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While setting up a disaster plan for manufactured home communities, be sure to include steps that would reduce the risk of damage or injury. Here are some actions to consider: 

• Keep trees healthy and strong.  Remove dead limbs immediately, and cut back branches that overhang buildings or touch power or phone lines.

• Make sure all homes in the community are installed properly and comply with all local codes that apply to disasters.

• Do visual inspections of the community on a regular basis to look for damage to foundations, roofs, walls, tie-downs, awnings and other structures.  Notify residents of any potential problems observed on their homesite.

• Install an audio warning system, such as a siren or horn, and tell residents when and how it will be used.

• Have a battery-powered radio that can monitor reports from the National Weather Service, an agency of the National Oceanic and Atmospheric Administration (NOAA).  These are referred to as NOAA Weather Radios.  The National Weather Service broadcasts updated weather warnings and forecasts for most kinds of weather emergencies.  NOAA recommends that you buy a radio that can run on either electricity or batteries, and that has a feature that automatically sends out a warning “beep” when a weather watch or warning is issued.

• Inspect fire hydrants regularly and keep them clear of debris, plants and other obstructions.

• If floods are a potential problem, consider building earth mounds or other types of flood walls around the community.

Also educate residents about steps they can take to reduce risk.  Here are some actions they should consider:

• Anchor major appliances to the walls or countertops with heavy brackets.

• Put child-safety locks on cupboards, so they won’t fly open.

• Use picture hangers instead of nails for wall hangings.

• Recoat roof with sealer as needed.

• Check awnings, gutters, siding, roof and other parts of the home regularly for structural problems.

• Make sure the water heater and furnace are bolted to the floor or wall.

• Learn how to turn off the water, electricity, natural gas or propane quickly, and teach everyone in the family how to do it.

• Have a professional technician install and maintain a proper set of tie-downs with anchors.

• Use additional tie-downs for decks, sheds, carports or other additions.

• Make sure the tie-downs and anchors used are the right kind for the soil under the home.

• Inspect tie-downs regularly to ensure straps and connectors are not damaged.  If tie-downs are loosened in the fall to avoid damage from frost-heave, be sure to tighten them again in the spring.

In addition to helping residents get ready for a disaster, help them learn about general home safety. If they make their homes safer for day-to-day living, they will also reduce problems during a disaster. 

Fire is the most serious hazard.  Here are some guidelines to reduce risk of fire and accidents:

• Install smoke detectors.  If they run on batteries, change them once a year.  Clean the detectors monthly and test them regularly. (Some local fire departments give away smoke detectors or make them available to the community for very low prices. Community owners and operators might want to consider a similar program if one is not offered by the local fire department.)

• Have appliances and heating and cooling equipment checked each year by a qualified technician.

• Don’t store combustible or flammable materials like paint thinner, gasoline, turpentine or kerosene, anywhere near water heaters, furnaces, stoves or other possible sources of heat that could ignite them.

• Inspect electrical cords for fraying or other damage, and replace as needed.

• Keep and “A-B-C” – type fire extinguisher handy and teach all family members how to use it. (Fire extinguishers are labeled for the types of fires they can be used on.  An ‘A’ rated unit is good for wood, paper, trash, and plastic fires.  ‘B’ rated is good for gasoline, oil and grease fires.  ‘C’ rated is used for electrical fires.  An “A-B-C” fire extinguisher can be used for all three types of fires, so it is the best choice for homes.)

• Keep curtains, clothing and other materials away from space or wall heaters.

• Install vinyl or metal skirting material around the home to keep out leaves, debris or other material that could catch fire.

• Don’t store anything flammable under the home.

• Trim back trees that overhang the home or interfere with incoming services, such as electric and phone lines.

• Take steps to prevent falls: Add lighting to areas indoors and outdoors that are dark or shadowed.  Mark steps with reflective tape, if appropriate.  Keep a flashlight in each bedroom, and tuck away extension cords and other tripping hazards.

Answer:  The answers to some of your questions can and should be found in the rules and regulations. For example, addressing whether attachments and outbuildings stay or are removed.[1] It is problematic to me to permit a resident to make such additions at the outset, without addressing what happens when the home is put up for sale.  If additions have been made for which consent was never obtained, or which do not conform to the applicable building codes, management should move quickly, since acceptance of rent with knowledge of the noncompliance could lead to waiver.

Assuming that the attachments and outbuildings are in a state of disrepair, SB 277 provides a remedy to management at any time, including the time of sale. However, without knowing the exact nature of these “improvements” it is hard to know whether insisting upon complete removal is appropriate or legal. 

Also, much depends upon other factors. How much will this cost the resident? How long will it take? Are the “improvements” not really beneficial to the space, and detract from the appearance of the whole area? Are they code-compliant, or can they be made so? As discussed below, SB 277 continued parts of the earlier disrepair/deterioration law found in ORS 90.632, but tightened up portions of it, due to resident complaints about abuses.[2] And interestingly, it now includes reference to “aesthetic” and “cosmetic” improvements, which may be helpful in your situation.

MHCO has significantly changed its current form No. 55 to address the changes in the new law. The major issue going forward is for managers and landlords to be able to recognize when to use Form No. 55 to address disrepair and deterioration conditions, versus Form No. 43C, which is appropriate for violations relating to maintenance and appearance of the space.

If the disrepair or deterioration to the exterior of the home or related structures creates a risk of imminent and serious harm to dwellings, homes, or persons in the Community (e.g. dangerously unstable steps, decking or handrails), there is a 30-day period to repair.

For all other (i.e. non-dangerous) conditions, the minimum period to cure is now 60 days.  As before, the new Form 55 provides a place for landlords and managers to specifically describe the item(s) in need of repair.

Trap: If there is imminent risk of harm, and the landlord/manager intends to give the tenant 30 days rather than 60 days, SB 277A requires that they not only describe the item(s) in disrepair, but also describe the potential risk of harm.  There is little question but that the failure to do so would invalidate the notice. The new Form 55 prompts users to describe both the violation and the potential risk of harm.

Tip: The new Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. Remember, you cannot expect the tenant to be a mind reader – just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity. 

SB 277A now provides that at the time of giving a prospective purchaser the application and other park documents, the landlord/manager must also give them the following:

• Copies of any outstanding notices of repair or deterioration issued under ORS 90.632;
• A list of any disrepair or deterioration of the home;
• A list of any failures to maintain the Space or to comply with any other provisions of the Rental/Lease Agreement, including aesthetic or cosmetic improvements; and
• A statement that the landlord/manager may require a prospective purchaser to complete the repairs, maintenance and improvements described in the notices and lists provided.

Tip: Note that the new law combines not only the original ORS 90.632 notices relating to damage and deterioration of the home or structures, but also a list of failures to maintain the space and other defaults, including aesthetic or cosmetic improvements. This may or may not include 30-day curable notices under ORS 90.630 for failure to maintain the space. But in both cases (i.e. defaults relating to structures, and those relating to the space), the new tenant appears to get the six-month period to comply. It may be that if the “improvements” are aesthetically an eyesore, SB 277A may be of use in getting them either cleaned up or removed.

This represents and interesting shift in Oregon law, and possibly for the better. Many parks historically gave “resale compliance notices” to tenants who were placing their homes up for sale. However, until now, there was some question whether a landlord could “require” as a condition of resale, that the existing tenant make certain repairs – absent having first sent a 30-day notice.[3] Now, under the new version of ORS 90.632, it appears landlords may make that list, and let the tenant/seller know that unless the work is completed before sale, it will be given to the tenant’s purchaser upon application for tenancy.

So, if the landlord/manager accepts a prospective purchaser as a new tenant, and notwithstanding any prior landlord waivers of the same issue(s), the new tenant will be required to complete the repairs, maintenance and improvements described in the notices and lists.

Under Section (10) of SB 277A, if the new tenant fails to complete the repairs described in the notices within six months from commencement of the tenancy, the landlord “may terminate the tenancy by giving the new tenant the notice required under ORS 90.630 or ORS 90.632.”  This appears to say that a new tenant who fails to complete the items addressed in the notices and lists within the first six months, will thereafter be subject to issuance of a curable 30-day or 60-day notice to complete the required repairs. Accordingly, this is how the new MHCO Form 55 will read.

[1] Caution should be exercised in drafting, however.  If the rule says the “improvements stay” but they are an eyesore, management may be left with more than it bargained for. So whether it stays should be phrased as an option for management, if and when the time comes.

[2] Without commenting on the nature or cause of the complaints, suffice it to say that when the press gets ahold of a tenant/park dispute, the legislators are not far behind, and the end result is not usually helpful to landlords. The not-so-subliminal message here is that such disputes are better resolved quietly and quickly, lest they become a cause célèbre.

[3] This is because ORS 90.510(5)(i) provides that the rental or lease agreement for new tenants must disclose “(a)ny 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. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

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

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

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

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

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

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

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

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

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

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

3. 90.740 Tenant obligations. A tenant shall:

(3) Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenant’s behavior as a tenant.

(4) Except as provided by the rental agreement:

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

(i) Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors. (Emphasis added.)

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

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

WMA Reporter November 2017 Resident Relations Feature Article Warren Buffett's advice to small business owners is this: "The best advice to a small business owner... is never stop thinking about how to delight your customer. Not to satisfy your customer, but to delight your customer. And when you wake up in the morning, start thinking about it. At night, think about it. And then dream about it."

Remember too, that people generally will go along with a change if given a reason. It does not need to be the most elegant or elaborate reason. The point is to five a reason, i.e., "Yes, garbage cost will be passed through to the residents and let me explain the reason why... ". Most of the time the residents will feel they had their say, and they will be satisfied with the answer. Get in the habit of saying "and let me explain the reason why... ". Saying this will be a boon to your communication skills and thus your resident relations.

Several years ago, our state MHA offered the Accredited Community Manager (ACM) course. This course has been developed over the years by the Manufactured Housing Institute in conjunction with community owners. It is a top-notch course that dives deep into management and operations with sections on financials, resident relations, repairs and maintenance, and much more. The ACM instructor, Chrissy Jackson, a community owner, gave the class a tip for resident relations. It's the What We Do for You list. Chrissy recommended making a list of things, big and small, noticeable and unnoticed, that you do for the residents. Ideas for using the What We Do for You list could be printed once a year in your newsletter, put it on your website, as a hand out in the office, or laminated and posted in the office. It's also a tool for your manager, too. In the hubbub of their duties, it is easy for manager to forget why the community is a great place to live. The What We Do for You list needs to be top of mind for them.

It keeps them enthusiastic about the mobilehome park and what a great value it offers the residents. What doesn'twork is when a resident complains to a manager and the manager's response is, "Uh... let me get back to you." The manager's response needs to be energetic and positive after hearing out the resident. Our managers should add to this list monthly. Do you think there is nothing new that you do for your residents? Or do you think the residents know everything the community does and provides? Think again. This might be new information to your residents but it's a good refresher, too. Here is a sample:

A LETTER TO THE RESIDENTS OF ABC MOBILEHOME PARK

Dear Residents,

Thank you for another wonderful year at ABC. We have had some fun with our first annual Clean Up Contest. Looking back at the year in review, we have done some very nice improvements to the park and will continue that trend in to 2018.

Streets, Sewer and Water:

Most years we make a significant street repair or replacement project; our harsh Midwest climate is tough on streets. With an older park, such as our ABC, the water lines and sewer lines are repaired and replaced a lot. We thank our residents who are careful about what they put down their sinks and toilets and refrain from grease, cigarettes, and wipes getting flushed or poured down the drains.

Water Conservation and Water Meters

Adding individual meters has resulted in over 1,000,000 gallons of water consumption reduction per year! We also notify residents when their consumption spikes, so they can remedy a dripping faucet or other leak. Conserving water is an important contribution to sustainability. Consistently looking for water main leaks adds to this effort and contains operational cost.

New Homes:

Buying new homes for the community helps upgrade the overall appearance of the park. Buying pre-owned homes has offered our residents the opportunity to move up to a newer or larger home. When a resident buys a "new" park owned home, we often buy that resident's existing mobilehome. This helps them buy the "new" home.

LED and Sustainability:

We have installed some LED lighting in our outside storage area and on individual lots where the yard lights were repaired or replaced. Some of the hills have been planted with shrubs for erosion resistance and to cut down on mowing, as per a city initiative to curb carbon emissions.

Appearance of Homes and Home Sites:

During our Spring and Fall Clean Up Campaigns, our managers did a masterful job of working with the residents to get the mobilehomes and home sites looking clean and cared for as possible. There was a lot of power washing, painting, skirting and general junk removal. Our managers and residents worked together on this year's clean up so that residents can feel proud of where they live.

New Resident Screening:

The managers do their best to screen prospective residents so that when a home in the community sells a good resident moves in. Further, we use a service for background checks. Our managers provide onsite management that is backed up by our regional property manager, making sure that there is always someone available in person, by email, or by phone to listen and address questions or concerns.

Selling Tenant Owned Homes:

There are a lot of people that would like to move in to your community. The many inquiries and calls we receive is a good indication of demand. Our website benefits residents by providing basic information about the park, rules and policies, lot rent, homes for sale, etc. We also help our residents with the paperwork or selling their home.

Again, thank you for the wonderful year. Please feel free to reach out to management if you have a question or concern.

Ultimately, the mobilehome park's job is to operate in such a way that the homeowners' home value is at least maintained, if not enhanced. Mobilehome ownership may be one of the tenants' largest assets. We owe it to them to make the mobilehome park as clean, well run, and attractive as possible.

Joanne Stevens is a real estate broker specialist in listing and selling mobilehome parks and manufactured home communities throughout the U.S. She can be reached at 319.378.6785 phone; 319.365.9833 fax; and email: joannestevens@joannemstevens.com.

This article is reprinted with permission from WMA Reporter November 2017 'Resident Relations Feature Article'.

Answer.The question is an important one. It calls into play a balancing of two statutes, ORS 90.730and ORS 90.740. Rather than set them out verbatim, below, I will discuss below only those portions of the statutes that deal with the issues you have raised.[1]

Tenant Obligations (ORS 90.740)

First, note that these are those tenant duties imposed by the statute. The rental agreement could – though unlikely – could alter them. I say “unlikely” because elsewhere in Chapter 90 the law imposes liability on landlords that try to “shift” to tenants certain statutory duties imposed on landlords.[2]

The main requirements dealing with utility systems are as follows:

• First, if the home is being installed by the tenant (or more likely their contractors) it must be in compliance with applicable laws and the rentalagreement.
• Second, they must install and maintain storm water drains on the roof of the home and connect them to the drainage system (ifany).
• Third, they must use all electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to thosesystems.

Additionally, there are some collateral conduct obligations that could indirectly interfere with the operation of various park-wide systems, and thereby incur liability. They include:

• As an ongoing obligation, tenants must dispose ashes, garbage, rubbish and other waste in a clean, safe and legal manner. 
• They must keep the rented space in every part free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin as the condition of the rented space permits and to the extent that the tenant is responsible for causing the problem. 
• The tenant shall cooperate to a reasonable extent in assisting the landlord in any reasonable effort to remedy theproblem.
• They must keep the home and the space, safe fromthe hazards of fire. This includes installing and maintaining a smoke alarm approved under applicable law.
• They must refrain from deliberately or negligently destroying, defacing, damaging, impairing or removing any part of thefacility, other than the tenant’s own dwelling or home, or knowingly permit any person to doso

Comment: If an obligation belongs to the tenant, say, installation of the home itself, it continues from homeowner to homeowner. It is never a landlord liability issue. But as discussed below, since the stability of the ground is a landlord duty, the stability of the home could be affected by the ground and become a landlord liability. 

Landlord Obligations (ORS 90.730)

The landlord’s primary duty to residents is “habitability”. The statute provides that at to park-wide systems, a rented space is considered unhabitable if it substantially lacks:

• A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;
• If required by applicable law, a drainage system must be reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;
• A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;
• An electrical supply and connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;
• A natural gas or propane gas supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

As to duties that can indirectly affect park-wide systems and cause landlord liability, ORS 90.730further provides that:

• At the time of commencement of the rental agreement, buildings, grounds and appurtenances must be kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
• Excluding the normal settling of land, the park’s surface/ground must be capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; and

As to common areas, if systems are supplied or required to be supplied by the landlord, they are considered unhabitable if they substantially lack:

• A water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord.

Comment: The first point to note is that these landlord duties (a) commence at the time of installation, and (b) continue as maintenance obligations throughout the term of the tenancy. Generally, tenant responsibilities to the community and its systems are governed by usage. If the usage is reasonable and the system fails, generally liability  will fall on the landlord pursuant to ORS 90.730.  The only major exceptions relate to tenant-required duties, i.e. (a) installation/stability of the home and (b) installation of storm water drains on the roof and their connection to the drainage system. Generally, these are where the “lines of responsibility” begin and end.

Conclusion.So with regard to the (allegedly) collapsing sewer pipe, unless there is some evidence of tenant responsibility, it is likely a landlord maintenance issue under ORS 90.730.

As to discoloration in the tap water, the solution is to immediately get the water tested and find out if others in the community are experiencing the same issue. Testing will likely disclose the source of the problem and whether it is dangerous. In both instances, unless there is some evidence of tenant-related causes, it is a landlord problem (to the extent the water supply system can be controlled by the landlord) the remedy will likely be on your dime. But installation of an “expensive filtration system” was likely premature, and the result of a good sales pitch. Ask the tenant for copies of all tests run before the system was installed.

On July 26, 1990, President Bush signed into law the Americans with Disabilities Act ("ADA"), The Americans with Disabilities Act Accessibility Guidelines (the "1991 Regulations") were shortly thereafter developed to guide new construction and alterations undertaken by covered entities and established the minimum requirements for "accessibility" for disabled persons in buildings and facilities and in transportation vehicles. After more than twenty years, the Department of Justice implemented new regulations, which became mandatory in 2012 (the "2012 Regulations.") Your state may have passed parallel laws, which could increase the protection of individuals with disabilities, e.g., the Unruh Act in California. However, this article focuses on Federal ADA compliance. Keep in mind that the ADA is a civil rights law, which addresses a number of subjects, but this article focuses on ac- cessibility (no longer called "handicap") issues only.

A mobile home park owner might ask, "How about my pre-exist- ing park, does it need to comply with ADA issues?" Answer: "It de- pends." If your mobile home park pre-dates the ADA statute, and the Park has not gone through any significant renovations (deter- mined on a case-by-case basis), then the park may be "grandfathered in" in most cases. However, there can still be considerations of "reasonable accommodation" and "readily achievable barrier removal" under the ADA that could require a park owner to make modifications to existing structures and to make existing buildings "accessible" to the disabled. There may be no "grandfathering in" under these provisions of the ADA. In addition, if the park has undergone sub- stantial alterations/renovations, this could also trigger ADA com- pliance. A mobile home park owner might also ask "If my park needs to comply with ADA issues, then does the park have to comply with the 1991 Regulations or the 2012 Regulations?" Once again, the answer is "it depends." There is a broad "grandfather" clause that exempts all building elements constructed in compliance with the 1991 Regulations until those elements are subject to a planned alteration.

So--is a mobile home park a "place of public accommodation" or not? The ADA defines a "public accommodation" to be "a private entity that owns, leases (or leases to), or operates a place of public accommodation." Examples of places of "public accommodation" include places of lodging; establishments serving food or drink; places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments; stations used for public transportation; places of public display or collection; places of public recreation; places of public education; social service center establishments; and places of exercise or recreation. Does a mobile home park fit within these descriptions? Based on discussions with ADA experts,the typical mobile home park does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the park's facilities are only open for the sole use and enjoyment of the park's residents, rather than the "general public." In some cases, however, a park's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the pub- lic." In addition, the park's office is necessarily "opened to the pub- lic" as persons, not otherwise residents of the park, are allowed in and, in fact, are invited in to inquire about available spaces and/or mobile homes in the park. One issue which has been "rearing its ugly head" recently in connection with what are referred to as "drive-by" ADA lawsuits is the inadvertent conversion of a "non-public" ac- commodation to a "public" accommodation. For example, if the park clubhouse is not open to the general public, but the park allows the clubhouse to be used as a polling station for elections, or for classes for the local college, or for swimming lessons in the pool, the park may have inadvertently converted the area to a "public" accommodation and will be required to comply with the ADA for the impacted area, e.g., pool or clubhouse. Even the "innocent" re- quest by one person to use the "private" restroom at the management office could trigger thousands of dollars in improvements to make the restroom "accessible".

If the park has "public accommodations" which have "barriers" to "access," then the next consideration is whether the "removal of the barrier" is "readily achievable." Remember that these barriers apply to all sorts of disabilities, including sight and hearing, and not just accessibility for wheel chairs. The ADA generally defines "readily achievable" as easily accomplished and able to be carried out with- out much difficulty or expense. 42 U.S.C.S. _ 12181(9). Federal courts have developed several factors in determining what is "readily achievable": (1) nature and cost of the removal; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and re- sources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including com- position, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relation- ship of the facility or facilities in question to the covered entity. Col- orado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The park however will bear the ultimate burden to prove that the barrier removal is not readily achievable. This will be determined on a case- by-case basis for each individual park. The 1991 Regulations pro- vide examples of steps that may be "readily achievable" according to the Department of Justice.

So, how do you lessen the chance of your park becoming a "tar- get" of an ADA lawsuit? There are no "bright lines" as to whether a park has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent park owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the park has any ADA issues and how they should or could be addressed. California has implemented a Certified Access Specialist ("CASp") training and licensing program, which provides incentives (i.e., some protections from lawsuits) for property owners who conduct a CASP inspection. Another, and more conservative approach would be to simply make sure that all of the park facilities are "ADA compliant," even if, technically and legally, you may not be required to do so. Little things can make a big difference in your park. Examples of ADA compliance include: levers on the entrance doors; levers on bathroom doors and fixtures; bathroom fixtures at proper height; proper bathroom accessories; doorways that accept wheelchair access; bathrooms that accept wheelchair access; counters at correct height for wheelchairs users; alternatives (ramps/elevators) to steps into the clubhouse and office; acceptable transitions (no lips) at doorways (interior and exterior); accessible parking and van access spaces; acceptable transitions (commonly referred to as "curb cuts") to sidewalks at street junctions and accessible parking; and acceptable inclines from parking areas to the park's "public accommodations," to name a few.

Your ADA consultant can walk your park and let you know what facilities do and do not comply with ADA. Making the necessary improvements will be money well spent, and potentially "ward off' ex- pensive litigation, which litigation, in all probability, will not be covered by your general liability insurance policy. You might also want to turn this into a "PR plus" for your park - i.e., tell your res- idents about the improvements after they are done! However, such actions may not be right for every park. The park owner should first discuss ADA considerations with its legal counsel to determine what the right course of action is under the particular circumstances.

In addition, insurance is playing an ever more important role in protection against ADA claims. More and more often, ADA plain- tiff lawyers are adding causes of action for negligence and alleging bodily injury to trigger the potential for coverage under the park owners CGL policies. Our recommendation is to tender any ADA claims to your carrier immediately. In addition, some insurers now offer what is known as "tenant discrimination" insurance, which may pro- tect the park owner in the event of an ADA claim since the ADA claim is a civil rights claim. We suggest all park owners speak with their industry insurance broker about possible insurance protection.

John Pentecost is a partner with Hart, King & Coldren, a law firm located in Santa Ana, California. His practice focuses on representation of mobilehome parks and recreational vehicle parks, as well as park owners, throughout the State of California. He can be reached at jpentecost@hk-claw.com

Reprinted with permission from "The Journal", August 2013

On July 26, 1990, President Bush signed into law the Americans with Disabilities Act ("ADA"), The Americans with Disabilities Act Accessibility Guidelines (the “1991 Regulations") were shortly thereafter developed to guide new construction and alterations undertaken by covered entities and established the minimum requirements for "accessibility" for disabled persons in buildings and facilities and in transportation vehicles. After more than twenty years, the Department of Justice implemented new regulations, which became mandatory in 2012 (the “2012 Regulations.”) Your state may have passed parallel laws, which could increase the protection of individuals with disabilities, e.g., the Unruh Act in California. However, this article focuses on Federal ADA compliance. Keep in mind that the ADA is a civil rights law, which addresses a number of subjects, but this article focuses on ac- cessibility (no longer called “handicap”) issues only.

A mobile home park owner might ask, "How about my pre-exist- ing park, does it need to comply with ADA issues?" Answer: "It de- pends." If your mobile home park pre-dates the ADA statute, and the Park has not gone through any significant renovations (deter- mined on a case-by-case basis), then the park may be "grandfathered in" in most cases. However, there can still be considerations of "reasonable accommodation" and "readily achievable barrier removal" under the ADA that could require a park owner to make modifications to existing structures and to make existing buildings "accessible" to the disabled. There may be no "grandfathering in" under these provisions of the ADA. In addition, if the park has undergone sub- stantial alterations/renovations, this could also trigger ADA com- pliance. A mobile home park owner might also ask “If my park needs to comply with ADA issues, then does the park have to comply with the 1991 Regulations or the 2012 Regulations?” Once again, the answer is “it depends.” There is a broad “grandfather” clause that exempts all building elements constructed in compliance with the 1991 Regulations until those elements are subject to a planned alteration.

So--is a mobile home park a "place of public accommodation" or not? The ADA defines a "public accommodation" to be "a private entity that owns, leases (or leases to), or operates a place of public accommodation." Examples of places of "public accommodation" include places of lodging; establishments serving food or drink; places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments; stations used for public transportation; places of public display or collection; places of public recreation; places of public education; social service center establishments; and places of exercise or recreation. Does a mobile home park fit within these descriptions? Based on discussions with ADA experts,the typical mobile home park does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the park's facilities are only open for the sole use and enjoyment of the park's residents, rather than the "general public." In some cases, however, a park's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the pub- lic." In addition, the park's office is necessarily "opened to the pub- lic" as persons, not otherwise residents of the park, are allowed in and, in fact, are invited in to inquire about available spaces and/or mobile homes in the park. One issue which has been “rearing its ugly head” recently in connection with what are referred to as “drive-by” ADA lawsuits is the inadvertent conversion of a “non-public” ac- commodation to a “public” accommodation. For example, if the park clubhouse is not open to the general public, but the park allows the clubhouse to be used as a polling station for elections, or for classes for the local college, or for swimming lessons in the pool, the park may have inadvertently converted the area to a “public” accommodation and will be required to comply with the ADA for the impacted area, e.g., pool or clubhouse. Even the “innocent” re- quest by one person to use the “private” restroom at the management office could trigger thousands of dollars in improvements to make the restroom “accessible”.

If the park has "public accommodations" which have "barriers" to "access," then the next consideration is whether the "removal of the barrier" is "readily achievable." Remember that these barriers apply to all sorts of disabilities, including sight and hearing, and not just accessibility for wheel chairs. The ADA generally defines "readily achievable" as easily accomplished and able to be carried out with- out much difficulty or expense. 42 U.S.C.S. § 12181(9). Federal courts have developed several factors in determining what is "readily achievable": (1) nature and cost of the removal; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and re- sources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including com- position, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relation- ship of the facility or facilities in question to the covered entity. Col- orado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The park however will bear the ultimate burden to prove that the barrier removal is not readily achievable. This will be determined on a case- by-case basis for each individual park. The 1991 Regulations pro- vide examples of steps that may be “readily achievable” according to the Department of Justice.

So, how do you lessen the chance of your park becoming a "tar- get" of an ADA lawsuit? There are no "bright lines" as to whether a park has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent park owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the park has any ADA issues and how they should or could be addressed. California has implemented a Certified Access Specialist (“CASp”) training and licensing program, which provides incentives (i.e., some protections from lawsuits) for property owners who conduct a CASP inspection. Another, and more conservative approach would be to simply make sure that all of the park facilities are "ADA compliant," even if, technically and legally, you may not be required to do so. Little things can make a big difference in your park. Examples of ADA compliance include: levers on the entrance doors; levers on bathroom doors and fixtures; bathroom fixtures at proper height; proper bathroom accessories; doorways that accept wheelchair access; bathrooms that accept wheelchair access; counters at correct height for wheelchairs users; alternatives (ramps/elevators) to steps into the clubhouse and office; acceptable transitions (no lips) at doorways (interior and exterior); accessible parking and van access spaces; acceptable transitions (commonly referred to as "curb cuts") to sidewalks at street junctions and accessible parking; and acceptable inclines from parking areas to the park’s “public accommodations,” to name a few.

Your ADA consultant can walk your park and let you know what facilities do and do not comply with ADA. Making the necessary improvements will be money well spent, and potentially "ward off' ex- pensive litigation, which litigation, in all probability, will not be covered by your general liability insurance policy. You might also want to turn this into a "PR plus" for your park - i.e., tell your res- idents about the improvements after they are done! However, such actions may not be right for every park. The park owner should first discuss ADA considerations with its legal counsel to determine what the right course of action is under the particular circumstances.

In addition, insurance is playing an ever more important role in protection against ADA claims. More and more often, ADA plain- tiff lawyers are adding causes of action for negligence and alleging bodily injury to trigger the potential for coverage under the park owners CGL policies. Our recommendation is to tender any ADA claims to your carrier immediately. In addition, some insurers now offer what is known as “tenant discrimination” insurance, which may pro- tect the park owner in the event of an ADA claim since the ADA claim is a civil rights claim. We suggest all park owners speak with their industry insurance broker about possible insurance protection.

John Pentecost is a partner with Hart, King & Coldren, a law firm located in Santa Ana, California. His practice focuses on representation of mobilehome parks and recreational vehicle parks, as well as park owners, throughout the State of California. He can be reached at jpentecost@hk-claw.com

Reprinted with permission from “The Journal”, August 2013

By: Rachelle Menaker is a partner with Hart, King & Coldren's transactional practice group. I. INTRODUCTION: OVERVIEW OF CURRENT LENDING CLIMATE FOR MHP'S Everyone knows that interest rates in re- cent years - in the wake of the financial melt- down that occurred in the mid-2008 to mid-2009 timeframe - have been at historic lows. While in the past few quarters of 2013 rates have crept up slightly, interest rates are still favorable from a historical perspective. Clearly, none of us have crystal balls as to how long rates will remain at these relatively attractive rates. So no guarantees on the duration of this favorable market for interest rates can be made. Nevertheless, if you either own a mobile home park (MHP") and you're considering a refinance

Answer: By way of refresher, ORS 90.630 pertains to curable maintenance/appearance violations relating to residents' spaces. However, if the violation relates to the physical condition of the home's exterior, ORS 90.632 applies, to address repair and/or remediation that can take more time to cure, either due to the weather, the amount or complexity of the work, or availability of qualified workers.

SB 277A, became law on June 14, 2017 ("Effective Date"), applies: (a) To rental agreements for fixed term tenancies - i.e. leases - entered into or renewed on or after the Effective Date; and, (b) To rental agreements for periodic tenancies - i.e. month-to-month tenancies - in effect on or after the Effective Date.

Both ORS 90.632 and the MHCO form (No. 55) provides that if the tenant performs the necessary repairs before the end of the compliance date, or extended compliance date, they have the right to give the landlord/manager a written notice that the issues have been corrected. There is no fixed time for management's response as to whether the repairs have been satisfactorily and timely performed; it is sufficient if it is within a reasonable time following the tenant's written notice. However, if a tenant gives this notice to management at least 14 days prior to the end of the completion deadline, or extended deadline, their failure to promptly respond is a defense to a landlord's termination of tenancy.

I am assuming the tenant gave you no such notice, otherwise, you would have responded that the color was too bright.

MHCO Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. As I said in an article last year on this form, '_you cannot expect the tenant to be a mind reader - just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity."

Is there a technical argument that since the requirement was not in the Form 55 Notice, that it is not effective? In other words, he complied with the Notice, but not the letter. As you said: "He did paint like we asked him, but it was not a color approved by management." I personally think such an argue is specious - assuming that the letter accompanied, or quickly followed the Notice.

But to the question whether you can proceed under the Notice, I don't think I would recommend that, because the Notice was complied with. Assuming you have some rule about pre-approval on painting in your rules, I would issue a 30-day notice.

If you do not have such a rule, you will likely have to tread lightly, as you may not be in a good position to declare a violation upon which to issue a termination notice. In other words, you should try to reach a compromise, which may result in some form of cost sharing. I'm sorry to reach this conclusion, but without the requirement of management approval somewhere (i.e. in the rules or the Form 55 Notice) you may find that it the tenant secures legal counsel, you options are limited.[1]

The cautionary tale here is to make sure that when issuing Form 55 Notice, you not only need to identify what the problem is, but all completely explain what is necessary to cure. Had the pre-approval requirement been set out in the Form, you would have at least had a reasonable argument of non-compliance. I say "reasonable" because there still remains an argument by the tenant that you are imposing a requirement (i.e. management pre-approval), that is not contained in the rules or rental agreement.

[1] There is an argument that the Letter was part of the Form 55 Notice, and therefore the tenant is in violation. However, unless one of them referred to this cross-reference, it is not a pitch I would try to make in court.

By: Phil Querin, MHCO Legal Counsel

Current Oregon Law. ORS 90.680 is the statute governing the on-site sale of homes in a manufactured housing community. It previously contained no limitations on landlords who required, as a condition of tenancy, that residents selling their homes must enter into a consignment agreement with the landlord. That will change on January 1, 2016.

New Oregon Law. ORS 90.680 is now amended as follows:
1. It defines the term consignment" to mean a written agreement in which a resident

authorizes a landlord to sell their manufactured dwelling or floating home in the

community for compensation.

1. It prohibits landlords from requiring as a condition of occupancy