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Screening Criteria

The manufactured housing section of Oregon’s landlord-tenant law provides that “Any conditions the landlord applies in approving a purchaser…as a tenant in the event the tenant elects to sell the home” should be disclosed in the rental or lease agreement.”[1]Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what may be placed in the rental or lease agreement.

MHCO’s rental and lease agreement forms[2]contain a number of criteria that landlords may impose, such as:  (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.

Although there may be other criteria that landlords may wish to use when deciding whether to accept an applicant as a tenant, the above list is very comprehensive, and should be sufficient in imposing adequate guidelines when a tenant wishes to sell their home on site.  MHCO additionally has an application form which solicits this and other information from prospective tenants.

Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check that provides the necessary verification.  Although Oregon law imposes a 7-day period within which landlords have to respond to a submitted application, it does notprohibit landlords from imposing a longer period so long as the applicant agrees.  Additionally, Oregon law expressly states that the 7-day period does not commence if the application is incomplete or inaccurate.  Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete – and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned.  Accepting an incomplete application or continuing with the process after discovering that the applicant has provided bad information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.

It is also important to note that Oregon law permits the “…landlord and the prospective purchaser (to) agree to a longer time period for the landlord to evaluate the prospective purchaser’s application or to allow the prospective purchaser to address any failure to meet the landlord’s screening or admission criteria.”  Thus, as noted on the MHCO Application form, there is a place for the landlord to insert a period longer than the statutory seven day period.  If the landlord suspects any delay, either on the applicant’s part or his own part, a longer period should be inserted. If the applicant rejects this extension, then the landlord can decide whether he wants to proceed to process the application at all.

Note: If a tenant has not previously given the landlord the 10 days’ advance notice of intent to sell as required in ORS 90.680(4) (a), the landlord’s seven day response time is extended to 10 days. But remember, in no instances does the landlord have to receipt and process an inaccurate or incomplete application.  It is better not to accept a defective application – or return it immediately upon finding that it is inaccurate or incomplete, than continuing to process it. 

If a landlord requires a prospective purchaser to submit an application for occupancy at the time that the landlord gives the prospective purchaser the application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale. It is important to remember that the terms of these park document given to the prospective tenant need not be the same as those in the existing (i.e. selling) tenant’s documents.[3]

Park Documents. 

Landlords and managers should always remember that when they change one of the park documents, they may have to change others. This is because of two risks: (a) The failure to incorporate a change in the lease, say, into the Statement of Policy, and (b) An inconsistency between one or more of the park documents, such as the rental agreement and the rules. Rules can generally be changed in the middle of a tenancy, but rental agreements cannot.  So landlords should remember to make sure their documents are all internally consistent.

Fair Housing Laws.

The state and federal fair housing laws are essentially – but not completely – the same.  Landlords and managers should familiarize themselves with any special ordinances found in their city or county laws.  However, Oregon law prohibits any form of discrimination in the sale or rental of housing when directed at the following protected classes: “…race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income.”[4]  The easiest, best, and safest way to deal with the risk of a discrimination claim is to make all screening criteria facially neutral.  Do not have rules which – even unintentionally - could have a negative impact on a member of a protected class.  

In Oregon, most claims of discrimination relate to familial status.  Examples range from managers encouraging families to purchase and reside in one particular area of the community (where there are more children), to making off-hand comments to applicants (e.g. “there would be very few children for your kids to play with here”) that may be construed as indicating a desire not to rent to people with children.  For this reason, landlords and managers should strive to apply their screening criteria neutrallyregardless of the applicant’s membership in a protected class.  

Additionally, caution should be exercised in answering questions over the phone, since federal and state “testers” have been known to test parks by making multiple phone calls asking various loaded questions, such as “Is this a good place to raise my children?”  If the community is a family park, the best response to open-ended telephone inquiries is to tell the caller that it is a family park, open to all, and that they are welcome to come in and pick up an application for processing.

One of the biggest areas of concern for landlords and managers today involve issues of immigration status.  At the risk of minimizing the problem, there is one basic rule that landlords and managers should always remember when screening applicants. While it is not a “silver bullet,” it should help avoid the vast majority of issues regarding immigration status.  Never treat any single applicant differently from another.  This means that landlords should not automatically “suspect” that certain persons are illegally in this country and then impose more rigorous screening criteria on them alone.  It is best not to ask about immigration status.[5]  If the applicant passes the same screening criteria imposed upon others, and all of the information in their application checks out, you should accept the current applicant, regardless of whether you have suspicions about their immigration status. One of the frequently asked questions is whether a landlord may insist that applicants provide their social security number.  While this is not automatically illegal, it can be when applied to some applicants and not others.  Consistency is the name of the game.  Do not request verification in some cases and not others.  Do not accept some tenants who fail to provide the number, but accept others (who are not obviously immigrants) without also providing such proof.

Another area of concern is occupancy limits or extra occupancy charges.[6]  This is somewhat of a grey area because Oregon law currently permits a two person per bedroom rule – assuming that it is expressly listed as part of the park’s screening criteria and uniformly applied.  However, the problem is that federal law contains no specific occupancy limits.  This means that, in theory, one could be in compliance with state law, while violating federal law.  For example, if a family consisted of two adults and three children who owned a 2-bedroom home, a "2-persons per bedroom" requirement would mean that they could not move into the park.  But if the third child was an infant who slept in the parents’ room, one may ask whether this standard is reasonable, even though it complies with Oregon law.  At the risk of violating federal law, which imposes no such occupancy limits, the better approach might be to avoid the “slippery slope” problem entirely, by not creating occupancy limits.[7]  

Perhaps the most difficult of screening criteria issues is in the area of assistance animals.  Since handicap is a protected class, this means that if one could establish a legitimate need for an assistance animal they could not be prevented from having one – even though the park might have a one-pet policy and this might be their second pet.  This could be so even though the animal was not trained or certified in providing assistance. MHCO has Form 15 that may be given to tenants applying for a “reasonable accommodation” which is the technical term used when an allegedly handicapped person requests relief from strict application of a rule that interferes with their handicapped. [8]As most landlords and managers know, the handicap protections can be severely stretched.  There are many reasons for this, including, among other things, the handicap may be allegedly psychological, and the tenant has nothing more than a note from a doctor – not a treating psychologist or psychiatrist. 

The other difficult issue is that assistant animals are not technically “pets” and therefore are not subject to the requirement that the Pet Agreement be completed.  Ultimately it comes down to a rule of reason and proof.  Does it appear that the person requesting the accommodation is legitimately handicapped? Do they have a known history of the handicap – that is, has it ever come up before?  Does it appear that the claim of a handicap is new, and possibly raised as a pretext, say to circumvent a one-pet policy?  

Ultimately, the issue comes down to public safety in the community.  For example, if the tenant wanted to have a pit bull (in violation of a dangerous breed prohibition) or a bull-mastiff (in violation of a size restriction), the landlord should ask which battle he or she wants to fight?  If the tenant isn’t credible, has a history of skirting the rules on this or other issues, it might make sense to refuse and let them take the next step.  If they bring the animal into the park in light of the denial, you will have a choice; either do nothing or send out a notice of violation which would require removal of the animal.  The risk in allowing dangerous or oversized breed into the park is that it may harm someone, and then the landlord will have to defend a lawsuit for failing to enforce their own rules.  Additionally, in consenting, the precedent has been set, now permitting such animals based upon a tenant’s assertion the need it for assistance.  Remember, “reasonable accommodations” need only be “reasonable.”  Dogs with vicious propensities or who pose danger to children because of their size, are not the only type of assistance animals available.

Marijuana cards raise the same issue, although perhaps even worse, since the cards seem to be freely given to almost anyone.  In some cases, however, this too can be dealt with on another level. If the persons with medical marijuana cards have an inordinate amount of traffic at their home throughout the day and night, perhaps the issue is one for the police, since it is still illegal to sell or distribute marijuana, medical or otherwise.  If they are dealing in the illegal drug, careful (documented) scrutiny of these comings and goings might prove useful.

Miscellaneous Screening and Application Issues

• Occasionally, tenants apply for occupancy even though they cannot afford to purchase the home on their own, and perhaps would not qualify under the financial criteria imposed for acceptance into the park.  However, they may have a parent or other person willing to assist in the purchase and willing to guarantee the applicant’s performance.  There is nothing wrong with this approach, assuming that the guarantor passes all of the financial criteria the park would impose.  First, remember that the guarantor will not be living in the home – they may have their own housing requirements that impose financial limitations on them.  If the tenant defaults, can the guarantor actuallyaffordto pay the space rent?  Under such cases, the financial criteria applied to co-signers should be more rigorous than those imposed on tenant applicants.  Secondly, landlords should be sure to have their attorney draft a solid guarantee agreement that gives them the right to seek payment against the guarantor without having to first evict the tenant.  Third, before accepting a co-signer, a landlord should ask whether they have a sufficiently significant relationship with the applicant such that they will actually be willing to subsidize the space rent if it is not paid.  

• A fundamental problem in the tenant screening process is the denial process.  Landlords must be prompt in informing applicants if their application is denied. Obviously, a denial can provoke an angry response.  Landlords need to be proactive.  MHCO has two forms to address the issue, so that the landlord or manager does not have to engage in any more explanation than that provided in the form.  MHCO Form 10, identifies the source of the material or information resulting in the turn down.  That is all the landlord is required to do, unless it comes from a credit reporting agency. In that case, MHCO’s Form 10A should be given so that applicant has the ability to know which credit company was involved and track down the source of the information.  

• It is due to financial issues that many applicants get turned down.  Especially today. For that reason, MHCO has developed the “Straight Talk” form, describing manufactured home living and affordability issues.  It should be used in all cases, if possible. 

• Although we discussed the Statement of Policy (“SOP”) above, there are two additional points to be made: (a) Always be sure to obtain a receipt (MHCO Form 7C), since it is proof positive that the resident received the SOP and the Rules and Rental or Lease Agreement.  Without the receipt, the tenant can deny receiving it, and the burden of proof to establish delivery is on the landlord.  This can be a difficult task unless witnesses were present who can verify delivery.  (b) The second item to note is use of the Rent History attachment to the SOP a copy of the Rent History (Form 7A).  This permits the tenant to see the monthly base rent for each of the five years preceding the current year of tenancy.

• Perhaps one of the most important (and newest) forms if not used, is the Flood Plain Notice (MHCO Form 6).  It notifies those residents whose homes are located in all or part of a 100-year floodplain.  This means that landlords and/or their managers, should look at a currentFEMA map to determine whether all or a portion of their park is located inside such a plain.  If so, those residents whose spaces are in the floodplain should be notified.  While technically, being located in a 100-year floodplain means that flood water levels are statistically expected to flood onto the plain once every 100 years, most people realize that over the course of 100 years, there could be three or more such floods or none at all.  The MHCO form, in compliance with Oregon statute, suggests to those receiving the notice that they consider obtaining flood insurance.  The good news is that once having given this notice, a landlord is not liable for any uninsured water loss suffered by the resident due to a flood; the bad news is that failing to give the notice can subject the landlord to the lesser of two months’ rent or the resident’s actual damages, whichever is less.

Conclusion

Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes.  Unfortunately, the desire to have the rental flow commence quickly sometimes results in the process becoming rushed.  And landlords and managers should never allow the applicant to rush them.  Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed.  Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws.

©Copyright by Phillip C. Querin. No portion may be reproduced without the express written consent of the author.

[1]Rental Agreement MHCO Form 5A and Lease Agreement Form 5B.

[2]Rental Application MHCO Form 1, and Application Screening Charge Notice and Receipt, MHCO Form 9.

[3]See, ORS 90.680(5)

[4]Source of income would refer to whether the applicant was receiving some form of state or federal assistance, or child support, for example.

[5]While compliance with the law seems like a reasonable area of inquiry, the problem is that managers and landlords don’t ask this question of a family from England or Germany.  This creates the appearance that questions regarding immigration status are reserved for Latinos or those from other Central American countries. National origin is a constitutionally protected class.  As a result, this type of selective screening creates (in legal terms) a “disparate impact” on folks from Mexico and Central America, and can therefore be found to be a violation of the Fair Housing laws.

[6]Occupancy limits are sometimes used as “tools” by landlords to impose restrictions on persons with larger families, and therefore poses a potential violation of the familial status protected status.  This has not been a significant problem Oregon.

[7]Generally, the only strong justification for occupancy limits in family parks is where it can be claimed that too many people in a home overtaxes the utility systems.  While legitimate in some instances, proving it could be very costly. 

[8]However, prudence should be exercised here. You would not ask an obviously blind person to fill out a request for reasonable accommodation when asking for a guide dog.

Answer.  First, let’s deal with the vacant mobile home next door to the troublesome neighbor. You need to review your community rules and the rental/lease agreement to see what restrictions might apply. 

The MHCO Rental/Lease Agreement contains a quiet enjoyment provision similar to ORS 90.740which requires that the tenant “…(b)ehave, 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.”[1] 

I assume you have already contacted the problem tenant and requested he/she refrain from such conduct. I would elevate this to a written warning, so you have documentation in the file should he refuse to stop.

The next step, if he/she continues, is, depending upon the applicable provisions of your rules and rental/lease agreement, to issue a notice of termination under ORS 90.630(1)(b) for a material violation of a “… rental agreement[2]provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy….”

And thanks to a 2019 legislative change, ORS 90.630now provides that a 30-day notice of termination may be issued if the prohibited conduct is a “…separate and distinct act or omission *** the tenant “…may avoid termination by correcting the violation by a designated date that is at least three daysafter delivery of the notice.” (Emphasis added.) If substantially the same conduct is repeated with six month after the termination date, a landlord may issue a non-curable 20-days’ notice of termination.[3]

As to the other tenant interfering with your manager’s efforts to rent an RV space, the manufactured housing section of ORS Chapter 90,[4]does not apply, so you must look to that portion of the landlord-tenant law that applies to all other rentals, such as homes and apartments, etc.[5]

You still need to review your rules and rental agreement for a quiet enjoyment provision, or use the statutory equivalent found in ORS 90.325(1)(g). The non-manufactured housing termination for cause statute, ORS 90.392applies. It contains the same “distinct act” and non-curable “repeat violation” provisions. It providesfollows:

· The notice must:

• Specify the acts and omissions constituting the violation;
• State that the rental agreement will terminate upon a designated date not less than 30 days after delivery of the notice; and
• If the tenant can cure the violation, state that the violation can be cured, describe at least one possible remedy to cure the violation and designate the date by which the tenant must cure the violation.

· If the violation described in the notice can be cured by the tenant by a change in conduct, repairs, payment of money or otherwise, the rental agreement does not terminate if the tenant cures the violation by the designated date.

· The designated date must be:

o At least 14 days after delivery of the notice; or

o If the violation is conduct that was a separate and distinct act or omission and is not ongoing, no earlier than the date of delivery of the notice as provided in ORS 90.155.

· If the tenant does not cure the violation, the rental agreement terminates as of the termination date provided in the notice.

· If substantially the same act or omission occurs with six months of the designated termination date, the notice of termination must be not less than 10 days after delivery of the notice, and the tenant does not have a right to cure the violation.

Lastly, I regard this conduct as a different type of activity than the normal Chapter 90 violations. You might consider discussing this with your attorney, since it clearly interferes with your ability to run your business. The loss of potential tenants can have serious financial consequences. Perhaps a letter to the troublesome tenants would be appropriate, warning them of financial claims if the conduct continues. 

Answer: Sewer changes are considered a utility. ORS 90.532 ("Billing methods for utility or service charges") provides that, subject to certain exceptions, landlords may provide for utilities or services to tenants by one or more of several alternative billing methods, depending upon the billing "relationship" between landlord and tenant: 1. A relationship between the tenant and the utility or service provider in which the utility provider provides the utility or service directly to the tenant's space, including any utility or service line, and bills the tenant directly; and the landlord does not act as a provider. 2. A relationship between the landlord, tenant and utility or service provider in which the utility provider provides the utility or service to the landlord; the landlord provides the utility or service directly to the tenant's space (or to a common area); and (a) the landlord: includes the cost of the utility or service in the tenant's rent; or (b) bills the tenant for the utility or service charge separately from the rent in an amount determined by apportioning on a pro rata basis the provider's charge to the landlord as measured by a master meter. 3. And lastly, a relationship between the landlord, tenant and utility or service provider in which the utility provider provides the utility or service to the landlord, the landlord provides the utility or service directly to the tenant's space; and the landlord uses a submeter to measure the utility or service actually provided to the space and bills the tenant for a utility or service charge for the amount provided. It appears that No. 2(a) above may currently apply to your situation. In order to "charge back" the residents, I assume you mean charge them directly (outside the base rent) for the cost of the sewer service. Thus, what I understand you to be asking, is whether you can "convert" from 2(a) to 2(b). If your current sewer service is measured by water consumption, and your intent is to separately charge residents a pro rata basis calculated by a master water meter, then ORS 90.532(2(c) applies, which provides that a landlord may not use a separately charged pro rata apportionment billing method for sewer service, if sewer service is measured by consumption of water and the rental agreement was entered into on or after January 1, 2010, unless the landlord was using a separately charged pro rata apportionment billing method for all tenants in the facility immediately before January 1, 2010. By your question, it appears that sewer and water are both included in base rent, at present. Thus, the prorata method (i.e. direct billing for sewer charges outside of base rent) would only be allowed if you already had it in place for all residents prior to January 1, 2010. Unfortunately, it appears that unless you begin submetering your water, you will be unable to separately charge for sewer on a prorata basis outside of your base rent.

Answer:  This is a new one.  The Oregon landlord tenant law does not expressly address this specific issue. The closest it comes are the following laws:

1. ORS 90.755 Right to speak on political issues; limitations; placement of political signs:

(1) No provision in any bylaw, rental agreement, regulation or rule may infringe upon the right of a person who rents a space for a manufactured dwelling or floating home to invite public officers, candidates for public office or officers or representatives of a tenant organization to appear and speak upon matters of public interest in the common areas or recreational areas of the facilityat reasonable times and in a reasonable manner in an open public meeting. The landlord of a facility, however, may enforce reasonable rules and regulations relating to the time, place and scheduling of the speakers that will protect the interests of the majority of the homeowners.

            (2) The landlord shall allow the tenant to place political signson or in a manufactured dwelling or floating home owned by the tenant or the space rented by the tenant. The size of the signs and the length of time for which the signs may be displayed are subject to the reasonable rules of the landlord. (Emphasis added.) 

2. 90.750 Right to assemble or canvass in facility; limitations. No provision contained in any bylaw, rental agreement, regulation or rule pertaining to a facility shall:

            (1) Infringe upon the right of persons who rent spaces in a facility to peaceably assemble in an open public meeting for any lawful purpose, at reasonable times and in a reasonable manner, in the common areas or recreational areas of the facility. Reasonable times shall include daily the hours between 8 a.m. and 10 p.m.

            (2) Infringe upon the right of persons who rent spaces in a facility to communicate or assemble among themselves, at reasonable times and in a reasonable manner, for the purpose of discussing any matter,including but not limited to any matter relating to the facility or manufactured dwelling or floating home living. The discussions may be held in the common areas or recreational areas of the facility, including halls or centers, or any resident’s dwelling unit or floating home. The landlord of a facility, however, may enforce reasonable rules and regulations including but not limited to place, scheduling, occupancy densities and utilities.

            (3) Prohibit any person who rents a space for a manufactured dwelling or floating home from canvassing other persons in the same facility for purposes described in this section. As used in this subsection, “canvassing” includes door-to-door contact, an oral or written request, the distribution, the circulation, the posting or the publication of a notice or newsletter or a general announcement or any other matter relevant to the membership of a tenants’ association.

            (4) This section is not intended to require a landlord to permit any person to solicit money, except that a tenants’ association member, whether or not a tenant of the facility, may personally collect delinquent dues owed by an existing member of a tenants’ association.

            (5) This section is not intended to require a landlord to permit any person to disregard a tenant’s request not to be canvassed. (Emphasis added.)

3.  90.740 Tenant obligations. A tenant shall:

            (3) 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 tenant’s behavior as a tenant.

            (4) Except as provided by the rental agreement:

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

            (i) 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. (Emphasis added.)

So, you see, this simply isn’t addressed in the landlord-tenant law.  Nor should it be.  Clearly, the resident leaving the religious material in the clubhouse could, if he or she wanted, go door to door proselytizing, unless and until others complained.  If the materials are left anonymously, without more than a single resident being offended, I’m not sure what the landlord could or should do.   Remove and destroy the materials?  

If the landlord knows who is doing this, perhaps a personal discussion with them might be in order. But telling them to “stop” because a single person is offended seems unnecessary.  If there is a place in the clubhouse for storage of reading materials, perhaps removing the literature to that location would work.  Certainly, no rule change prohibiting placement of materials in the clubhouse (just because they are religious) is unnecessary.  Management cannot be responsible for controlling the placement of written materials in the clubhouse unless it is offensive, inappropriate for minors and guests.[i] This is what free speech is all about.  My view would be the same regardless of the denomination of the literature.  If I’m incorrect, I’m sure I will hear about it.

Answer: This is a new one. The Oregon landlord tenant law does not expressly address this specific issue. The closest it comes are the following laws:

1. ORS 90.755 Right to speak on political issues; limitations; placement of political signs:

(1) No provision in any bylaw, rental agreement, regulation or rule may infringe upon the right of a person who rents a space for a manufactured dwelling or floating home to invite public officers, candidates for public office or officers or representatives of a tenant organization to appear and speak upon matters of public interest in the common areas or recreational areas of the facility at reasonable times and in a reasonable manner in an open public meeting. The landlord of a facility, however, may enforce reasonable rules and regulations relating to the time, place and scheduling of the speakers that will protect the interests of the majority of the homeowners.

(2) The landlord shall allow the tenant to place political signs on or in a manufactured dwelling or floating home owned by the tenant or the space rented by the tenant. The size of the signs and the length of time for which the signs may be displayed are subject to the reasonable rules of the landlord. (Emphasis added.)

2. 90.750 Right to assemble or canvass in facility; limitations. No provision contained in any bylaw, rental agreement, regulation or rule pertaining to a facility shall:

(1) Infringe upon the right of persons who rent spaces in a facility to peaceably assemble in an open public meeting for any lawful purpose, at reasonable times and in a reasonable manner, in the common areas or recreational areas of the facility. Reasonable times shall include daily the hours between 8 a.m. and 10 p.m.

(2) Infringe upon the right of persons who rent spaces in a facility to communicate or assemble among themselves, at reasonable times and in a reasonable manner, for the purpose of discussing any matter, including but not limited to any matter relating to the facility or manufactured dwelling or floating home living. The discussions may be held in the common areas or recreational areas of the facility, including halls or centers, or any resident’s dwelling unit or floating home. The landlord of a facility, however, may enforce reasonable rules and regulations including but not limited to place, scheduling, occupancy densities and utilities.

(3) Prohibit any person who rents a space for a manufactured dwelling or floating home from canvassing other persons in the same facility for purposes described in this section. As used in this subsection, “canvassing” includes door-to-door contact, an oral or written request, the distribution, the circulation, the posting or the publication of a notice or newsletter or a general announcement or any other matter relevant to the membership of a tenants’ association.

(4) This section is not intended to require a landlord to permit any person to solicit money, except that a tenants’ association member, whether or not a tenant of the facility, may personally collect delinquent dues owed by an existing member of a tenants’ association.

(5) This section is not intended to require a landlord to permit any person to disregard a tenant’s request not to be canvassed. (Emphasis added.)

3. 90.740 Tenant obligations. A tenant shall:

(3) 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 tenant’s behavior as a tenant.

(4) Except as provided by the rental agreement:

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

(i) 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. (Emphasis added.)

So, you see, this simply isn’t addressed in the landlord-tenant law. Nor should it be. Clearly, the resident leaving the religious material in the clubhouse could, if he or she wanted, go door to door proselytizing, unless and until others complained. If the materials are left anonymously, without more than a single resident being offended, I’m not sure what the landlord could or should do. Remove and destroy the materials?

If the landlord knows who is doing this, perhaps a personal discussion with them might be in order. But telling them to “stop” because a single person is offended seems unnecessary. If there is a place in the clubhouse for storage of reading materials, perhaps removing the literature to that location would work. Certainly, no rule change prohibiting placement of materials in the clubhouse (just because they are religious) is unnecessary. Management cannot be responsible for controlling the placement of written materials in the clubhouse unless it is offensive, inappropriate for minors and guests. This is what free speech is all about. My view would be the same regardless of the denomination of the literature. If I’m incorrect, I’m sure I will hear about it.

Answer: All good questions, and ones that I have not addressed for some time. There are several statutes that come into play:

90.514 Disclosure to prospective tenant of improvements required under rental agreement.

(1) Before a prospective tenant signs a rental agreement for space in a manufactured dwelling park or for a converted rental space, the landlord must provide the prospective tenant with a written statement that discloses the improvements that the landlord will require under the rental agreement. The written statement must be in the format developed by the Attorney General pursuant to ORS 90.516 and include at least the following:

(c) Identification of the improvements that belong to the tenant and the improvements that must remain with the space.

90.730 Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.

(7) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

(a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

(b) The agreement does not diminish the obligations of the landlord to other tenants on the premises; and

(c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated.

90.740 Tenant obligations. A tenant shall:

(1) Install the tenant's manufactured dwelling or floating home and any accessory building or structure on a rented space in compliance with applicable laws and the rental agreement.

In summary, what these statutes, and other in ORS Chapter 90 mean, is the following:

• When the landlord rents a space, it includes all pre-existing structures located on the space, such as carports and sheds.
• Does this mean the carport or shed must be maintained by the resident? In my opinion, not unless the rental agreement or rules provide otherwise. And if they so provide, it must be clearly disclosed at the commencement of the tenancy. If the roof leaked and the resident's belongings were damaged, the landlord could have liability.
• If a landlord wanted to transfer ownership of the carport or shed, the arrangement should be clearly documented, including the duty to maintain, and the right to remove upon vacating the space.
• In terms of a "downside" I see very little so long as the responsibility going forward is clear; on the other hand, I see a "downside" in doing nothing, and then each side expects the duty of maintenance belongs to the other - and as pointed out above, if the structure leaks or has a fire, etc., the landlord could have liability.
• When a space changes hands, and you want to transfer the maintenance responsibility at that time, you can do so, as long as it's clear and fair. You cannot, for example, require that a shed that has maintenance problems, be rebuilt or be repainted.
• On the issue of reducing the rent, ORS 90.730(7), cited above, does refer to adequate consideration if the maintenance responsibility is shifted from the landlord to the resident. That may be true where you don't transfer ownership of the structure to the resident. But if you do transfer ownership, and the resident, that is adequate consideration (in my opinion), so long as it is in good condition, and the arrangement was not done solely to avoid having to perform repairs. I would want to make sure that the structure was in good condition at the time, fully inspected by the resident, and the transaction clearly documented.
• As for the sharing of carports, one owned and the other not, it would be nice to get clarity on this between the two residents. The same rules apply, i.e. if the structure is in good repair, and the non-owner is willing to take ownership and assume maintenance responsibility, it would be better than what you have right now. As it stands, you, technically, have maintenance responsibility for the portion of the structure that is park-owned. This likely makes for confusion when repairs, such as roofing and painting are required.

Answer: The answer is found in ORS 90.302 (Fees allowed for certain landlord expenses). What follows is a brief summary: (1) A landlord may not charge a fee at the beginning of the tenancy for an anticipated expense (i.e. one that has not actually occurred). (2) A landlord may not require the payment of any fee except as provided in this statute. (3) The specific fee must be described in a written rental agreement. (4) The following list are the fees a landlord may charge: a. A late rent payment, pursuant to ORS 90.260. b. A dishonored check, pursuant to ORS 30.701 (5). [Note that the amount of the fee may not exceed the amount described in ORS 30.701 (5) plus any amount that a bank has charged the landlord for processing the dishonored check.] c. Removal or tampering with a properly functioning smoke alarm, smoke detector or carbon monoxide alarm, as provided in ORS 90.325 (2). d. The violation of a written pet agreement or rule relating to pets in a facility, pursuant to ORS 90.530. e. The abandonment or relinquishment of a home during a fixed term tenancy without cause. [Note that the fee may not exceed one and one-half times the monthly rent. A landlord may not assess a fee under this section if the abandonment or relinquishment is pursuant to ORS 90.453 (2) (Termination of tenant who is victim of domestic violence), ORS 90.472 (Termination of tenant who is called to active state service) or ORS 90.475. (Termination of tenant sue to service with Armed Forces)] f. If the landlord assesses a fee under (e) above: i. The landlord may not recover unpaid rent for any period of the fixed term tenancy beyond the date that the landlord knew or reasonably should have known of the abandonment or relinquishment; ii. The landlord may not recover damages related to the cost of renting the dwelling unit to a new tenant; and iii. ORS 90.410 (3) (Effect of tenant failure to give notice of absence) does not apply to the abandonment or relinquishment. (5) Noncompliance with written rules or policies. [Note that the fee may not exceed $50.] (6) A fee may be assessed under paragraph (5), above, only for the following types of noncompliance: a. The late payment of a utility or service charge that the tenant owes the landlord as described in ORS 90.315. b. Failure to clean up pet waste from the tenant’s space other than the home itself. c. Failure to clean up garbage, rubbish and other waste from the tenant’s space other than the home itself. d. Parking violations. e. The improper use of vehicles within the premises. (7) A landlord is not required to account to a tenant for, or return to, the tenant any fee. (8) Except where the tenant abandons or relinquishes the space during a fixed term tenancy [see (4) e above], a landlord may not charge a tenant any form of liquidated damages, however designated. (9) Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent - but is grounds for termination of a rental agreement for cause. (10) The above laws regarding fines do not apply to: a. Attorney fees; b. Applicant screening charges; or c. Charges for improvements or other actions that are requested by the tenant and are not required of the landlord by the rental agreement or by law.

One of the most challenging issues facing park owners and managers is the issue of pets. ORS 90.530 outlines the do's and don'ts of pets in manufactured home communities. Here is a summary.

1. Changes in Community Rules or Regulations addressing pets: A resident may keep a pet that is living with the resident at the time of the rules and regulation change. The resident may also replace the pet with a pet similar to the one living with the tenant at the time of the rule change.

2. New rules and regulations that regulate the activities of pets shall apply to all pets in the facility including those pets that were living in the facility prior to the adoption of the new rules or regulations.

3. A landlord may provide written rules regarding control, sanitation, number, type and size of pets. The tenant shall sign a pet agreement and provide proof of liability insurance. The tenant shall make the landlord co-insured for the purpose of receiving notice in the case of cancellation of the insurance.

4. A landlord may not charge a one-time monthly or other periodic amount based on the tenant's possession of a pet.

5. A landlord may charge a tenant an amount for a violation of a written an amount for a violation of a written pet agreement or rules relating to pets not to exceed $50.00 for each violation.

6. Changes in Community Rules or Regulations addressing pets: A resident may keep a pet that is living with the resident at the time of the rules and regulation change. The resident may also replace the pet with a pet similar to the one living with the tenant at the time of the rule change.

7. New rules and regulations that regulate the activities of pets shall apply to all pets in the facility including those pets that were living in the facility prior to the adoption of the new rules or regulations.

8. A landlord may provide written rules regarding control, sanitation, number, type and size of pets. The tenant shall sign a pet agreement and provide proof of liability insurance. The tenant shall make the landlord co-insured for the purpose of receiving notice in the case of cancellation of the insurance.

9. A landlord may not charge a one-time monthly or other periodic amount based on the tenant's possession of a pet.

10. A landlord may charge a tenant an amount for a violation of a written an amount for a violation of a written pet agreement or rules relating to pets not to exceed $50.00 for each violation.

There is almost no greater issue that can create problems for landlords, than whether tenants can retain a pet they have brought into the community. How can owners and managers take control of the issue?

First, landlords should check their current rules and rental agreement. Although landlords who have previously permitted pets in the community, cannot retroactively prohibit them to tenants who already have pets living with them. Nor can they retroactively prohibit a type of pet that had previously been permitted. However, going forward, i.e. for new tenants, landlords should make sure that their rules place appropriate limitations on the size and type of pets that can be brought into the park. Rules should be drafted broadly to prohibit pets, e.g. breeds of dogs, that have a reputation for aggressiveness, or dogs of a particular size, or both.

Secondly, consistency is important. That is, landlords should be careful not to make exceptions or ignore violations of the pet rules. Otherwise, the landlord will be accused of either being arbitrary or "playing favorites." Selective prosecution of tenants for violation of the pet rules does not play well with judges and juries.

Lastly, in all cases, landlords should make sure that their tenants sign pet agreements for their animals. Oregon law expressly permits this. The MHCO agreement (Form 21) follows the statutory guidelines and assures that the tenant has liability insurance coverage. It also permits landlords to assess fines for violations of the rules.

1. What does mediation mean? Mediation is an alternative dispute resolution process that is different from going to court and having a judge (or jury) pick a winner and loser by determining the facts and applying the law to the facts. Mediation is also different from arbitration. At an arbitration, the parties typically pick a person (usually an attorney) to act like a judge and determine the facts and apply law. At an arbitration there is also a winner and a loser. 

In mediation, the parties typically pick a third party neutral who will meet with the parties to help them find a solution to resolve a dispute. Because mediation requires the agreement of the parties to come to a resolution, it is not always successful. Mediation does not limit a party’s ability to file a lawsuit or arbitration.

In my experience, the cases that resolve at mediation are where both parties come with an open mind, are willing to listen and can consider compromise in order to avoid the cost and hassle of litigation. 

In my experience, the cases that don’t resolve are usually because one of the parties has unrealistic expectations or opinion of their case, or that the matter should move forward based on “principle.” 

2.   When is mediation required? Mediation is required for any non-exempt issues (see question 3) involving compliance with the rental agreement or non-exempt conduct of a landlord or a tenant within the facility. Please note that a facility is a manufactured home park or a floating home marina. Mediation can be initiated regarding a non-exempt dispute between a landlord and a tenant or between two or more tenants. Note that if the dispute is between two or more tenants, mediation must be initiated by the landlord. 

3.   What types of disputes are exempt (i.e. not subject to mediation)? The following disputes are not subject to mediation:

(a) Facility closures consistent with ORS 90.645 or 90.671; 

(b) Facility sales consistent with ORS 90.842 to 90.850; 

(c) Rent payments or amounts owed, including increases in rent consistent with ORS 90.600;

(d) Termination of tenancy pursuant to ORS 90.394 (failure to pay rent), 90.396 (24 hour notices), or 90.630(8) (three strike provision); 

(e) A dispute brought by a tenant who is alleged to be a perpetrator of domestic violence, sexual assault or stalking under ORS 90.445 when the dispute involves either the allegation or the victim of domestic violence, sexual assault or stalking; 

(g) A dispute involving a person not authorized to possess a dwelling unit as described in ORS 90.403; or 

(h) A dispute raised by the landlord or tenant after the tenancy has terminated and possession has been returned to the landlord (including ORS 90.675 (abandonments). 

4.   How is mediation initiated? Mediation may be initiated by a tenant or a landlord. If a tenant or landlord initiates the mediation process, then the parties are required to participate (but see questions 7 and 8 below). If there is a dispute between or among tenants, a landlord must initiate mediation.  

5.   What if mediation is not currently included in my rental agreement? A landlord and/or tenant is required to mediate regardless of whether a rental agreement currently provides for mediation. If a rental agreement does not currently have such a process, SB 586 requires a landlord to unilaterally amend the rental agreement to include mediation. Specifically, ORS 90.510 (5) (what is required to be included in rental agreements) is amended to include in a rental agreement a section for mandatory mediation of disputes that states: “that the tenant or the landlord may request mandatory mediation of a dispute that may arise concerning the rental agreement or the application of this chapter, and the process by which a party may request mediation, including a link to the web site for the Manufactured and Marina Communities Resource Center with additional information about mandatory mediation of disputes.”

 6.  Who facilitates a mediation? Mediation may be requested through either: (1) Manufactured and Marina Communities Resource Center (“MMCRC”); or (2) a local Community Dispute Resolution Center (“CDRC”); or (3) a mutually agreed-upon and qualified mediator. Each party must cooperate with the CDRC or designated mediator in scheduling a mediation session at a mutually agreeable day and time, within 30 days of the initiation of mediation. Each party must attend at least one mediation session. 

7.   Who has to participate in the mediation (i.e. does it have to be the owner)?  A landlord can designate a representative to participate in the mediation on the Landlord’s behalf (including a non attorney). The representative, however, must have the authority to resolve the dispute in the mediation.  Note that a tenant can also designate a representative.

8.   Do I have to reach an agreement in the mediation?  No. Neither party is required to reach an agreement in a mediation. Each party must attempt to mediate the dispute in “good faith.”  The law specifically says that the parties are not required to: (1) reach an agreement on all or any issues in the mediation; (2) participate in more than one mediation session; (3) participate for an unreasonable length of time in a mediation session; or (4) participate if the other party is using the mediation to harass the party or is otherwise abusing the duty to meditate.

9.   What would happen if a party failed to meditate in good faith? If a party fails to meditate in good faith by abusing the right to require mediation or uses mediation to harass the other party, the aggrieved party may recover an amount equal to one month’s rent from the violating party. Please note that this is a two way street. In addition, the other party has a defense to any claim brought by the violating party over the dispute involved in the mediation request, and may have the claim dismissed.

10. Can I use an admission in mediation at a subsequent trial? Conversely, can something I say be used against me? No. Mediation, and what is said during mediation, is confidential. Any statement made in a mediation is inadmissible. The purpose is to have an honest dialogue in order to encourage a settlement. Additionally, a mediator cannot be called as a witness.

11. Can a tenant request a mediation after I send them a termination of tenancy notice? 

Mediation can be requested after a notice terminating tenancy has been sent to a tenant, but only if the request is made to MMCRC or a designated mediator and a written confirmation of that request is delivered to you (the landlord) before the landlord files an action for possession under ORS 105.110. If the tenant delivers a notice requesting mediation before a landlord files an eviction action, the landlord may not file such action until after the mediation process concludes. If a landlord delivers a notice requesting mediation before a tenant files an action regarding a dispute, the tenant may not file such action until after the mediation process ends. 

12. Can I still accept rent during the mediation process?  Yes. Notwithstanding ORS 90.412, acceptance of rent or performance by a landlord after either party requests mediation and during the mediation process does not constitute waiver of the landlord’s right to terminate a tenancy following the mediation. Acceptance of rent or performance after the mediation process ends may constitute waiver. Additionally, all statutes of limitations are suspended during the mediation process. 

13. What happens after the mediation? If a mediation is successful, the parties should come to an agreement that resolves the dispute. The question is how enforceable is the agreement. Enforceability will depend upon the issues involved, the terms and how the agreement is drafted. I would encourage you to discuss with your legal counsel strategies on how to make the most of a mediation. For example, if an eviction action has already commenced, you may want to attempt to make the agreement a part of the ORS 105.148 mediation/agreement process. Another example is setting up an enforcement mechanism within the agreement itself.  

The CDRC or the designated mediator shall notify MMCRC of the successful or unsuccessful outcome of the mediation. The parties and the CDRC or mediator are not required to give a copy of any mediation agreement to MMCRC.

If a mediation is not successful, the parties may continue on the path they were on before the mediation. 

14. This sounds expensive, who is paying for it? Mediations will be performed by the existing network of CDRC mediators, funded by the existing annual assessment already paid by tenants ($10, collected with property tax assessments).  If the parties choose a private mediator, then the parties will have to determine how that mediator is paid. Additionally, the current annual fee paid by park landlords ($25 for parks of 20 spaces or fewer, $50 for larger parks) is doubled.

15. Very interesting (as always), Bill, but what’s this about $100,000 annual grant to the Oregon Law Center?As you may be aware, some states have allocated substantial funding to their state’s Justice Department or to create a team of private attorneys general to assist with enforcement of tenant rights. Similar systems were originally proposed by the tenants during coalition meetings and were strongly opposed by the landlord group. The ultimate compromise was a limited $100,000 per year grant to be given to the Oregon Law Center to employ one attorney to provide direct legal services to statewide park and marina residents on matters arising under the Oregon Residential Landlord Tenant Act.

16. Is mandatory mediation and the $100,000 per year in perpetuity? No. Both elements have a four-year sunset. An advisory committee has been created to monitor both elements, consisting of equal numbers of landlord and tenant representatives to present a report on the status of both elements to the 2021 and 2023 Legislatures to determine whether they should be renewed.

17. When does all of this go into effect? The effective date of SB 586 is January 1, 2010.

Does Section 8 apply to manufactured housing parks?

There have been questions recently from MHCO members as to whether Section 8 housing assistance programs apply to manufactured housing facilities. The short answer is "yes," parks are required to comply with Section 8 housing requirements.

Why have things changed?

In 2014, the laws in Oregon changed to prohibit landlords from refusing to rent to people based on their source of income. Before that, landlords could refuse to rent to tenant applicants if they received government rental assistance. Now that is unlawful. Landlords cannot refuse to rent to someone solely because they receive Section 8 rental assistance. (And there are other government rental assistance programs that are equally protected, although Section 8 is the most common.)

Why does the law apply to manufactured housing facilities?

The governing Oregon statute (ORS 659A.421) prohibits discrimination based on source of income in "real property transactions." This is defined to include the rental of "vacant land" used as the location for any building intended for occupancy as a residence (i.e., a manufactured home on a rental space).

How does Section 8 work?

The tenant negotiates directly with the landlord to apply for tenancy, and the landlord is entitled to screen tenants using the same rental criteria used for any other tenant applicant (i.e., criminal background, credit history, evictions, etc.). However, the tenant's income level must include the amount received from the Section 8 assistance program.

If approved, the tenant signs the park's regular rental agreement and other tenancy documents. But there are several important differences from a non-Section 8 tenancy:

1. The park will need to fill out and sign one or two short forms for the tenant to submit to the housing authority confirming that the tenant has been approved for tenancy.

1. The local housing authority will conduct an inspection to ensure that the "rental unit" is sufficiently habitable. In an apartment setting, this would mean that the landlord would be responsible for ensuring that the apartment is fit to live in. In a mobile home park, it means that the rental space (not the home itself - unless the park owns it) must simply be suitable for occupancy. In other words, it must have the usual park-provided utility hook-ups for water, sewer, electricity, etc., and must be designed to support the installation of a mobile home in the usual manner.

1. The housing authority will also make a determination as to whether the park's rent is a "fair market rent." If they determine it is not, the housing voucher payment will not be approved. While landlords cannot be forced to adjust their rents, they should obviously be very careful to not charge a higher rental amount to Section 8 applicants, which would quickly lead to a housing discrimination charge.

1. The park will be required to sign a "Housing Assistance Payments Contract" which will become an addendum to the park's regular rental agreement.

What terms are in the "Housing Assistance Payments Contract?"

There are a number of terms, but the most important ones relate to termination of the tenancy. For the most part, landlords can still terminate a tenancy for "good cause" like any other mobile home park tenant. This can include disturbing the peaceful enjoyment of neighbors, destruction of park property, failing to maintain the rental space, and the failure to pay rent.

However, there are several potential problem areas:

1. The contract requires landlords to provide a fixed-term lease of at least one year instead of a month to month rental agreement. Since ORS 90.550 requires at least a 2-year minimum lease term for mobile home park tenants, that would need to be the stated term of the lease.

1. The contract states that tenancy termination must involve a "serious or repeated violation of the lease." This could potentially lead to difficulties if the park needed to issue a 30-day notice for something that was a violation of the park rules, but yet does not rise to the level of a "serious or repeated" violation.

1. All termination notices must be additionally served on the housing authority. While not a significant issue, it does add another layer of administrative burden.

1. The contract form (which is provided by HUD) is not designed for mobile home park tenancies. It contains certain terms that would not and could apply to a mobile home park tenancy (i.e., "The lease must specify which appliances are to be provided by the landlord"). For this reason, it would be wise to consult with an attorney before signing the HUD contract form.

What if the park simply refuses to sign the "Housing Assistance Payments Contract?"

If the park refused to sign the contract without good reason, it would likely lead to a housing discrimination charge. However, in certain situations there might be legitimate legal arguments supporting this position. Consult with an attorney before making this kind of decision.

How is rent paid?

Voucher amounts for rent are paid directly to the landlord by the local housing authority, with the tenant responsible for the remainder of the rent based on a percentage of their income.

What if the tenant fails to pay their portion of the rent?

Since the failure to pay rent would be a serious violation of the lease, the park could issue a 72-hour notice just like it would with any other tenant. A copy of the notice would need to be served on the housing authority as well. (And consult with an attorney on whether the voucher payment should be returned to avoid taking a partial payment and perhaps raising a waiver issue.)

Do these rules apply only to new tenants, or are existing tenants covered too?

The statutes specifically state that a landlord cannot "expel" a tenant based on source of income, so the rules would cover both new and existing tenants. This means that if an existing tenant came to the park with a Section 8 voucher application packet, the park would most likely need to comply. Again, however, consult an attorney if there are specific circumstances that might lead to a legitimate legal argument to the contrary.

Where can I get more information?

Do an online search for the local housing authority in your county (i.e., __________ County Housing Authority). Each housing authority's website has information specific to the county where your mobile home park is located.

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

mark@marklbusch.com

www.marklbusch.com