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Answer. 659A.145 (Discrimination against individual with disability in real property transactions prohibited) prohibits the following;

Refusing to permit, at the expense of the individual with a disability, reasonable modifications of existing premises occupied or to be occupied by the individual if the modifications may be necessary to afford the individual full enjoyment of the premises. However, in the case of a rental, the landlord may, when it is reasonable to do so, condition permission for a reasonable modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.  (Emphasis added.)

See, also 42 U.S.C. § 3604(f)(3)(A). This is a relatively minor modification to the exterior of the home. You do not have to pay for the ramp or modification. You will want to require the tenant to agree in writing that when they vacate, they pay the cost to remove the ramp (assuming the new tenant will not need it).

As for what modifications would be “required by law” that landlord must pay, I would need specific facts. Assuming that the existing entrance and steps are code-compliant, the placement of the ramp would be at the tenant’s cost. If they were not code compliant, and the tenant wanted the ramp because it was safer and more accessible, I would say the law might place the cost of that modification on you.

Question: We just acquired a manufactured home in our community. I would rather sell it to a new tenant, but would consider renting it out or doing a rent-to-own. If I pursue rent-to-own option, will I be subject to the new SAFE Act?

Answer: Remember that the SAFE Act only applies if the seller/landlord is providing financing, and in doing so, is going to make a credit decision regarding the buyer's financial capacity.

In short, so long as you don't extend credit (which includes carrying back a security agreement or other form of installment payment contract) you're not subject to the Act. If you do a credit check for your prospective tenant, this would not be covered by SAFE. Make sure that your lease/option or rent-to-own paperwork is reviewed by legal counsel - and under no circumstances do you want to offer an extension of credit in the transactional documents. Under SAFE, if you extend credit for the purchase of the home you would have to be a Mortgage Loan Originator as described in the Act. I did an extensive summary (FAQs) on the SAFE Act, and you can link directly to it on the MHCO website.

However, on another note, you might want to consider what you are getting into as a landlord of mobile homes. First, you will be responsible for providing certain statutory essential services" which are far more extensive than if you were merely a landlord of the space. Additionally

1. How to Initiate Mediation or Informal Dispute Resolution

Mediation may be initiated by a Landlord, a Tenant or Group of Tenants. Either party may contact the mediation services available through: (a) park/marina manager, (b) Local Community Dispute Resolution Center (CDRC), or (c) Manufactured and Marina Communities Resource Center (MMCRC) hotline: 1-800- 453-5511 (Toll Free in Oregon) or email:hcs.mmcrc@oregon.gov or the MMCRC Website.

2. Disputes Eligible for Mandatory Mediation

• Those between the landlord and one or more tenants, initiated by any party.

• Those between more than one tenant as initiated by the landlord.

• Information dispute resolution, disputes between two tenants, initiated by either party. Consistent with statute, upon intake the CDRC will determine the eligibility of an issue for mediation (reference Section 6 below).

3. Good Faith Efforts

Participants must make good faith effort to: (a) schedule a mediation within 30 days after initiation: (b) attend and participate; and (c) cooperate with reasonable requests of the mediator.

4. Mandatory mediation only:

 If a party refuses to participate in good faith in mandatory mediation with another party, or uses mediation to harass another party, the other party:

(a) has a defense to a claim related to the subject of the dispute for which mediation was sought; and

(b) is entitled to damages of one month’s rent against the party.

Effect of Filing for Mandatory Mediation

Between the commencement and conclusion of the mediation:

• If the request for mandatory mediation is made before the landlord files a Forcible Entry5. 6.and Detainer, Oregon Revised Statute 90.767 calls for a “stay” or “toll” (suspension) of

any related court action until conclusion of the mandatory mediation.

• A party may not file a court action over the dispute until conclusion of the mandatory mediation; (c) tenant has continuing duty to pay rent; and (d) landlord’s receipt of rent does not constitute a waiver under Oregon Revised Statute 90.412(2).

5. Matters Subject to Mandatory Mediation

Except as provided in Section 6, below, the following disputes are eligible for mediation:

(a) landlord or tenant compliance with the rental agreement or Oregon Revised Statute Chapter 90 (Oregon landlord/tenant statutes); (b) landlord or tenant conduct within the Park/Marina; and (c) rule changes initiated under Oregon Revised Statute 90.610.

Matters Not Subject to Mandatory Mediation

Unless specifically provided for in a mediation policy established under this section, or agreed to by all parties, no party may initiate mediation for:

(a) Facility closures consistent with ORS 90.645 or 90.671.

(b) Facility sales consistent with ORS 90.842 to 90.850.

(c) Rent increases consistent with ORS 90.600.

(d) Rent payments or amounts owed.

(e) Tenant violations alleged in a termination notice given under ORS 90.394, 90.396 or

90.630 (8).

(f) Violations of an alleged unauthorized person in possession in a notice given under ORS

90.403.

(g) Unless initiated by the victim, a dispute involving allegations of domestic violence,

sexual assault or stalking or a dispute between the victim and the alleged perpetrator.

(h) A dispute arising after the termination of the tenancy, including under ORS 90.425,

90.675 or 105.161.

7. Confidentiality

Subject to Oregon Revised Statute 36.220 (confidentiality of mediation communications and agreements), all communications between the parties and mediator are strictly confidential and may not be used in any legal proceedings.

8. Limitations on Mandatory Mediation Process

Participation in mediation does not require any party to: (a) reach an agreement on any or all issues submitted; (b) participate in more than one mediation session; (c) participate foran unreasonable length of time in a mediation session; or (d) waive or forego any legal rights or remedies.

9. Designees for Parties

Any party may designate any other person, including a non-attorney(“Designee”), to represent the interests of that party provided that the Designee has complete written authority to bind that party to any resolution of the dispute reached in mediation. The Designee shall be equally bound by all rules of the mediation, including confidentiality.

10. Resolution/Nonresolution

The mediator shall notify Oregon Housing and Community Services whether a dispute was resolved but may not disclose the contents of any resolution.

This article was created by Oregon Housing and Community Services

The key is to recognize that a manufactured home community is not just a business enterprise; it is also a small town. The residents expect you to be, from time to time, something of a mayor, judge, law enforcer, mediator and diplomat - as well as bill collector and manager of buildings and grounds.

Simply stated, resident relations is the measure of how well, or poorly, the manager and resident get along in the rental community. Developing and maintaining good, positive relations is an important, on-going management challenge and opportunity. Positive resident relations are one of the most attractive features of well-managed manufactured home communities.

The results of good resident relations are:

1. It makes community living easier and more pleasant for management and residents.

2. It promotes a positive and enjoyable living environment which, in turn, generates community pride.

3. It encourages resident referrals. This is the most economical form of community promotion available.

4. It helps develop a good local reputation for the community in particular and the manufactured housing industry in general.

5. It discourages the need or desire for rent control and/or landlord-tenant legislation.

The right attitude in resident relations is the same as any personal relationship - whether with a friend, spouse, job supervisor, or community manager. In fact, developing positive resident relations is the Golden Rule of successful property management. This means being positive, fair, helpful, and communicative with residents and staff alike. Additionally, in all management matters, "Be firm, but fair - diplomatically" and "Be friendly to all, but friends to none." The community's rules ,regulations and statement of policy can be the keystone to good resident relations. If well designed, the rules and regulations as well as the statement of policy reinforce the community's image; if well written, they diminish chances of misunderstanding; if well understood, they reduce property damage and resident problems."

Positive resident relations is the Golden Rule of successful property management. Adopt that attitude and adopt the measures suggested. Developing good resident relations will come easily. Just remember to communicate accurately, briefly, clearly and concisely in everything you say and write.

The limitation on evictions after the first year of occupancy will likely have the biggest impact on landlords. During the first year of occupancy in a month-to-month tenancy, the landlord can evict a tenant with a written 30-day, “no-cause” notice. In a fixed-term tenancy, the landlord can similarly evict a tenant with a 30-day, no-cause notice at the end of the term IF the term falls within the first year of occupancy. After the first year, the new law essentially means that tenants can live in a rental unit for life unless they fail to pay rent, violate the rental agreement, or the landlord’s plans for the rental unit change substantially.

The main takeaway is that landlords should carefully evaluate tenants during the first year of occupancy to ensure that they would be good long-term tenants. If not, landlords should consider terminating the tenancy for no-cause before the second year of occupancy begins. There are some exceptions to the no-cause eviction rule after the first year, such as when a landlord intends to put the rental unit to a different use (i.e., to undertake substantial repairs, demolish the unit, move in family members, or sell the unit). Even then, the tenant can only be evicted with a 90-day notice and in some cases the landlord must pay the tenant one month’s rent to move out. There are also exceptions for tenants who live in the landlord’s primary residence as a tenant, or on the same property as the landlord (i.e., in a duplex).

Under SB 608, during any tenancy other than week-to-week, a landlord may not increase rent during the first year of the tenancy. After the first year, rent can only be increased with at least 90 days’ written notice. During any 12-month period, rent cannot be increased in an amount greater than 7% plus inflation as measured by the Consumer Price Index for All Urban Consumers, West Region. However, there are exemptions if the first certificate of occupancy for a rental unit was issued less than 15 years from the date of the rent increase, or if the landlord is providing reduced rent as part of a federal, state or local program or subsidy.

While most landlords would be content with 7% rent increases, the real danger is that this limit will be pushed downward by future legislatures. The 7% limit also prohibits landlords from quickly recouping large capital expenditures, such as unforeseen repair costs to their rental units. To guard against this, it seems likely that many landlords will set rents higher for new tenants, and/or regularly raise rents at 7% annually plus the CPI when they may not have done so before SB 608.

Mark L. Busch
Cornell West, Suite 200, 1500 NW Bethany Blvd
Beaverton, OR 97006
(503) 597 - 1309

mark@marklbusch.com

www.marklbusch.com

Answer:  This law has been around for several years, although it is my first opportunity to review it. This statute does not apply to manufactured housing communities, RV parks or  floating home communities. Rather, it applies to “planned communities.”

These are housing communities regulated under ORS 94.565, et seq. Essentially, they are akin to residential subdivisions that have a homeowner’s association form of governance, common areas, and periodic assessments or dues. All the homeowners own their homes and the lots they are sited on. This statute allows homeowners to install charging stations on their own property, subject to certain regulations by the HOA.

So, the short answer to your question is that since manufactured housing communities, RV parks and marinas are not planned communities because the residents do not own the underlying land, ORS 94.565 does not apply. However, it is conceivable that a park or marina might install charging stations on its common area for resident usage.

An initial question a community owner might have is, "How about my pre-existing community, does it need to comply with ADA issues?" Answer: "It depends." If your community pre-dates the ADA statute, and the community has not gone through any significant renovations (determined on a case-by-case basis), then the community 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 community 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 community has undergone substantial alterations/renovations, this could also trigger ADA compliance.

The next question is whether a manufactured home community is a "place of public accommodation." 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 manufactured home community fit under these descriptions? Based on discussions with ADA experts, the typical community does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the community's facilities are only open for the sole use and enjoyment of the community's residents, rather than the "general public." In some cases, however, a community's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the public." In addition, the community's office is necessarily "opened to the public" as persons, not otherwise residents of the community, are allowed in and, in fact, are invited in to inquire about available spaces and/or homes in the community.

If the community has "public accommodations" which have "barriers" to "handicap access," then the next consideration is whether the "removal of the barrier" is "readily achievable." The ADA generally defines "readily achievable" as easily accomplished and able to be carried out without 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 resources; (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 composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. Colorado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The community 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 community.

So, how do you lessen the chance of your Community becoming a "target" of an ADA lawsuit? There are no "bright lines" as to whether a community has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent community owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the community has any ADA issues and how they should or could be addressed. Another, and more conservative approach would be to simply make sure that all of the community 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 community. 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); handicap community and van access; acceptable transitions (commonly referred to as "curb cuts") to sidewalks at street junctions and handicap community; and acceptable inclines from community areas to public accommodations, to name a few.

Your ADA consultant can walk your community 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" expensive 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 community - i.e., tell your residents about the improvements after they are done! However, such actions may not be right for every community. The community owner should first discuss ADA considerations with its legal counsel to determine what the right course of action under the particular circumstances.

Rob Coldren is a founding partner of the MHI-member law firm of Hart, King & Coldren in Santa Ana, Calif. For over three decades, Mr. Coldren's practice has emphasized representation of mobilehome parks, recreational vehicle parks, as well as park owners and managers. He can be reached at rcoldren@hkclaw.com. John Pentecost is a partner with the firm and specializes in property rights and the law as it pertains to the manufactured housing industry. He may be reached at jpentecost@hkclaw.com. Both can be reached by phone at (714) 432-8700.

Answer: There is no specific law regarding this issue. However, you clearly understand the ramifications i.e. if a service or amenity is withdrawn, the inference usually is that the landlord has received some financial benefit. In this case, the "benefit" is that the landlord is no longer responsible for maintenance, and the resident is. My position generally is that this type of arrangement should net out to zero in cost/benefit to both sides. That is, here, if the cost of maintenance is shifted from the landlord to the resident, then there must be some offsetting benefit to the resident. If you believe you can allocate the estimated cost that has been shifted to the resident, e.g. $5.00 per month [I am using the figure as an example - I have no idea what the actual figure might be. - PCQ] then there would be a commensurate $5.00/month reduction in rent. The more difficult issue is whether you may "require" this. I doubt it. The residents never signed on to ownership of a park amenity when they commenced their lease or rental. In fact, a cynic would say that you're only doing this because of the condition or age of the carports. I'm not, but I'm suspecting this as a response from some if you attempted to "require" that all residents assume ownership of them. There is also the issue of the condition of the carports. Are you going to warrant to each resident that they are in good condition? Or, is this going to be an AS-IS sale? If the latter you most certainly cannot require they agree to take over ownership of carports when you decline to stand behind their quality. If the idea is that once bought, a resident could "upgrade" them, you need to think the idea all the way through. For example, any such construction must first be approved by Management. Are you going to require that all work must be performed by bonded contractors who have liability insurance and are licensed with the Construction Contractors Board? You will need to post a Notice of Nonresponsibility for construction liens. [I have seen liens imposed on park owned property for a resident's construction project that was (foolishly) approved by Management.] Are you going to permit residents to do the construction work themselves? If so, you must make clear that the work must be performed in accordance with all applicable laws and ordinances, especially the applicable building codes. Who is going to then monitor construction to make sure what was approved is what was built? Is the manager qualified to do this, and does he/she have time? Are you going to require the residents undertaking construction [either themselves or through a contractor] first sign an agreement to assume all liability and release the park and Management from damages? If a third party does the work, besides licensing, you have to make sure they have workers comp insurance (i.e. SAIF). You cannot assume all contractors have this insurance. The smaller the contractor, e.g. solos, the greater the chance they may have neglected to obtain workers comp. If there were an accident resulting in personal injuries, e.g. falling off the roof of the new garage, without SAIF, the injured worker could look to you. Lastly, what are you going to do upon sale of the home? I assume the resident will be selling title to the garage. Since the garage is affixed to the land, would assume a regular "deed" be given, as opposed to a bill of sale [as is common for personal property, such as a manufactured home]. So how is this going to work? Certainly, you don't want residents delivering deeds to the garage, since they actually don't own the underlying land. Yet once affixed to the land, the garage becomes a part of the land. You will certainly have to cover this issue if/when you undertake this program. It's possible that you would just give a revocable "license" or "permit" to the resident, allowing the use and construction, but not pure ownership. And be careful of a resident claiming that you owe them for the value of the improvement, since upon resale of the home, you might increase the space rent because of the "enclosed garage." In light of all the issues, it seems that if you decide to plow ahead with this idea, it seems to me that it should be voluntary, with adequate disclosures and releases per above, so that the resident can never say they had no choice in the matter. There is little question in my mind, that if you made this program mandatory, a court of law would not enforce it, no matter how ironclad.

We are now in day 9 of the 2016 Oregon Legislative Session.  Today is a major milestone for the session - after today House Bills NOT passed out of House Committees (and likewise Senate Bills in Senate Committees) are considered dead and will have to be reintroduced in the 2017 Legislative Session.  Bills in the House or Senate Rules Committee, Revenue and Ways and Means are the exception.  Which by the way, is our next stop in our 2016 Legislative journey.

There were two committee work sessions yesterday.  In the "Senate Committee Human Services and Early Childhood" the "inclusionary zoning" bill (SB 1533) was amended with a compromise between a large pool of interests - from cities, counties, realtors, home builders, housing activists etc.   The amendment eliminates the pre-emption on inclusionary zoning" - which cuts close to our pre-emption on rent control (ORS 91.225).  There had been rumors/discussions in the Capitol for the that the legislature would make adjustments to our rent control pre-emption.  It did not happen.  The committee never mentioned rent control.  The bill (SB 1533) passed unanimously out of the Senate committee to the Senate Revenue Committee.  SB 1533 allows construction excise taxes as part of the overall compromise hence requiring a detour to the Senate Revenue Committee.  (Side note: Some of the revenue generated by this legislation will go to Oregon Housing and Communities Services for affordable housing programs such as money for first time home buyers.  That money could be used for first time homebuyers in MHCs.  MHCO will look into this further.)

The second hearing and work session was in the ""House Committee on Human Services and Housing"".  The committee adopted the dash 11 amendment to HB 4143.  This amendment strengthens the RV exception which MHCO requested and exempts MHCs from the new regulations on apartments (such as no rent increase during the fist year).  The bill passed out of the Committee to the ""House Rules Committee"". The "Rules Committee" may also adopt some changes that would open up land outside the urban growth boundary for building of affordable house.  The committee may also make changes to the 90 day no cause notice setting it back to 60 days.    The dash 11 amendment was adopted and the committee voted along party lines with one Republican (Knute Buehler

A: The landlord did several things wrong:

(a) he/she failed to reduce the agreement to writing, saying, for example, that the niece had to comply with all of the rules and regulations, that she was responsible for the rent, and generally fully memorializing the arrangement.

(b) the landlord failed to fully qualify the niece and failed to have her sign a rental agreement (or occupancy agreement) before taking possession. However, none of this means that the landlord is not without a remedy.

The original resident is still the tenant under the rental agreement and still responsible for the rent. It is quite possible that the niece is also a "tenant" in a legal sense. The landlord could and should be sending out 72-hour notices to the space naming both the resident and the niece. If the landlord has the phone number of the original resident, he/she should let them know what is going on. Under 90.630 if three or more 72-hour notices are sent with any 12 month period, the landlord may then issue a 30-day non-curable notice of termination. I suggest at least 4 such notices, just to be on the safe side. A more risky (and untested) approach, is to simply issue a 30-day notice of termination under the general (i.e. non-manufactured housing section of the law) landlord tenant law. It is my opinion that the landlord would be within their right to do so, since the occupant is not the owner of the home and the owner of the home is not the occupant. The manufactured housing section of the law - which requires that all notices be "for cause" does not technically apply here because of this distinction. However, before proceeding down this path, the landlord should obtain legal advice.