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The last two weeks in the Oregon Legislature have been hectic.  Yesterday was the deadline for bills in their originating chamber to move out of that chamber.  In other words, House bills need to be out of House Committees and Senate bills had to be out of the Senate.  This results in a large number of legislative proposals not moving forward which almost always is a good thing.  The ten days leading up to this deadline is intense with lots of last minute proposals struggling to move out of committee.

HB 3016 Coalition Bill - Sails Out of Oregon House

There are three legislative proposals MHCO has been closely monitoring and lobbying.  The first is the coalition bill with the language on past due taxes on abandoned homes (HB 3016).  MHCO enthusiastically supports this bill - it is our top legislative priority.  As reported earlier this week the this legislative proposal passed out of the Oregon House of Representatives on a unanimous vote (60-0) in favor. 

HB 2564 - Rent Discussions

Unfortunately, the issue of rent in manufactured home communities received traction in both the House and Senate over the past 10 days.  In the House a proposal on inclusionary zoning (HB 2564) started to attract some discussion on rent and indirectly rent control.  HB 2564 lifts the  statewide preemption on inclusionary zoning (ORS 197.309) in Oregon.  As the discussion on this legislation moved forward it attracted interest in repealing the statewide preemption on rent control (ORS 91.255).  The House did NOT add that language, but it was tangentially mentioned in the House floor debate.  Here are three excerpts from the HB 2564 House floor debate that are concerning:

• Rep Gallegos (D-Hillsboro)  - Colleagues while I am supportive of 2564

This is a multiple part series on a private owner of a Manufactured Home Community willingly attempting to sell that Community to an Association of tenants within that Community. Riverbend MHP is a 39 space community located within the city limits of Clatskanie, OR. The motivation of the seller was discussed in the first part. In this second part, the owner meets with the Deputy Director and the Real Estate and Cooperative Development Manager for CASA of Oregon. The framing, presentation and negotiation of the Agreement to Purchase" is discussed.

In this second part

The Manual on Uniform Traffic Control Devices (MUTCD) issued by the U.S. Department of Transportation and the Federal Highway Administration specifies the standards for all traffic signs. On both public streets and private property streets on which the public has access, signs must adhere to these standards. Regulatory signs, like stop signs and speed limit signs which are most likely present in your manufactured home community are covered by these rules. Where and how signs must be installed are described in this manual and several rules in particular may affect you and your community. The most recent standards added to the MUTCD specify the minimum height of a stop or speed limit sign and also what materials the sign must be made of.

Here are some important facts that you should be aware of:

• Minimum Height placement of a Stop or Speed limit sign must be 7 ft from the bottom of the sign to the ground.
• Stop signs must be 30" x 30", white letters, and the standard red octagonal shape.
• Speed limit signs must be 24" wide and 30" tall.
• All signs must be made of a high intensity reflective material to ensure nighttime visibility.
• The condition of the signs must be maintained so that they are easy to recognize and read.
• There is more information available on this topic and can be found on the Federal Highway Administration website: www.fhwa.dot.gov or by searching for the keyword MUTCD.

Article provided by Phil and Missy Sapp, Community Managers, Giadanj Estates and Terri Lynne MHPs and Adam Cook, President, Commonwealth Real Estate Services.

According to HUD, criminal background checks have a disproportionate impact on minority home seekers, largely due to disproportionate conviction and incarceration rates for minorities and others in protected classes. HUD's Guidance memo identifies methods of 'proof' that are used when analyzing a fair housing claim in the context of a housing provider who denies an applicant tenancy based in whole or in part on a criminal background check. .

In other words, even though tenancy is not denied based on direct discrimination against the applicant as a member of a protected class (race, religion, nation origin, etc.), background checks that reveal convictions could nevertheless, in HUD's view, have a disproportionately negative effect (disparate impact) on members of protected classes resulting in a discriminatory housing practice. HUD actually isn'toutlawing use of criminal background policies, but rather is aiming to prevent landlords, including Parks and Communities from using the background check information since use of these policies if that use ultimately has a discriminatory effect on people in a protected class.

HUD's New Guidance memorandum will certainly impact use of criminal background checks since many manufactured housing communities may learn that their own current policy on how to use applicant screening procedures may expose them to liability. This article will discuss two things: (1) how HUD evaluates denials based in whole or in part on use of a criminal background check; and (2) factors a community should keep in mind when formulating or employing a policy about criminal "history".

All communities are unique, and so too are the legitimate interests that a community must protect. A community's size, location, and its age all play a direct role in corresponding issues regarding safety, security, and/or criminal activity. A community's initial decision to even use a "criminal background check" policy in the first place rests largely on whether the policy will further that community's interests, be it safety, security, or crime prevention, and ultimately enhancing the living environment for all residents.

By and large, all communities share core interests. Among these are screening out financially unqualified applicants and minimizing risk to community residents by applicants convicted of recent violent crimes, drug related crimes, and/or crimes involving children,. Of course, the specific interest in maintaining a criminal background check policy varies depending upon the nature and characteristics of the community that justify the purpose.

If your community uses a "criminal background check,"here's how the typical scenario goes: Applicant seeks to lease a space, submits the required application with supporting documentation, and answers "yes" to having a prior felony conviction. Owner denies the application, on the conviction. Applicant, now angry, lodges a fair housing complaint alleging the community discriminated against him/her. Once that complaint is assigned, here's the 3-step analysis HUD will use to address the claim:

Step 1: The applicant must prove the background check policy has a discriminatory effect, meaning the policy results in a disparate impact on a group of persons in a protected class. Said applicant need only prove the policy "actually or predictably results" in a disparate impact. This will usually involve an extensive investigation of community residency applications reflecting a criminal conviction.

Step 2: If the applicant satisfies step 1, the community must then show the background check policy is justified, meaning the community must show: (a) that it has a substantial, legitimate, nondiscriminatory interest for screening an applicant's criminal background; and (b) running the criminal background checks achieves or furthers this interest.

Step 3: If the community establishes that the policy furthers a substantial interest, the burden shifts back to the applicant to prove the community interest could be served by another practice with a less discriminatory effect.

Simply put, it's a game of ping-pong with some vague standards of proof. So, what should communities do? Well, if you screen criminal backgrounds when deciding if an applicant qualifies, you should ensure that your policy stays within HUD's newly published requirements. Review your policies with your legal counsel to confirm this.

At a minimum, a community should keep the following important points in mind.

First, arrests are not sufficient. An actual conviction is required. There are also big differences between misdemeanor convictions v. felony conviction.

Second, blanket tenancy prohibitions for all convictions is not wise. Rather, a policy should focus on (1) what the conviction was for (i.e. nature and severity of the conviction); (2) when it happened (i.e. how much time has elapsed since the conviction, as recidivism risk decreases gradually); and (3) the applicant's post-conviction actions, particularly rehabilitation efforts. Keep a policy objective, with distinct standards.

Third, criminal background checks may be best when implemented as a final step in the application process, after a rental history overview, a credit check, and references. There may be applicants who do not meet a community's standards based on these other criteria, meaning a criminal background check may not be needed.

While HUD guidelines are national and set a base standard, some states may further regulate the application process by statute, meaning a community must comply with stricter standards. As always, it is important to work with your legal counsel to ensure you comply with specific standards applicable to your state.

No community wants to be on the receiving end of a discriminatory housing claim. To avoid the potential pitfalls of a "criminal background check" policy, communities should develop and employ policies in close consultation with legal counsel.

Ryan Egan is a litigation associate with the Southern California law firm, Hart King, and is a member of the firm's Manufactured Housing Industry Practice Group. You can reach Ryan directly at 714.432.8700 ext.332 or at regan@hartkinglaw.com. This article is for general information purposes and is not intended to be and should not be taken as legal advice for any reader.

Answer: Since the tenant does not own the home, the answer is found on the general landlord-tenant side of ORS Chapter 90 (as opposed to the manufactured housing side). Here is a summary of the tenant duties under ORS 90.325: - Use the parts of the premises including the living room, bedroom, kitchen, bathroom and dining room in a reasonable manner considering the purposes for which they were designed and intended. - Keep all areas of the premises under control of the tenant in every part as clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, as the condition of the premises 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 the problem. - Dispose from the dwelling unit all ashes, garbage, rubbish and other waste in a clean, safe and legal manner. With regard to needles, syringes and other infectious waste, as defined in ORS 459.386, the tenant may not dispose of these items by placing them in garbage receptacles or in any other place or manner except as authorized by state and local governmental agencies. - Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits. - Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances including elevators in the premises. - Test at least once every six months and replace batteries as needed in any smoke alarm, smoke detector or carbon monoxide alarm provided by the landlord and notify the landlord in writing of any operating deficiencies. - Behave and require other persons on the premises with the consent of the tenant to behave in a manner that will not disturb the peaceful enjoyment of the premises by neighbors. The underscored portion above clearly applies. The next question is the right of access. That is covered in ORS 90.322. The statute is quite long and complicated. Here is a summary of the relevant portions applicable to your situation: - A landlord or, to the extent provided in this section, a landlord's agent may enter into the tenant's dwelling unit or any portion of the premises under the tenant's exclusive control in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, perform agreed yard maintenance or grounds keeping or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers or contractors. The right of access of the landlord or landlord's agent is limited as follows: - In case of an emergency, a landlord may enter the dwelling unit or any portion of the premises under a tenant's exclusive control without consent of the tenant, without notice to the tenant and at any time. "Emergency" includes but is not limited to a repair problem that, unless remedied immediately, is likely to cause serious damage to the premises. If a landlord makes an emergency entry in the tenant's absence, the landlord shall give the tenant actual notice within 24 hours after the entry, and the notice shall include the fact of the entry, the date and time of the entry, the nature of the emergency and the names of the persons who entered. - If the tenant requests repairs or maintenance in writing, the landlord or landlord's agent, without further notice, may enter upon demand, in the tenant's absence or without the tenant's consent, for the purpose of making the requested repairs until the repairs are completed. The tenant's written request may specify allowable times. Otherwise, the entry must be at a reasonable time. The authorization to enter provided by the tenant's written request expires after seven days, unless the repairs are in progress and the landlord or landlord's agent is making a reasonable effort to complete the repairs in a timely manner. If the person entering to do the repairs is not the landlord, upon request of the tenant, the person must show the tenant written evidence from the landlord authorizing that person to act for the landlord in making the repairs. - A landlord may not abuse the right of access or use it to harass the tenant. A tenant may not unreasonably withhold consent from the landlord to enter. - If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement under ORS 90.392 and take possession as provided in ORS 105.105 to 105.168. In addition, the landlord may recover actual damages. You have two choices in this situation: (a) Declare an emergency and enter to remediate the problem, carefully following the provisions of the access statute; (b) Try to secure the tenant's consent to have an exterminator enter and remediate the problem; (c) Terminate the tenancy and then fix the problem. Note that if you seek consent and the tenant refuses, you cannot then enter under the emergency provisions of the law, since the tenant has already refused access. As for damages, yes you can recover the cost, assuming that the exterminator confirms that this was a tenant caused problem.

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

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

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

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

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

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

On December 13, 2021, the Oregon Legislature passed significant changes (SB891) to the process of non payment of rent.  MHCO requested attorney Phil Querin to do a complete analysis of the new laws and provide guidance to owners/operators of manufactured home communities in Oregon.  Phil's complete analysis is attached above - just click: "Non Payment of Rent Guidance/Analysis as of December 20, 2021 by Phil Querin" above this paragraph.  MHCO is currently working on a new flow chart and revised forms - to be posted later this week.

Answer:   Does the former tenant have issues other than his lack of fiscal responsibility?  You could prevent him from being a temporary occupancy based upon prior conduct, etc., but not regarding his failure to pay rent, since “in theory” a temporary occupant is not one who is sharing rent, etc. The statute (ORS 90.275) does not permit you to vet a person’s financial/employment status if they want to be a temporary occupant.  If the guy has other negative issues, you can decline to put him on a temporary occupancy agreement if they are substantial and material.

The following is a summary of a recent conversation I had with the Fair Housing Council of Oregon on the issue of whether landlords can put “caregivers” on Temporary Occupancy Agreements, rather than putting them on a Rental Agreement (or not putting them on any written agreement - which leaves in doubt their legal status if the Landlord wants them removed from the Community).

1. If the assistance provider doesn’t qualify based on the background check[1] then you don’t have to accept them into the Community;
2. If they violate rules of the community when they are already in the Community you can require they leave. (Of course if they are not on an Occupancy Agreement, this could mean removing the tenant if the caregiver refuses to leave, and the tenant doesn’t force them to do so);

• You can pre-qualify the current tenant as to their need for a care provider, i.e. require a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
• If they can’t provide that proof, then you don’t have to allow them into the Community as a care provider (although I can’t imagine it would be very hard to obtain such proof);
• You have to give the current tenant a choice (assuming the person qualifies under the background check), i.e. they can be on an Occupancy Agreement or go onto a Rental Agreement.  You can’t automatically say, “OK, you must go on an Occupancy Agreement.”
• It is believed that if the tenant understands the risk of allowing the caregiver to be a tenant (i.e. if the caregiver is disruptive, the current tenant may have to leave also), that they will voluntarily opt to put the person on the Occupancy Agreement. (Note: This doesn’t address the problem where the person doesn’t financially qualify to be on the Rental Agreement, but I suspect FHCO would say it’s a “reasonable accommodation” by the landlord to waive that financial requirement.)  This approach may be slightly unrealistic in those cases in which the tenant wants the caregiver there, and defers to what the caregiver says.

Your alternatives seem to be the following:

• If the current tenant wants them to be a care provider, can he/she establish its legitimacy?  If not, you can say no.
• If the current tenant wants them as a temporary occupant, and they have been a problem in the park you can say no; I believe this is so, even though they try to go the care provider route.
• If the current tenant wants them as a “tenant” you can say no because they do not have the financial capacity to pay rent (remember, you couldn’t say that if they were to be a temporary occupant).
• If you do agree to make them a temporary occupant, have everyone sign the Temporary Occupancy Agreement and put him on a 3 or 6 month term, to see how it goes.  You are under no obligation to renew – but if they are serving as a care provider on a Temporary Occupancy Agreement, you’d probably have difficulty not renewing unless there was a specific problem. (But if there was a specific problem, you likely would have already removed them.  Getting temporary occupants must be “for cause” e.g. a rules violation, but there is no 30-day right to cure.)

[1] Remember, you cannot require financial capacity if they are to be a temporary occupant, but you can if they are to be a tenant.

If the son is on parole, you may want to try to contact his parole officer. I fully suspect that there may be conditions of his parole that may apply to keep him out of the park.

At the risk of sounding harsh, it is a fact that "sexual predators" are not a protected class under the state and federal constitution. In short, you can have rules forbidding them to be in the park due to the proximity of children.

If you don't have such rules, you may want to enact some. But even though you don', I believe you did the right thing to require that he not occupy the home. You can and should do the same thing with regards to forbidding him to come into the park at all. If his family wants to see him, they can go to where he currently lives. The person(s) who has/have hired him to do odd jobs should be told that he cannot come into the park for ANY reason.

If you wonder whether this can be done without some specific rules, my response is that I would prefer rules to be in place. But even though you presumably have nothing on point, it would not stop me from banning him from the park. If he legally objects and wins, then it was a court that said he could come in - not you. Your main duty is to the park residents and their children. Better to try to remove him and fail than not to try at all.

Lastly, for your information, ORS 90.630(1)(c) permits a landlord to terminate a tenant if it is determined that they are "a predatory sex offender under ORS 181.585 to 181.587." From your question, I could not tell whether the adult son was on the rental agreement, but if so, he is a "tenant." The statute is not clear whether it can be applied to only a single tenant, without terminating the tenancy of the remaining occupants. Of course, the statute doesn'taddress the larger issue of whether you may prohibit him from coming into the park, but I believe you are fully within your rights, as discussed above. However, you should first clear any such action with the park ownership, and they should secure legal advice on how to proceed.