Search

Answer. At first blush this appears to be an issue involving "hazard trees" under ORS 90.100(21). A "hazard tree" is one that:

1. Is located on a rented space in a manufactured dwelling park;

2. Measures at least eight inches DBH;[1] and

3. Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560(Issuance of license) and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.

Regarding hazard trees, ORS 90.727(3) (Maintenance of trees in rented spaces) provides that a landlord:

(a) Shall maintain a tree that is a hazard tree that was not planted by the current tenant, on a rented space in a manufactured dwelling park if the landlord knows or should know that the tree is a hazard tree.

(b) May maintain a tree on the rented space to prevent the tree from becoming a hazard tree, after providing the tenant with reasonable written notice and a reasonable opportunity to maintain the tree;

(c) Has discretion to decide whether the appropriate maintenance is removal or trimming of the hazard tree; and

(d) Is not responsible for maintaining a tree that is not a hazard tree or for maintaining any tree for aesthetic purposes.

Additionally ORS 90.740(4) provides that a rented space is considered uninhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727 (Maintenance of trees in rented spaces).

When the hazard tree legislation was enacted, as best as I can remember, all of us involved in the drafting were looking up, not down. That is to say, we were focusing on large limbs falling on homes, or trees becoming top-heavy from a lack pruning and trimming, and falling over entirely. I do not recall any discussion about the root systems of trees causing dangerous conditions.

However, clearly, if the root system of a tree meeting the definition of a "hazard tree" causes walkways to buckle, it can create a danger to the residents and others using them. Accordingly, under a pretty clear reading of the above-cited statutes, this appears to be a landlord issue that needs to be addressed. As between a resident who does not own the space or the common area walkways, and the landlord who does - and who presumably has the means and insurance to protect against the risk - the financial responsibility rests on the latter. It is a cost of doing business.

However, what if the tree does not meet the definition of a "hazard tree," is located on the resident's space, but has a root system that is encroaching up into common area walkways causing damage? That is a more difficult issue. I say this because if it isn'ta hazard tree, say by girth, then the resident has the trimming and pruning responsibility. But as to that portion of the root system encroaching into the common area, I believe that is the landlord's responsibility. Certainly, the problem did not result from a lack of resident maintenance.

My conclusion is this: The landlord should want the common area walkways safe. If this means cutting out the offending root system, the landlord should do so. Why, because if a resident or their guest falls and injures themselves on a broken walkway, you can be sure the landlord will be sued. Again, it's a cost of doing business, and presumably the reason why smart landlords have good liability insurance.

[1] "Diameter at breast height" i.e. 4.5 feet. See: http://www.phytosphere.com/treeord/measuringdbh.htm

QUESTION: We ran into a problem recently that we were hoping you could answer.  In Multnomah County, when we file an eviction ("FED"), we are required to file a document entitled "Declaration of Non-Military, Not Minor or Incapacitated." This form requires us to select one of the following categories regarding the defendant's protection under the Service Members Civil Relief Act ("SCRA" or "the Act"): (a) That the person is subject to protection, (b) that he/she is not subject to protection, or (c) that we are unable to determine whether the defendant is or is not subject to the Act.

We had checked the box saying we could not determine, and explained that "We have never seen any indication that this person is or was a service member."  The judge said this was insufficient and refused to grant the FED.  He told us to seek legal counsel.

Any ideas on what we did wrong or how to avoid this problem? I believe there is a web page where you can look up service members, but in this case we don't have a social security number on the resident, so we couldn't look him up anyway.

ANSWER: I've never heard of a judge denying a declaration because a landlord hadn't run the tenant's information through Act's website.  In order to do the search, you need the tenant's first and last name and SSN.  You can also put in their birth date, but I think the SSN gets the best results. The Act's database cannot complete the search if you don't have a SSN or birth date. I'm surprised that the judge didn't set over the hearing and simply direct the you to the website.  Perhaps you could have determined the answer if you had entered the birth date - assuming you had it.  I suspect the judge was new to the job.

Here's the link to their site: https://www.dmdc.osd.mil/appj/scra/scraHome.do

When we don't have a SSN or birth date, we put a statement in the declaration similar to the one you used.  Basically, all you should need to do is show that you have conducted a reasonable investigation based upon the information you have, and that you have been unable to determine through the website or other evidence, that the person is protected by the Act. 

Here's an example that we've used at Multnomah County Circuit Court:

Due to lack of information, the Department of Defense's SCRA military records website could not confirm whether or not defendants, John and Mary Doe, are currently on active duty. It appears to be very unlikely, since the community managers see the defendants on a regular basis and have no knowledge of either of them serving in the United States Military.

The problem you describe only occurs when the defendant does not appear at the first appearance hearing and the judge is uncomfortable granting the judgment of restitution by default without what he/she feels is sufficient evidence that they are not on active duty with the military.  The rash of recent improper foreclosures against servicemen/women probably doesn't help the judge's comfort level.  The judge should have been more helpful, but you should be able to conduct your search on the website, then go back and try again.

I think the take-away here is that landlords should try to get as much information from their resident-applicants in order to avoid these situations in the future.

Answer. Based upon recent news reports, it appears that, subject to certain exceptions,[1] there will be no effort by the federal Department of Justice to seek out and charge violators of the Controlled Substances Act in those states where the medical or recreational use of marijuana is legal.

Thus, it appears that when it comes to enforcement of park rules and regulations, Oregon landlords are on their own; neither the feds, nor the state, will go after persons with lawfully issued medical marijuana cards. Furthermore, if a tenant has a valid card, then arguably he or she has some medical condition that has authorized its issuance. Is the landlord obligated under the Fair Housing laws to make a "reasonable accommodation" for their medical condition, and permit the tenant to continue their use or grow operation? If properly done, the answer is likely "No." Here's why:[2]

In January 20, 2011, the U.S. Department of Housing and Urban Development ("HUD") issued a Memorandum, the subject of which was "Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing." While the Memo was limited to federal public and assisted housing, it can be regarded as a helpful - though perhaps not a "final" resource - on the issue.[3] It is very complete and helpful for all landlords. It can be found at this link. Here is what the Memo directs:

Public housing agencies '_in states that have enacted laws legalizing the use of medical marijuana must therefore establish a standard and adopt written policy regarding whether or not to allow continued occupancy or assistance for residents who are medical marijuana users. The decision of whether or not to allow continued occupancy or assistance to medical marijuana users is the responsibility of PHAs, not of the Department."

Thus, HUD appears to be leaving it up to the state public housing authorities to decide whether the refusal to permit on-premises use of medical marijuana constitutes a fair housing violation. Between the lines, it appears that HUD will not directly investigate such claims, leaving it up to public housing agencies on the state level.

While HUD's pronouncement is directed toward "public housing" is would be hard to believe private housing would be treated any differently. Oregon fair housing law is "substantially equivalent" to federal fair housing law. So, generally speaking, on the issue of medical marijuana, as goes the federal law, so goes state law.

However, in the 2010 case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court held that employers do not have a legal duty to allow employees to use medical marijuana on the job. This case addressed many unanswered questions on the use of medical marijuana in Oregon from an employment perspective. In a subsequent article [found here] by the Fair Housing Council of Oregon it appears that the rationale of the Emerald Steel Fabricators case is helpful for landlords declining to admit new residents with medical marijuana cards - so long as they have an existing policy against the use and cultivation of marijuana in the community.

Thus, it appears that in Oregon, on both the federal and state levels, enforcement agencies are taking a laissez-faire approach to the medical marijuana issue. This means that landlords have it within their control, with little fear of fair housing/reasonable accommodation claims, to enact rules and regulations prohibiting the on-premises medical or recreational use of marijuana.

However, I do not believe the proscription should be retroactive to tenants holding legal medical marijuana cards who have already signed their rental agreements or leases. Like you, I believe that a court would not be favorable to your situation.

It appears that your resident's medical marijuana card is in order. It must valid and current for Oregon. A California card, for example, would not suffice. [See, State v. Berrenger, 2010].

Conclusion. Yours is a difficult situation. For existing tenants I believe you can legally institute a "no marijuana" policy against recreational and medical use. However, making it retroactive as to persons already holding medical marijuana cards, would be a difficult proposition, since they did not bargain for that when they became residents or when they received their card.

In some instances, and this may not be one, I have seen situations where the resident, under the guise of holding a medical marijuana card, is also selling the drug illegally to others. This situation is most apparent when there are late night visits by unknown persons for short periods of time. If this situation presents itself, and neighbors complain, you may have recourse by issuing a 30-day curable notice of termination for violating ORS 90.740(4)(j) for disturbing the neighbors' peaceful enjoyment. You do not have to raise the marijuana use, just the noise and disruption. Upon a second similar violation within six months of the date of issuance of the first notice, you can issue a 20-day noncurable notice.

[1] The exceptions are: The distribution of marijuana to minors; Directing revenue from marijuana sales to gangs and cartels; Diverting marijuana from states where it is legal to other states where there are no laws allowing for marijuana use; Using legal sales as cover for trafficking operations; Using violence and or firearms in marijuana cultivation and distribution; Driving under the influence of marijuana; Growing marijuana on public lands; Possessing marijuana or using on federal property.

[2]Note: This answer is not intended to constitute legal advice. Readers should consult their own legal counsel to determine how to proceed in these cases, as the correct outcome depends upon the specific facts of each situation.

[3] Note that Oregon has its own set of fair housing laws.

Answer: You do not have to offer him a rental agreement.  Since you indicate that he has signed the MHCO vacation occupancy agreement, presumably he qualifies as a vacation occupant.  Under Oregon law (ORS 90.110 (7)), vacation occupants are not tenants and are not entitled to be offered a rental agreement. 

As per ORS 90.100 (54), “vacation occupancy” is defined as: (1) The occupant is renting the RV space for vacation purposes only, not as a principal residence, (2) the occupant has a principal residence other than at the space, (3) the period of occupancy cannot exceed 90 days, (4) the RV must be removed from the park at the end of the occupancy period, and (5) a written agreement signed by the occupant states that occupancy of the space in the RV park is a vacation occupancy and is NOT subject to the Oregon Residential Landlord and Tenant Act (ORS Chapter 90).

Since vacation occupants are not “tenants,” they may be asked to vacate at any time without issuing an eviction notice or going to court.  If necessary, law enforcement may be called to remove vacation occupants as trespassers if they refuse to leave.  In that case, you must have a copy of the written vacation occupancy agreement available to show the responding officers that the occupants are not tenants under Oregon law and can be cited for trespassing.  They are effectively the same as a hotel guest that refuses to leave.

If, for some reason, law enforcement refuses to remove a vacation occupant, you might need to file an eviction case in your county circuit court.  Be sure not to accept payment from the person for any period of time after the 90-day occupancy period or it could create a tenancy.  You will need to file an eviction case for a “tenancy not covered by ORS Chapter 90.”  The court clerk should have a complaint form that you can use, or consult with an attorney to file the case.

Mark L. Busch, P.C., Attorney at Law, Cornell West, Suite 200, 1500 NW Bethany Blvd., Beaverton, Oregon 97006; Phone: 503-597-1309; Web:  www.marklbusch.com

Answer:  In a word “Yes”. Today, the rule of thumb should be that subject to certain exceptions (listed below), you should not summarily reject applicants solely because of prior convictions.  I have written and spoken on this issue during 2016. 

On April 4, 2016, the U.S Department of Housing and Urban Development (“HUD”) issued its “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions” (hereinafter, the “Memo”). The full text of the 10-page Memo can be found here. Not surprisingly, it follows the June 25, 2015 ruling by the U. S. Supreme Court, in the Texas Dept. of Housing vs. Inclusive Communities case, which upheld the much-debated concept of “disparate impact” under the Fair Housing Act, as amended (the “Act”). 

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Act, if they have a disproportionately "adverse impact" on certain members of a protected class, i.e. those falling into the following groups: Race, color, religion, sex, disability, familial status or national origin.[1]  The simplest explanation of how disparate impact works is by the following example from the Memo:

Today, a landlord may be found to have discriminated against a prospective tenant, not because of an intentional discriminatory act, such as rejecting him or her based upon race or religion, but unintentionally, because the landlord relied upon a perfectly legal basis, except that it had a disproportionately adverse impact on members of a protected class.  Proof of the “disproportional impact” is usually based upon some statistical correlation showing that a certain class of protected persons are negatively impacted more than others. In other words, unintentional discrimination can now be a violation of the Act.

The purpose of the Memo was to issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, or may not, trigger a disparate impact result.

Although, ironically, the Memo on deals with cases of disparate impact affecting members of “protect classes”.[2]  However, for purposes of this discussion, it is well to apply these guidelines across the board, regardless of protected class. Otherwise, there is the possibility, perhaps remote, that a landlord could be accused of reverse discrimination, for applying one set of criteria to members of protected class, and another set to members outside the class. Crazy huh?

Summary of Thoughts and Suggestions.  Here are some tips based upon information from the Memo:

1. Beware of testers calling over the phone and asking if you will rent to persons with a criminal background. Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address.

1. Ultimately, landlords should plan on making adjustments in their rules and application process.  

1. Do not have a rule or policy that treats an arrest, with no conviction, the same as a conviction. If you currently have such a rule, it should not be enforced.

1. Do not have a blanket guideline providing, for example, that conviction for any crime is an automatic denial.

1. Be sure that all rules and policies concerning criminal records are uniformly enforced – no exceptions.  However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violent crimes over the past five years.

1. If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these other criteria, then the rejection can be based on that, rather than a criminal background report, thus avoiding the disparate impact issue entirely.

1. In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before making a decision to reject a prospective tenant based upon criminal history. For example:

1. How long ago was the conviction? (A single conviction over 6-7 years old, in most cases, should probably not be used as the basis for a denial, excluding registered sex offenders, or those convicted of violent crimes).

1. What has the person been doing since their release?

1. Has the person been convicted once, or on multiple occasions?

1. What was the nature and severity of the crime?

1. Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (not mere possession) of a federally defined controlled substance is permissible and not subject to a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent based upon a conviction for manufacture or distribution, since it is not a violation of the Act, based upon disparate impact.[3]

So this is one of those exceptions in which you may automatically decline an applicant. Others are, in my opinion, those convicted of sex crimes and pedophilia, regardless of how far in the past. Also, crimes of violence, e.g. murder, rape, aggravated assault, etc. The analysis is fairly straightforward: If the applicant’s prior conviction is one that, if he or she became a resident, it could foreseeably result in danger to the health, safety and well-being of other park residents, or their guests and invitees, a rejection, without the above analysis is in order. Some Fair Housing advocates may disagree, but my opinion is based upon a choice of evils, i.e. choosing between a threatened Fair Housing violation, balanced against the risk of a resident or their guests or invitees being injured or killed, because  you ignored their violent criminal history, and permitted them entry to the park 

Conclusion. So, based upon the facts you described above, this applicant had a conviction of two non-violent crimes (presumably occurring at the same time, resulting in companion charges).  They were eight years ago. Accordingly, it is important to find out what the applicant had been doing since being released from jail.

Lastly, as pointed out above, I suggest that you reserve the criminal background analysis for applicants who have already passed all of the park’s other screening criteria.  In other words, if you don’t have to use criminal background as a basis for rejection – i.e. there are other valid criteria for rejection – you do not have to rely upon the applicant’s criminal background for a rejection.

Please review MHCO Form 1A. It includes the criminal background analysis discussed above.

[1] Note, the State of Oregon and some of its local jurisdictions have additional classes, including sexual orientation. See, http://www.fhco.org/discrimination-in-oregon/protected-classes .

[2] The seven protected classes under the Federal Fair Housing Act are: Race; Color; Religion; Sex; National Origin; Disability (added in 1988); Familial Status (having children under 18 in a household, including pregnant women) (added in 1988). There may be additional protected classes added by state and local laws.

[3] Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

Answer. ORS 90.322(1)(f) says the landlord must give '_at least 24 hours actual notice of the intent of the landlord to enter and the landlord or landlord's agent may enter only at reasonable times... ." (Italics mine.)

The statute does not say the landlord has to give the exact date and the exact time. It has been judicially construed in Oregon that a notice such as yours is sufficient, since it exceeds the 24 minimum requirement. See, Resources Northwest, Inc. v. William Rau, 173 Or. App. 500 (2001).

This is just for access to the space - not the home - so I don't seen anything unreasonable about access in this fashion. It's not disruptive. Of course, even with a proper notice, a tenant can deny access if the requested time is unreasonable. (See, ORS 90.322(1)(e)(ii)).

I had this occur at a park several years ago, and the tenants ended up staying on the higher base rent which was not reduced as it was for those who permitted access for the submetering. The noon-cooperative tenants soon saw the error of their ways, as their neighbors had lower rent and were able to control their water bills by reduced use.

Tenants should know that ORS 90.322(7) provides that: "If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement under ORS 90.392 (Termination of rental agreement by landlord for cause) and take possession as provided in ORS 105.105 (Entry to be lawful and peaceable only) . In addition, the landlord may recover actual damages." (Italics mine.)

I suspect a landlord denied access would suffer financial damage if their submetering schedule was interrupted, so the tenants could be looking at damage claims by denying access. There would also be a right of attorney fees under ORS 90.255.

Situation: An Idaho landlord adopted a strict policy banning visitors from parking in spots reserved for tenants. In November 2016, two service providers, one black the other white, visited a tenant at the community. Upon returning to their vehicles, they discovered that the black service provider’s car had been booted while the white service provider’s car had not—even though they had both parked in similarly marked spaces.  

You Make the Call: Did the fair housing group have a valid claim for racial discrimination?

Answer: Yes

Ruling: The Idaho federal court had no problem in relying on this incident as evidence in refusing to dismiss a case alleging a pattern of discrimination over a six-year period. There was also evidence of an earlier incident where the landlord booted the car of a Black visitor who briefly parked in a tenant’s space. When she asked about having the boot removed, the landlord’s parking enforcement agent indicated that he had been “specifically instructed to show no leniency toward the African residents in enforcing the parking rules” [Intermountain Fair Hous. Council, Inc. v. Tomlinson & Assocs., 2023 U.S. Dist. LEXIS 57012].

Takeaway: It’s not enough that parking and other community rules apply to everybody. You also must ensure that those rules are enforced in a consistent and even-handed manner, regardless of the violator’s race, sex, etc.

1. Make sure that the rental agreement really applies to your situation.  The MHCO rental agreement comes in two flavors: (a) The month-to-month (or “periodic”) rental agreement, and (b) the lease (or fixed term) agreement.  The difference is that the month-to-month agreement runs for the number of days in the current month.  In the absence of termination by landlord or tenant, the periodic tenancy just “rolls over” month to month.  Regardless of which agreement is used, landlords renting or leasing spaces to residents in mobile home parks may not terminate them without cause.  However, a lease for at least two years carries a distinct advantage in that the park documents, i.e. the lease agreement and the park rules, may be automatically updated at the end of each lease term.  While there are certain limitations on the landlord’s right to impose new park documents on the resident, it is clearly much easier to do under a lease than a monthly rental agreement.[2]  Also, landlords using a fixed terms lease agreement must expressly incorporate any rent increase provisions into the written agreement.  The rent increase statute, ORS 90.600, applies only to periodic (e.g. month-to-month) tenancies and not fixed term tenancies.  If the home located upon the space is a recreational vehicle rather than a manufactured home, landlords should not use the standard mobile home space rental agreement.  The reason is that the mobile home park section of the landlord-tenant law does not apply to recreational vehicles.[3]  When renting space for a recreational vehicle, landlords should use an appropriate MHCO RV rental form.

1. Make sure that the rental agreement is signed by all adult tenants who will occupy the space.  This not only financially obligates them under the agreement, but it makes it easier to enforce violations against rules offenders.  Do not permit occupancy of a home until the rental agreement has been fully signed by everyone.  Trying to get signatures after-the-fact can be difficult, if not impossible.

1. Make sure that the Statement of Policy, Rules, and Rental Agreement are given to the resident and properly receipted for.  Occasionally, residents deny receiving one or more of these documents.  However, the signed receipt by the resident is legal evidence of delivery of these documents.  ORS 90.510(9) provides that a signed receipt is a defense to a claim against the landlord for the failure to deliver these documents.

1. Similarly, landlords should make sure that the rights they summarize in the Statement of Policy accurately reflect their rental agreement and rules.  When using the MHCO forms this is not a problem.  It could be, however, when different forms from different sources are used, and the Statement of Policy provides that the resident has (or does not have) certain rights that are inconsistent with the terms found in the rental agreement or rules. The Statement of Policy is not intended to be a binding legal document - it is supposed to merely summarize the resident’s rights and duties that are found in the rental agreement or rules.

1. Landlords should be sure to fully understand their rights and responsibilities given under their rental agreement form.  Not knowing your rights can result in not enforcing violations, which can lead to a waiver of those rights.[4]

1. One of the more important provisions of the rental agreement form is the one which prohibits assignment, subletting or transfer of possession of the agreement or space without the landlord’s prior written consent.  Landlords should make sure that when a resident vacates, leaving a guest or visitor at the space, immediate action is taken to either terminate the tenancy or require that the occupant promptly apply for tenancy by filling out all required documentation.  Do not accept rent from the occupant, the ex-tenant, or on the occupant’s behalf, until the issue has been thoroughly resolved.

1. Be aware that the fire insurance provision in the MHCO form does not apply unless it is specifically checked:  It requires that the resident must maintain a homeowner's policy of insurance that includes coverage for fire in an amount sufficient to replace the home, and permits the landlord to request a current copy of the policy.

1. Similarly, landlords should be sure to have the resident initial those portions of the rental agreement which require them to do so.  There are several such places found in the sections dealing with (a) sale of the home and (b) the resident’s legal obligations under the tenancy.  When these sections are not properly initialed, there remains an argument that it is not binding.  Although such an argument would not likely carry the day, it can be avoided entirely by simply making sure that when the agreement is signed, all internal provisions are properly completed, checked and initialed where appropriate.

1. The landlord’s rights upon a resident’s resale are very important and need to be fully understood by both parties.  One such section of the resale portion of the rental agreement provides that in the event the resident (or their predecessors) has/have made any improvements or alterations to the interior or exterior of the home which did not conform to all applicable local, state and federal building codes or ordinances in existence at the time the work was performed, the landlord has the right to require, as a condition of consent to the sale, that such improvement or alteration be brought up to all applicable local, state and federal building and construction standards in existence at the time of the sale.  When homes have been substantially remodeled, especially where electrical or plumbing systems are involved, this provision may be useful for the landlord to enforce in order to make sure that the proper building codes are followed.

1. Disputes are an inevitable part of being a landlord.  MHCO believes that assigning fault is less important that securing a workable resolution.  Landlords should be aware that Oregon law requires them to have an informal dispute resolution process in their rental agreement.[5]   The MHCO form provides that in the event of any dispute regarding the interpretation or enforcement of the rental agreement or the rules and regulations, either party shall have the right to have the matter handled through the alternative dispute resolution (“ADR”) process set forth in the attached MHCO Addendum, which is incorporated into the agreement.  If a resident request some form of informal dispute resolution, landlords should promptly respond in doing so.

[1] ORS 90.245 Provides prohibits the following provisions in a rental agreement: (a) Agreement to waive or forgo rights or remedies under the landlord-tenant law; (b) Agreements authorizing any person to confess judgment on a claim arising out of the rental agreement; or (c) Agreements relieving or limiting a landlord’s liability arising as a result of his or her willful misconduct or negligence or agreements requiring the tenant to indemnify the landlord for that liability or any costs connected therewith.  Any provision prohibited in ORS 90.245 is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known by the landlord to be prohibited and attempts to enforce such provisions, the tenant may recover, in addition to the actual damages, an amount up to three months’ rent.

ORS 90.135 provides that “(1)f the court, as a matter of law, finds (a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result****”

[2] See, ORS 90.540, 90.545, and 90.610(3) – (8).

[3] See, ORS 90.505 and 90.100(23).

[4] See, ORS 90.415.

[5] ORS 90.610(2).