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Answer A: First, the MHCO Lease cited above addresses this. Not fixing the leaks, which are their responsibility to do, is a violation. Secondly, ORS 90.740(f) requires that tenants “(u)se electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems. The tenant is using the water system in an unreasonable manner when they refuse to fix the leaks.

ORS 90.630 (Termination by Landlord) provides, in relevant part, the following:

 (1) Except as provided in subsection (4) of this section, 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 tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;

      (b) Violates a rule or rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing….

ORS 90.630 goes on to explain that you may issue a 30-day written notice of termination, allowing the tenant to fix the leaks within 30 days and avoid termination. If they fail to do so, you may file for eviction. If they cure, but the problem occurs again within six months following the date of your earlier 30-day notice, you may terminate the tenancy within 20 days, and there is no opportunity to cure. MHCO has the necessary forms.

Be sure you have papered your file to support your contention that these are water leaks for which the tenant is responsible, and then specifically describe the violations (there are two of them, one under the Lease, and the other under the statute)  in the Notice. 

Answer B:  This question is same as the prior one and the answer is the same (although the placement of the requirement may not be in the same location, depending on the date of your lease or rental agreement). Just make sure you have the evidence (e.g. plumber statement) before acting, and that you adequately identify the problem and solution in the Notice.

Answer: Bad news on both fronts. Let me answer your second question first. You may NOT share in a real estate commission unless you have your own Oregon real estate license. This prohibition against commission sharing even applies between real estate agents and the homeowner they represent. Here is the applicable Oregon Law:

ORS 696.290 [Sharing compensation with or paying finders fee to unlicensed person prohibited]

(1)A real estate licensee may not offer, promise, allow, give, pay or rebate, directly or indirectly, any part or share of the licensees compensation arising or accruing from any real estate transaction or pay a finders fee to any person who is not a real estate licensee licensed under ORS 696.022 (Licensing system for real estate brokers and property managers). However, a real estate broker or principal real estate broker may pay a finders fee or a share of the licensees compensation on a cooperative sale when the payment is made to a licensed real estate broker in another state or country, provided that the state or country in which that broker is licensed has a law permitting real estate brokers to cooperate with real estate brokers or principal real estate brokers in this state and that such nonresident real estate broker does not conduct in this state any acts constituting professional real estate activity and for which compensation is paid. If a country does not license real estate brokers, the payee must be a citizen or resident of the country and represent that the payee is in the business of real estate brokerage in the other country. A real estate broker associated with a principal real estate broker may not accept compensation from any person other than the principal real estate broker with whom the real estate broker is associated at the time. A principal real estate broker may not make payment to the real estate broker of another principal real estate broker except through the principal real estate broker with whom the real estate broker is associated. Nothing in this section prevents payment of compensation earned by a real estate broker or principal real estate broker while licensed, because of change of affiliation or inactivation of the brokers license.

(2)Nothing in subsection (1) of this section prohibits a real estate licensee who has a written property management agreement with the owner of a residential building or facility from authorizing the payment of a referral fee, rent credit or other compensation to an existing tenant of the owner or licensee, or a former tenant if the former tenant resided in the building or facility within the previous six months, as compensation for referring new tenants to the licensee.

(3)(a) Nothing in subsection (1) of this section prevents an Oregon real estate broker or principal real estate broker from sharing compensation on a cooperative nonresidential real estate transaction with a person who holds an active real estate license in another state or country, provided:

(A)Before the out-of-state real estate licensee performs any act in this state that constitutes professional real estate activity, the licensee and the cooperating Oregon real estate broker or principal real estate broker agree in writing that the acts constituting professional real estate activity conducted in this state will be under the supervision and control of the cooperating Oregon broker and will comply with all applicable Oregon laws;

(B)The cooperating Oregon real estate broker or principal real estate broker accompanies the out-of-state real estate licensee and the client during any property showings or negotiations conducted in this state; and

(C)All property showings and negotiations regarding nonresidential real estate located in this state are conducted under the supervision and control of the cooperating Oregon real estate broker or principal real estate broker.

(b) As used in this subsection, nonresidential real estate means real property that is improved or available for improvement by commercial structures or five or more residential dwelling units.

As for requiring that residents use your preferred agent, that too is a No-No. Here is that statute [I've underscored the applicable provision in subsection (1).] The term "services" can clearly be applied to real estate brokerage services, and as such, I cannot recommend that you impose that condition on residents when they want to sell their home.

90.525 [Unreasonable conditions of rental or occupancy prohibited.]

(1) No landlord shall impose conditions of rental or occupancy which unreasonably restrict the tenant or prospective tenant in choosing a fuel supplier, furnishings, goods, services or accessories.

(2) No landlord of a facility shall require the prospective tenant to purchase a manufactured dwelling or floating home from a particular dealer or one of a group of dealers.

(3) No landlord renting a space for a manufactured dwelling or floating home shall give preference to a prospective tenant who purchased a manufactured dwelling or floating home from a particular dealer.

(4) No manufactured dwelling or floating home dealer shall require, as a condition of sale, a purchaser to rent a space for a manufactured dwelling or floating home in a particular facility or one of a group of facilities. [Formerly 91.895; 1991 c.844 _7]

Case #1: Landlord May Be Liable for Tenant-on-Tenant Harassment

Landlords are clearly liable for the sexual, racial, and other discriminatory harassment committed by their employees and other agents. But does that liability extend to third parties they don’t directly control?

Situation: A tenant directs a steady stream of racial and ethnic harassment against her neighbors. The abuse is mostly oral, but it’s constant and egregious, including a steady diet of the “N” word and other appalling nicknames and epithets. Despite constant complaints, the homeowners association doesn’t do anything to stop her. A local fair housing advocacy organization sues the association for racial harassment.

You Make the Call: Does the organization have a valid harassment claim against the association?

Answer: Yes

Ruling: The Indiana federal court rules that the organization has a valid legal claim for harassment and rejects the association’s motion for summary judgment [Fair Hous. Ctr. of Cent. Ind., Inc. v. Vicki New, 2021 U.S. Dist. LEXIS 241159, 2021 WL 5988397].

Takeaway: While the courts have split on the issue, the Vicki ruling follows the majority view that a landlord may be directly liable for discrimination by a tenant against another tenant, if it:

• Knows or should know of the conduct;
• Is in a position to take action to stop the harassment—as the homeowners association was in this case; and
• Doesn’t take any action to curb the harassment.

Answer. ORS 90.630(1) provides as follows:

(1)Except as provided in subsection (4) of this section, 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);

The exception found at subsection (4) says:

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.

The rules prohibit running a business inside the community. I suspect that the local zoning ordinances do as well. So if the resident intends to run the same type of business as in town, in her home, it would likely violate both the park rules and the local land use ordinances. I also suspect that by whatever name she describes it, she is in the business of selling marijuana from her home.

The fact that she may hold a medical marijuana card permitting this activity does not persuade me that it is a ticket to place her grow site operation in a location that violates the park rules or the local land use rules.

On the State of Oregon website describing the Medical Marijuana Dispensary Program, here, it provides that:

The law requires the Oregon Health Authority to develop and implement a process to register medical marijuana facilities, which must be located on property zoned for commercial, industrial, mixed use or agriculture uses only. The issue of whether a local government believes a certain type of business should operate within one of these zones is a local government decision.

On March 19, 2014, Senate Bill 1531 was signed into law. SB 1531 gives local governments the ability to impose certain regulations and restrictions on the operation of medical marijuana dispensaries, including the ability to impose a moratorium for a period of time up until May 1, 2015. The law also authorizes the Oregon Health Authority to issue refunds upon request to dispensary applicants whose facilities are located in an area that falls under a moratorium.

Update:

Read the list of cities and counties that have enacted a moratorium on medical marijuana dispensaries. The Medical Marijuana Dispensary Program was last notified by a city or county of changes to this list on 5/21/14. This list includes only cities and counties that have submitted documentation of a moratorium to the Medical Marijuana Dispensary Program, consistent with the rules implementing SB 1531. The Oregon Health Authority is only authorized to offer a full refund to applicants and licensees whose dispensaries are located in an area named on this list.

Before going into battle with this resident, I suggest that you ask that she describe for you, in writing, exactly what she proposes to do, so that you can better understand and evaluate it. Once you fully understand the business model, you will be in a much better position to know whether her plans will constitute a violation that you may enforce. But remember, your remedy under ORS 90.630(1) and (4) is to give her a 30-day notice and opportunity to cure.

Based upon the state requirement that the grow site operation be consistent with local zoning laws, I do not view this as a fair housing issue. And based upon my prior MHCO articles on this subject, I do not believe the Oregon Bureau of Labor and Industries (the state's fair housing enforcement arm) would pursue your denial of the resident's request for a reasonable accommodation (i.e. permitting you to "bend" the rules, and ignore the land use laws).

Background. Although the Shepard case arose under the non-MHP section of the Act (pre-90.505) the principle is the same for MHPs.

Tenant had been living in an apartment since 2008. In 2013 the landlord changed rent policies to add a monthly fee for utilities. In 2019 the tenant failed to make rent payments on time and the resulting eviction proceeding went to trial.

As a defense, the tenant claimed the landlord had violated certain provisions of ORS 90.315(4) which governs a landlord’s ability to pass-through utility charges to tenants. Specifically, that the landlord had failed to bill the tenant on time and failed to explain the way utility bills were both assessed to the tenant and divided among the complex’s other residents.

The trial court granted the tenant damages of $11,010 – one month’s rent for each of the 12-months of billing violations. The landlord appealed, arguing that the legislation did not contemplate that the penalty would be applied “per violation.” The court of appeals sided with the landlord awarding the tenant only $960 dollars, twice the wrongful $40 dollar utility charge for the preceding 12 months.

After evaluating the statute, the court determined that one-month’s rent was the minimum amount a landlord would have to pay for any number of violations of the statute. They reasoned the wording “twice the amount wrongfully charged” was meant to address a situation where repeated billings might incur damages greater than a single month’s rent. They said that the legislature intended to create a damages statute with “some, but not too many, teeth.” If the legislature had intended for damages to result from each incident they would have used language indicating that penalties accrued for each noncompliant billing cycle.

Why Does This Matter? Manufactured housing park landlords should be heartened by this new ruling. Note, however, it will be appealed to the Oregon Supreme Court, so we do not know final word.

Though ORS 90.315 applies to non-mobile home tenancies, it contains language very similar to statutes that apply to utility billing in manufactured housing parks, specifically ORS 90.582.

(3)   If a landlord fails to comply with a provision of ORS 90.560 to 90.584, the tenant may recover from the landlord the greater of:

(a)      One month’s rent; or

(b)      Twice the tenant’s actual damages, including any amount wrongfully charged to the tenant.

The language in 90.315 is relatively new, having been added to the ORLTA in 2015. Because of this, Shepard v. Ormandy is currently the only case which addresses the issue of how a court may calculate damages based on a violation of tenant utility billing statutes. Likewise, there are no cases addressing the similar manufactured housing statute for damages resulting from pass-through utility charges.[1]

Conclusion.  Shepard v. Ormandy was granted review by the Oregon Supreme Court in October 2022. It is unclear at this time how the high court will rule. Oral arguments are set for the spring of 2023. Until then, should a landlord find themselves facing a damage claim under ORS 90.582(3), it is important to argue that the penalty of one-month’s rent does not apply to each violation within the relevant period.

[1] Note that the tenant’s damages may be higher for a claim under manufactured housing statutes since they allow for twice a tenant’s actual damages plus any amount wrongfully charged. Thus, damages may be in excess of the wrongful charge.

Answer.  No. There are many reasons for this answer:

The term “rent” is defined in ORS 90.100(37) as “…any payment to be made to the landlord under the rental agreement, periodic or otherwise, in exchange for the right of a tenant and any permitted petto occupy a dwelling unit to the exclusion of others and to use the premises.” Ergo,  rent already includes the tenant’s pet. You cannot charge twice for Fido.

Secondly, ORS 90.302 provides that landlords may charge certain “fees”; one of them is for violation of a written pet agreement or of a rule relating to pets in a facility, pursuant to ORS 90.530.

Here is a summary of ORS 90.530:

· A landlord may not charge a one-time, monthly or other periodic amount based on the tenant’s possession of a pet; 

· A landlord may provide written rules regarding control, sanitation, number, type and size of pets. 

· The landlord may require the tenant to sign a pet agreement and to provide proof of liability insurance. 

· The landlord may require the tenant to make the landlord a co-insured for the purpose of receiving notice in the case of cancellation of the insurance.

· A landlord may charge a tenant an amount for a violation of a written pet agreement or rules relating to pets not to exceed $50 for each violation

Landlords may also charge tenants a security deposit for their pets. See, ORS 90.300. However, alandlord may notcharge a tenant a pet security deposit for keeping a service animal or companion animal that a tenant with a disability requires as a reasonable accommodation under fair housing laws.

So, while landlords may not charge a separate amount for “pet rent”, the Oregon Legislature has built in several protections for landlords where their tenant(s) have pets.  

Termination for Continuing Violations. In manufactured housing communities, the type of conduct that would make a tenant subject to this 30-day termination notice is the failure to maintain the space which is required under the rules or rental agreement. MHCO Form 43 would be used which – at the title states – is “for continuing violations only.” ORS 90.630(3)(d) defines this as conduct that is “constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing.”

This form is to be completed according to its instructions must specify, in detail, if necessary (including pictures if appropriate):  (i) the reason for the violation: (ii) the source of the violation, e.g., rules, rental agreement, statute, etc.; and (iii) at least one possible remedy. If the violation is cured within the 30-day period, the problem is solved. If it is not cured, the landlord has the right to then file for eviction (being sure to append the 30-day notice to the complaint). Taking photos of the condition upon which the notice is based on the date of the notice and the 31st day thereafter is essential for use in court.

Termination for Distinct Acts or Omissions. However, when the violation is a single event, such as speeding in the community; loud music or other disturbances; fighting; threats of violence, etc., things become more complicated since the landlord does not want to give the tenant 30 days to stop engaging in the offensive activity.  For that reason, landlords must use MHCO Form 43A for violations that constitute a “distinct act or omission.”

The protocol in completing this form is much different than Form 43 and must be followed carefully; it can get confusing. Here it is:

1. The “Deadline” to correct the violation can be no sooner than the 4th day after the date of the notice if hand-delivered or mailed and attached, or the 7th day after the date of the notice if sent via regular mail. (Although not required by law, it is recommended that landlords obtain a certificate of mailing from the post office if regular mail is used.)

2. Similar to Form 43, in 43A the basis for the violation (e.g., rules, rental agreement, etc.) the violation, and the event(s) to cure must also be specified with particularity.

3. If correction does not occur by the Deadline, the tenancy automatically ends on the “Termination Date” which must be at least 30 full days after the date of the notice.  Thus, if the tenant is not out by the Termination Date, the eviction may be filed.  Filing for eviction before the Termination Date would, in my opinion, be premature, since the tenant still has the right to remain at the space for the balance of the month. For repeat violations, see (iv) below.

4. If substantially the same violation occurs within six months following the date of the notice (43A), the landlord may terminate with 20 days written notice to the tenant and there is no right to cure.

Conclusion.  The above discussion is a summary only. There are various nuances. Conduct by a pet or assistance animal is not included. Note there can be some overlap with conduct triggering the 24-hour notice statute under ORS 90.396 (which may be preferable if the conduct involves health and safety). Accordingly, if you have questions that are not answered by the above, check with you legal counsel before filing the notice and before filing an eviction based upon the notice.

[1] Note that rules and regulations are also considered a part of the “rental agreement.”

Answer. You are referring to ORS 90.532 (4) (Billing methods for utility or service charges; system maintenance; restriction on charging for water.) which provides:

(4) To assess a tenant for a utility or service charge for any billing period, the landlord shall give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord and the due date for making the payment. The due date may not be less than 14 days from the date of service of the notice.

However, this is the 2009 statute. You should be relying upon is subsection (6) of the 2015 version of ORS 90.532, which provides:

(6) To assess a tenant for a utility or service charge for any billing period using the billing method described in subsection (1)(b)(C)(ii) or (c) of this section, the landlord shall give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord and the due date for making the payment. The due date may not be before the date of service of the notice. The amount of the charge is determined as described in ORS 90.534 or 90.536. If the rental agreement allows delivery of notice of a utility or service charge by electronic means, for purposes of this subsection, “written notice” includes a communication that is transmitted in a manner that is electronic, as defined in ORS 84.004. If the landlord includes in the notice a statement of the rent due, the landlord shall separately and clearly state the amount of the rent and the amount of the utility or service charge.

To appreciate the differences, I’ve set out below a mark-up of the changes, showing how the 2015 statute differs from the 2009 law (grey text was stricken, and yellow text was added):

90.532 (4) (Billing methods for utility or service charges; system maintenance; restriction on charging for water.) provides:(6) To assess a tenant for a utility or service charge for any billing period using the billing method described in subsection (1)(b)(C)(ii) or (c) of this section, the landlord shall give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord and the due date for making the payment. The due date may not be less than 14 days from the date of service of the notice.before the date of service of the notice. The amount of the charge is determined as described in ORS 90.534 or 90.536. If the rental agreement allows delivery of notice of a utility or service charge by electronic means, for purposes of this subsection, “written notice” includes a communication that is transmitted in a manner that is electronic, as defined in ORS 84.004. If the landlord includes in the notice a statement of the rent due, the landlord shall separately and clearly state the amount of the rent and the amount of the utility or service charge.

So ORS 90.532 was amended in 2013. Per John VanLandingham[1], who participated in making the change, when the 14 day deadline for payment was deleted, it was recognized that the way for landlords to enforce nonpayment of a utility charge was through the 30-day, curable notice, under 90.630 (Termination by landlord).  MHCO member, Phil Taylor, led the push for this legislation. (See, HB 3482, chapter laws 443 2013). This is now clarified in the current ORS 90.532(7):

A utility or service charge is not rent or a fee. Nonpayment of a utility or service charge is not grounds for termination of a rental agreement for nonpayment of rent under ORS 90.394 (Termination of rental agreement for failure to pay rent), but is grounds for termination of a rental agreement for cause under ORS 90.630 (Termination by landlord). A landlord may not give a notice of termination of a rental agreement under ORS 90.630 (Termination by landlord) for nonpayment of a utility or service charge sooner than the eighth day, including the first day the utility or service charge is due, after the landlord gives the tenant the written notice stating the amount of the utility or service charge. (Emphasis added.)

Prior to these changes, the statutes were confusing as to when a utility charge was due, and when it was late, for purposes of issuing a termination notice. Now, the utility charge is due upon delivery of the bill.  If it is not paid by the 8th day after delivery, it is considered late, and a landlord can give a curable 30-day cause termination notice. The cause of the notice is non- payment of the utility charge, and the cure is payment.   

                     
Conclusion. The take-away here for readers is to always make sure you’re reviewing the latest statute. The best resources is the Oregon Legislature website: https://www.oregonlegislature. gov/bills_laws/Pages/ORS.aspx.  You will note that at the bottom of each statute is the legislat- ive history, i.e. the amendments that preceded it. This website also contains a link to the archives, i.e. the earlier versions of the statutes: https://www.oregonlegislature.gov /bills_ laws/ Pages/ORSarchive.aspx  

[1] John’s invaluable assistance is gratefully acknowledged in explaining the legislative history of these changes above.

Answer: First off, every "reasonable accommodation" case is different, so I strongly recommend that you consult an attorney on your particular case.

As a general matter, HUD has said that landlords must allow emotional support animals if (1) the tenant has a disability, and (2) the tenant documents that an assistance animal is necessary to help alleviate the disability.

In your particular case, it sounds like the tenant managed to convince her doctor's office to provide her with the required documentation of both her disability and the need for an assistance animal. As such, you are probably obligated under federal law to let her to keep the pit bull.

However, one reason for challenging a reasonable accommodation is on the disability diagnosis. In other words, did the tenant's doctor actually make a verifiable diagnosis, or did the tenant just get an online "prescription" without even meeting the tenant? If that is the case, you might consider consulting your attorney on challenging the request since HUD has stated that the tenant must submit reliable documentation of a disability and the need for an assistance animal.

I have also advised clients that it is sometimes possible to remove an assistance animal if it poses a threat to other residents. However, this can' be based on the particular breed of dog, but must instead be based on the attributes of the specific animal in question. For example, if the dog lunged at or attacked another resident, you could likely have it removed.

Along these lines, I recommend that you arrange a meeting with the tenant to "meet" the dog. The purpose (which you can explain to the tenant) is to ensure that her particular dog complies with federal law by not posing a threat to other residents. Assuming the dog does not display any vicious tendencies, it complies and can stay (although any future incidents could lead to a re-evaluation). You can also require her to keep the dog on a leash, clean up after it, and otherwise adhere to any reasonable pet rules you might have. You cannot, however, require any sort of pet deposit or other fee since the dog is considered an assistance animal, not a pet.

A final issue to consider is whether a pit bull in your RV park might cause your insurance rates to rise. If that is the case, you should consult your attorney on whether that rate increase might be considered an undue financial burden on the park. If so, you could possibly deny the pit bull on that basis.

The moral of this question is that each and every reasonable accommodation case is different. Talk to your attorney before denying a tenant's request so that you can avoid a HUD investigation.