct is to avoid it by choosing your tenants carefully. This means vetting applicants closely before ever being allowing in the community. Unfortunately, that is not always an option, which is why the 24-hour notice is the tool of last resort.

Lastly, remember that judges are hesitant to terminate a tenant in such cases, unless it is an issue of health and safety of management and the residents. Before proceeding, check with your attorney to discuss how best to proceed.

Answer: Before getting into specifics, here is a rule you and all community owners and managers should never forget:

In most disputes, the lapse of time without resolution favors the tenant.

In your situation, this issue could have and should have been nipped in the bud. Since that has not been the case, you now take the risk that he, or his attorney, could argue that you have waived your rights to require him to vacate.

Now to the point:

1. I disagree with the Oregon Fair Housing Counsel, if I correctly understand their initial response. Just like with all such issues, a resident is no more entitled to permit a mean, contentious, threatening care giver in the community than it would be in permitting a known dangerous assistance animal. A balance must always be reached between granting the resident their Fair Housing rights, and the peace, safety, and quiet enjoyment of the rest of the community.

1. While some may disagree with me here, I believe that the Temporary Occupancy statute, ORS 90.275 can be very helpful in this type of situation.[1] But the issue should have been resolved long ago. Once you have someone on a signed Temporary Occupancy Agreement containing a fixed term, you have a degree of control that you did not have before. I would suggest that he be placed on a Temporary Occupancy Agreement for, say, six months, with a commitment that you will renew it for another six months, so long as he does not cause further disturbances, etc. [The Fair Housing law would likely require this commitment, and I agree.]

1. Here are the statutory rules regarding temporary occupancy:

• The temporary occupant is not a tenant entitled to occupy the dwelling unit to the exclusion of others;
• He/she does not have the rights of a tenant;
• The temporary occupancy agreement may be terminated by the tenant [in this case the elderly mother] without cause at any time and the landlord only for cause that is a material violation of the temporary occupancy agreement.
• The temporary occupant does not have a right to cure a violation that causes a landlord to terminate the temporary occupancy agreement;
• Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record [The landlord may not screen the proposed temporary occupant for credit history or income level.]
• A temporary occupancy agreement:
  • May provide that the temporary occupant is required to comply with any applicable rules for the premises; and
  • May have a specific ending date;
• The landlord, tenant and temporary occupant may extend or renew a temporary occupancy agreement or may enter into a new temporary occupancy agreement;
• A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement;
• The temporary occupant must promptly vacate the dwelling unit if a landlord terminates a temporary occupancy agreement for material violation of the temporary occupancy agreement or if the temporary occupancy agreement ends by its terms;
• Subject to certain exceptions, the landlord may terminate the tenancy of the tenant if the temporary occupant fails to promptly vacate the dwelling unit or if the tenant materially violates the temporary occupancy agreement;
• A temporary occupant may be treated as a "squatter" if he/she continues to occupy the dwelling unit after a tenancy has ended or after the tenant revokes permission for the occupancy by terminating the temporary occupancy agreement; and
• A tenancy may not consist solely of a temporary occupancy. Each tenancy must have at least one tenant. [Emphasis added.]

1. As you can see with the last rule, the son may not occupy the dwelling in the absence of his mother being there as a resident. If the mother is in Southern California and he is living in the home during her absence, he is starting to look like a "tenant" and not a caregiver. At the risk of him morphing into a "tenant," you cannot permit this to situation to continue.

1. ORS 90.100(43) defines a "squatter" as a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit. Oregon landlord law does not apply to squatters, meaning that they do not have the protection of tenants. However, since you do not have the son under a Temporary Occupancy Agreement, his status is up in the air.

1. If the son remains in the home, while his mother resides in Southern California, he should not be permitted to stay there. Technically, he cannot do so as a caregiver or a temporary occupant. If you can meet the following requirements, your rights would appear to be governed by ORS 90.403(1) (Taking possession of premises from unauthorized possessor)

(1) If an unauthorized person is in possession of the premises, after at least 24 hours' written notice specifying the cause and the date and time by which the person must vacate, a landlord may take possession as provided in ORS 105.105 to 105.168 if:

(a) The tenant has vacated the premises;

(b) The rental agreement with the tenant prohibited subleasing or allowing another person to occupy the premises without the written permission of the landlord; and

(c) The landlord has not knowingly accepted rent from the person in possession of the premises.

1. If you do not meet the above statutory criteria, then your best bet is to get him on a Temporary Occupancy Agreement, making sure that he still understands that he cannot remain in the home while his mother is living - albeit temporarily - in Southern California.

[1] Some might say that just as you cannot required a "Pet Agreement" for an assistance animal, my response is that the Temporary Occupancy Agreement can, in my opinion, set forth "rules" for the caregiver, which, if not unreasonable, would be proper. In this case, for example, your "reasonable accommodation" to the resident's request that you permit her son to be her caregiver, is to say "Yes, but given his prior known history, these are the rules."

The following questions relate to the traditional landlord-tenant relationship in manufactured home parks; specifically, that the landlord rents the dirt to a tenant who owns their manufactured home. If a landlord has park owned homes, they should have their own insurance. Often times, rental agreements may require the tenant to list the landlord as an “additional insured”. Sometimes the landlords are listed, sometimes they aren’t. Sometimes they are listed as “Co-Insured”. The questions below are primarily coming out of the wildfires where several parks have been decimated. The homes have been destroyed, the tenancies have terminated and in some cases, the tenants have taken their insurance money and run (even when a portion of those insurance dollars were to be for “clean up”), leaving the debris behind for the landlord to deal with.

At the outset, I do not believe that we are dealing with “renter’s liability policies” that are defined in ORS 90.222. Rather, these are homeowner policies that protect the home. Assuming it is the latter, I do not believe ORS chapter 90 prohibits a manufactured home park landlord from requiring a tenant to name a landlord as an “Additional insured” (defined below). If these were “renter’s liability policies” then there are specific prohibitions in ORS 90.222 that prohibit a landlord from requiring a tenant to name a landlord as “Additional Insured”.

Question 1:  Our Lease states that Tenants must return the space in a clean first class condition.  We also are on all of the Tenants' insurance as a “co-insured for purposes of notification.”  Only one insurance company made the check out to the Tenant and us.  Since they are to return the space clean and we are listed as co-insured, should the insurance companies have listed us on the checks?  All the Tenants received monies for Debris Removal, do we have a right to that money? (only 30% gave it to us). And if so, how do we handle getting it?

Answer 1:  Without reviewing the specific insurance policy language at issue, it’s difficult to answer the questions, as insurers may define “co-insured” differently.  That said, generally speaking, a “co-insured” is so designated for the purpose of receiving notice from the insurer in the case of pending cancellation of the insurance, for non-pay or other reasons.  Simply being named a “co-insured” does NOT necessarily provide the full rights bestowed onto the First Named Insured, i.e. the person or entity named on the declarations page of the policy as the “insured.”

The insurance company likely was not under any obligation to list the landlord as an additional payee on any checks it issued to its insured (the tenant) just because the landlord was listed as a co-insured.  While the landlord likely has a right to pursue the money from the tenant (based on a claim of breach of contract – the rental agreement), the landlord almost certainly does not have a viable legal challenge against the insurance company, but again, the policy should be reviewed by an attorney. In most cases, a landlord’s only remedy is to sue the tenant in small claims court for the amount to make the landlord whole – mainly, to leave the space in a first class condition. Since this would not be the collection of rent, pursuing those type of damages would not violate the current restrictions on attempting to collect unpaid rent.

It may be helpful to explain the difference in the terms “First Named Insured,” “Named Insured,” “Co-insured,” and Additional Insured.”  As stated above, the “First Named Insured” is the person or entity named the insured on the declarations page.  There is only one First Named Insured on any insurance policy.  They are bestowed all of the coverages provided under the policy, have the obligation to pay the premiums, and are the ONLY person who can make any changes to the policy.

A ”Named Insured” is a person or entity that is formally added to the policy, and also is bestowed all of the coverages provided under the policy, but they are not responsible for paying any premiums, nor can they make any changes.

A “Co-insured” is almost always defined as a person or entity who is guaranteed to receive notice from the insurer in the case of pending cancellation of the insurance, for non-pay or other reasons.  A co-insured is NOT bestowed any rights to any of the coverages provided under the policy.

An “Additional Insured” (which is what the landlords should probably insist on being named in their tenant’s insurance policies moving forward) is a person or entity that is specifically named in the insurance policy (typically via an endorsement) and is bestowed certain rights under the policy, which are also typically explained in the endorsement.  A common example of an additional insured is in the construction context, where the General Contractor will require that it be named as an additional insured by all of its sub-contractors for any claims involved a specific construction project. Please note that a Landlord would also want to also be listed as “Co-Insured” because they would want to continue to get notice if a policy is not renewed.

Again, assuming these are not “Renter’s liability insurance” policies as found in ORS 90.222, then I do not believe there is a restriction.

Question 2:  Some tenants have told me that they have been told by a State Representative not to sign the right of way and to not give the Landlord's their Debris Removal monies.  The State Representative feel all parks should wait and let FEMA/ODOT and State of Oregon do the cleanup free.  Naturally there have been HUGE problems with this, the time it takes, devastation to roads and concrete, etc.  Many parks like us are trying to do some of the work ourselves and hire some of it too.  The sooner you are open, the more likely people can buy homes and get in.  Anyway, our Tenants are now refusing to give us their Debris Removal money.  The State Rep has recommended the tenants contact Legal Aid.  It's a nightmare. 

Answer 2:  This whole situation is a nightmare. I believe (and John Van Landingham agrees), that upon the destruction of the home, and assuming the tenant has vacated the space, the tenancy ended. Because the tenancy ended, the tenant no longer has possession of the premises and has no authority to give permission to access the premises. What’s the best way to handle the stuff that’s left behind? Assuming that you can affirmatively say that the tenant has no desire to assert any ownership over the debris remaining (i.e. it’s a burned out home and nothing is salvageable), you should send an abandonment notice (please remember that DWT can help with this). Upon the completion of the abandonment, you can dispose of the material as you see fit. As with the first question, if the rental agreement says the tenant is responsible for any cleanup of the space, you could seek compensation from the tenant for the clean-up costs, although actually getting compensation may likely be difficult. Hopefully, the Legislature will address this. The state representative is smart to advise tenants to contact Legal Aid; however, a tenant would be smart to contribute the portion of their insurance that was attributed to the clean-up and obtain a release from their landlord.

Question 3:  Can we use the cleanup money that the few Tenants gave us to clean up their space?

Answer 3:  Yes. Additionally, if tenants give you the money they received from insurance to clean up their space, I would not recommend any further action against the tenant (even if the clean up money is not adequate to clean up the space).  

Question 4: Should we have been listed on the insurance checks?

Answer 4:  Again, without reading the specific language of the policies, we cannot say for certain, but if the landlord was only listed as a “co-insured,” the carrier was likely under no legal obligation to list the landlord as an additional payee on checks it wrote to its insured, the tenant.  Being a co-insured only guarantees that you will be notified if the policy was being cancelled.  If you were listed as “additional insured” as defined above, then you may have a claim against the insurance company.

Question 5: Do landlords have any rights to Debris Removal Insurance money?

Answer 5:  Probably, but it is based on a claim of breach of contract on the part of the tenant, and likely only if the landlords are not otherwise compensated by FEMA or the state for cleanup.  The landlords almost certainly do not have any viable legal claim against the insurance company.

Question 6: If we have a right to the Debris Removal insurance money, how do we handle getting it?

Answer 6:  As stated above, the landlord’s likely only avenue for getting Debris Removal insurance money would be to pursue those monies from the tenant, based on a breach of contract claim, i.e. the rental agreement.

Answer:  In pre-COVID times, my first inquiry would be whether the tenant has been in the park for less than one year. If so, a 30-day no-cause eviction notice would be the best option, except that no-cause notices cannot be issued until October 1, 2020(as per the eviction moratorium imposed by Oregon House Bill 4213).  If the tenant is within the first year of his tenancy, and he is still in the park on October 1^st, you could consider this option then.

For now, you might be able to issue a 24-hour eviction notice IF any of the tenant’s actions were “outrageous in the extreme.”  By statute, this means that the tenant committed an act(s) in the park or in the immediate vicinity of the park that a reasonable person in the 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.

Since you mention that children were verbally abused, and that the tenant violated a restraining order related to that verbal abuse, there might be grounds for a 24-hour eviction notice. However, be aware that because this is an extreme eviction remedy, judges will require some kind of action that essentially “shocks the conscience.”  Swearing at children as they ride their bikes past his space would not meet this test, but cornering children in the park’s playground to berate them might.  You should consult an attorney with the actual facts before issuing a 24-hour eviction notice.

The remaining and most likely option is a 30/14-day, for-cause eviction notice.  This type of notice can be issued for material violations of the rental agreement or ORS 90.325.  Both the tenant’s rental agreement (MHCO Form 80) and ORS 90.325 (1)(g) require tenants to behave in a manner that will not disturb the peaceful enjoyment of the premises by neighbors.

The 30/14-day notice would describe the tenant’s violations (i.e. “yelling and swearing at children as they ride their bikes in the park”), followed by describing how the tenant must correct the violations (i.e., “do not yell and swear at children in the park or otherwise disturb their peaceful enjoyment of the premises”).  If the tenant corrects his violations within 14 days (plus three days added for mailing the notice), then the tenancy continues.  If not, then the tenancy terminates at the end of the 30-day notice period and you could file an eviction case in court.  If he corrects the violations, but then substantially engages in the same conduct again within 6 months from the date of the notice, you could evict him with a 10-day eviction notice that he would not have the opportunity to correct.

Since there are several possible eviction options depending on the exact facts, you should consult an attorney for advice on the best option to pursue.

By:  Phil Querin, MHCO Legal Counsel

The Oregon Governor will sign HB 2001 on Wednesday, March 29, 2023; it makes significant changes to the Oregon Residential Landlord Tenant Act (“ORLTA”). Here is a summary of those provisions most likely to impact landlords and tenants in Oregon manufactured housing communities.

Nonpayment of Rent Notices. Prior to the Pandemic, landlords issued  72-hour or 144-hour notices for nonpayment of rent. During the Pandemic the Oregon Legislature extended those timeframes to 10-days and 13-days, respectively; they only recently returned to the 72/144 hour notices.

HB 2001 will permanently restore the longer 10-day and 13-day periods for nonpayment of rent notices. Note: This will not apply to week-to-week tenancies, which will continue to be terminated with a 72-hour notice of nonpayment.

“Nonpayment” Terminations. HB 2001 will be adding permanent language to ORLTA defining an entire class of terminations and evictions for nonpayment. These terminations for nonpayment will be subject to additional notice requirements and longer timelines in Eviction proceedings, whereas terminations for all other causes will remain the same.

Under HB 2001 “nonpayment” will be defined as “the nonpayment of a payment that is due to the landlord, including a payment of rent, late charges, utility or service charges or any other charge or fee described in the rental agreement” or in the following statutes:

• ORS 90.140 – defines types of payments a landlord may require or accept;
• ORS 90.302 – fees for landlord expenses;
• ORS 90.315 – utility or service payments (not in manufactured housing/floating homes);
• ORS 90.392 – for cause terminations;
• ORS 90.394 – failure to pay rent;
• ORS 90.560-90.584 – utility and service charges (manufactured housing/floating homes);
• ORS 90.630 – landlord termination (manufactured housing/floating homes);

These are the same statutes and categories that constituted “nonpayment” under the Covid regulations. They are not so much “changes”, but rather a return to the definition of “nonpayment” that was created back in the Spring of 2020. The important thing to note is that a termination based on tenant’s failure to pay rent, charges or fees under these statutes will be considered a “nonpayment” termination and therefore subject to  additional notice requirements and an extended eviction timeframe.

Tenant Notice: Nonpayment Eviction Resources. HB 2001 reintroduces the tenant notice requirement (the “Notice”) that must accompany terminations and evictions based on nonpayment. The Notice will be drafted, updated, translated, and maintained by the Judicial Department and Oregon Housing and Community Services. It contains a list of resources for tenants directing them where to apply for housing assistance and/or seek legal services in relation to a termination or eviction. The Notice must accompany:

• Any notice of termination for nonpayment; and
• Any summons for an eviction proceeding based on a termination for nonpayment whether served by the landlord or by a process server.

Failure to serve the Notice with a nonpayment-based termination notice and a summons will be grounds for the Court to dismiss an eviction complaint.

First Appearances and FED Trials. For an Eviction based on nonpayment under ORS 90.392 (for cause) or ORS 90.394 (failure to pay rent), the timelines for first appearance and trial in an FED are extended. First appearances will be set roughly 15 days after the initial filing for FED actions involving nonpayment under those statutes. Clerks will have the ability to extend that timeline by up to 7 days if a judge is unavailable on the 15th day or to accommodate the plaintiff’s schedule.

An FED trial for a nonpayment eviction, if necessary, will be scheduled no earlier than 15 days, and no later than 30 days, after the first appearance.

All other Evictions, not based on allegations of nonpayment under ORS 90.392 (for cause) or 90.394 (failure to pay rent), will be scheduled for first appearance within roughly 7 days of filing. Clerks will have the ability to extend that timeline by up to 7 days if a judge is unavailable or to accommodate the plaintiff’s schedule. Trials for all other Evictions will occur no later than 15 days after first appearance.

An Eviction Under ORS 90.630 (termination by MHP landlord) would be subject to a 7-day window for first appearance, but, if the underlying termination was based on nonpayment, the trial would be scheduled between 15-30 days after first appearance.

If, through no fault of the landlord, trial for any type of Eviction does not take place within the specified time frames (15-30 days for nonpayment; 15 days for all others) the court may require the tenant to tender rent to the court.[1]

Court Obligation to Dismiss. HB 2001 dictates a number of circumstances in which the court will be required to dismiss an Eviction complaint. Henceforth, dismissal will be warranted when:

• A landlord fails to provide the Tenant Notice in a nonpayment eviction (termination AND summons);
• A landlord causes a tenant not to tender rent, including by failing to “reasonably participate” in a rental assistance program;
• The tenant has tendered, or caused to be tendered through rental assistance or any other payment, the outstanding amount owed in the Nonpayment Notice;
  • If payment of the unpaid amount is received AFTER commencement of the FED action, tenant will not be entitled to prevailing party fees. Tenant may also be charged landlord’s filing fees.
• A landlord files an FED based on unlawful holding by force (ORS 105.115)before the expiration of (a) a fixed term tenancy or (b) the time period specified in the termination notice.
  • NOTE: HB 2001 also expands the definition of “holding by force” to mean refusing to pay rent within the time period required by an ORS 90.392 (for cause) or ORS 90.394 (failure to pay rent) notice. Previously, holding by force only applied to 90.394 (failure to pay rent).

Default Judgments at First Appearance. HB 2001 makes a modification to the process for a landlord receiving a default judgment at the first appearance. To obtain an order of default:

• The plaintiff (landlord or landlord’s representative) must appear and the defendant/tenant must fail to appear;
• The court must determine that the FED complaint complies with ORS 105.115 (unlawful holding by force) and ORS 105.124 (form of complaint);
• The landlord must testify under oath or submit an affidavit or declaration under penalty of perjury that:
  • Landlord does not have knowledge that the tenant has delivered possession; and
  • Landlord believes that the tenant remains in possession.

Sealing Eviction Records. The courts will be required to conduct an annual review of completed FED proceedings to determine which ones will remain on a tenant’s record. A judgment will be set aside and the record will be sealed in the following situations:

• A judgment was either not for a money award, or the money award  expired or had been satisfied/discharged; and
• Five years have passed since a judgment of restitution; or 12 months have passed since a stipulated judgment between landlord and tenant.

Once a record is sealed and set aside, a tenant will not be required to disclose the judgment. This record-sealing process is supposed to be conducted by the court on a regular basis, but it does not prevent a tenant from taking the initiative to apply for a set aside under ORS 105.163 (setting aside judgment). The court’s first review of old records must be completed by December 31, 2024.

What Now?!  HB 2001 does not contain any direction going forward, i.e., how landlords are to deal with terminations for nonpayment that are already in process. Accordingly, I’ve listed below my thoughts. Readers should check with their own legal counsel.

• If a notice of default (“NOD”) is going to be sent/delivered to the tenant tomorrow, March 29, 2023, when the Governor signs the Bill, it is safest to assume that regardless of the time of day, it should conform to the new law.
• If the 72/144 hour NOD has been delivered but not expired, the safest approach is to start over under the new law. You don’t want to do otherwise, then get into court and try to convince the Judge the eviction process had already “commenced” before the Governor signed the Bill. If in doubt, the court will generally default for the most tenant-favorable position. Why? Because judges don’t like to get reversed on appeal.
• If FED has already been filed in court, what timelines apply are likely up to the Judge.
• Similarly, if the tenant does not show up for an eviction based on an NOD sent before March 29, 2023, landlord should be prepared to possibly have to testify under oath or submit an affidavit or declaration as discussed above.

[1] Enforcing the duty to tender rent in for-cause evictions can have a filtering effect in separating good faith tenant claims vs. those interposed to avoid the payment of rent.

Answer:  I find no statutory authority giving tenants a legal right to access the records maintained by the landlord or manager. There is nothing in the Oregon Landlord-Tenant Act allowing this.

By “records” I am referring to those maintained by the landlord or manager regarding tenant performance, conduct, complaints made by or against a tenant, and related information. And this only makes sense. No one would file a written complaint against another tenant if that tenant could legally access it and retaliate. And few managers would freely document events or run-ins with a tenant if that person could immediately demand copies of the report. These documents are legitimate “business records” kept in the ordinary course of the Park’s management and part of its legal responsibilities.

However, copies of those documents describing the tenant’s legal responsibilities, such as the rental agreement, lease, rules, or Statement of Policy, may certainly be requested by a tenant who lost or misplaced their copies. But this cannot be done repeatedly to harass the landlord. A copying charge may be assessed.

In litigation between landlord and tenant, including evictions, the tenant may legally demand that the landlord turn over copies of managements file if the content was directly related to the litigation. But if the landlord or manager opposed the request, the Court would have to decide. The issue would depend upon whether the records sought were directly related to some issue in the litigation.