Search

Answer: Does the former tenant have issues other than his lack of fiscal responsibility? You could prevent him from being a temporary occupancy based upon prior conduct, etc., but not regarding his failure to pay rent, since "in theory" a temporary occupant is not one who is sharing rent, etc. The statute (ORS 90.275) does not permit you to vet a person's financial/employment status if they want to be a temporary occupant. If the guy has other negative issues, you can decline to put him on a temporary occupancy agreement if they are substantial and material.

The following is a summary of a recent conversation I had with the Fair Housing Council of Oregon on the issue of whether landlords can put "caregivers" on Temporary Occupancy Agreements, rather than putting them on a Rental Agreement (or not putting them on any written agreement - which leaves in doubt their legal status if the Landlord wants them removed from the Community).

1. If the assistance provider doesn'tqualify based on the background check[1] then you don't have to accept them into the Community;
2. If they violate rules of the community when they are already in the Community you can require they leave. (Of course if they are not on an Occupancy Agreement, this could mean removing the tenant if the caregiver refuses to leave, and the tenant doesn'tforce them to do so);

• You can pre-qualify the current tenant as to their need for a care provider, i.e. require a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
• If they can't provide that proof, then you don't have to allow them into the Community as a care provider (although I can't imagine it would be very hard to obtain such proof);
• You have to give the current tenant a choice (assuming the person qualifies under the background check), i.e. they can be on an Occupancy Agreement or go onto a Rental Agreement. You can't automatically say, "OK, you must go on an Occupancy Agreement."
• It is believed that if the tenant understands the risk of allowing the caregiver to be a tenant (i.e. if the caregiver is disruptive, the current tenant may have to leave also), that they will voluntarily opt to put the person on the Occupancy Agreement. (Note: This doesn'taddress the problem where the person doesn'tfinancially qualify to be on the Rental Agreement, but I suspect FHCO would say it's a "reasonable accommodation" by the landlord to waive that financial requirement.) This approach may be slightly unrealistic in those cases in which the tenant wants the caregiver there, and defers to what the caregiver says.

Your alternatives seem to be the following:

• If the current tenant wants them to be a care provider, can he/she establish its legitimacy? If not, you can say no.
• If the current tenant wants them as a temporary occupant, and they have been a problem in the park you can say no; I believe this is so, even though they try to go the care provider route.
• If the current tenant wants them as a "tenant" you can say no because they do not have the financial capacity to pay rent (remember, you couldn'tsay that if they were to be a temporary occupant).
• If you do agree to make them a temporary occupant, have everyone sign the Temporary Occupancy Agreement and put him on a 3 or 6 month term, to see how it goes. You are under no obligation to renew - but if they are serving as a care provider on a Temporary Occupancy Agreement, you'd probably have difficulty not renewing unless there was a specific problem. (But if there was a specific problem, you likely would have already removed them. Getting temporary occupants must be "for cause" e.g. a rules violation, but there is no 30-day right to cure.)

[1] Remember, you cannot require financial capacity if they are to be a temporary occupant, but you can if they are to be a tenant.

Editor's Note:  MHCO is working on developing a new form - addendum - to meet the new requirements set forth in SB1069.  We hope to have the new form uploaded to MHCO.ORG later next month.

SB1069 modifies portions of the Oregon Landlord Tenant Law to permit the transmission of certain kinds of written notice by electronic mail (“email”). After a landlord and tenant have entered into a written rental agreement, the parties may sign an addendum permitting the service of written notices by email. This addendum must be signed afterthe original rental agreement and after the tenant has begun occupying the premises.

The email addendum must include:

• The email address from which the landlord will be sending and receiving notices.
• The email address from which the tenant will be sending and receiving notices.
• A provision that either party may terminate their agreement to receive email notices or may change the email address from which they send and receive notices, with three-days written notice.
• The following statement:

THIS IS AN IMPORTANT NOTICE ABOUT YOUR RIGHTS

REGARDING RECEIPT OF WRITTEN NOTICES.

By signing this addendum, you agree to receive written notices from your landlord by e-mail. This may include important legal notices, including rent increase and tenancy termination notices. Failure to read or respond to a written notice could result in you losing your housing or being unaware of a change in rent. Signing this addendum is voluntary. Only agree to service of written notices electronically if you check your e-mail regularly.

Email Service of Termination Notice.  Even if the parties agree to email service of written notices as outlined above, landlord and tenant must serve any written termination notices by both email and first-class mail.

Miscellaneous.

ORS 90.160 is amended to specify that notices containing a number of days (e.g. a 10-day notice), counting of the required days begins the day after service of the notice and concludes at 11:59 pm on the last day of the period. However, for notices requiring a certain number of hours, counting of the consecutive hours is to commence immediately upon service. For notices to terminate by 11:59 pm, the day of service is counted from the time of first-class mail and attachment (if allowed under the rental agreement for both landlord and tenant) or first-class mail and email (if allowed under the addendum).

Electronic Return of Funds: After the tenancy begins and the tenant has occupied the premises, the landlord and tenant may agree to an addendum allowing the landlord to electronically return a security deposit, prepaid rent, or the appropriate portion of either to the tenant’s preferred bank account or financial institution. The required written accounting for the security deposit and/or prepaid rent may be returned to the tenant via email if the tenant has executed an email notice addendum as described above.

If a landlord must make repayment of rent to a tenant to avoid waiver under ORS 90.412 or ORS 90.414, the landlord may make that repayment in person, by first class mail, or electronically if allowed by addendum. Rent repayment going to any other non-tenant payor must be made personally or by first class mail.

Nonpayment of Rent. After a nonpayment notice a tenant’s payment will be considered timely if mailed within the notice period, unless the tenant has received their nonpayment notice in person, by first-class mail and attachment, or by first-class mail and email.

Answer: There are several issues here. One, you've accepted rent from the occupant for the last several months. For all intents and purposes, you have accepted him as a tenant - even though he is not there on a written rental agreement and even though you have no criminal background check on him. Even if your rules prohibit subleasing, that too, has been waived. In other words, all of the breaches you could have enforced against him and/or the tenants who subleased, have been waived and are now unenforceable. Here are the rules on waiver that apply in this situation [ORS 90.412]. While they are of no help in this situation, they may be helpful in the future. A landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord: - During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or - Accepts performance by a tenant that varies from the terms of the rental agreement. - A landlord has not accepted rent for purposes of subsection (2) of this section if: _ Within 10 days after receipt of the rent payment, the landlord refunds the rent; or _ The rent payment is made in the form of a check that is dishonored. - A landlord does not waive the right to terminate a rental agreement for a violation under any of the following circumstances: _ The landlord and tenant agree otherwise after the violation has occurred. _ The violation concerns the tenant's conduct and, following the violation but prior to acceptance of rent for three rental periods or performance, the landlord gives a written warning notice to the tenant regarding the violation that: - Describes specifically the conduct that constitutes the violation, either as a separate and distinct violation, a series or group of violations or a continuous or ongoing violation; - States that the tenant is required to discontinue the conduct or correct the violation; and - States that a reoccurrence of the conduct that constitutes a violation may result in a termination of the tenancy pursuant to ORS 90.392, 90.398, 90.405 or 90.630. _ The tenancy consists of rented space for a manufactured dwelling or floating home, and the violation concerns: - Disrepair or deterioration of the manufactured dwelling or floating home; - A failure to maintain the rented space; - The termination is under ORS 90.396 [24-hour notices]. _ The landlord accepts: - A last month's rent deposit collected at the beginning of the tenancy, regardless of whether the deposit covers a period beyond a termination date; - Rent distributed pursuant to a court order releasing money paid into court; or - Rent paid for a rent obligation not yet due and paid more than one rental period in advance. - For a continuous or ongoing violation, the landlord's written warning notice remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months. - A landlord that must refund rent shall make the refund to the tenant or other payer by personal delivery or first class mail. The refund may be in the form of the tenant's or other payer's check or in any other form of check or money. The most important thing you should do at this point is to try to determine if this occupant is a sexual predator. Oregon laws were revised a few years ago to provide that if an occupant is determined to be a predatory sex offender under ORS 181.585 to 181.587, you may unilaterally issue him a 30-day notice to vacate. [See, ORS 90.630(1)(c)]

Answer: The process for evicting an RV tenant is the same process used for evicting most tenants in any setting. Nearly every eviction begins with an eviction notice, which must be properly served on the RV tenant. "Proper service" under Oregon law means that the eviction notice must be either (1) personally served, (2) mailed by first class mail, or (3) posted and mailed (if allowed by the rental agreement).

I recommend that if the RV tenant has an individual mailbox at the park, eviction notices should be mailed with at least 3 days added for mailing time. If the tenant does not have mail service at the park, or if the mail goes through the park office for RV tenants, then personally serve the notice by putting it in his or her hand. "Posting and mailing" as a method of service should be avoided, since there must be very specific language in the rental agreement allowing such service.

Most notices give the tenant a certain amount of time to remedy a default (i.e., 72 hours to pay past-due rent), followed by a tenancy termination deadline if the default isn't remedied. Other notices can't be remedied (i.e., a 24-hour notice for outrageous conduct) and simply inform the tenant that they must vacate by a certain time and date. RV tenants can also be evicted with a 30-day, no-cause notice if they have been in the park less than a year. Anything over a year requires a 60-day notice to evict without cause.

The one special circumstance for evicting an RV that does not require service of a notice is the so-called "midnight move-in." This occurs when an RV simply drives onto a space in the park without the prior consent of the landlord. When that happens and the RV owner refuses to vacate immediately, the landlord can simply file an eviction case without needing to serve any notice.
In all other cases, after an eviction notice expires and the RV tenant fails to vacate, the landlord will need to file an eviction lawsuit at the local county courthouse. The eviction lawsuit is sometimes referred to as an "FED" ("Forcible Entry and Detainer"). The tenant will be served with an eviction summons and complaint and be required to appear in court.

As the landlord, you will also need to appear in court unless you have an attorney or other agent (such as a property manager) appear in court at the "1st appearance hearing." This hearing is usually set 8 days after the FED is filed. The purpose of the hearing is to see whether the parties can work out a payment plan, move-out agreement, or other arrangement. If not, the case will be set for trial.

If you are unable to settle the case at the first appearance hearing, by law the trial must be scheduled within 15 days from the 1st appearance hearing. Sometimes, the parties or the court will delay the trial beyond this time frame, but most cases move quickly. This leaves little time for preparation, meaning it is important to have your witnesses, exhibits, and trial arguments ready to go.
You do not necessarily need an attorney for court appearances, but you will increase your chance of success if you do. The eviction statutes are very technical, and most people aren't familiar with courtroom procedures. You will especially be at a disadvantage if the RV tenant has an attorney. If your case gets to the point of a trial, it is usually worth it to hire an attorney.

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

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

Answer: The statute you are referring to is 90.302, and it provides the following: • A landlord may charge a tenant a fee for each occurrence of the following: o A late rent payment; o A dishonored check; o Removal or tampering with a properly functioning smoke alarm,smoke detector or carbon monoxide alarm; o The violation of a written pet agreement or of a rule relating to pets in a facility; o The abandonment or relinquishment of a dwelling unit during a fixed term tenancy without cause; • A landlord may charge a tenant a fee for a second noncompliance or for a subsequent noncompliance with written rules or policies that describe the prohibited conduct and the fee for a second noncompliance, and for any third or subsequent noncompliance, that occurs within one year after a written warning notice. o The fee may not exceed $50 for the second noncompliance within one year after the warning notice for the same or a similar noncompliance or o $50 plus five percent of the rent payment for the current rental period for a third or subsequent noncompliance within one year after the warning notice for the same or a similar noncompliance. • The landlord must: o Give the tenant a written warning notice that describes:  A specific noncompliance before charging a fee for a second or subsequent noncompliance for the same or similar conduct; and  The amount of the fee for a second noncompliance, and for any subsequent noncompliance, that occurs within one year after the warning notice. Give a tenant a written notice describing the noncompliance when assessing a fee for a second or subsequent noncompliance that occurs within one year after the warning notice. Give a warning notice for a noncompliance or assess a fee for a second or subsequent noncompliance within 30 days after the act constituting noncompliance. • The landlord may terminate a tenancy for a noncompliance instead of assessing a fee, but may not assess a fee and terminate a tenancy for the same noncompliance. • The landlord may not deduct a fee from a rent payment for the current or a subsequent rental period. • The landlord may charge a tenant a fee for occurrences of noncompliance with written rules or policies as provided above for the following types of noncompliance: o The late payment to futility or service charge that the tenant owes the landlord; o The failure to clean up pet waste from the space; o The failure to clean up garbage,rubbish and other waste from the space; o For parking violations; o For the improper use of vehicles within the premises; o For smoking in a clearly designated nonsmoking area within the community other than the home; 1 o For keeping an unauthorized pet capable of causing damage to persons or property. • The landlord is not be required to account for or return to any fees to the tenant. • Other than for early termination of a fixed term lease (discussed above) a landlord may not charge a tenant any form of liquidated damages, however designated. • Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent (i.e. under ORS 90.394), but is grounds for a 30-day notice of termination for cause under 90.630 (1). • This law does not apply to: o Attorneyfeesawarded; o Applicant screening charges; o Charges for improvements or other actions that are requested by the tenant and are not required under the rental agreement or by law, including the cost to replace a key lost by a tenant; o Processing fees charged to the landlord by a credit card company and passed through to the tenant for the use of a credit card by the tenant to make a payment when:  The credit card company allows processing fees to be passed through to the credit card holder; and  The landlord allows the tenant to pay in cash or by check; or  A requirement by a landlord in a written rental agreement that a tenant obtain and maintain renter’s liability insurance. • NOTE: The fees must be described in a written rental agreement. o Since ORS90.100(38)defines“rental agreement”to mean“…all agreements,written or oral, and valid rules and regulations, it would seem that including the fines in the rules would suffice. 2

Answer. Notwithstanding the fact that you do not have anything in your Rules or Rental Agreement prohibiting the use, growing, or selling marijuana does not mean you cannot prohibit the activity. Granted, it would be far better if you had something in the park documents about this topic, but the still require that residents obey state and federal laws, rules, and ordinances.

Here is the short version of my answer:

Under the Federal Controlled Substances Act, 21 U.S.C. _ 801, et seq. ("the Act"), it is illegal to manufacture, distribute, and possess marijuana, also known as "cannabis. Under the Act, possession of marijuana, even when used for medical purposes, is a violation of Federal law.

In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342. Commencing on July 1, 2015, subject to certain limitations and restrictions, the recreational use of marijuana also became legal.

Federal law supersedes state law where there is a direct conflict between these laws. This means that even though Oregon permits medical and recreational use of marijuana, and marijuana products, Federal law controls, and these activities remain illegal. (See, Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Ore. 159, 230 P.3d 518 (2010)).

Accordingly, find the sections in your Rules and Rental Agreements requiring that residents obey the law. Include it in a 30-day notice under ORS 90.630(1)(a), which provides:

'_the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days' notice in writing before the date designated in the notice for termination if the tenant: (a)Violates a law or ordinance related to the tenants conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant Obligations);

ORS 90.740(3) (Tenant Obligations) provides:

Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenants behavior as a tenant.

You may also cite ORS 90.740(4)(j) in the 30-day notice. It provides that tenants must:

Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors.

You should then enact a rule change, and institute a policy that prospectively prohibits the use, cultivation and selling of marijuana and marijuana products.

HB 3443 adds “bias crime” as defined by ORS 147.380, ORS 166.155, and ORS 166.165 to a number of different statutes in the ORLTA. The term “bias crime” is added to all statutes that previously addressed tenant-impacts of domestic violence, sexual assault and stalking. Terminations for domestic violence, sexual assault, bias crime, and stalking are extremely detailed. Landlord should consult their attorney before taking any termination action regarding allegations of the aforementioned criminal acts.

ORS 90.100 – The term “bias crime” is added to the ORLTA definitions section. A bias crime is defined as the commission, attempted commission, or alleged commission, of an offense as described below:

ORS 166.155 (1) A person commits a bias crime in the second degree if the person:

(a)  Tampers or interferes with property, having no right to do so nor reasonable ground to believe that the person has such right, with the intent to cause substantial inconvenience to another person because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin;

(b) Intentionally subjects another person to offensive physical contact because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin; or

(c)  Intentionally, because of the person’s perception of race, color, religion, gender identity, sexual orientation, disability or national origin of another person or of a member of the other person’s family, subjects the other person to alarm by threatening:

(A) To inflict serious physical injury upon or to commit a felony affecting the other person, or a member of the other person’s family; or

(B) To cause substantial damage to the property of the other person or of a member of the other person’s family.

ORS 166.165 (1) A person commits a bias crime in the first degree if the person:

(a)  Intentionally, knowingly or recklessly causes physical injury to another person because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin;

(b) With criminal negligence causes physical injury to another person by means of a deadly weapon because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin; or

(c)  Intentionally, because of the person’s perception of another person’s race, color, religion, gender identity, sexual orientation, disability or national origin, places another person in fear of imminent serious physical injury.

ORS 90.325 is amended to clarify that tenants may not be held responsible for damages to the premises caused by the perpetrator of a bias crime. To avoid liability for damage the tenant may be required to provide verification that the tenant or a member of the tenant’s household was a victim of a bias crime.

ORS 90.445 is amended to clarify that perpetration of a bias crime against a household member who is also a tenant is grounds for 24-hour termination notice. The landlord may evict the perpetrator while still leaving other tenants on the lease. If the perpetrator of the bias crime does not leave the premises, the landlord may seek a court order to remove them under ORS 105.128 without terminating the other tenants in the unit.

ORS 90.449 is amended to state that a landlord may not terminate or fail to renew a tenancy, serve a notice to terminate a tenancy, bring or threaten to bring an action for possession, increase rent, decrease services or refuse to enter into a rental agreement with:

• A person who is or has been a victim of a bias crime;
• A person who has violated the rental agreement or the provisions of ORS 90.449 because they have been the victim of a bias crime;
• Because of criminal activity or emergency response related to a situation in which the tenant or applicant is a victim of a bias crime.

Additionally, a landlord may not impose different rules, conditions or standards or selectively enforce rules, conditions or standards against a tenant or applicant on the basis that the tenant or applicant is or has been a victim a bias crime.

However, landlords may terminate the tenancy of a victim of a bias crime if the landlord has previously given the tenant a warning about the behavior of the perpetrator and:

• the tenant has allowed the perpetrator to remain on the premises while an imminent or actual threat to others; or
• the perpetrator is an unauthorized occupant, and the tenant has allowed them to remain on the premises without the permission of the landlord.

If a tenant mounts a successful defense to an eviction action under ORS 90.449 the tenant will not be entitled to a prevailing party fee and/or attorney fees costs or disbursements if it the landlord can demonstrate

• that at the time the action was initiated the landlord did not know, or have reason to know, that the action was based on a bias crime incident; and
• upon discovering that the action was based on a bias crime incident, the landlord promptly removed all others except the perpetrator from the action.

ORS 90.453 is amended to:

• add “bias crime” to the definition of non-perpetrating immediate family members of a crime victim;
• add the phrase “employee of the Department of Justice division providing victim and survivor services” to the definition of a “qualified third party;”
• include the phrase “a copy of a federal agency or state, local or tribal police report regarding [a] bias crime” to the definition of “verification;”
• expand the definition of “victim service providers” to include nonprofit agencies that address bias crimes; and
• provide that a tenant who wishes to terminate their own lease due to being the victim of a bias crime needs to provide either a valid order of protection or verification of a bias crime committed against the tenant within 90 days of the self-termination notice.

The Qualified Third-Party Verification Form under ORS 90.453(3) has also been amended to add “bias crime” to the list of harms against a tenant or member of their household.

ORS 90.456 specifies that the tenancy will continue for any tenants who have not been removed for perpetrating a bias crime or have not been released from the lease due to being a victim. Fees, deposits, and prepaid rent for victims and perpetrators are to be accounted for at the time the tenants surrender possession.

ORS 90.459 adds “bias crime” to the list of harms for which a tenant may provide actual notice and request a change of locks. Verification is not required. If the perpetrator is also a tenant the landlord must see a court order removing the perpetrator before changing the locks.

ORS 90.767 is amended to specify that unless specified in a mediation policy created under this statute, or agreed to by all parties, no one, except the victim, may initiate mediation of a dispute regarding allegations of a bias crime.

Note:  Sample Rent Ledger is attached above.

Question 1: Tenant's balance goes back to the beginning of April 2020. Do we have to follow the rent schedule that is laid out by rental assistance agency?  Example: Oregon Emergency Rental Assistance Program gives you a statement on how to apply the rent  and it usually is  the most recent delinquent rent.  They will only cover 12 months plus 3 future months.  

In my opinion, yes, the landlord should apply the funds in the way that the Assistance Program dictates. There is a Landlord Hotline 844-378-2931 (operative during regular business hours) to discuss issues and questions. While I agree that it does make sense to apply it to the oldest debt first, I'm not comfortable making a blanket statement that you can ignore the dictates of the Program. I don't know whether acceptance of the funds creates a contract. Landlords should check with the hotline or their attorney for further guidance. So, I'd say payment should be applied as follows: (a) as dictated by the Program, (b) if the Program does not address the application of funds, then in accordance with the terms the lease, and (c) finally, if the lease is also silent, then in accordance with ORS 90.220(9).

Presuming that you apply the back rent to the most recent delinquent rent, that should put all the outstanding back rent within the Emergency Period, therefore subject to the tolling of the Statute of Limitations under the Eviction Moratorium. Basically, applying it to the most recent back rent gives the landlord more time to pursue the deb because they (landlord) have until next February to do so.  See the attached ledger to explain what I mean.

Question 2: What if tenant can only pay partial rent from the past due emergency period? Do we take it or will it result in a waiver? Does it preclude the landlord from sending out further 10-day notices of nonpayment?

ORS 90.417(4) is clear that acceptance of partial rent may, under certain circumstances, constitute a waiver of the right to terminate for nonpayment of rent. 

There are two ways to avoid acceptance as a waiver: 

• If Landlord accepts partial payment pursuant to a written agreement with tenant before issuing a Notice of Termination for nonpayment and tenant fails to pay the balance by the agreed-upon date. If so, the landlord’s Notice of Termination is served no earlier than if no rent had been accepted, AND the Notice provides that the tenant can cure by paying the balance by a time set by statute or by agreement of the parties; or

• Landlord accepts partial payment after issuing a Notice of Termination but enters into a written agreement with the tenant that acceptance does not constitute waiver. The agreement may also provide that the landlord may terminate and evict without further notice if the tenant does not pay the balance by the agreed upon date.

As with everything else, Covid has plowed new ground. I would not advise a landlord to accept rent from a tenant without getting a legally drafted agreement containing a non-waiver. If the tenant fails to pay under the written agreement then there is a basis for termination. 

Question 3: Now that the Oregon Emergency Fund is closed can we start issuing 10-day Notices on the back balances?

If the tenant has not provided their landlord with proof of their application to a Rental Assistance Program then they are not protected by the “Safe Harbor” protection it affords.[1] A landlord may pursue normal remedies against them unless/until they are notified that an application is pending. If you begin proceedings against a tenant and they then provide proof of application the proceedings must stop.

If a tenant has already provided proof of application to a Rental Assistance Program and the landlord is not receiving payment while the Safe Harbor is in place, the Landlord may apply to the Landlord Guarantee Program. See,  https://www.oregonlgp.org.  The Program is designed to get funds to landlords who are not receiving funds during the Safe Harbor period. The earliest funds may be requested was July 1, 2021 and the latest will be June 30, 2022 - but there may be special provision if a tenant's application is still pending when the law sunsets on October 1, 2022. 

Question 4: What about the one-year statute of limitations for claims by a landlord based on the tenant’s nonpayment of rent. Are rents owed from the pre-April 2020 – June 30, 2021 period affected under the one-year statute of limitations for past due rents?

No, the eviction moratorium only suspended the statute of limitations for debts arising during the Emergency Period April 1, 2020 to June 30, 2021. Per SB 282 the Statute began to run again on March 1, 2022 which was the end of the grace period (i.e., the period to pay off unpaid rent debt from the emergency period). The clock is running on debts prior to April 1, 2020 and after July 1, 2021.

However, note there was a tolling of some statutes of limitations by other Covid bills (see, HB 4212). It is unclear when that ended, i.e. whether it was when the bill expired (Dec 31) or when the State of Emergency was lifted in April. Landlords should check with their own attorneys regarding any claims outside of the Emergency Period. It is unclear how the courts will deal with these frequently changing dates.

[1] I am using the term “Safe Harbor” to refer to the time a tenant is protected from eviction after notifying landlord that they have made application under the Rental Assistance Program.

Mobile and manufactured homes are personal property. They are only treated as a part of the land (i.e., as “real property”) when properly sited on a lot or parcel owned by the owner of the home and approved by the local authorities. Then, a deed to the land conveys the manufactured home as well, since they are combined under a single ownership.

Since the land in a manufactured housing community is owned by the landlord, and the spaces are rented to tenants, all manufactured structures on the spaces are personal property. They are either own by the tenant occupying the space, or by the park, or other third party.

The Conundrum. If all manufactured homes in a community are personal property, when abandonment occurs, why are there two forms? The answer is basic – at least to start. It depends on who owns the home.

• Using Form No. 30. If the home is tenant-owned and the tenant abandons it, park owners and managers should use MHCO Form No. 30.[1]

• Using Form No. 30A. If the home is not tenant owned, e.g., park-owned, management only needs to declare an abandonment of the other personal property on the space, such as the contents of the home, cars, RVs, and other personal property on the space itself.[2]

• The RV exception. Since RVs are personal property, which form should be used when the tenant owns it but later abandons it on the space? The answer is to use MHCO Form No. 30A.

FAQs for Personal Property Abandonments under Form 30A.[3]

How long does the tenant have to respond to the notice of abandonment? 5 days if served personally, or 8 days if served by mail. This applies to all abandoned personal property except recreational vehicles. For an RV, the tenant has 45 days to respond.

How long after responding does the tenant have to make arrangements for removal of the personal property? 15 days. If it is a recreational vehicle, 30 days.

What must I do with personal property during the abandonment process? Abandoned personal property should be kept in a place of safekeeping, and management should exercise reasonable care in protecting it. Food or perishables may be disposed of, and any abandoned animals or livestock should be turned over to the proper authorities. Landlords are entitled to reasonable or actual storage costs, costs related to moving the items, and potentially, costs related to disposal.  Abandoned personal property may be stored as management sees fit, whether that is at the dwelling, at another location on the premises, or in an off-site storage unit.

What if the owner does not claim their personal property within the required time? If an owner or interested party does not respond to MHCO Form 30A within the appropriate window (5-8 days for personal property/45 days for recreational vehicles) the landlord is free to sell or dispose of it in accordance with the directions in Form 30A or ORS 90.425.

[1] Note: ORS 90.675 deals with abandonment of manufactured homes owned by the tenant. ORS 90.425 deals with automobiles, RVs, and all other tenant owned personal property. However, ORS 90.675(1)(e) provides that “personal property” does not include goods left inside a manufactured dwelling or floating home or left upon a rented space and subject to disposition under ORS 90.425.” The problem is that oftentimes, when a home is abandoned, other things may be abandoned as well, such as the contents of a home and personal property on the space. Thus, where the contents of the home have value over $1000, it may become necessary to use both forms. Where autos and RVs are left on the space members should definitely use both forms. MHCO is considering adding an addendum to Form 30 to combine these issues into a single form. Until then, using both forms is appropriate where the tenant abandoned both the home and significant items of personal property such as autos, motorcycles, and RVs.

[2] If the home is owned by a third party who is renting the home to a tenant who abandons it, management should immediately notify the owner-landlord. Space rent must be paid regardless of the tenant’s abandonment. If the owner-landlord does not respond after giving proper notice, file an eviction for nonpayment of rent. If the owner does not show up for court, get a judgment of restitution and then file an abandonment of the home, which is permitted under ORS 90.675. Death of a tenant owner of the home also triggers the abandonment process under that statute.

[3] Caveat: This is a summary only and does not address rights of lienholders,  tax collectors, assessors, or third-party owners. Before using this form, competent legal counsel should be consulted if questions.

Answer. This is not an issue under ORS 90.632, which relates to damage and deterioration of the home. In fact, this statute indirectly validates the right of the structures to be on the space, which you are contesting, since portions were built without permission, in violation of local ordinances, and contrary to the terms of the rental agreement. Moreover, ORS 90.632 does not allow the landlord to require removal - just repair.

This is a violation for which you would normally use a 30-day curable notice of termination. ORS 90.630(1)(a) (Termination by landlord; causes; notice; cure; repeated nonpayment of rent), which provides for the issuance of a 30-day termination notice if the resident:

• Violates a law or ordinance related to the tenant's conduct as a tenant;
• Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy.

Subsection (4) provides that:

The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in subsection (1) of this section. However, if substantially the same act or omission that constituted a prior violation of which notice was given recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days written notice specifying the violation and the date of termination of the tenancy.

However, in this particular case, the issue is whether you (and your predecessor) waived the right to terminate the tenancy because you accepted rent after you had knowledge of the violation. In summary, a landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord:

• During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or
• Accepts performance by a tenant that varies from the terms of the rental agreement.[1]
• A landlord does not waive the right to terminate a rental agreement for a violation under any of the following circumstances:
  • The landlord and tenant agree otherwise after the violation has occurred.
  • The violation concerns the tenant's conduct and, following the violation but prior to acceptance of rent for three rental periods or performance, the landlord gives a written warning notice to the tenant regarding the violation that:
    • Describes specifically the conduct that constitutes the violation, either as a separate and distinct violation, a series or group of violations or a continuous or ongoing violation;
    • States that the tenant is required to discontinue the conduct or correct the violation; and
    • States that a reoccurrence of the conduct that constitutes a violation may result in a termination of the tenancy pursuant to ORS 90.392 (termination of non-MHP tenancies), 90.398 (termination for drug/alcohol violations), 90.405 (unpermitted pets), 90.630 (termination of MHP tenancy by landlord).
  • The tenancy consists of rented space for a manufactured dwelling or floating home, and the violation concerns:
    • Disrepair or deterioration of the manufactured dwelling or floating home;
    • A failure to maintain the rented space;
    • The termination is under ORS 90.396 [24-hour notices].

I do not believe any of the above exclusions apply to your situation, and on its face, there is an argument that by accepting the rent you permitted the structures to be there. See, ORS 90.412 and ORS 90.414.

However, permitting the structures, and permitting their violation of the building codes, etc., are two different things. You don't have the power to permit the law violations. I view the violations of the building codes as something that is a "continuing violation", and something you can likely still treat as a violation. For a continuous or ongoing violation, the landlord's written warning notice remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months.

You should issue a warning notice, identifying the various code violation, (e.g. work done without permits and work done not to code). Then give the tenant a fixed period to go obtain the necessary permits and provide proof that the work was done to code. The "proof" would be through the building department who would inspect and pass.

Note: you have to be careful that whoever the resident uses (they should be CCB licensed and bonded) knows that you are not responsible for payment of any construction liens for unpaid work.

If you cannot get compliance with the warning notice, then give him a 30-day curable notice under ORS 90.630, identifying the violations relating to the failure to get the work permitted and not complying with the building code. Give him a fixed period to complete, e.g. 30 - 45 days, during which time you should not accept any rent. If he does not comply, then you could file your eviction.

Alternatively, if you can do so, you may consider speaking with the resident about voluntarily removing the structures. However, if push came to shove, they were approved long ago, so I think it would be a difficult argument to now use the existence of the structures as the basis of a 30-day notice of termination under ORS 90.630. If you can reach agreement, fine. If not, the continuing violation of the code violations are your best bet under ORS 90.630. Be sure to confer with your own legal counsel before proceeding, however.

[1] However, a landlord has not "accepted rent" if within 10 days after receipt, the landlord refunds the rent, or the rent payment is made in the form of a check that is dishonored.