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Answer: This is an issue that the Oregon Residential Landlord Tenant Act (“ORLTA” or the “Act”) is not fully equipped to address. Nowhere in the Act is there a clear answer. But connecting some dots, I think we can arrive at a logical answer. • Technically, the 18-year old is not a tenant under the manufactured housing park (“MHP”) side of the Act, since he does not “own” the home. At best, he is a “tenant” under the non-MHP side of the law – he could be considered a month-to-month tenant, and therefore subject to the 30-day right of termination by the landlord. Assuming this, what is the landlord to do? First, do the rules permit subleasing? If not, he could be compelled to leave. • Second, rent should not be accepted from him until this situation is clarified and a solution reached. • Third, if the landlord is willing to accept the 18-year old under these circumstances (i.e. assuming he goes into title), he could be offered a monthly tenancy, subject to his qualifying under the community rules, etc. which, of course, require the background check, etc. • Lastly, again assuming the landlord is willing to accept him, a guarantee by the parents might be in order. • Keep in mind that since he was not a signatory to the original rental agreement since he was a minor, the fact that he is the only person remaining at the home, technically makes him an authorized occupant that has not yet been approved by park management. This is your strongest card, and you should use it to fashion the solution that best fits your needs. All of these things require some legal guidance, but the answer to the above question is that the landlord, by acting carefully, should be able to protect his position and either require the 18-year old to vacate or qualify in all respects as a new resident (assuming he goes into ownership of the home). In all cases a background check is not only appropriate, but essential.

The case involved a mobile home park landlord who filed an eviction case because the tenant was allowing her adult son and his girlfriend to stay in the tenant's home without park approval. The park is a "55 or older" facility, and neither the son or girlfriend met the park's age requirements. More importantly, the son's presence in the park was accompanied by constant visitor traffic at all hours of the day.

The park issued a 30-day, for-cause notice to the tenant after confirming that the son and girlfriend were indeed staying there. At trial, the judge believed the evidence that the son was staying in the home, but took issue with the park's overnight guest policy. The judge found that the rental agreement policy allowing only 14 overnight visits per year was "unconscionable." The court stated that the limit was "unreasonable, obscure, and empowers Landlord excessively to Tenant's detriment." The judge went on to consider other factors in deciding the case, but an underlying theme was that tenants should be allowed more time for guest visits.

As a trial court decision, the case does not establish a legal precedent on overnight guest visits. However, while each case is different, landlords could limit their potential liability by expanding overnight visits above 14 days per year. Based on this particular judge's opinion, a 21-day per year limit might be a good safeguard. This adjustment could help negate the "unconscionable" argument by establishing a more relaxed guest policy.

If your park rules already allow more than 14 overnights per year for guests, it would be wise to rely on that policy to enforce guest visits. If you choose to amend your existing guest policy, mobile home park landlords can do so by issuing a rule change notice under ORS 90.610 (MHCO Form 60.) Non-park landlords can implement a new guest policy by having tenants sign off on a new guest policy rule. However, as usual, consult with an attorney before undertaking any rule changes with your tenants, and before filing an eviction action based on guest limitation violations.

MHCO FORM UPDATE: MHCO's rental agreement forms are in the process of being updated to allow 21 days per calendar year for guest visits (MHCO Forms 05A, 05B, 05C, and MHCO Form 80).

Answer:  This is an issue that the Oregon Residential Landlord Tenant Act (“ORLTA” or the “Act”) is not fully equipped to address. Nowhere in the Act is there a clear answer. But connecting some dots, I think we can arrive at a logical answer.  

· Technically, the 18-year old is not a tenant under the manufactured housing park (“MHP”) side of the Act, since he does not “own” the home. At best, he is a “tenant” under the non-MHP side of the law – he could be considered a month-to-month tenant, and therefore subject to the 30-day right of termination by the landlord.  Assuming this, what is the landlord to do?  First, do the rules permit subleasing?  If not, he could be compelled to leave. 

· Second, rent should not be accepted from him until this situation is clarified and a solution reached.

· Third, if the landlord is willing to accept the 18-year old under these circumstances (i.e. assuming he goes into title), he could be offered a monthly tenancy, subject to his qualifying under the community rules, etc. which, of course, require the background check, etc.  

· Lastly, again assuming the landlord is willing to accept him, a guarantee by the parents might be in order.  

· Keep in mind that since he was not a signatory to the original rental agreement since he was a minor, the fact that he is the only person remaining at the home, technically makes him an authorized occupant that has not yet been approved by park management. This is your strongest card, and you should use it to fashion the solution that best fits your needs.

All of these things require some legal guidance, but the answer to the above question is that the landlord, by acting carefully, should be able to protect his position and either require the 18-year old to vacate or qualify in all respects as a new resident (assuming he goes into ownership of the home).  In all cases a background check is not only appropriate, but essential.

The Manufactured Housing Landlord-Tenant Coalition met again this month to discuss a number of issues as we head into the 2015 Oregon Legislative Session that is just over a month away.

Lengthy Discussion on Competing Sales Conflict"

A: The writ of execution is necessary only in those cases in which the tenant refuses to vacate after the court has awarded possession of the space back to the landlord (also known as a "judgment of restitution"). If the tenant has voluntarily left following issuance of the judgment of restitution, the landlord may declare an abandonment after 7 days following the judgment. If a writ of execution has been issued, landlords do not have the right to obtain recovery of storage charges upon timely removal of the home by the tenant. Accordingly, the writ should only be served by the sheriff in those cases in which the tenant has refused to vacate following issuance of a judgment of restitution.

Spot the Discrimination Mistake

Same scenario as last week’s article, but now assume that the landlord allows the tenant to keep her assistance animal stray cat, provided that she pays the pet deposit that all tenants who want to keep a pet in their apartment must pay.

Pitfall: If allowing a tenant’s assistance animal is required as a reasonable accommodation, you can’t ask the tenant to provide a pet deposit, extra insurance, or indemnity for keeping the animal.

Example: A Minnesota apartment community paid $35,000 to settle claims of placing undue conditions on a tenant’s request for a service animal by requiring her to:

• Buy an insurance policy covering the dog and listing the landlord as a co-insured;
• Make the dog wear a special emotional support animal vest at all times outside the apartment; and
• Sign an “indemnification and hold harmless waiver” covering the landlord against any harm the dog caused [United States v. Brooklyn Park 73rd Leased Housing Assoc., LLC (D. Minn., Jan. 22, 2016)].

The required provisions of a rental/lease agreement are covered in ORS 90.510(5). These requirements include:

1. Location and approximate size of the space.
2. Federal Fair Housing age classification.
3. Monthly rent.
4. All personal property, services and facilities to be provided by the landlord
5. All deposits (refundable and non-refundable), fees and installation charges including government fees.
6. Improvements the tenant may or must make to the space or unit including plant material and landscaping.
7. Provisions for dealing with improvements to the space.
8. Any conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. This should be identical to the community's screening criteria.
9. Term of tenancy.
10. Processes for change to rules and regulations.
11. The process by which notices shall be given by either landlord or tenant

All of these provisions are included in the MHCO Rental/Lease Agreement

(MHCO Form 5A and 5B) 

Answer: Generally the short answer is yes, the Federal Fair Housing laws apply to RV rentals. It also does not matter whether the RV rental is a vacation occupancy rental or a long-term rental. The discrimination laws apply either way.

Specifically, the Federal Fair Housing Act ("FHA") prohibits discrimination in the rental of a "dwelling" based upon race, color, national origin, religion, sex, familial status, and disability. "Dwelling" includes any vacant land which is offered for lease for locating any "structure" on it. A structure would include an RV.

(Note: State fair housing statutes also protect against discrimination based upon race, color, sex, marital status, source of income (excluding Section 8), familial status, religion, national origin, and disability. Some local ordinances [e.g., Portland and Eugene] protect against discrimination based upon age and sexual orientation.)

As such, and as an initial matter, landlords should avoid asking any questions of RV rental applicants related to these prohibited areas. The sole exception may be the age of a potential applicant if the RV section qualifies as a "55 or older" facility under the Federal Fair Housing Act. The qualifications for "55 or older" housing are very strict and you should always check with your attorney before asking age-related questions on your rental application.

During an RV tenancy, landlords must also be careful to avoid anything that might be interpreted as discriminatory. For example, rent increases should typically be made across the board to avoid discrimination allegations. Another thing to avoid is the uneven enforcement of your rules and regulations. Every RV tenant should be held equally accountable to follow the rules, and appropriate notices should be issued to every tenant who violates the rules to leave no room for any discrimination claims.

Reasonable Accommodation

The Fair Housing Act also prohibits acts that "discriminate against any person... in the provision of services or facilities in connection with [a] dwelling, because of a handicap of that person or any person associated with that person." The FHA defines discrimination as "a refusal to make reasonable accommodation in its rules, policies, practices, or services, when such accommodations may be necessary to afford a [disabled] person equal opportunity to use and enjoy a dwelling." The FHA obligates landlords to make "reasonable accommodations" in the "rules, policies, practices, or services," necessary to afford handicapped persons "equal opportunity to use and enjoy a dwelling."

This means that if an RV tenant requests an "accommodation" for his or her handicap, the landlord is obligated to provide it unless it causes a financial or administrative burden. A typical example might be if a handicapped RV tenant requested an RV rental space closest to the park's RV restrooms/showers. In most cases, the landlord would need to accommodate this request if it were possible to accommodate the request without causing a "burden."

However, landlords need not provide housing to individuals whose "tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." A good example of this would be if an RV tenant requested to keep a pit bull as a "companion animal." In most instances, the landlord would be justified in rejecting this request since pit bulls are generally considered a dangerous breed.

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

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

Situation: A tenant claims she needs an emotional support animal for a mental disability and asks the homeowners association board for an exemption from the community’s no-pet policy. Since the tenant’s disability isn’t readily apparent, the board asks her for verification. She provides a medical note listing her diagnosis. Although the disease is an officially recognized illness, the board wants more information about the disability and how it affects her “major life activities.” When she refuses to provide the information, it moves to evict her.  

You Make the Call: Did the board’s request for more information about the disability go too far?

Answer: No

Ruling: The Kentucky court dismisses the tenant’s failure-to-accommodate lawsuit without a trial. The tenant’s disability wasn’t obvious, and the board had a legitimate right to request additional information about its impact on her ability to engage in “major life activities” in making an accommodations decision [Commonwealth Comm'n on Human Rights v. Fincastle Heights Mut. Ownership Corp., 633 S.W.3d 808, 2021 Ky. App. LEXIS 104, 2021 WL 4484981].

Takeaway: Although you’re not allowed to ask privacy-invasive questions about a person’s disabilities, HUD guidelines give landlords leeway to gather limited information in response to a reasonable accommodations request to the extent the information is necessary to determine three things:

1. The person meets the FHA definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities;
2. Exactly what accommodation is being requested; and
3. Whether there’s a “nexus” or relationship between the disability and the need for the requested accommodation.  

The Landlord Newsletter is general in nature and is not intended as legal advice for any specific issue that might arise, since every situation is different. Always consult a knowledgeable landlord attorney with your specific legal issues.

On Sunday, March 22, 2020, Governor Kate Brown issued executive order 20-11, which prohibits all law enforcement officers in Oregon from enforcing nonpayment evictions. Officers are prohibited from “serving, delivering or acting on any notice, order or writ of termination of tenancy” based on the nonpayment of rent, fees, utilities, or late charges. The order also applies to no-cause evictions. The order is effective immediately, and will remain in effect for 90 days unless extended or terminated earlier by the governor.

The order does not prohibit landlords from issuing such notices or filing eviction cases in court. However, as a practical matter, nonpayment cases could not be enforced with an actual eviction by the sheriff’s office for at least the next 90 days or longer. In addition, Oregon courts are not holding any eviction hearings whatsoever, which will likely continue through at least the end of April. Given these circumstances, the recommended practice is to hold off on issuing nonpayment eviction notices for the next several months, but consult with your attorney in making any such decision.

It is important to note that the governor’s order does not prohibit the enforcement of “for cause” eviction notices (i.e., for bad tenant behavior, condition of the rental premises, unauthorized pets or occupants, etc.). Again, though, with the courts effectively closed, no eviction cases will be processed for the foreseeable future. (Although it should be possible for attorneys to continue filing eviction cases online to have them ready when the courts start holding hearings again.)

The order does NOT relieve tenants of their duty to pay rent – it merely puts a hold on nonpayment evictions. In Multnomah County, landlords are required to offer tenants a deferred payment plan. To be eligible, an affected tenant must be able to demonstrate with documentation or other objectively verifiable means a “substantial loss of income” resulting from the COVID-19 pandemic and/or government restrictions. The tenant must notify the landlord with this information on or before the day that rent is due to be eligible for rent deferment. The tenant must pay accrued rent to the landlord within six months after expiration of this emergency, and the landlord cannot assess late fees.

The Multnomah County approach also makes sense for landlords throughout the state, since a wave of evictions in 3 months would not serve anyone’s interests. Various rent deferment forms are already available from several landlord trade associations. A well-drafted deferment form should protect the tenant’s continued housing, while also protecting the landlord’s right to recover rent and other charges owed. As usual, consult with an attorney on the use of any such form to make sure that it complies with Oregon law and adequately protects your interests as a landlord.