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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.

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.)

2. 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.

3. 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.

4. 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.”

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". 

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.

Introduction.  As most MHCO members may remember, ORS 90.630 had a “one-size-fits-all” approach to tenant violations. There was a 30-day cure period for all violations of the law, rules or rental/lease agreement, and if not cured by the 30thday following delivery of the notice, the tenancy was terminated.

The problem with that approach was that some violations consisted of isolated single acts, such as speeding through the park in violation of the community rules. This raised the question, what to do about repeat violations withinthe 30-day period? As long as the conduct ceased before last day of the 30-day cure period, was a tenant in compliance with the termination notice? Without getting into the reasons why I believe such an approach was incorrect, the issue is now moot.

Revisions to ORS 90.630. Pursuant to the new Landlord-Tenant Coalition Bill, SB 586, ORS 90.630 has been amended to specifically deal with single, isolated violations that are notof a continuing nature (such as, for example, the failure to maintain the space, or exterior of the home).

Although MHCO has made the appropriate changes to its forms, members are encouraged to review them in advance of using them. The protocols are different and may take some getting used to. We now have two forms, (a) one for “continuing” violations, and (b) another for those that consist of a single, non-repetitive act. There are also some changes to the statute that apply to both types of violations. Here is a summary:

1. All violations for which a notice is issued must be “material”. Although this term is not defined in the legislation, suffice it to say, you (should) know it when you see it. An isolated failure to mow the front yard one week is not a “material” violation that should trigger a 30-day notice of termination. That is what clean-up notices are for. 

2. The 30-day notice now must separately designate a “termination date”. It is not sufficient to say that the tenancy will terminate if the violation continues past the last day of the 30-day cure period. The MHCO form has been appropriately revised.

3. Conduct is “ongoing” if:

1. 1. It is “constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing”; and
   2. The violation does not involve a pet or assistance animal;
   3. If it is ongoing, the same rules apply as previously, i.e. there is a 30-day cure period (however now a separate “termination date” must be identified, which can simply be the date following the last day of the cure period – as long as it is specifically identified).

4. A critical difference with the separate conduct 30-day notice is that there are now two time periods.

1. 1. The resident has a cure period of “…at least three days after delivery of the notice.” If not so cured within that time (e.g. tenant continues to speed through park) the tenancy will terminate on a date at least 30 days following delivery of the notice. 
   2. Note: it will be important for management to specifically identify the date three or more days hence. Otherwise, the cure period would end on the designated termination date not less than 30 after the delivery of the notice (or 33 if sent by regular mail).

5. Similar to the ongoing violation, for the separate conduct violation, at least one possible method for correction must be identified.

6. The six-month period for the repeat violation (which, if it occurs, entitles management to issue a 20-day non-curable notice) has been corrected. 

1. 1. Previously, the 6-month period commenced from the date of delivery of the violation notice, which was effectively only a 5-month period. 
   2. The new law, and the new MHCO violation form, now begin 6-month period from the termination date designated in the notice. 

7. There were no other material changes to ORS 90.630, including the 3-strikes law.

Conclusion. On its face, the changes appear to address the isolated violation issue with a shortened cure period, and automatically terminating the tenancy within 30-days if not so cured. 

Since I was not present during the discussion of these changes at the Coalition, I cannot comment on the rationale that resulted in this approach. But I cannot help but feel that a resident who fails to cure within the 3-day period – and now has 30 days hang around the park before vacating – has little incentive to be on his/her best behavior. What more can management do to protect the safety and welfare of the other residents while the terminated resident remains in the community?  Perhaps the 24-hour notice provisions of ORS 90.396could be amended to address this issue.

The Calculation. Unless exempted by ORS 90.600, a Rent Increase for any calendar year may not exceedthe lesser of: (a) ten percent (10%) or (b) the sum of seven percent (7.00%) times the Current Rent (7% XCurrent Rent) plus the percentage change in the consumer price index (“CPI”) times the Current Rent (%of CPI Change X Current Rent), hereinafter collectively referred to as the “Rent Cap”).

Publication of Consumer Price Index (“CPI”): This is the annual 12-month average change in theConsumer Price Index for All Urban Consumers, West Region (All Items). It is published by the Bureauof Labor Statistics of the United States Department of Labor (“BLS”) at the end of September of each year. Landlords are to use the CPI numbers that are operational when the rent increase notice is sent.

If a rent increase notice is sent out before the September 30, 2023 numbers are out, then landlords must use the current calculation. The max rent increase will always be between 7.00% and 10% (between 7.0% and 9.9% if in Portland) subject to the Rent Cap if it applies. It does not apply if the certificate of occupancy of the dwelling is less than 15 years, or it is on a state/local/federal affordable housing program.

MHCO Form 49. We will be amending the form before the end of September when the new CPI numbers are released. The 2023 numbers will be operational until Sept 30, 2024. [1]

Form 49 is a 90-day notice. If landlords wait until the new CPI numbers come out in late September, the earliest the rent increase would go into effect 90 days hence, so essentially January, 2024. Here are two examples:

• Assume I issue a 90-day notice on September 1. I am using the current MHCO Form 49 which uses the 10% cap (since SB 611 became effective July 6, 2023) because the CPI was 7.6%, and CPI + 7% = 14.6%. The earliest my rent increase could go into effect is December 1 (assuming manual delivery).
• Assume I issue a 90-day notice on October 1. I would be using an UPDATED Form 49 which would use the post-Sept. 30 CPI number to calculate the maximum cap. That cap will be between 7% and 10% depending on the September 30 numbers. The earliest my rent increase would go into effect is December 30 (assuming manual delivery)

[1] Note: Form 49 (and the ORLTA) specify a 90-day minimum, not a maximum. You can give as much additional notice as you want. You can issue a notice now that increases rent on Jan 1, or you can wait until the new CPI numbers come out and issue a notice 90-day notice for January 2024. Just don’t forget that the 10% cap has applied since July 6, 2023.

By: Mark Weiner

      CFO, Monolith Properties

       E-mail:  mark@monlithparks.com.

       Phone:  916-292-9473.

The world of commercial mortgage can be quite intimidating for those who only enter the arena every ten years or so when their loan reaches maturity. Luckily for us MHCO members there are many commercial mortgage industry experts who are also MHCO members and available to assist you with your Manufactured Home Community (MHC") financing needs.

The Fair Housing Act and Section 504 of the Rehabilitation Act prohibit housing providers from denying or limiting housing to persons with disabilities and from refusing to make reasonable accommodations in policies or practices.

The case came to HUD’s attention when the resident, who uses a wheelchair, filed a complaint alleging that his request for an assigned parking space in the development’s garage had been denied. The resident claimed that the owners and manager subsequently allowed him to park in non-assigned accessible spaces in the garage, but they denied him the key that’s necessary to enter the garage and to use the elevator. As a result, each time the resident wanted to enter the garage, he allegedly had to wait for another resident to open the gate, then follow that person in so he could use the elevator. The housing providers denied that they discriminated against the resident.

“To a person with mobility limitations, a designated parking space can mean the difference between merely living in a development and truly being able to call a place home,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue working to ensure that housing providers meet their obligation to grant the reasonable accommodations persons with disabilities need and are entitled to under the law.”