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Answer. I remember writing this provision several years ago, and it has survived the test of time - in other words - to my knowledge it has never been set aside or otherwise ruled illegal or unconscionable by any Oregon courts.

The genesis of this provision relates to the change in Oregon law several years ago that prohibited landlords from imposing a "removal on resale" condition when consenting to the sale of older homes in their communities. Essentially, the condition said that if when the resident sought to sell the home to a new buyer, the landlord could consent, but could add the condition that the home had to be removed on resale. In theory, this was designed to permit landlords to incrementally upgrade the age of the homes in their communities.[1]

The law, prohibiting this practice, is found in ORS 90.680(12) which provides that:

A landlord may not, because of the age, size, style or original construction material of the dwelling or home or because the dwelling or home was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code as defined in ORS 455.010:

(a) Reject an application for tenancy from a prospective purchaser of an existing dwelling or home on a rented space within a facility; or

(b) Require a prospective purchaser of an existing dwelling or home on a rented space within a facility to remove the dwelling or home from the rented space.

The quid pro quo for landlords permitting this legislation was twofold:

• A law that expressly allowed landlords to impose maintenance requirements to the exterior of homes (ORS 90.632);
• A law providing that the failure to enforce the maintenance provision did not constitute a waiver of the right to do so in the future. See, ORS 90.414(1)(c).[2]

While these laws worked well for the exterior of older homes, they did not address the interior, where typically, landlords could impose no updating requirements. However, ORS 90.740 (Tenant Obligations), provided for several things I believed we could incorporate into the MHCO Rental and Lease Agreements. Among other things, the statute provides that residents must:

• Keep the dwelling or home, and the rented space, safe from the hazards of fire;
• Install and maintain in the dwelling or home a smoke alarm approved under applicable law;
• Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;
• Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

And since ORS 90.630(1)(a) provides that '_the landlord may terminate a rental agreement *** if the tenant: (a) Violates a law or ordinance related to the tenant's conduct as a tenant... " I felt it was not unreasonable to require that if the resident made any modifications to the home or its heating, cooling or electrical systems, they must comply with all local, state and federal codes and regulations in existence at the time of the modification."

I then consulted with one or more professional inspectors who specialize in manufactured homes, to ask if they could inspect the interior of the home and vet these issues. I was assured they could.

Lest your resident argue that neither they, nor their buyer, wants to pay for this, I would respond that this requirement is not just for their safety, but the rest of the Park's residents. If the home should catch fire, the conflagration could endanger others as well as them.

Lastly, it is my position, which I have vetted with others, that notwithstanding the ORS 90.680(12) proscription against imposing a "removal on resale" condition, it does not apply if the resident has made changes '_to the original construction material of the dwelling or home *** [that] was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code... ."

In other words, it is my belief[3] that if a resident has made changes to the heating, cooling, or electrical systems inside their home, he or she is no longer protected against the prohibition against "removal on resale" condition. So your recalcitrant resident has two choices: (a) Either consent to the interior inspection by a professional, to make sure it is "safe from the hazards of fire" or (b) You can impose a "removal on resale" requirement. And by the way, since you can impose, as a condition of approval, that the new resident has fire and liability insurance, you will want to consider imposing both conditions, and becoming a co-insured on the liability policy. Good Luck!

[1] Tenant lawyers argued that the provision was illegal, since it violated the law prohibiting termination of MHP tenancies without cause. It was the result of this standoff that resulted in the compromise legislation.

[2] When these laws were being negotiated, non-waiver was important to several landlords who had fixed income elderly residents whose homes were in need of exterior maintenance or painting. While they were willing to forego enforcing the maintenance requirements so long as the aged resident was living there, they did not want to waive the right to do so later, if the home was sold, or transferred by inheritance.

[3] You should verify this with your own legal counsel. MHCO's Q&A articles should not be relied upon as "legal advice".

This article 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.

The Chief Justice of the Oregon Supreme Court issued a statewide Order yesterday significantly restricting court operations in all counties beginning no later than March 19, 2020. All eviction case 1st appearance hearings and all eviction trials will be automatically postponed and rescheduled by the court through at least March 27, 2020, although subject to extension even beyond that date depending on conditions at the time. For postponed trials, landlords may file a motion with the court requesting that the tenant pay rent into court pending trial, although the court will have discretion on whether to grant any such motion.

The Chief Justice’s Order does not prohibit landlords from issuing eviction notices or filing eviction cases during this period (BUT SEE Multnomah County restrictions below). However, any new eviction cases filed during this time will not be set for a 1st appearance hearing until after March 27, 2020, and likely much longer after that date.

The Order allows each county court to decide for itself which in-person services it must continue to provide to the public. This means that each court has some discretion on whether to allow in-person filings, or to continue issuing Notices of Restitution and Writs of Execution to complete the eviction process on existing eviction cases. Landlords should check with their local circuit court to see if these eviction services will be offered during the shutdown (and check with the county sheriff’s office as well).

Multnomah County today issued a temporary moratorium on all residential evictions based on the nonpayment of rent due to wage loss resulting from COVID-19. 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 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 is not relieved from paying rent, but must pay accrued rent to the landlord within six months after expiration of this emergency (and landlords cannot assess late fees).

The Multnomah County moratorium does NOT prohibit landlords from issuing or filing eviction cases on for-cause eviction notices or other lawful (non-rent related) notices during this period. However, all court hearings on eviction proceedings will be suspended until April 30th or later, and the moratorium prohibits the Multnomah County Sheriff’s Office from executing on a currently-pending eviction judgments for nonpayment of rent if it would cause a person to be without housing. The Multnomah County Attorney will be drafting an ordinance that will impose retroactive fines and penalties for violation of the moratorium measures. SINCE THIS IS A FLUID SITUATION, LANDLORDS SHOULD CHECK WITH YOUR LOCAL CIRCUIT COURT AND/OR ATTORNEY BEFORE PROCEEDING ON ANY EVICTION ACTION.

HB 2634 moves the regulation of Recreational Vehicles out of the Manufactured Dwelling/Floating Homes portion of the ORLTA (ORS 90.505 – 90.850) and into the residential dwelling portion (ORS 90.100 – 90.465). ORS 90.505 – 90.850 now only applies to situations where the tenant owns a manufactured home or floating home, rents the space on which the manufactured or floating home is located, and that rented space is located inside a facility (manufactured housing park or marina).

All Recreational Vehicles are now subject to ORS 90.100 – 90.465. The bill begins by defining  “Recreational Vehicle Park” amending ORS 90.100 (38) (Definitions) to reference the existing definition of a recreational vehicle park in ORS 197.492.

ORS 197.492 (3)“Recreational vehicle park”:

(a)  Means a place where two or more recreational vehicles are located within 500 feet of one another on a lot, tract or parcel of land under common ownership and having as its primary purpose:

(A)   The renting of space and related facilities for a charge or fee; or

(B)   The provision of space for free in connection with securing the patronage of a person.

(b) Does not mean:

(A) An area designated only for picnicking or overnight camping; or

(B) A manufactured dwelling park or mobile home park.

The ORLTA only applies to Recreational Vehicles and Recreational Vehicle Parks that are used for full time dwellings, and not those RVs used for camping or vacation purposes. HB 2634 further amends the definition of “Vacation Occupancy” (now ORS 90.100(52)) to exempt certain types of vacation-only rentals from the ORLTA. With regard to RV rentals, “vacation occupancy” is defined as follows:

ORS 90.100(52) “Vacation occupancy” means occupancy in a dwelling unit, not including transient occupancy in a hotel or motel, that: […]

(b) Is for the rental of a space in a recreational vehicle park on which a recreational vehicle owned by the occupant will be located and for which:

(A) The occupant rents the unit for vacation purposes only, not as a principal residence;

(B) The occupant has a principal residence other than at the space;

(C) The period of authorized occupancy does not exceed 90 days;

(D) The recreational vehicle is required to be removed from the park at the end of the occupancy period before a new occupancy may begin; and

(E) A written agreement is signed by the occupant that substantially states: “Your occupancy of this recreational vehicle park is a vacation occupancy and is NOT subject to the Oregon Residential Landlord and Tenant Act (ORS chapter 90).”

The Bill also makes slight changes to ORS 90.425 (Disposition of Personal Property Abandoned by Tenant). Under the ORLTA, when attempting to dispose of an abandoned recreational vehicle, the landlord must provide notice to the tenant. In return, the former-tenant now has 5 days, with personal service, or 8 days with service by first class mail, to contact the landlord and make arrangements for the disposal of the abandoned RV. The prior law required a 45-day notice period.

Additionally, the Bill now allows a landlord to destroy or dispose of a presumably abandoned recreational vehicle if the current market value is determined to be less than $4,000. A landlord may also choose to use the procedure for removing an abandoned motor vehicle under ORS 98.830 to remove an abandoned RV.

The rules outlined above apply only to residential tenancies or vacation occupancy entered into on or after January 1, 2024, the effective date of this law.

Still, not everyone has gotten the message. I've personally seen many owners - and real estate brokers! - list parks for sale without giving proper notice to residents, and I know of at least one lawsuit filed by residents against an owner for allegedly failing to comply.

Unfortunately, in addition to exposing owners to more potential liability, this law complicates the park sale process and can easily add an additional month before an owner can legally accept an offer.

This is important stuff! Get online and look up ORS 90.842, 90.844, 90.846, 90.848, and 90.850. Yes, it's a mind-numbingly boring read, but familiarity with it may save you from being sued.

Below, I've written a summary of the basics you'll need to know. For brevity, I've left out some details and exemptions, and added my own abbreviations.

THE GUTS OF THE LAW:

An owner ("O") must give written notice of intent to sell the park to Tenants ("T") before marketing the park, or when _ receives an unsolicited offer to purchase that they intend to consider - whichever occurs first.

• The notice must be given to all T's of the park, or to a tenant's committee ("TC") if one exists.
• The notice must include the following:
  1. The _ is considering selling the park.
  2. The T's have an opportunity (through a TC) to compete to purchase the park.
  3. Within 10 days of delivery of notice (An attorney would likely recommend first class mail with a certificate of mailing; and adding 3 days for mail delivery), T's must form or identify a TC, and notify _ in writing of T's interest in competing to purchase the park, and give the name and contact info of the representative of the TC.
  4. The TC representative may request financial information from the owner within the 10-day period (which the _ must provide within 7 days of delivery of the request).
  5. Information about purchasing a manufactured dwelling park is available from the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department. (O must also send a copy of the notice to this same office!)

THEN: Within 15 days after delivery of the O's financial information (or within 15 days after the 10-day period if TC does not request financials), if the T's want to continue competing to purchase the park, the TC must form a corporate entity and submit a written offer to purchase the park to the O. The _ may accept, reject, or submit a counteroffer, as they would with any typical market transaction.

THAT'S IT! Simple, right? NOPE. I just boiled down almost 2,000 words of state statute into a tenth of that; and I left out a bunch of important details. But as a park owner and licensed real estate broker, here's my basic takeaway:

• If you want to sell your park or have received an offer to purchase, give your tenants the proper notice - and don't formally accept another offer until you've worked through the process! There are several ways to accomplish that. You can still seek or negotiate with other potential purchasers during this process, after you've sent the initial notice.
• I recommend delivering notice to all tenants. I believe that even if you have a solid tenant's committee in place at your park, there's still exposure to liability if not every single tenant knows about the opportunity to compete to purchase.
• If you are purchasing an Oregon park: make sure that before closing, the seller supplies an affidavit of compliance to you, your attorney, or the title insurance company, per ORS 90.850.
• There are some important exemptions from this requirement to give notice of sale - see 90.848. The most applicable is section (i): "Any sale or transfer in which the park satisfies the purchaser's requirement to make a like-kind exchange under section 1031 of the Internal Revenue Code." I've asked John VanLandingham, the tenant's attorney who drafted these laws, "What if the purchaser is a group of partners wherein only one partner is completing a 1031 exchange?" He assured me he believes the exemption would still apply.
• I recommend to all my selling clients: Forget the exemptions, err on the side of caution, and give the notice to all tenants, even if you believe your sale or transfer is exempted from the burden. The statutes are written with too much unintended ambiguity, and people are too prone to filing lawsuits if they feel slighted.

MHCO will soon have a "Notice of Sale of Manufactured Dwelling Park" form available to use in compliance with these laws - but you still must carefully follow the statutes, mind those deadlines, and be aware of the overall process! I am not an attorney, and recommend your attorney review all tenant notices.

Good Luck!

Answer:  This is really a 24-hour notice issue.  The applicable statute, ORS 90.396, gives you the right to issue a non-curable 24-hour notice.  The theft constitutes (in my opinion) "outrageous conduct,” for which the notice may issue.[1]  However, it is true that the statute states that a landlord should not issue a 24-hour notice if a 30-day curable notice would suffice.  I suggest that you talk to the resident and tell him he's got two choices: (a) Either return the stolen property, pay the cost to re-install andtake a curable 30-day notice; or (b) Take a 24-hour non-curable notice under ORS 90.630 (for any number of reasons, such as violation of law – i.e. theft – violation of rules or rental agreement re damage to park property).  If there is a repeat violation within six months following the date of issuance of the 30-day notice, then you can give him a 20-day non-curable notice to terminate the tenancy.

Question: If I give 24-hour notice for a dog and they correct the situation by removing the dog but the same dog or substantially the same offense occurs in 3 months what does the landlord do?

Answer:  You don't say why you want to issue a 24-hour notice for the dog.  It must be serious, such as a real threat or actual damage to a person in the park (other than the pet owner).  The applicable statute is ORS 90.396(2) which provides:  

"If the cause for a termination notice *** is based upon the acts of the tenant's pet, the tenant may cure the cause and avoid termination of the tenancy by removing the pet from the premises prior to the end of the notice period.  The notice must describe the right of the tenant to cure the cause. If the tenant returns the pet to the premises at any time after having cured the violation, the landlord, after at least 24 hours' written notice specifying the subsequent presence of the offending pet, may terminate the rental agreement and take possession (of the space).

In those cases in which the offence is not sufficient to issue a 24-hour notice you have two other options: (a) Fine the resident under the Pet Agreement, if one has been entered into; or (b) issuance of the 30-day curable 30-day notice if your rules have been violated.  

[1]Note, the "substantial damage” portion of this statute says "…on more than one occasion.”

Answer:  Oregon House Bill 4213 prohibits residential evictions (including eviction notices) based on nonpayment of rent or other charges owed to the landlord, and further prohibits no-cause evictions against residential tenants through September 30, 2020.  The federal government through the CDC issued an order placing a nationwide ban on nonpayment residential evictions through December 31, 2020.  (Under both, rent is deferred, not waived, although HB 4213 waives late fees and gives tenants until March 31, 2021 to repay past-due amounts.)

Oregon HB 4213 protects tenants from nonpayment and no-cause evictions until September 30, 2020.  After that, the CDC order takes over to protect tenants ifthey submit a sworn declaration to the landlord stating that the tenant:  (1) has used best efforts to obtain all available government housing assistance, (2) does not expect to earn more than $99,000 in 2020, or no more than $198,000 if filing taxes jointly, (3) is unable to pay full rent due to lost income, lost employment, or extraordinary medical expenses, (4) is using best efforts to make timely partial rent payments as circumstances permit, (5) if evicted is likely to become homeless or will need to move to “a new residence shared by other people who live in close quarters,” (6) understands that rent, late fees and other lease charges must eventually be paid in full, and (7) understands that after December 31, 2020, the landlord may evict the tenant if past-due payments are not made in full.

The bottom line is that RV parks should NOT be issuing anynonpayment notices (i.e., 72-hour rent nonpayment notices or otherwise) or no-cause notices to tenants until at least October, which is when the statewide eviction moratorium under HB 4213 is scheduled to end.  And while I have my doubts about the legality and enforceability of the CDC order, I also recommend that landlords notissue any nonpayment notices until the end of the year ifa tenant submits the required declaration.  There are potential criminal penalties for landlords who violate the CDC order, which together with the cost of litigation make it entirely too risky to ignore.

The other issue is whether HB 4213 and the CDC order apply to short-term, “vacation occupants” in an RV park?  The answer is “no.”  In Oregon, “vacation occupants” are not covered by the protections given to “tenants” by HB 4213 and ORS Chapter 90.  The CDC order also exempts properties “rented to a temporary guest or seasonal tenant as defined under the laws of the State, territorial, tribal, or local jurisdiction.”

A “vacation occupant” under Oregon law meansoccupancy in a dwelling unit (which includes an RV rental space), that has all of the following characteristics:  (a) The occupant rents the unit for vacation purposes only, not as a principal residence; (b) the occupant has a principal residence other than at the unit; and (c) the period of authorized occupancy does not exceed 45 days.  So long as your temporary RV park guests fall into this category, they cannot exercise any tenancy-based rights under either state or federal law to avoid being removed from the park for nonpayment.  However, be careful to ensure that your temporary guests actually fit this category, preferably with a written registration agreement specifying that they are, in fact, vacation occupants.

As usual, you should consult with a knowledgeable attorney before you resume issuing nonpayment or no-cause eviction notices.  Also be sure to check whether your county or local municipality may have enacted a broader moratorium that could cover short-term RV guests.

Answer:  ORS 90.725 deals with the abandonment of owner-owned manufactured homes located in manufactured housing communities. MHCO Form No. 30 contains an extensive Intake Worksheet for park owners and managers to initiate the abandonment process. It starts with the issuance of a 45-day letter.[1]Form No. 30 includes the 45-day letter. 

The 45-day letter permits the landlord to reasonably decide whether the associated personal property is, or is not, worth $1,000 or less. If the value is $1,000 or less, the landlord may dispose of it or give it without consideration to a nonprofit organization, or to a person unrelated to the landlord. The landlord may not retain the property for personal use or benefit.

If the landlord is not declaring the abandonment of a home located in a manufactured housing park, the personal property abandonment statute, ORS 90.425, would apply. It deals exclusively with a landlord’s disposition of personal property, which is defined as:

“…goods, vehicles and recreational vehicles and includes manufactured dwellings and floating homes not located in a facility. “Personal property” does not include manufactured dwellings and floating homes located in a facility and therefore subject to being stored, sold or disposed of as provided under ORS 90.675.” (Emphasis added.)

Although the statutory procedure is much the same as for abandoned manufactured homes, the landlord would issue a “15-day letter” rather than one for 45-days. 

• It would notify the former tenant that the property is considered abandoned;
• It would be sent to the tenant’s space address and any other address you reasonably believe will reach them or a relative, friend, or other person known to you;
• If you can determine that there is a lien on the vehicle, you should include the lienholder in the notice and send the letter by regular and certified mail;
• The 15-day letter would tell the former tenant/lienholder to contact the landlord or manager at an address and phone number, to arrange for removal of the vehicle within 15 days – be sure to add 3 additional days for mailing, where appropriate;
• You would tell them that before removal you may require payment of all removal and storage charges;
• If you reasonably believe the value is $1,000 or less you would tell them so, together with your intent to dispose of the vehicle as described above;

• If you believe the value is over $1,000 you would include that in your letter; you may sell by public or private sale, and you may participate as a bidder

During this period, you have a duty to keep the vehicle in a place of safekeeping. 

Although the statute does not address this alternative option, here is one that may be useful, although you should confirm with your own attorney first:  Have the vehicle towed by a towing and storage facility, and so notify the former tenant using the same 15-day letter format described above. 

You should first make sure with the towing company that if there will be a charge to you, it is established up front, and the events to occur if the owner does not pick the vehicle up from them. I do not recommend this option if the car has any significant value, or there is a lienholder on title.

It was a brutal legislative session that will always be remembered for the passage statewide rent control (SB 608). Unconscionable that the majority party leaves opponents 90 - seconds to testify in opposing significant legislation after unlimited time for panel after panel of 'experts' in support. When in power they all do it - Democrat and Republican - not a pretty thing to watch.

MHCO thanks everyone who made the effort to show up at the Capitol, e-mail legislators, call legislators, attended public hearings or attended MHCO 'lobby day' at the Capitol. You help make our voices heard - we are very appreciative of your efforts and they did make a difference. Thank you!

Before we get to the final Legislature Update of the 2019 Legislative Session here are two quotes to remember as we head into the post 2019 Oregon Legislative wilderness:

Senator Shemia Fagan (D-Portland): "For many renters, for many families SB 608 (rent control) does not do enough or does not come soon enough and those voices are important too and I want to lift those up. 'Street Roots' (a weekly alternative newspaper establish in 1998 that is sold by and for the homeless in Portland)in it's editorial on Senate Bill 608 said, "SB 608 is truly the least we can do. So, legislators should pass it so we have a better benchmark and then we expect them to keep fighting." ... and I agree! (Senate floor speech, February 12, 2019).

Representative Julie Fahey (D-West Eugene & Junction City): "This year, Oregon passed SB 608(rent control), an anti-price-gouging measure that will cap rent increases at about 10%. SB 608 will absolutely help mobile home park residents in Oregon, but I worry that 10% is still too highfor seniors on fixed incomes and low-income Oregonians."(April 29, 2019 District Newsletter).

Final 2019 Oregon Legislative Update (7-1-19)

SB 586C Landlord-Tenant Coalition Bill

Covers 5 issues:

1. Floating home tenancies in marinas: Adds floating home tenancies in marinas to the programs provided by the Manufactured Communities Resource Center of the Housing & Community Services Department - which will necessitate changing its name to include a reference to marinas - and requires that marina landlords, like MH park landlords, register with MCRC and get continuing education credits and pay the annual registration fee. It requires that marina tenants, like MH park tenants, pay the $10 annual special assessment (with their property taxes) that supports MCRC. And it makes other, related changes reflecting the special circumstances of marina living.

2. Sub-metering of water: Clarifies and simplifies the process for landlords to recover for the cost of water/sewer/storm water to encourage more landlords to switch to recovery for that cost other than through the rent. And to promote transparency and understanding by tenants, requires a landlord who wants to change the billing method to first meet with tenants and, for switching to sub-meters, to do a three-month trial billing period.

3. Dispute resolution and enforcement: Current law already provides for voluntary mediation of MH park landlord/tenant disputes through MCRC. The bill will allow the parties to invoke mandatory mediation. It provides that a landlord or tenant may require the other party to participate in at least one promptly-scheduled mediation session regarding most disputes -

with some exceptions - involving landlord/tenant law before the filing of an eviction or other lawsuit. Mediations will generally be performed by the existing network of Community Dispute Resolution Centers. Enforcement: The bill also authorizes a four-year pilot program to provide legal representation to tenants - advice, negotiation, litigation - through an OHCSD grant capped at $100,000 per year. An advisory committee will monitor both elements and report to the 2021 and 2023 legislatures. Both the grant and the advisory committee have four year sunsets, 1/1/2024..

4. Termination of tenancies; noncompliance fees: Improves the process for landlords to require cure of separate and distinct violations of a rental agreement, as consistent with law applicable in apartment landlord/tenant law since 2005, and simplifies and clarifies the termination statute language. Allows landlords to better utilize an existing statute regarding noncompliance fees.

5. Maintenance of trees on MH park spaces: Current law already allows landlords to maintain trees on a tenant's space to prevent a tree from becoming hazardous or from causingdamage or injury, after notice to the tenant. The bill requires landlords, in that notice, to specify which, if any, tree that the landlord proposes to remove, in order to minimize mistaken removals.

HB 2164 A

Extends several tax expenditures for six years: manufactured dwelling park capital gain subtraction, manufactured dwelling park closure credit.

HB 2333 C

Allows option to obtain title, but not registration, from Department of Transportation for recreational vehicle qualifying as park model recreational vehicle and meeting other criteria.

Provides that recreational vehicle having title issued by Department of Transportation does not qualify as structure. Requires owner to surrender Department of Transportation title for recreational vehicle if converting recreational vehicle to use as structure. Makes recreational vehicle converted to use as structure subject to state building code. Requires seller of new recreational vehicle to provide purchaser with written information listing specified living area systems. Requires that information state for each listed system whether items or components comprising system are covered by warranty and, if so, extent and length of warranty. Removes recreational vehicle construction from regulation by Department of Consumer and Business Services. Changes definition of "recreational vehicle."

This legislation will clarify the appropriate titling of park models that are quickly becoming an affordable means for providing housing for people throughout the State of Oregon. There is currently no clear path for the titling of these homes from a governing agency. Without the clear ownership documentation, lenders are reluctant to loan on the units so there is no current financing options for prospective owners/residents.

HB 2896 B

Directs Oregon Housing and Community Services (OHCS) to establish a loan program for nonprofit corporations to support the preservation and affordability of manufactured dwelling parks. Specifies loan eligibility and preservation requirements for loan recipients. Requires OHCS to report to the Legislative Assembly each odd-numbered year. Appropriates $3 million from the General Fund for administration and funding of the program. Takes effect on 91st day following adjournment sine die.

History

The Civil Rights Act of 1968 enacted The Fair Housing Act ("FHA") to prohibit housing discrimination based on race, color, religion, sex or national origin. The FHA was amended in 1988 to expand its coverage to prohibit discrimination based upon disability or family status, meaning the presence of a child under the age of 18 and pregnant women. Because the creation of families as a protected class clashed with the operation of retirement or adult communities, the 1988 amendments included exemptions for housing developments that qualified as housing for persons over the age of 55. Because there was an inherent conflict between protected family status and the exemption for older persons, Congress responded with The Housing for Older Persons Act of 1995 ("HOPA")* which fine tuned the exemptions and is now the definitive authority for owners of such housing. (You should also be aware that municipalities can have ordinances prohibiting discrimination for categories broader than the Civil Rights Act. Examples of common ordinances gaining popularity are discrimination in housing on the basis of HIV/AIDS status or sexual orientation. Such ordinances are not addressed in this article.)

Occupancy Requirement to Qualify for Exemption

HOPA maintained the requirement that at least 80% of exempt housing must have one occupant who is 55 years of age or older. It also still required that the exempt housing publish and follow policies and procedures that demonstrate an intent to be housing for persons 55 and older. Significant in terms of capital costs, HOPA eliminated the requirement that 55 and older housing had to maintain "significant facilities and services" designed for the elderly. (Communities that are occupied solely by persons who are 62 or older are also exempt from the prohibition against family discrimination under Section 100.303.)

The "Wiggle Room" Factor

At first blush, the 80% requirement appears to give a property owner some "wiggle room" to comply with the exemption. HOPA specifically allows a 55 and older community to be "exempt" from the preference for families if, after September 13, 1988, 80% of the units are occupied by at least one person age 55 years or older. Units occupied by employees of the housing facility or community who are under age 55 do not count against the 80% as long as the employee's perform substantial duties related to the management or maintenance of the community. Likewise, units occupied by persons who are disabled and require a reasonable accommodation, also do not count against the 80%.

However, the 80% requirement can also be a property owners' pitfall if it is achieved improperly. The 80% requirement does not mean that the property owner can manipulate the remaining 20% of units occupied by persons under the age of 55. The 80% occupancy requirement is coupled with an additional requirement that the facility or community adheres to policies and procedures that demonstrate the intent to be a 55 or older facility. A manager cannot merely choose to rent to "good" non-seniors or families just because the facility is over 80% senior.

One provision of HOPA which, on the surface, appears troublesome is Section 100.305(h) which provides that each housing facility may determine the age restriction for units that are not occupied by at least one person 55 years of age or older. On its face, this provision appears to allow a community to set any age requirement it wishes for the twenty percent (20%) of spaces which are not required to be occupied by a person 55 years of age or older, including requiring the occupants of the remaining twenty percent (20%) of spaces to be adults. However, this would appear to be contrary to the general intent of the FHA to prohibit discrimination on the basis of "family status." A more likely interpretation is that the housing provider need not apply any age restrictions on occupancy of the remaining twenty percent (20%) of rental units. This interpretation seems likely, not only in view of the general intent of the FHA, but in view of Section 100.306(d) which provides that a housing facility or community may allow occupancy by families with children as long as it meets the intent requirements of Sections 100.305 and 100.306 (a).

An argument could well be made that a community must allow up to twenty percent (20%) of the spaces to be occupied by persons who do not otherwise satisfy the community's minimum age requirements. The problem is that a park which "uses up" its twenty percent (20%) allotment may find itself below the 80% requirement if a space which was previously occupied by a person 55 years of age or older ceases to be so occupied. This could occur as a result of an older tenant dying or moving out of the community.

It has been our experience that HUD has, from time to time, interpreted the "twenty percent" allowance as a "fudge factor" in order to avoid hardship where, for example, an older tenant dies, leaving a widow who does not satisfy the community's minimum age requirements. This interpretation was bolstered by the requirement that the housing be intended for persons 55 years of age or older and that the properties have rules that limit residency to persons meeting the age requirements. Deliberately allowing persons under age 55 to move into the community seems contrary to this intention.

**Tip: In many states (including California) the law requires that mobilehome park owners uniformly enforce all published rules. To allow some households to avoid the requirement could run afoul of the such laws leaving the door open for a disgruntled tenant to sue on a claim that the management is not uniformly enforcing it own rules.

Published Procedures and Policies of Intent

In addition to requiring that at least 80% of the occupied units be occupied by at least one person who is 55 years of age or older, HOPA requires that the housing be "intended and operated" for persons 55 years of age or older, and that the housing facility "publish and adhere to policies and procedures that demonstrate its intent" to qualify for the 55 or older exemption. Section 100.306(a) sets forth a non-exclusive list of relevant factors in determining whether the park "demonstrates" this "intent":

(1) The manner in which the housing facility is described to prospective residents;(2) Any advertising designed to attract prospective residents;(3) Lease provisions;(4) Written rules and regulations;(5) The maintenance and consistent application of relevant procedures;(6) Actual practices; and(7) Public posting in common areas of statements describing the facility as housing for persons 55 years of age or older.

These requirements bolster the "common sense" approach to a community demonstrating its intent to be housing for older persons. Specifically, without limitation, the park's residency documents need to clearly state the age restrictions on residency, and the age restrictions need to be consistently enforced.

Unscrupulous attempts by property owners to manipulate the intent to remain senior housing have resulted in adverse judgments. In a 2003 federal case in California, Housing Rights Center et al. v. Galaxy Apartments, et al., the apartment complex and management company was sued for allegedly telling an expectant mother that it would not accept families with children because it was a "seniors only" complex. The Housing Rights Center sent "testers" to the building and learned that childless adult testers of all ages were accepted and only testers with children or who were expecting children were told that the complex was seniors only. Obviously, the apartment owner was not complying with the "intent" of the over 55 exemption and was ordered to pay the plaintiffs $51,000 and enter into a two year fair housing training program.

Some states require that housing intended and operated for occupancy by persons 55 years of age or older register with state agencies. You should consult your legal counsel for the applicable registration and renewal process in your state.

Age Verification

HOPA provides specific guidelines for "age verification". To protect your property, these procedures should be followed to the point that, at any given time in the past, you should be able to demonstrate, the percentage of units that were occupied by at least one person age 55 or older.

Section 100.307(d) provides that the following documents are considered "reliable" documentation of the age of the occupants:

(1) Driver's license;(2) Birth certificate;(3) Passport;(4) Immigration card;(5) Military identification;(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or;(7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

This last provision is useful in those cases where tenants who are believed to be over 55 years of age fail or refuse to provide proof of age to the park by allowing any other adult member of the household to sign a statement to the effect that the person in question is, in fact, at least 55 years of age.

**Tip: Make it a policy to obtain a written application for tenancy from every household and keep those applications for the length of the tenancy.

Section 100.307(g) further provides that: "If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older." This section goes on to provide that such evidence may include government records or documents, such as a census; prior forms or applications; or a statement from an individual who has personal knowledge of the age of the occupants. In the latter case, the individual's statement must set forth the basis for such knowledge. Compliance with this provision most probably would be met by a park employee statement as to their opinion of the age of a tenant, based upon the tenant's appearance and, if applicable, the apparent age of the tenant's adult children.

A typical pitfall for owners of such properties is the HOPA requirement that the age verification information must be updated at least every two years, pursuant to Section 100.307(c).

**Tip: In addition to keeping the tenant's application, the management should consider developing a form which it distributes to all spaces at least once every two years, asking residents to confirm the names and ages of all persons who are currently residing in the home. This is probably good policy in any case, since a record of what adults are actually occupying a home is useful in other situations (e.g., naming all adult occupants in an unlawful detainer complaint).

Conclusion

While there is no guaranteed insulation from lawsuits, a property owner or landlord is well advised to have their policies and procedures in writing and reviewed by competent legal counsel. All levels of a property owners' management should be instructed to adhere strictly to those written policies and procedures. With competent advice, you should be able to avoid needless and expensive litigation which only detracts from your eventual retirement.

*/The Housing for Older Persons Act of 1995 is codified in 24 CFR 100.300 et seq. The Code of Federal Regulations can be viewed on line. One such site is the National Archives and Records Administration found at www.gpoaccess.gov/cfr

Robert S. Coldren is a founding partner of the law firm of Hart, King & Coldren. For over 20 years he has represented various entities as they relate to the manufactured housing industry.