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Phil Querin Q&A - Two Question on Children and 55 & Older Communities

Phil Querin

Answer to Question 1: Generally, no. However, this isn'ta license to be rude to them. Let's start with the basics: If you are a legal 55+ community, you are not required to admit as residents, persons with children, i.e. those under the age of 18. If there are children in the community (perhaps before the facility converted to 55+, or simply because less than 20% of all spaces are occupied by persons with children), the park may do things that it could not do if it was a family park, such as prohibit children's Big Wheels and bicycles in the street. Generally, however, the best approach is to strive for 100% compliance with the 55+ laws in terms of occupancy. If you want to be a "safe" 55+ community, you will have rules that expressly say so; a rental/lease agreement that expressly says so; application and tenant home sale provisions that limit spaces to at least one occupant 55+; and generally hold yourself out in all advertising as a 55+ community. Of course, seniors are permitted to bring children (e.g. grandchildren, etc.) into the community, but the rules may place limits on the amount of time they may remain there.

Answer to Question 2: You need to go through the formal rule change process described in the statute. A rule that is not legally enacted, isn'treally an enforceable rule. However, you should immediately issue a written notice to all residents that based upon legal advice, those rules (identifying them) that appear to be discriminatory against children, will not be enforced. If you own a family park and are concerned that your rules may appear to "target" children, you should consult with your attorney for advice on how to proceed. Note that even if your rules don't appear to target children, if they, in fact, affect the activities of children more heavily than adults, they could still be deemed to be discriminatory (e.g. occupancy limits). And if you are a family park, but you have over 80% of the spaces occupied by at least one person age 55 or over, you should ask your attorney about "converting" to become a legal 55+ community. Until you do, even though 99% of the community's spaces are occupied by seniors, you're still a family park, and subject to the anti-discrimination laws protecting children.

Phil Querin Question and Answer: Access

Phil Querin

Answer. Here is a summary of what you can and cannot do. The statute is found at ORS 90.725.

  1. A landlord or a landlord's agent may enter onto a rented space, not including the tenant's manufactured dwelling or floating home or an accessory building or structure, in order to:
  • Inspect
  • Make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, perform agreed yard maintenance, equipment servicing or grounds keeping or exhibit the space to prospective or actual purchasers of the facility, mortgagees, tenants, workers or contractors.

  1. The right of access of the landlord or landlord's agent is limited as follows:
  • Serving notices
  • Emergencies
  • Tenant-requested repairs or maintenance
  • Per a written yard maintenance agreement that requires the landlord to perform yard maintenance, equipment servicing or grounds-keeping for the space:

  1. In all other cases, unless there is an agreement between the landlord and the tenant to the contrary regarding a specific entry, the landlord shall give the tenant at least 24 hours' actual notice (doesn'thave to be in writing, but recommended unless exempted under No. 2, above) of the intent of the landlord to enter and the landlord or landlord's agent may enter only at reasonable times.

  1. The landlord or landlord's agent may not enter if the tenant, after receiving the landlord's notice, denies consent to enter. The tenant must assert this denial of consent by giving actual notice of the denial to the landlord or the landlord's agent prior to, or at the time of, the attempt by the landlord or landlord's agent to enter.

  1. A landlord shall not abuse the right of access or use it to harass the tenant. A tenant shall not unreasonably withhold consent from the landlord to enter.

  1. A landlord has no other right of access except:
  • Pursuant to court order;
  • As permitted by ORS 90.410 (2) (Waiver of termination of tenancy);
  • As permitted under ORS 90.539 (Entry to read submeter); or
  • When the tenant has abandoned or relinquished the premises.

  1. If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement pursuant to ORS 90.630 (1) and take possession in the manner provided in ORS 105.105 to 105.168 (Oregon eviction statutes). In addition, the landlord may recover actual damages.

  1. If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but that have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the reoccurrence of the conduct or may terminate the rental agreement pursuant to ORS 90.620 (1) (Termination by tenant). In addition, the tenant may recover actual damages not less than an amount equal to one month's rent.

Legislative Update: MHCO Pushes Tax Reform in MH Abandonment

Last month the 2014-15 Manufactured Housing Landlord-Tenant Coalition held it's first meeting in preparation for the 2015 Oregon Legislative Session. The coalition" meets once a month to discuss issues impacting manufactured home communities and has drafted legislation for each of the past Oregon Legislative session since the mid 1990's. MHCO is a regular participant with 4-5 MHCO Board members in attendance. Other participants include resident organization

Phil Querin Q&A: Leaky Water Pipes and Clogged Sewer Lines

Phil Querin

Answer A : First, the MHCO Lease cited above addresses this. Not fixing the leaks, which are their responsibility to do, is a violation. Secondly, ORS 90.740(f) requires that tenants "(u)se electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems. The tenant is using the water system in an unreasonable manner when they refuse to fix the leaks.

ORS 90.630 (Termination by Landlord) provides, in relevant part, the following:

(1) Except as provided in subsection (4) of this section, the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days' notice in writing before the date designated in the notice for termination if the tenant:

(a) Violates a law or ordinance related to the tenant's conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;

(b) Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing... .

ORS 90.630 goes on to explain that you may issue a 30-day written notice of termination, allowing the tenant to fix the leaks within 30 days and avoid termination. If they fail to do so, you may file for eviction. If they cure, but the problem occurs again within six months following the date of your earlier 30-day notice, you may terminate the tenancy within 20 days, and there is no opportunity to cure. MHCO has the necessary forms.

Be sure you have papered your file to support your contention that these are water leaks for which the tenant is responsible, and then specifically describe the violations (there are two of them, one under the Lease, and the other under the statute) in the Notice.

Answer B: This question is same as the prior one and the answer is the same (although the placement of the requirement may not be in the same location, depending on the date of your lease or rental agreement). Just make sure you have the evidence (e.g. plumber statement) before acting, and that you adequately identify the problem and solution in the Notice.

 

 

 

 

 

Bill Miner Q&A on New Mediation Laws - 7 Questions (Part II)

Bill Miner

Introduction and Background (Part 2 of 2)

As previously mentioned last week, SB 586 was developed by the Manufactured Housing Landlord/Tenant Coalition during 19 meetings (each of approximately 3 hours) from September 2017 through February, 2019. There are several pieces to SB 586; however, this Q&A focuses on the limited mandatory mediation policy together with the $100,000 annual grant the Legislature has authorized be allocated to the Oregon Law Center to assist manufactured and floating home tenants with understanding and enforcing the Oregon Residential and Landlord Tenant Act.

As was reported by Chuck Carpenter during the Legislative session, the goal from MHCO’s perspective, was to use the coalition to get the best possible result considering the political landscape in the Legislature. Bluntly, some of the original ideas proposed by the tenants in the coalition were quite onerous. The end result, however, is a true compromise that is favorable to MHCO landlords, all things considered.

If you would like to learn more about these issues and/or you have particular questions, please join me for my presentation at the 2019 Annual Conference in October. In the meantime here are 17 questions (10 questions were uploaded on 9/4/19.  The remaining 7 were uploaded 9/10/19) and answers that will get you started.

Can a tenant request a mediation after I send them a termination of tenancy notice?

Mediation can be requested after a notice terminating tenancy has been sent to a tenant, but only if the request is made to MMCRC or a designated mediator and a written confirmation of that request is delivered to you (the landlord) beforethe landlord files an action for possession under ORS 105.110. If the tenant delivers a notice requesting mediation before a landlord files an eviction action, the landlord may not file such action until after the mediation process concludes. If a landlord delivers a notice requesting mediation before a tenant files an action regarding a dispute, the tenant may not file such action until after the mediation process ends

 

Can I still accept rent during the mediation process?  YesNotwithstanding ORS 90.412, acceptance of rent or performance by a landlord after either party requests mediation and during the mediation process does not constitute waiver of the landlord’s right to terminate a tenancy following the mediation. Acceptance of rent or performance after the mediation process ends may constitute waiver. Additionally, all statutes of limitations are suspended during the mediation process. 

 

What happens after the mediation? If a mediation is successful, the parties should come to an agreement that resolves the dispute. The question is how enforceable is the agreement. Enforceability will depend upon the issues involved, the terms and how the agreement is drafted. I would encourage you to discuss with your legal counsel strategies on how to make the most of a mediation.For example, if an eviction action has already commenced, you may want to attempt to make the agreement a part of the ORS 105.148 mediation/agreement process. Another example is setting up an enforcement mechanism within the agreement itself.  

 

The CDRC or the designated mediator shall notify MMCRC of the successful or unsuccessful outcome of the mediation. The parties and the CDRC or mediator are not required to give a copy of any mediation agreement to MMCRC.

 

If a mediation is not successful, the parties may continue on the path they were on before the mediation. 

 

This sounds expensive, who is paying for it?Mediations will be performed by the existing network of CDRC mediators, funded by the existing annual assessment already paid by tenants ($10, collected with property tax assessments).  If the parties choose a private mediator, then the parties will have to determine how that mediator is paid. Additionally, the current annual fee paid by park landlords ($25 for parks of 20 spaces or fewer, $50 for larger parks) is doubled.

 

Very interesting (as always), Bill, but what’s this about $100,000 annual grant to the Oregon Law Center?As you may be aware, some states have allocated substantial funding to their state’s Justice Department or to create a team of private attorneys general to assist with enforcement of tenant rights. Similar systems were originally proposed by the tenants during coalition meetings and were strongly opposed by the landlord group. The ultimate compromise was a limited $100,000 per year grant to be given to the Oregon Law Centerto employ oneattorney to provide direct legal services to statewide park and marina residents on matters arising under the Oregon Residential Landlord Tenant Act.

 

Is mandatory mediation and the $100,000 per year in perpetuity? No. Both elements have a four-year sunset. An advisory committee has been created to monitor both elements, consisting of equal numbers of landlord and tenant representatives to present a report on the status of both elements to the 2021 and 2023 Legislatures to determine whether they should be renewed.

 

When does all of this go into effect? The effective date of SB 586 is January 1, 2020

Phil Querin Article: Terminations for Cause (Continuing vs. Distinct Violations)(MHCO Forms 43 & 43A)

Phil Querin

 

 

The Basics. Except where the physical condition of the home is at issue, a landlord may terminate the space rental agreement by giving the tenant not less than 30 days’ notice in writing if the tenant:

  1. Materially violates a law related to the tenant’s conduct as a tenant;
  2. Materially violates a rental agreement[1] provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy; or
  3. Is classified as a level three sex offender under ORS 163A.100.

 

Termination for Continuing Violations. In manufactured housing communities, the type of conduct that would make a tenant subject to this 30-day termination notice is the failure to maintain the space which is required under the rules or rental agreement. MHCO Form 43 would be used which – at the title states – is “for continuing violations only.” ORS 90.630(3)(d) defines this as conduct that is “constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing.”

 

This form is to be completed according to its instructions must specify, in detail, if necessary (including pictures if appropriate):  (i) the reason for the violation: (ii) the source of the violation, e.g., rules, rental agreement, statute, etc.; and (iii) at least one possible remedy. If the violation is cured within the 30-day period, the problem is solved. If it is not cured, the landlord has the right to then file for eviction (being sure to append the 30-day notice to the complaint). Taking photos of the condition upon which the notice is based on the date of the notice and the 31st day thereafter is essential for use in court.

 

Termination for Distinct Acts or Omissions. However, when the violation is a single event, such as speeding in the community; loud music or other disturbances; fighting; threats of violence, etc., things become more complicated since the landlord does not want to give the tenant 30 days to stop engaging in the offensive activity.  For that reason, landlords must use MHCO Form 43A for violations that constitute a “distinct act or omission.”

 

The protocol in completing this form is much different than Form 43 and must be followed carefully; it can get confusing. Here it is:

 

  1. The “Deadline” to correct the violation can be no sooner than the 4th day after the date of the notice if hand-delivered or mailed and attached, or the 7th day after the date of the notice if sent via regular mail. (Although not required by law, it is recommended that landlords obtain a certificate of mailing from the post office if regular mail is used.)

 

  1. Similar to Form 43, in 43A the basis for the violation (e.g., rules, rental agreement, etc.) the violation, and the event(s) to cure must also be specified with particularity.

 

  1. If correction does not occur by the Deadline, the tenancy automatically ends on the “Termination Date” which must be at least 30 full days after the date of the notice.  Thus, if the tenant is not out by the Termination Date, the eviction may be filed.  Filing for eviction before the Termination Date would, in my opinion, be premature, since the tenant still has the right to remain at the space for the balance of the month. For repeat violations, see (iv) below.

 

  1. If substantially the same violation occurs within six months following the date of the notice (43A), the landlord may terminate with 20 days written notice to the tenant and there is no right to cure.

 

Conclusion.  The above discussion is a summary only. There are various nuances. Conduct by a pet or assistance animal is not included. Note there can be some overlap with conduct triggering the 24-hour notice statute under ORS 90.396 (which may be preferable if the conduct involves health and safety). Accordingly, if you have questions that are not answered by the above, check with you legal counsel before filing the notice and before filing an eviction based upon the notice.

 

[1] Note that rules and regulations are also considered a part of the “rental agreement.”

The "Red Flags" Rule: What You Need to Know

MHCO Note: At the time of this printing, the Federal Trade Commission still has the effective date for enforcement of the Red Flags Rule as December 31, 2010. Exemptions for specific industries have been granted as late as the first week of December 2010. MHCO and MHI are conducting research on this topic and will be providing additional information as it becomes available. The Federal Trade Commission link is http://www.ftc.gov/bcp/edu/microsites/redflagsrule/index.shtml and contains a lot of information that should be of interest to community owners and manufactured home community retailers. If you are subject to the new rule there is a template developed by the FTC for businesses at low risk for identity theft at this site. While we are still looking into this and monitoring developments in the Congress, it is likely that if a community owner is not billing for utilities, is not providing loans for residents purchasing homes, and is not acting as a retailer selling homes, they are not probably covered by the Red Flags Rule.

The "Red Flags" Rule: What You Need to Know

As of June 1, 2010 the Federal Trade Commission has begun enforcement of the 'Red Flags' rule which mandates creditors and financial institutions to implement identity theft prevention programs. It's important to spend some time discussing the rule, including what it is and what it means for you

The "Red Flags" Rule - In Plain English

The full title is this: "Identity Theft Red Flags and Address Discrepancies under the Fair and Accurate Credit Transactions Act of 2003" (FACT). It amends the Fair Credit Reporting Act (FCRA). The rule was written specifically for companies making loans, such as banks and commercial lending institutions, but a portion of it extends to rental property owners and managers since both rely on consumer reports (e.g. credit) that (1) ask for sensitive information, such as social security numbers, and (2) could turn up address discrepancies. The philosophy behind this rule is simple: sensitive information must be kept secure to prevent identity theft, and a discrepancy in address could indicate fraud.

The rule requires that "reasonable" policies be in place to prevent identity theft and to verify a person's identity when an address discrepancy is reported. In the case of address discrepancy, if the property manager can't work out the discrepancy, the rule says he/she is not to rent to this individual.

What the Red Flags Rule Means for Rental Owners & Property Managers

While the rule has caused some confusion, compliance is straightforward. More than likely, you're probably already in compliance since the only thing that rental owners or property managers have to show is that they have a "reasonable" process in place for preventing identity theft and for checking IDs, verifying IDs, and following up/asking about any discrepancies.

For example, how do you destroy electronic and paper records that contain sensitive information? Or how about this: if someone gives one address on his or her rental application, but the license lists another address, what's your policy for handling this situation? As long as you have reasonable policies in place, you're in compliance.

Do I need to create a special report if I suspect fraud?

The other commonly asked question about the Red Flags rule (beyond "how do I comply") is this: do we need to report suspected fraud? The answer - for better or worse - is no. If you believe someone is trying to perpetrate a fraud, there's no requirement beyond not renting to this individual.

Still Unsure About the Red Flags Rule? Contact Your Screening Partner

Laws, rules, and amendments result in legitimate questions and concerns, so we understand people's trepidation regarding the Red Flags rule. While it's true that you're likely already in compliance, it can't hurt to contact your screening partner and ask to review with them your policies and systems.

For full details, visit the FTC website at http://www.ftc.gov/redflagsrule

The information in this article should not be construed as legal advice. Always consult an attorney for questions regarding legal matters and compliance.

ScreeningWorks is a service of RentGrow, Inc. the resident screening experts (www.ScreeningWorks.com).

For more information please contact info@screeningworks.com or 888-401-7999.

Look for more information on this issue in future issues of MHCO's "Community Update". 

Comparison of Current Law to Compromise Legislation - (Community Sale Notification Process - Removal of "Right of First Refusal" Language from Current Statute)

Current Oregon law (adopted in 1989) already requires manufactured home park landlords/owners to notify park residents prior to a sale to another owner and to negotiate a possible sale to the residents. ORS 90.760, 90.800 to 90.840. Unfortunately, both landlord and tenant advocates recognize that the current law is seriously flawed and doesn't work for either side. HB 4038A fixes those problems.1.Under current law, it is unclear whether and to whom an owner must give notice of the owner's interest in selling the park, or what that notice must say.a. ORS 90.760 allows an undefined tenants association to give notice to the owner of its interest in buying the park before the owner indicates an interest in selling. Apparently, this notice is good forever, even if the tenants die/move or if there is a different owner. No-one keeps track of these notices. And tenants generally do not think about buying their park until there is some indication that the owner wants to sell, so they don't give the advance notice to the owner.b. ORS 90.810 appears to require notice from the owner even if the tenants have not previously notified the owner of their interest in purchasing the park.HB 4038A amends the law to require an owner to give notice to all tenants, without advance registration, or, if there is an active tenant group with which the owner has met during the past 12 months, to that group only, whenever the owner is interested in selling or has received an offer to buy which the owner is considering. And it defines what must be in the notice. And it requires that a copy go to the Oregon Housing & Community Services Department. And it provides a safe harbor for minor errors in giving the notice. Sections 1, 3(3).2. Under current law, owners are required to negotiate in good faith with the tenants and to give the tenants a 14 day right of first refusal to buy the park. ORS 90.820. a. This duty is completely open-ended, with no time limit on the duty or on the owner's duty to negotiate. b. Owners strongly dislike the concept of a right of first refusal. On the other hand, tenants think that 14 days isn't enough time. c. There is no provision regarding what financial information an owner must share with the tenants in the negotiations. d. There is no provision making shared financial information confidential, and no provision providing a remedy to owners if tenants violate a confidentiality duty. e. There is no provision regarding what steps the tenants must take in the negotiation. f. This duty would apply to an owner even if the owner has a time-sensitive offer from another buyer. g. Good faith" is not the right duty to apply in a commercial real estate transaction.The proposed legislation (HB 4038A) removes the right of first refusal language

Phil Querin Q&A: Air Conditioners

Phil Querin

Answer: I can find nothing in the state statutes specifically regulating the installation of air conditioning units in park homes or privately-owned homes. It is correct that some landlords forbid them to be installed in rental homes, presumably because of potential damage to the interior or exterior during installation; plus, there is the risk of a poorly installed unit falling on someone.

 

However, if you own your own home, I see no problems. I've never seen anything in any rules placing limitations on the installation of AC window units, and don't expect to. Subject to reasonable limitations on installation, andcompliance with applicable building and electrical codes, I don't see any issues.

 

 

Placing such limitations on residents would probably trigger an onslaught of "reasonable accommodation" requests, since many older people who are home-bound or in need of air conditioning during hot spells - even in Oregon - and for obvious health reasons, should be able to have it.

 

 

The only landlord issue I can see with window-installed ACs is appearance from the outside. If a unit is inoperable it should be removed before it becomes an eyesore. Subject to a landlord's reasonable limitations on placement (like satellite dishes), there are no other limitations that I'm aware of regarding installation of these units. I do suggest, however, before installing one, check with the manager just to make sure there are not issues you may have overlooked - especially concerning proper installation.