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Answer:  It’s easy to get confused. There is a lot to remember.  Generally all of the answers are contained in ORS 90.630[Termination by landlord; causes; notice; cure; repeated nonpayment of rent].[1]Here is a short summary:

· The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ noticein writing before the date designated in the notice for termination if the tenant:

• 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[Tenant Obligations];
• Violates a rule or rental agreement provision;
• Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or
• Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534or 90.536.

· The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written noticespecifying the violation and the date of termination of the tenancy.  In such cases, the tenant does nothave a right to correct the violation – and the notice must so state. 

· Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period.  [Caveat: All three notices must have been validly prepared and delivered or served. – PCQ]The “three strikes” law is found at ORS 90.630(8)-(10).As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.

Answer:  It’s easy to get confused. There is a lot to remember.  Generally all of the answers are contained in ORS 90.630[Termination by landlord; causes; notice; cure; repeated nonpayment of rent].[1]Here is a short summary:

· The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ noticein writing before the date designated in the notice for termination if the tenant:

• 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[Tenant Obligations];
• Violates a rule or rental agreement provision;
• Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or
• Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534or 90.536.

· The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written noticespecifying the violation and the date of termination of the tenancy.  In such cases, the tenant does nothave a right to correct the violation – and the notice must so state. 

· Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period.  [Caveat: All three notices must have been validly prepared and delivered or served. – PCQ]The “three strikes” law is found at ORS 90.630(8)-(10).As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.

Answer. MHCO Form No. 21 (Pet Agreement) provides that:

*** in the event of breach of this Pet Agreement, subject to Oregon law, Management reserves the right, in its sole discretion, to: (a) immediatelyterminate this Pet Agreement and demand removal of the pet(s) and/or (b)terminate the Rental Agreement in accordance with ORS 90.630 or 90.400.[2]

So, if your tenant signed this form, one option you have is to demand removal of the pet. Alternatively, you could proceed under ORS 90.630.

However, your question points up a difference today between the continuing violation form (No. 43) and the one for distinct and separate violations. (No.43 A).

In the past, all violations were given the same period to cure, i.e., 30-days. But changes to the law in 2019 recognized a distinction between violations involving (a) ongoing conduct and (b) those involving separate and distinct events of misconduct. 

This made sense, since certain violations, such as speeding through the community, could violate a Rule, but once issued, had to be followed by another repeat violation notice for the second or subsequent violation within the next six months. 

Now that the law has bifurcated these two types of violations, MHCO developed the two different termination forms.

ORS 90.630 (Termination by landlord) provides, in part, that:

“*** (e)xcept as provided in subsection (5) of this section, the landlord may terminate a rental agreement for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days’ notice in writing before the termination date designated in the notice, if the tenant: *** (b) Materially violates a rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy;

It defines the two distinct types of conduct:

1. Ongoing Conduct:  *** (4) For the purposes of subsection (3) of this section, conduct is ongoing if:

      (a) The conduct is constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing; and

      (b) The violation does not involve a pet or assistance animal.[3]

2. Separate and Distinct Conduct: *** (B) If the violation involves conduct that was a separate and distinct act or omission and is not ongoing, at least three days after delivery of the notice;

      (d) [The notice must state] that the violation is conduct that is a separate and distinct violation and that the date designated for correcting the violation is different from the termination date; and

      (e) At least one possible method by which the tenant may correct the violation.

Discussion. You have treated the pet problem as “ongoing” and issued Form No. 43. But that form and the statute prohibit its use for pet violations. However, the statute does not impose such a limitation for separate violations. Accordingly, Form No. 43 A would be appropriate.  I agree that the distinction can be blurry, since repetitive single acts, such as speeding through the community, could be viewed as “ongoing.” But ignoring the niceties of the distinction, we can agree that the separate act of a pet violation, is best treated using Form 43 A.

However, the take-away here is that requiring the use of Pet Agreements is preferable; it has the benefit of finality, since it allows you to demand removal of the pet, rather than the tenant.[4]

Answer. What follows is a complicated answer to a simple question.

ORS 90.302 (Fees allowed for certain landlord expenses), Subsection (3) (b) (A) authorizes the assessment of a “fee” for noncompliance with written rules or policies governing, among other things, “(t)he late payment of a utility or service charge that the tenant owes the landlord as described in ORS 90.315” (Utility or service payments).

But that statute provides that the written rental agreement must expressly permit this fee. If it’s not in the agreement, ORS 90.302 (9) permits park owners to unilaterally amend it to impose noncompliance fees. A 90-day written notice must first be sent to the tenant.

But as occasionally occurs with legislation written by committees composed of disparate stakeholders, the sausage bill that results can become almost incomprehensible. That is the case with ORS 90.302(3) which describes a complicated implementation process, at best.[1]

If the above discussion isn’t sufficient in discouraging park landlords assessing fees for delinquent water charges, the information below should cinch the deal.

First, remember that the Oregon landlord-tenant law, ORS Chapter 90, is divided into two parts, (a) the non-manufactured housing side, and (b) the manufactured housing side. The latter side commences at ORS 90.505.[2]

Secondly, there is nothing in the manufactured housing utility billing statutes (ORS 90.560 – 90.584) which authorizes the assessment of a late fee for overdue utility charge payments. On the non-manufactured housing side, ORS 90.302 (3) (b) (A) does authorize the assessment of fees for late utility charge payments “… that the tenant owes the landlord as described in ORS 90.315.” (for utility or service charges).

Here is the conundrum: Does ORS 90.302 (3) (b) (A) refer to the utility charges described in ORS 90.315 or the obligation to pay the landlord as described in 90.315?

In ORS 90.560 (the definitions of utilities and services for the manufactured housing side of Chapter 90) it says that the term “utility or service” has the meaning given in ORS 90.315 (i.e., on the non-manufacturing housing side of ORS Chapter 90). The problem with this cross-reference is that the process for charging utility and service charges for manufactured homes and nonmanufactured homes are not the same – in fact, they are quite different.

For example, the procedure for billing utilities to an apartment tenant is described in ORS 90.315 (4) expressly does not apply to manufactured home tenancies. And the procedure for billing utilities to tenants in manufactured housing communities is set out in 90.562 (3) and (4).

Confused? Frustrated? Join the club! The best solution would be a legislative one, i.e., amend 90.302 (3) (b) (A) to include an express cross-reference to ORS 90.562 which would clarify the legislative intent to include both manufactured and non-manufactured housing.

Until then, there is room for disagreement on late fees for unpaid utility charges in manufactured housing communities; and disagreement can lead to litigation – something you don’t want. In the past I have seen park tenants bring claims against landlords for (allegedly) improperly imposed charges, fees, etc. The result is not pretty since each space may have a claim against the landlord for reimbursement of the past twelve months[3]of improperly assessed charges – plus attorney fees.

So, the short answer to your seemingly simple question, is that you do not want to risk assessing fees to residents for overdue payments of their water charges until the legislature clears up the confusion.

This is not to say you are without a remedy, but assessing a fee is not one I would recommend until the legislation clears up. Nonpayment of a utility or service charge is grounds for termination for cause under ORS 90.630. But beware, a landlord may not give a notice of termination under that statute for nonpayment of a utility or service charge sooner than the eighth day (including the first day it is due), after the landlord gives the tenant the written notice stating the amount of the utility or service charge.

Many thanks to John Van Landingham for his assistance in helping me detangle these statutes and their legislative history. Nobody has better institutional knowledge, perspective and understanding of Oregon’s landlord-tenant laws than John.

Answer. Under ORS 90.100(21), a "hazard tree" is one that:

1. Is located on a rented space in a manufactured dwelling park;
2. Measures at least eight inches DBH;[1] and
3. Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 (Issuance of license) and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.

ORS 90.727(5) provides as follows:

Except as provided in subsection (3) of this section, a tenant is responsible for maintaining the trees on the tenant's space in a manufactured dwelling park at the tenant's expense. (Emphasis added.)

So my take is that (a) if the trees qualify as hazard trees, the resident must maintain/remove them; (b) if the trees are technically not hazard trees (due to girth), the resident must still maintain them; and (c) if the resident declines to remove them, you should do so.

Given the recommendation of the arborist, you should contact the resident about having the trees removed at their expense. If the resident cannot afford the expense, you will have to work something out (e.g. cost sharing, or you remove them and seek reimbursement), since you cannot afford to allow this dangerous situation to continue, as it might endanger other residents.

ORS 90.740(4)(i) provides that it is the resident's responsibility to: "Maintain and water trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees as provided in ORS 90.727." Thus, the resident's failure to do so in this case would constitute a basis for your issuance of a 30-day curable notice of termination under ORS 90.630(1).

If the resident declines to do the removal, and decides to move from the community, you will have to make sure that the buyer of the home is aware of the removal responsibility. You could write that into the new rental agreement. (If you do not make it a condition of the rental agreement, and they are "hazard trees," the new resident will not had a duty to remove - you will at your cost.) My guess is that with your advance notice to the prospective purchaser, the cost of removal would be deducted from the sales price.

As for your insurance agent's less than sage advice, I respectfully disagree. If a dangerous condition exists on a space in the community and it is not remedied, even though it is the tenant's primary responsibility, you will be held liable if you permit it to continue. It may be an "Act of God" in your agent's mind, but it is a foreseeable risk waiting to happen in the eyes of the law. (Henceforth, I promise not to give advice on insurance coverage, if your agent promises to refrain from practicing law.)

[1] "Diameter at breast height" i.e. 4.5 feet. See: http://www.phytosphere.com/treeord/measuringdbh.htm

Fair housing law bans not only sexual harassment, but also harassment based on race or color, and other protected characteristics. As a general rule, community owners may be liable for illegal harassment by managers or employees, when they knew or should have known about it but failed to do enough to stop it. Moreover, the FHA makes it unlawful to intimidate, threaten, or interfere with anyone exercising his fair housing rights.

Take all necessary steps to prevent—and address—discrimination or harassment at the community. You don’t have only your employees or staff members to worry about—you could face liability for tenant-on-tenant harassment under certain circumstances. Under HUD regulations, communities may be liable under the FHA for failing to take prompt action to correct and end a discriminatory housing practice by a third party, where the community knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third party depends upon the extent of your control or any other legal responsibility you may have with respect to the third party’s conduct.

Example: In November 2019, HUD announced that it reached a $80,000 settlement to resolve allegations that the owners and manager of a Georgia community ignored complaints by African-American residents of repeated racial harassment by white neighbors.

Three African-American residents filed the HUD complaint, alleging that the community refused to investigate and address their claims that their white neighbors subjected them to racial harassment and verbal and physical assaults, including attacks by dogs. The community denied the allegations but agreed to the settlement requiring payment of $20,000 to each of the three residents and to create a $20,000 fund to compensate other residents who may have been subjected to racial harassment.

“No one should ever have to face threats or be subjected to physical violence in the place they call home because of their race,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “The agreement we’re announcing today is a reminder to housing providers everywhere that HUD is committed to ensuring that they meet their obligation to comply with the nation’s fair housing laws.”

UPDATE:

Tenant-on-Tenant Harassment

In the January 2020 lesson, Fair Housing Coach highlighted an appeals court ruling that a New York community could face liability under the FHA for failure to stop an alleged campaign of racial harassment against an African-American resident by his neighbor. In recent action, the appeals court agreed to a rehearing in the case; oral arguments are scheduled for September 2020.

In his complaint, the resident alleged that his next-door neighbor engaged in a months-long campaign of racial harassment, abuse, and threats against him. According to the resident, he contacted police and notified management about the neighbor’s abuse at least three times, but management failed to intervene. Ultimately, the neighbor was arrested and pleaded guilty to aggravated harassment.

The resident sued, accusing the community of violating fair housing law by failing to take action to address a racially hostile housing environment created by his neighbor. A district court ruled against the resident and dismissed the case.

After a series of proceedings, a panel of the appeals court reversed, ruling that the resident could pursue his claims against the community for intentional discrimination under the FHA by failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment [Francis v. Kings Park Manor, Inc., New York, December 2019].

Notice to Office of Manufactured Dwelling Park Community Relations. In addition to providing the notice as required by ORS 90.842[1] (Notice of sale of manufactured dwelling park), HB 2008 provides that upon sale of a manufactured dwelling park, or upon any sale, transfer, exchange or other conveyance of a manufactured dwelling park described in ORS 90.848 (Exceptions to requirements for sale or transfer of manufactured dwelling park), the owner must give notice of the conveyance to the Office of Manufactured Dwelling Park Community Relations stating:

• The number of vacant spaces and homes in the manufactured dwelling park;
• If applicable, the final sale price of the manufactured dwelling park (emphasis mine);
• The date the conveyance became final; and
• The name, address and telephone number of the new owner.

Comment: There are several transfers under ORS 90.848 to which disclosure of the "final sale price may not be applicable. For example: A gift; a transfer by a corporation to an affiliate; the liquidation of a partnership to its partners or limited liability company to its members; the conveyance of a trust deed to a lender as security for a loan; a conveyance resulting from the foreclosure of a mortgage or deed of trust; a transfer between joint tenants or tenants in common owning a park.

Manufactured Dwelling Cooperatives. HB 2008 also amends ORS 62.809 (Requirements for membership in cooperative), a statute I have little familiarity with.

A person may become a member of a manufactured dwelling park nonprofit cooperative if the person: (a) Is a natural person; (b) Owns a manufactured dwelling that is, or is to be, located in a manufactured dwelling park of the cooperative and occupied by the person; (c) Pays the membership fee required by the cooperative; and (d) Meets any additional membership qualifications established in the articles of incorporation or bylaws of the cooperative.

Membership in a manufactured dwelling park nonprofit cooperative entitles the member to rent space for a dwelling in the park and to occupy the manufactured dwelling. The total number of memberships available for issuance by the cooperative may not exceed the number of dwelling spaces in the park. Cooperatives issue one membership for each manufactured dwelling that is, or is to be, located in the park of the cooperative and occupied by an owner. A person may not own more than one membership in the same cooperative. Members may sell or redeem their membership in the cooperative, so long as it is for the price the member paid for the membership.

This legislation proves that if title to a manufactured dwelling located in the park of a cooperative is transferred to a lienholder, and a buyer of the dwelling from the lienholder or a person that acquired title from the lienholder does not become a member of the cooperative within 12 months after title is transferred to the lienholder, the owner of the manufactured dwelling must remove it from the park.

Under HB 2008, an owner of a manufactured dwelling is not required to remove the manufactured dwelling described above if the cooperative agrees with the owner in writing to: (a) Waive or extend the deadline by which the buyer or subsequent buyer must remove the manufactured dwelling; or (b) Store the manufactured dwelling on the space for a specified period of time.

The existing park-cooperative law allows for lienholders and a cooperative to enter into storage agreements for up to 12 months, under similar provisions as found in the current park abandonment law. (See, ORS 90.675(20)) HB 2008 now provides that the lienholder and cooperative may agree in writing to extend the term of the agreement beyond 12 months.

Effective Date. The Effective Date of HB 2008 is June 6, 2017. As for the increase in payments for manufactured homes, the new law will apply to park closures for which notice was given on or after the Effective Date. The amendments to the park-cooperative laws will apply to transfers of title and termination of memberships that occur on or after the Effective Date.

[1] Currently, the notice must include the following information: (a) That the owner is considering selling the park; (b) That the tenants, through a tenants committee, have an opportunity to compete to purchase the park; (c) That in order to compete to purchase the park, within 10 days after delivery of the notice, the tenants must form or identify a single tenants committee for the purpose of purchasing the park and notify the owner in writing of: (i) The tenants' interest in competing to purchase the park; and (ii) The name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

Answer: The general answer is "yes," both the park models and regular RVs can (and should) be treated the same with regard to landlord-tenant laws. However, there are certain regulations that you must follow to ensure that the park models fully qualify as "recreational vehicles" as defined by Oregon law.

First and foremost, a "recreational vehicle" is defined by statute (ORS 446.003 (33)) as a vehicle "with or without motive power that is designed for human occupancy and to be used temporarily for recreational, seasonal or emergency purposes" and as further defined by administrative rule. "Recreational vehicle" is then defined in various rules as (1) being identified as an RV by the manufacturer, and (2) not exceeding 400 square feet in the setup mode, including all tip-outs, slide-outs, expandable rooms, and other horizontal projections.

However, this does not mean that park models cannot be equipped with various accessory structures like decks, steps, porches, roof overhangs and other similar construction. The guiding rule is that these external structures cannot be supported by the RV itself and cannot be enclosed with walls, glass or other solid materials if that would exceed the maximum allowed gross floor area of the RV.

While there are other construction exceptions as well (basements, lofts, certain bay windows, freestanding cabanas, etc.), you should consult with a knowledgeable expert to carefully comply with these regulations. The primary Oregon Administrative Rules can be found at OAR 918-525 and 918-530, which are administered by the Oregon Department of Consumer and Business Services, Building Codes Division.

Assuming you meet the park model regulations, you can use the same rental agreement that you use with regular RV tenants. In many cases, MHCO Form 80 (RV Space Rental Agreement) will work just fine. In other cases, you may want to use a form specifically designed for your park - just make sure that it contains all of the required information, such as how accessory buildings and structures will be dealt with at the end of the tenancy.

In any event, an RV tenancy (unlike a manufactured home tenancy) can be terminated with a no-cause notice if the tenancy is month to month. If the tenant has been in the park less than a year, the no-cause notice period can be 30 days. After the first year of tenancy, the notice period must be at least 60 days. While you would certainly hope not to need to evict a park model tenant, since they technically live in "recreational vehicles," the law gives you that option as a landlord.

[Update: The Multnomah County Board of Commissioners has passed Ordinance 1296, which changed the 60-day window to 90-days for the Pause on Notices and Evictions, as described below. This Ordinance became effective on July 9, 2021 and only applies to tenants residing in Multnomah County. Timeframes are updated below.]

In mid-June, the Oregon Legislature passed another bill, SB 278 which accomplishes three things:

1) It provides a 60-day window in which a tenant seeking rental assistance may not be evicted for nonpayment of current (i.e., non-moratorium related) rents, charges and fees;

2) It provides a method for landlords impacted by the 60-day delay (discussed below) to recoup lost rents, charges and fees if the tenant does not qualify for rental assistance; and

3) It directs the Landlord Compensation Fund to pay the full 100% rent loss on applications to the program.

The Multnomah County Board of Commissioners recently passed Ordinance 1296. It made the following change to SB 278 for tenants residing in Multnomah County only: It extended the timeline following Landlord’s receipt of documentation of Tenant’s application for rent assistance from 60 to 90 days before which service of a 10-day Notice of Nonpayment of Rent or filing of an Eviction is permitted.

Notices and Evictions: 60-Day Pause (or 90 days if in Multnomah County)

Application. SB 278’s 60-day delay, and Ordinance 1296’s 90-day delay (for Multnomah County), for eviction proceedings only applies to notices of termination for nonpayment given on or after July 1, 2021.

My Definitions.

“Moratorium Debts” are any unpaid rents, charges, and fees that have accrued between April 1, 2020, and June 30, 2021. (This is my term; it is not in the bill. Many of the Legislature’s Bills refer to “nonpayment” but with different meanings.)

“Current Rent” includes any rents, charges and fees, described as a “Nonpayment” that come due on or after July 1, 2021. (This is also my term to avoid confusion. It is not in the bill.)

SB 278 Definitions.

“Nonpayment” refers to the nonpayment of sums due to the landlord, including payment of rent, late charges, utility or service charges or any other charge or fee described in the rental agreement, including the following statutory sums:

ORS 90.140 (Types of payments landlord may require or accept),
ORS 90.302 (Fees allowed for certain landlord expenses or tenant non-compliance), ORS 90.315 (utility or service payments),

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ORS 90.392 (termination of tenancy for cause),
ORS 90.394 (termination of tenancy for failure to pay rent),
ORS 90.560 to 90.584 (provisions for various utilities and service charges); or ORS 90.630 (termination by landlord: manufactured dwelling or floating home).

“Documentation” includes electronic mail, a screenshot or other written or electronic Document- ation from a rent assistance provider.1 The definition of “documentation” above is straight from the Bill and relates to the procedure whereby the tenant applies for rental assistance and receives a receipt which is provided to the landlord.

60-Day Termination Pause (or 90 days if in Multnomah County). A tenant who is falling behind (or is in danger of falling behind) in paying their Current Rent may apply for rental assistance and provide the appropriate Documentation to their landlord. Tenant need only demonstrate that he/she applied for rental assistance in order to receive the 60-day pause (or 90 days if in Multnomah County). Upon receipt of the Documentation the landlord may not, for the next 60 days (or 90 days if in Multnomah County):

• Deliver a termination notice for nonpayment, or
• Initiate or continue an action for possession (i.e., an FED) based upon a termination

notice for nonpayment.

Eviction Protection Notice. This is a new statutory notice regarding eviction protection that is required to be delivered with:

• Any notice of termination for nonpayment of rent; and
• Any summons for a complaint seeking possession based on nonpayment of any sums

due to the landlord which are classified under the term “nonpayment” as defined above.

The court system will translate the notice into Spanish, Korean, Russian, Vietnamese and Chinese. The translated notices will be available on their main webpage www.courts.oregon.gov. The court clerk is also required to mail these notices with any summons and complaint mailed to a tenant from the Court.

Tenant Delivery of Documentation. The tenant may deliver the Documentation (including but not limited to, copies, photographs, screen shots, etc.) by email, text message, or any other “method reasonably calculated to achieve receipt by the landlord.”

Timing of Documentation.

• If the tenant provides the appropriate Documentation prior to the Landlord issuing a

  notice of termination for nonpayment, the landlord must wait 60 days (or 90 days if in Multnomah County) after receipt of the Documentation to issue any notice of termination for nonpayment.

• If the tenant provides the appropriate Documentation after the issuance of a notice of termination for nonpayment the landlord may not act upon that notice of termination or initiate an FED action based on the nonpayment. In order to terminate a tenancy after

  1 The Housing and Community Services Department is funneling federal, state, and local funds to many different “rent assistance providers,” including public bodies, local governments, and subgrantees (i.e., agencies and non-profits). They will provide a receipt to verify the submission of an application for rental assistance.

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expiration of the 60-day period (or 90 days if in Multnomah County), the landlord must issue a new notice of termination
o If 60 days (or 90 days if in Multnomah County) elapsed since the landlord received

Documentation, the landlord need not provide a new Eviction Protection Notice.

(TIP: If in doubt about whether the new Notice was included the first time, include

it after expiration of the 60 or 90-day pause; there is no risk in doing so.)2
• If the Tenant provides Documentation to the landlord or the Court after the eviction proceedings have already begun, the court will stay the proceeding, and reschedule a first appearance for a date following the 60-day period (or 90-day period if in

Multnomah County). Trial may occur promptly thereafter.

Dismissal of Eviction for Nonpayment. The court shall dismiss an FED action based upon a notice of termination for nonpayment if:

• The landlord failed to provide the new Eviction Protection Notice;
• The landlord “substantially caused” the tenant’s nonpayment by refusing to

“reasonably participate with a rental assistance program”;
o Note: Landlord is not required to apply for the Landlord Compensation Fund, so

the failure to do so cannot be used to claim the landlord “caused” the tenant’s

nonpayment.
• The landlord receives rental assistance covering the rent owed under the notice; or
• The tenant had provided the Documentation before the FED (or action for

possession)was filed.

Penalties for Landlord Violation. A violation of SB 278 will result in the tenant being able to pursue injunctive relief to recover possession or address any other landlord violations and will give the tenant a defense in an action for possession.

Tenant Not Entitled to Costs, Attorney Fees, or Prevailing Party Fees. Actions dismissed under these rules will not result in a tenant recovering costs and fees if:

• The landlord delivered all required notices (i.e., the new Eviction Protection Notice)
• The landlord did not know, or have reason to know at the time of commencing the

action, that the tenant had already provided the required Documentation; and
• The landlord promptly dismissed the action upon becoming aware of the

Documentation (Note: All three must occur.)

Dated Receipts of Application for Rental Assistance. SB 278 also directs that all programs providing rental assistance will promptly provide a dated receipt for the tenant’s application.

Repeal. These SB 278 and Ordinance 1296 rules will automatically be repealed on March 1, 2022.

2 Note: The Eviction Protection Notice is called “new” because the previous Bill, HB 4401, also required a Notice of Eviction Protection (along with the Declaration of Hardship). However, this is not the same form, although the caption of the form also says, “THIS IS AN IMPORTANT NOTICE ABOUT YOUR RIGHTS TO PROTECTION AGAINST EVICTION FOR NONPAYMENT.” Essentially, SB 278 created a similar, but completely new form, that I have called the Eviction Protection Notice to avoid confusion.

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Landlord Compensation

Funding for the 60-Day Pause. SB 278 directs the Housing and Community Services Department to make funds available to a third-party provider (yet to be determined) to compensate landlords for their potential 60-day loss of revenue. To receive the compensation a landlord must demonstrate that:

• The tenant’s rental assistance application was denied; or
• Sixty (60) days have elapsed since the tenant provided their Documentation to the

landlord, and that the landlord has not received assistance.

[Note: Though Ordinance 1296 changes the 60-day window to a 90-day window for notices of termination and evictions for nonpayment in Multnomah County only, it does not make any changes to the portion of SB 278 that addresses landlord funding for the 60-day pause. It is unclear at this time how, or whether, the state will address Multnomah County’s rule in awarding funding for landlords whose tenants have not received assistance.]

Repeal of 60-Day Delay Compensation. Funding for landlords experiencing losses during 60-day pause will be automatically repealed on March 1, 2023.

Landlord Compensation Fund for Moratorium Debts. Originally HB 4401 provided that landlords could receive compensation for 80% of their tenant’s outstanding Moratorium Debts (rents, charges, and fees incurred between April 1, 2020, and the date of a landlord’s application to the fund – or June 30, 2021, at the latest). The last date to apply to the Landlord Compensation Fund (the “Fund”) was June 23, 2021.

To receive consideration for funding under HB 4401, the landlord had to agree to forgive 20% of the tenant’s debt. SB 278 now directs the Fund to pay 100% of the past-due rent due from qualified tenants that the landlord has not collected after April 1, 2020, and on or before the earlier of June 30, 2021, or the date of the application.

• Under SB 278 landlords are no longer required to agree to forgive 20% of their tenant’s Moratorium Debts.

• Landlords must still repay the Fund for any repayment of Moratorium Debts they receive from, or on behalf of, a qualifying tenant.

  Retroactive Application of 100% Coverage. The new rule requiring the Fund to pay 100% of past due Moratorium Debt applies to all applications approved on, before, or after the effective date of SB 278, which as an “emergency bill”, became effective on June 25, 2021, the date of the Governor’s signature.

  Furthermore, it directs the Fund to pay the remaining 20% of any applications for compensation already made under HB 4401 that were already approved prior to the passage of SB 278, without the need for an additional application.

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[1] The Housing and Community Services Department is funneling federal, state, and local funds to many different “rent assistance providers,” including public bodies, local governments, and subgrantees (i.e., agencies and non-profits). They will provide a receipt to verify the submission of an application for rental assistance.

[2] Note: The Eviction Protection Notice is called “new” because the previous Bill, HB 4401, also required a Notice of Eviction Protection (along with the Declaration of Hardship). However, this is not the same form, although the caption of the form also says, “THIS IS AN IMPORTANT NOTICE ABOUT YOUR RIGHTS TO PROTECTION AGAINST EVICTION FOR NONPAYMENT.” Essentially, SB 278 created a similar, but completely new form, that I have called the Eviction Protection Notice to avoid confusion.

The Fair Housing Amendments Act (FHAA) went into effect on March 12, 1989.  That Act amended Title VIII of the Civil Rights Act of 1968, which prohibited discrimination based on race, color, religion, sex or national origin in the sale, rental, or financing of residential housing.  The FHAA added two additional protected classes; (1) persons with disabilities and (2) families with children.  Children include persons under the age of 18 years.

Virtually all forms of “familial discrimination” became illegal under the FHAA, such as the refusal to rent to tenants because they had children; imposing different terms or conditions of rental depending upon whether they had children; discouraging persons from living in a manufactured housing community if they had children, etc.

The FHAA created certain exemptions, or “safe harbors,” from the prohibition against familial discrimination.  The primary one, embraced by many manufactured housing communities, was the 55+ age exemption.  On May 3, 1999, the Housing for Older Persons Act (HOPA) became effective.  HOPA substantially relaxed the earlier highly restrictive – and unworkable - requirements initially established by the FHAA for housing providers to qualify for the 55+ exemption.   Under the FHAA and HOPA, a housing provider may now, without fear of violating the law, legitimately refuse to rent or sell to persons with families, if the provider properly qualifies under the 55+ exemption.

Currently, in order to qualify for the 55+ exemption under the FFHA and HOPA, a community must:

1. Be intended and operated for persons age 55 or over.  This intent can be met by such things as (1) The manner in which the community is described to prospective residents; (2) Advertising designed to attract prospective residents; (3) Lease or rental provisions; (4) The written rules and regulations; (5) Consistent application of the rules, regulations and procedures; (6) Actual practices; and (7) Publicly posting statements describing the facility as a 55+ community.   The age verification procedures must be updated every two years.  This means maintaining a complete file on each space, including with the tenant application updated information, circulated every two years, confirming the names and ages of all persons who are currently residing in the home.
2. Have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.  Generally, communities strive to be over 80%, since falling below 80% means immediate disqualification.  Does this mean that the 20% margin must be reserved for families with children?  The answer is “No.”  In fact, a 55+ community may to strive for 100% occupancy by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age or older?  Again, the answer is “No.”  If desired, the community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   Similarly, the community can make the 55+ requirement “more restrictive” e.g. by either saying EVERYONE has to be 55+ or that the minimum age must be OVER 55+.  The only limitation by the federal government is that the age requirement can’t be LESS restrictive, e.g. under 55, or less than 80% occupied. However, it is important for park owners and managers to make sure that all such age/occupancy requirements be properly reflected in the community’s rules and statement of policy – and be consistently applied. 
3. Publish and adhere to policies and procedures that demonstrate an intent to be operated as a 55+ community. This requirement is fairly self-explanatory.  The community must make sure that in all that it does, from its advertising, rules, rental agreements, and all other policies, always hold itself out in writing as a 55+ facility. 
4. Comply with HUD age verification of occupancy procedures to substantiate compliance with the requirement that 80% of the facility be intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older. 

When the FHAA was first enacted, it imposed an additional requirement mandating that all 55+ communities must have “significant facilities and services” meeting the needs of older persons.  This requirement quickly became a stumbling block for otherwise qualified housing providers from ever obtaining the exemption.  HOPA deleted that requirement, and imposed a transition period for facilities to attempt to meet the 80% requirement.  The period began on the effective date of the law, May 3, 1999, and ended one year later.  During that transition period, HOPA permitted communities that otherwise qualified – without the “significant facilities and services” requirement – to reserve space for 55+ applicants.  This meant that during the one year period, communities could legally decline to rent or sell to families without violating the FHAA.  However, communities that tried but failed during the one year transition, were then expected to commence renting and selling to families.

However, one major question still exists:  What about communities that, for whatever reason, did not qualify for 55+ status?  This would include those that tried but failed; those that never tried because they wanted to be a family facility; or those that were unaware of the HOPA transition period in the first place.  What if today, a community already has qualified under the 80% rule, but still holds itself out as a family facility?  Assuming that it does not discriminate in any respect against the existing families, nor against all those who have applied for occupancy, may it “convert” to a 55+ community, by holding itself out as such, and otherwise meet the HOPA requirements?  This is an open – but inviting  - question.  It would seem that if the community could meet the HOPA requirements in all respects (not because it discriminated in getting there, but simply by attrition of family occupants and the influx of more 55+ residents), it should be permitted to do so.  The process would be fairly simple:  Implement a rules change, combined with new published policies and age verification procedures, which confirm the 55+ status. 

One caveat:  Even though the Oregon landlord-tenant law does permit rules changes to implement material modifications in the parties’ bargain, there is a risk of possible argument by families in the community, complaining that they are now limited in the pool of available buyers for their homes.  However, it would seem that this risk could be remedied, by “grandfathering” those family residents in, thereby permitting them to sell their homes to other families.  This assumes, of course, that by doing so, the community would not jeopardize its 80%-20% ratio.  Before proceeding down this path, park owners are urged to contact their own legal counsel familiar with the FFHA and HOPA for advice and direction.

The above article is a discussion of the federal Fair Housing law governing 55+ communities.  The contents are not intended to constitute legal advice, and should not be relied upon by the reader as such.  All legal questions regarding this complicated and important law should be directed to legal counsel familiar with the area.

© Copyright 2006.  Phillip C. Querin.  No portion may be reproduced without the express written consent of the author.